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Exhibit 2.4
STOCKHOLDERS' AGREEMENT
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This STOCKHOLDERS' AGREEMENT (the "Agreement") is being entered into
this 18th day of December 1996, by and between DNX Corporation, a Delaware
corporation (together with its successors and permitted assigns, the "Issuer"),
Xxxxxx N.V., a Netherlands Antilles corporation ("Xxxxxx"), Xx. Xxxxxx
Xxxxxxxxxxx, acting solely in his capacity as trustee ("Rittershaus") pursuant
to an Agreement among Rittershaus, Xx. Xxxx Xxxxxx and Xxxx Xxxxxx, dated August
29, 1991 (the "Rittershaus Trust Agreement"), Xxxxxxx Xxxxxxxx, acting solely in
his capacity as trustee ("Xxxxxxxx" and, together with Rittershaus, the
"Trustees") pursuant to an Agreement among Xxxxxxxx, Xx. Xxxx Xxxxxx and Xxxx
Xxxxxx, dated March 22, 1990 (the "Xxxxxxxx Trust Agreement" and, together with
the Rittershaus Trust Agreement, the "Trust Agreements"), Xx. Xxxx Xxxxxx
("Barbut"), Xxxx Xxxxxx ("Xxxxxx"), Xx. Xxxx Xxxxxxxxx Xxxxxx ("Xxxxxx",
collectively with Xxxxxx, Barbut and Xxxxxx, the "Stockholders") and Xx. Xxxxxx
Xxx Xxxxxxxx ("Xxxxxxxx"), Xx. Xxxxx Xxxxxxxx ("Xxxxxxxx"), Ms. Xxxxxxxxx
Dune-Xxxxxx ("Xxxxxx"), Xx. Xxxxxx Xxxxxxxxxxx, acting solely in his capacity as
trustee (the "Employee Trustee") pursuant to a Trust Agreement between the
Employee Trustee and Xxxxxx dated December 12, 1989 (the "Employee Trust
Agreement"), and Xx. Xxxxxxx Xxxxxxxx ("Xxxxxxxx" and, together with Xxxxxxxx,
Dvorchik and Xxxxxx, collectively, the "Employee Stockholders").
RECITALS
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A. The Issuer, the Trustees and the Stockholders, among others, are
parties to each of (i) a Share Exchange Agreement (the "Exchange Agreement")
with respect to BioClin Europe AG, a Swiss corporation ("BioClin Europe"),
Xxxxxx N.V., a Netherlands Antilles corporation ("Xxxxxx"), and BioClin GmbH, a
German corporation ("BioClin Germany"), (ii) a Share Acquisition Agreement (the
"Acquisition Agreement") with respect to BioClin Institute of Clinical
Pharmacology GmbH, a German corporation ("BioClin Institute"), and (iii) a
Merger Agreement (the "Merger Agreement") with respect to BioClin, Inc., a
Delaware corporation ("BioClin/U.S." and, together with BioClin Europe, Xxxxxx,
BioClin Germany and BioClin Institute, collectively, the "BioClin Affiliates"),
each dated August 19, 1996 (the Exchange Agreement, the Acquisition Agreement
and the Merger Agreement collectively, the "Securities Exchange Agreements"),
pursuant to which the Issuer will, among other things, directly, or indirectly,
issue to the Stockholders (or to the Trustees on behalf of Barbut and Xxxxxx)
and the Employee Stockholders (or to the Employee Trustee on behalf of Xxxxxx)
shares (the "Acquiror Shares") of its Common Stock, par value $0.01 per share
(the "Common Stock").
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B. The Issuer has agreed to provide the Stockholders with the right to
designate one, or upon the earlier of March 31, 1997 or the next vacancy, two,
directors, for election to the Board of Directors of the Issuer (the "Board").
C. The Issuer has agreed to provide to the Stockholders and the
Employee Stockholders certain registration rights with respect to the Common
Stock.
D. The Issuer, the Trustees, the Stockholders and the Employee
Stockholders are entering into this Agreement to set forth the terms and
conditions applicable to such designation of directors to the Board, the grant
and exercise of such registration rights and certain indemnification
arrangements.
E. Capitalized terms used herein, unless otherwise defined herein,
shall have the meaning given to such terms in the Securities Exchange
Agreements.
NOW THEREFORE, for the consideration set forth in the Securities
Exchange Agreements and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the Issuer agrees with the Trustees
and the Stockholders as follows:
ARTICLE I
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DEFINITIONS
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1.1 As used in this Agreement, the following terms have the following
meanings:
(i) "AFFILIATE" means, as to any Person, another
Person which controls, is controlled by or is
under common control with, such Person;
(ii) "COMMISSION" means the Securities and
Exchange Commission.
(iii) "CUTBACK REGISTRATION" means any
registration in which the managing
underwriter advises the Issuer that
marketing factors require a limitation of
the number of shares of Common Stock to be
underwritten in such registration;
(iv) "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended, including the rules
and regulations promulgated thereunder;
(v) "PERSON" means a corporation, association,
joint venture, partnership, limited liability
company, trust, business, individual,
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government or political subdivision thereof,
or any governmental agency;
(vi) "PERMITTED INTERRUPTION" has the meaning set
forth in Section 3.8.
(vii) "PIGGYBACK REGISTRATION" means any
registration which is not a First Tranche
Requested Registration (other than a
registration on Form S-4 or Form S-8
promulgated pursuant to the Securities Act);
(viii) "REGISTER", "REGISTERED" and "REGISTRATION"
refer to a registration of Common Stock
effected by preparing and filing with the
Commission a registration statement in
compliance with the Securities Act and the
declaration or ordering of the effectiveness
of such registration statement by the
Commission;
(ix) "REGISTRABLE SECURITIES" means the Common
Stock issued or issuable to any Stockholder
(or to the Trustees on behalf of any
Stockholder) or any Employee Stockholder (or
the Employee Trustee on behalf of any
Employee Stockholder) pursuant to the
Securities Exchange Agreements; PROVIDED
that, as to any particular securities, such
securities will cease to be Registrable
Securities upon the first to occur of the
following: (i) such securities have been
sold to the public pursuant to a registration
or pursuant to Rule 144 promulgated by the
Commission pursuant to the Securities Act (or
any similar rule then in force); or (ii) such
securities have been exchanged, substituted
or replaced by securities that have been
registered under the Securities Act.
(x) "REQUESTED REGISTRATION" means a registration
requested under Section 3.2 by the
Stockholders.
(xi) "SECURITIES ACT" means the Securities Act of
1933, as amended, including the rules and
regulations promulgated thereunder.
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ARTICLE II
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DESIGNATION OF DIRECTORS
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2.1 RIGHT TO NOMINATE A DIRECTOR OF ISSUER. (a) The Issuer shall take
all actions reasonably within its power on or prior to the fifth (5th) business
day after the closing of the transactions contemplated by the Securities
Exchange Agreements (the "Closing") to elect to the Board one (1) member who is
designated by the Stockholders, and upon the earlier to occur of March 31, 1997
or the next vacancy on the Board, one (1) additional member who is designated by
the Stockholders (each person so designated, a "Stockholder Nominee").
(b) Each Stockholder Nominee, regardless of whether to be appointed or
elected, shall be reasonably acceptable to the Issuer, except that the Issuer
hereby agrees that Barbut and Xxxxxx are acceptable Stockholder Nominees.
(c) Notwithstanding any provision contained herein to the contrary, at
any time prior to the election of the second Stockholder Nominee to the Board,
in accordance with Section 2.1(a), one other person (the "Auditing Nominee")
shall have the right to attend and speak (but not vote) at all regular and
special meetings of the Board and, upon notice from the Stockholders of the
identity and address of such Auditing Nominee, the Issuer will cause all notices
of such meetings and all written materials prepared for such meetings to be sent
to such Auditing Nominee at the same time that such notices and materials are
sent to the members of the Board. Any Auditing Nominee shall be reasonably
acceptable to the Issuer, except that the Issuer hereby agrees that each of
Barbut and Xxxxxx is an acceptable Auditing Nominee. Any Auditing Nominee shall
become a party hereto unless already a party hereto. Such Auditing Nominee
hereby acknowledges its obligations under the federal securities laws to not
trade in the Common Stock while in possession of material non-public information
relating to the Issuer and hereby agrees to not so trade.
ARTICLE III
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REGISTRATION PROVISIONS
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3.1 PIGGYBACK REGISTRATION. Subject to Permitted Interruptions as
provided for in Section 3.8, if at any time after the Closing, and from time to
time thereafter, the Issuer proposes to effect a Piggyback Registration for its
account or for the account of a security holder or holders, the Issuer shall:
(a) promptly give to each Stockholder and Employee Stockholder written
notice thereof (which written notice shall include a list of the jurisdictions
in which the Issuer intends
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to attempt to qualify such securities under or otherwise comply with the
applicable blue sky or other state securities laws); and
(b) include in such registration (and any related qualification under
or other compliance with blue sky or other state securities laws), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request, made within fifteen (15) days after receipt of such written
notice from the Issuer, by any Stockholder (or the Trustees on behalf of any
Stockholder) or any Employee Stockholder (or the Employee Trustee on behalf of
any Employee Stockholder); PROVIDED, HOWEVER, that if such registration is a
Cutback Registration, then (i) if such registration is a registration on behalf
of the Issuer for its own account, the Issuer shall register in such
registration (A) first, the shares of Common Stock the Issuer proposes to sell
in such registration, and (B) second, the shares of Common Stock that are
Registrable Securities held by the Stockholders, the Employee Stockholders and
any other shares of Common Stock requested to be included therein by persons
entitled to piggyback registration rights (the "Other Holders"), on a pro rata
basis, based upon the number of shares of Common Stock each Stockholder,
Employee Stockholder and each Other Holder originally sought to include in such
registration; and (ii) if such registration is a Piggyback Registration that is
solely a secondary registration requested by, and being made on behalf of,
holders of Common Stock other than the Stockholders or the Employee Stockholders
(the "Demanding Holders"), the Issuer shall register in such registration (A)
first, the shares of Common Stock proposed to be sold by the Demanding Holders,
and (B) second, the shares of Common Stock that are Registrable Securities held
by the Stockholders, the Employee Stockholders and any other shares of Common
Stock requested to be included therein by the Other Holders, on a pro rata
basis, based upon the number of shares of Common Stock each Stockholder,
Employee Stockholder and each Other Holder originally sought to include in such
registration.
3.2 REQUESTED REGISTRATION. Subject to Permitted Interruptions as
provided for in Section 3.8:
(a) FIRST TRANCHE REQUESTED REGISTRATION. At any time following the
second anniversary of the Closing, the Stockholders, acting together, may make a
written request to the Issuer for one (1) registration (including any related
qualification under or compliance with blue sky or other state securities laws)
of up to thirty-eight percent (38%) of the Registrable Securities owned by them
(or by the Trustees on their behalf) to be allocated among the Stockholders as
agreed by them ("First Tranche Requested Registration").
(b) SECOND TRANCHE REQUESTED REGISTRATION. At any time following the
fifth anniversary of the Closing, the Stockholders, acting together, may make a
written request to the Issuer for one (1) registration (including any related
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qualification under or compliance with blue sky or other state securities laws)
of all or part of the Registrable Securities owned by them (or by the Trustees
on their behalf) to be allocated among the Stockholders as agreed by them
("Second Tranche Requested Registration").
(c) REQUEST AND REGISTRATION PROCEDURES. The offering of such
Registrable Securities pursuant to such Requested Registration shall be in the
form of an underwritten public offering. Each request to the Issuer for
registration shall specify whether the registration is a First Tranche Requested
Registration or a Second Tranche Requested Registration and the number of shares
of Common Stock that are Registrable Securities proposed to be registered and
the allocation of such Registrable Securities among the Stockholders. After
receipt of such request, the Issuer shall, subject to Permitted Interruptions,
use its best efforts diligently to effect such Requested Registration (and
related qualifications and compliances (including, without limitation, the
execution of an undertaking to file post-effective amendments and appropriate
qualifications under or other compliance with the applicable blue sky or other
state securities laws)) of the Registrable Securities which the Issuer has been
so requested to register by the Stockholders exercising the Requested
Registration rights ("Requesting Holders").
(d) PRIORITY ON REQUESTED REGISTRATIONS. If any Requested Registration
is a Cutback Registration, the Issuer shall register in such registration (i)
first, the Registrable Securities which any Requesting Holder seeks to include
in such registration, on a pro rata basis based upon the number of shares of
Common Stock each such Requesting Holder seeks to include in such registration
and (ii) second, the Registrable Securities held by the Employee Stockholders
that have exercised their Piggyback Registration rights in accordance with
Section 3.1 (the "Piggyback Holders") (with respect to a Second Tranche
Requested Registration) and any other shares of Common Stock requested to be
included in such registration by the Other Holders, on a pro rata basis, based
upon the number of shares of Common Stock each Piggyback Holder and each Other
Holder, as applicable, seeks to include in such registration.
(e) UNDERWRITING. Any Requesting Holder shall so advise the Issuer as a
part of the request made pursuant to this Section 3.2 of such Requesting
Holder's selection of an underwriter for the offering; PROVIDED that such
underwriter must be reasonably satisfactory to the Issuer. If another
Stockholder disapproves of the terms of the underwriting, such Stockholder may
elect to withdraw therefrom by written notice to the Issuer and the managing
underwriter, and each of the remaining Stockholders shall be entitled to
increase the number of shares being registered, to the extent permitted by the
managing underwriter, in the proportion which the number of shares of
Registrable Securities being registered by such Stockholder bears
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to the total number of shares being registered by all such
remaining Stockholders.
3.3 EXPENSES OF REGISTRATION.
(a) PIGGYBACK REGISTRATION. All expenses incurred in connection with a
Piggyback Registration which, but for such Piggyback Registration, would not
have been incurred by the Issuer (including, without limitation, fees and
disbursements of counsel or independent certified public accountants for any
Stockholder or Employee Stockholder, additional filing and/or listing fees,
additional expenses to secure qualification of such securities under state
securities laws, additional reasonable fees and disbursements of counsel or
independent certified public accountants for the Issuer) shall be for the
account of, and shall be paid by the Stockholders and the Employee Stockholders
participating in such Piggyback Registration or, to the extent such expenses
have already been paid by the Issuer, shall be promptly reimbursed to the Issuer
by the Stockholders and the Employee Stockholders participating in such
Piggyback Registration within ten (10) business days after written request
therefor by the Issuer. The Stockholders and the Employee Stockholders shall pay
all underwriters' fees, discounts or commissions relating to any Registrable
Securities included in any Piggyback Registration.
(b) REQUESTED REGISTRATION. All expenses incurred by the Issuer or the
Stockholders in connection with a Requested Registration (including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Issuer and the Issuer's independent
certified public accountants (subject to the exceptions described herein) and
all underwriters' fees, discounts or commissions relating to any Registrable
Securities included in any such registration) shall be for the account of and
paid by the Stockholders whose Registrable Securities are included in the
Requested Registration, except that the Issuer shall pay up to $75,000 of the
fees and disbursements of the Issuer's counsel and independent certified public
accountants in connection with any Requested Registration.
(c) Notwithstanding any provision of this Section 3.3 to the contrary,
in no event shall the Issuer be required to pay underwriters' fees, discounts or
commissions relating to any Registrable Securities.
(d) In the event that a Requested Registration is withdrawn prior to
the effective disposition under a registration statement of the Registerable
Securities thereby registered, the request relating to such Requested
Registration shall be deemed not to have been made and registration shall be
deemed not to have been effected under this Article III if the Issuer is
reimbursed by the relevant Stockholders for the expenses incurred by it in
connection with the withdrawn Requested Registration.
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3.4 REGISTRATION PROCEDURES.
(a) In the case of each registration, qualification or compliance
effected by the Issuer pursuant to this Article III, the Issuer shall keep each
Stockholder and Employee Stockholder included in such registration advised in
writing as to the initiation, progress, and effective date of each registration,
qualification and compliance, and, at its or such Stockholder's or Employee
Stockholder's expense to the extent provided in Section 3.3, the Issuer shall:
(i) before filing a registration statement or prospectus or any
amendment or supplements thereto subject to this Article III, the
Issuer shall furnish to counsel selected by any Stockholder or Employee
Stockholder such copies of all such documents proposed to be filed and
the portions of such documents provided in writing by such Stockholder
or Employee Stockholder for use therein and for which such Stockholder
or Employee Stockholder shall indemnify the Issuer pursuant to Section
4.1(b) of this Agreement, as such counsel shall reasonably request;
(ii) subject to Section 3.4(b) below, keep each registration,
qualification or compliance effective for (A) the period required by
the managing underwriter in the case of an underwritten offering of
Registerable Securities, but in no event for more than ninety (90)
days, or (B) a period of ninety (90) days in the case of a
non-underwritten offering of Registerable Securities, in either case,
plus any number of days that the Stockholders are unable to use a
prospectus pursuant to Section 3.4(b) below (the "Registration
Period"); and
(iii) furnish such number of prospectuses (including preliminary
prospectuses) and other documents filed with the Commission as part of
the registration statement as such Stockholders or Employee
Stockholders from time to time may reasonably request.
(b) If, within the Registration Period, there occurs any development or
any event which makes any statement in the registration statement or any
post-effective amendment thereto, or any document incorporated therein by
reference, untrue in any material respect or which requires the making of any
changes in the registration statement or post-effective amendment thereto or
prospectus or amendment or supplement thereto, so that they will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus, in the light of the circumstances under which they were made)
not misleading, the Issuer shall immediately notify each Stockholder and
Employee Stockholder whose Registrable
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Securities are included in such registration of the occurrence thereof and, as
soon as reasonably practicable, prepare and furnish to each such Stockholder and
Employee Stockholder, a reasonable number of copies of an amended or
supplemented prospectus so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Each Stockholder and Employee
Stockholder agrees that, upon receipt of any notice from the Issuer pursuant to
this Section 3.4(b), such Stockholder or Employee Stockholder shall forthwith
discontinue disposition of Registrable Securities until it shall have received
copies of such amended or supplemented prospectus, and, if so directed by the
Issuer, shall deliver to the Issuer all copies, other than permanent file
copies, then in its possession of the prospectus covering Registrable Securities
at the time of receipt of such notice.
(c) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Issuer shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Issuer and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 4.1 and an opinion of counsel
for the Issuer dated the date of the closing under the underwriting agreement,
and providing that the Issuer shall use its best efforts to furnish a "comfort"
letter signed by the independent public accountants who have audited the
Issuer's financial statements included in such registration statement, in each
such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of Issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and, in the case of
such accountants' letter, with respect to events subsequent to the date of such
financial statements. The Stockholders and the Employee Stockholders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement.
(d) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Issuer shall give the underwriters, and their counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Issuer with its officers and the independent
public accountants who have certified the Issuer's financial statements as shall
be necessary, in the opinion of such
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underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
(e) If at any time the Commission should institute or threaten to
institute any proceeding for the purposes of issuing, or should issue, a stop
order suspending the effectiveness of a registration statement which registered
Registrable Securities under the Securities Act, the Issuer will promptly notify
each Stockholder and Employee Stockholder whose Registerable Securities are
registered thereunder and will use its best efforts to prevent the issuance of
any such stop order or to obtain the withdrawal thereof as soon as possible. The
Issuer will advise each Stockholder and Employee Stockholder whose Registerable
Securities are registered promptly of any order or communication of any public
board or body addressed to the Issuer suspending or threatening to suspend the
qualification of any Registerable Securities for sale in any jurisdiction.
3.5 INFORMATION BY STOCKHOLDERS. If Registrable Securities owned by any
Stockholder or any Employee Stockholder are included in any registration, such
Stockholder or Employee Stockholder shall furnish to the Issuer such information
regarding itself and the distribution proposed by such Stockholder or Employee
Stockholder as the Issuer may reasonably request and as shall be required in
connection with any registration, qualification or compliance referred to in
this Article III.
3.6 HOLDBACK AGREEMENTS.
(a) In connection with the registration of Registrable Securities on
behalf of any Stockholder or any Employee Stockholder, or in the event that any
Stockholder or any Employee Stockholder was offered an opportunity to
participate in a Piggyback Registration pursuant to Section 3.1 but declined to
so participate, such Stockholder or Employee Stockholder will agree not to
effect any public sale or distribution of the issue of securities being
registered or a similar security of the Issuer or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Securities Act, during the fourteen (14) days
prior to, and during the ninety (90) day period beginning on, the effective date
of such registration statement (except as part of such registration), if and to
the extent requested by the Issuer or the managing underwriter or underwriters
in the case of an underwritten public offering.
(b) The Issuer on its own behalf and on behalf of affiliates controlled
by the Issuer agrees not to effect any public sale or distribution of any
securities similar to those being registered in accordance with Sections 3.1 and
3.2 (other than similar securities registered on Form S-4 or Form S-8 or any
successor forms) or any securities convertible into or exchangeable or
exercisable for such securities, during the
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fourteen (14) days prior to, and during the ninety (90) day period beginning on,
the effective date of any registration statement (except as part of such
registration).
3.7 FUTURE REGISTRATION RIGHTS.
(a) The Issuer shall not hereafter agree with the holders of any
securities issued or to be issued by the Issuer to register such securities
under the Securities Act unless such agreement specifically provides that (a)
such holder of securities may not participate in any Piggyback Registration
except as provided in Section 3.1, (b) such holder of such securities may not
participate in any Requested Registration except as provided in Section 3.2, and
(c) such securities may not be publicly offered or sold for a period beginning
at least fourteen (14) days before and ending at least ninety (90) days after
the date upon which such registration statement becomes effective. No provision
of this Section 3.7 shall be deemed violated by the future grants of
registration rights provided that such rights are subject to the foregoing
restrictions and are exercisable on a pro rata basis with all other holders of
such rights and the Issuer will not be required to obtain the consent of any
party hereto with respect to such future grants.
(b) From and after the date hereof, the Issuer shall not enter into any
agreement with any holder or prospective holder of any securities of the Issuer
providing for the granting to such holder of registration rights (including
demand registration rights which, by their terms, do not permit the inclusion of
shares of parties other than the holders of such demand registration rights)
that entitle such holder to priority over the Stockholders or the Employee
Stockholders with respect to registration of the securities of the Issuer.
3.8 PERMITTED INTERRUPTION. Notwithstanding any provision of this
Article III to the contrary, the Issuer shall not be required to prepare or file
a registration statement, amendment or post-effective amendment thereto or
prospectus supplement or to supplement or amend any registration statement or
otherwise facilitate the offering and sale of Registrable Securities, and the
Issuer shall be free to take or omit to take any other action that would result
in the impracticality of such filing, supplement or amendment, if (a) financial
statements satisfying the requirements of the Securities Act and Regulation S-X
promulgated by the Commission cannot with reasonable efforts be obtained, (b)
the Issuer is in possession of material non-public information, which, in the
exercise of reasonable judgment by the Issuer's Board, the Issuer deems
advisable not to disclose in a registration statement at that time or (c) such
filing, supplement or amendment (and any required disclosure therein), in the
good faith and reasonable judgment of the Issuer's Board, would jeopardize the
completion of an acquisition, divestiture or other similar transaction that the
Issuer is in at such time negotiations therefor (any period described in this
Section 3.8
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during which the Issuer is not required to make such filing, supplement or
amendment being herein a "PERMITTED INTERRUPTION"). The Issuer agrees to notify
each Stockholder and Employee Stockholder upon each of the commencement and
termination of each Permitted Interruption. The Issuer shall state in the notice
to the Stockholders and the Employee Stockholders of the commencement of a
Permitted Interruption the general nature of the cause for such Permitted
Interruption, subject to any restrictions against such disclosure imposed by
applicable confidentiality arrangements. Each Stockholder and Employee
Stockholder hereby acknowledges its obligations under the federal securities
laws to not trade in the Common Stock while in possession of material non-public
information relating to the Issuer and hereby agrees to not so trade.
3.9 DELIVERY OF TRANSFERABLE CERTIFICATES. Upon a registration
statement applicable thereto becoming effective, the Issuer shall issue to each
Stockholder and Employee Stockholder whose Registerable Securities are
registered thereunder certificates representing the Registerable Securities
whose sale has been so registered in exchange for certificates bearing a
restrictive legend. Each such Stockholder and Employee Stockholder hereby agrees
that in the event of a stop order being issued in respect of the registration
statement relating to the sale of Registerable Securities registered on its or
his behalf, such Stockholder or Employee Stockholder will, without prejudice to
any rights hereunder, surrender or cause to be surrendered to the Issuer those
certificates delivered pursuant to this Section 3.9 without legend and will
accept, in exchange therefor, substitute certificates or instruments bearing an
appropriate legend.
3.10 TRANSFERABILITY OF RIGHTS. Each Stockholder and Employee
Stockholder, and any permitted transferee of such Stockholder or Employee
Stockholder, may transfer to one (but only one) person all (but not less than
all) of his rights under this Article III in connection with the transfer of
Registrable Securities to such person; provided, however, that such transferee
shall become a party to this Agreement and such transferee's rights shall be
subject to the provisions and limitations of this Agreement.
ARTICLE IV
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INDEMNIFICATION AND REMEDIES
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4.1 INDEMNIFICATION RELATING TO REGISTRATION RIGHTS.
(a) With respect to any registration, qualification or compliance
effected or to be effected pursuant to Article III of this Agreement, the Issuer
shall indemnify each Stockholder and Employee Stockholder whose securities are
included or are to be included therein, each underwriter (as defined in the
Securities Act) of the securities sold by such Stockholder or Employee
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Stockholder, and each Person who controls (within the meaning of the Securities
Act) any such Stockholder, Employee Stockholder or underwriter (a "CONTROLLING
PERSON") from and against all losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any claim, cause of action,
proceeding or litigation asserted or commenced or threatened against any such
Stockholder, Employee Stockholder or any such underwriter or Controlling Person
concerning:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus or any related registration
statement incident to any such registration, qualification or
compliance;
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make any
statement therein, in the light of the circumstances under which it was
made, not misleading; or
(iii) any violation by the Issuer of the Securities Act or any
rule or regulation promulgated thereunder applicable to the Issuer, or
of any blue sky or other state securities laws or any rule or
regulation promulgated thereunder applicable to the Issuer;
in each case, relating to action or inaction required of the Issuer in
connection with any such registration, qualification or compliance, and subject
to Section 4.6 below, shall reimburse each such Person entitled to indemnity
under this Section 4.1(a) for all legal and other expenses incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; PROVIDED, HOWEVER, that, the foregoing indemnity and
reimbursement obligation shall not be applicable to the extent that any such
claim, loss, damage or liability arises out of or is based on (i) any untrue
statement (or alleged untrue statement) or omission (or alleged omission) made
in reliance upon and in conformity with written information furnished to the
Issuer by or on behalf of such Stockholder, Employee Stockholder or by or on
behalf of such an underwriter specifically for use in such prospectus or
registration statement; or (ii) any untrue statement (or alleged untrue
statement) or omission (or alleged omission) contained in a prospectus delivered
prior to the delivery by the Issuer to the Stockholders and the Employee
Stockholders of a notice pursuant to Section 3.4(b); PROVIDED that the Issuer
made available to the Stockholders and the Employee Stockholders a corrected
prospectus which the Stockholders and the Employee Stockholders failed to
deliver to holders who had received the prior inaccurate prospectus.
(b) With respect to any registration, qualification or compliance
effected or to be effected pursuant to this Agreement,
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each Stockholder and Employee Stockholder whose securities are included or are
to be included therein, shall indemnify the Issuer, its directors and officers,
and, if and to the extent required by the underwriters of an underwritten
offering in which such Stockholder or Employee Stockholder will be selling
Registrable Securities, each underwriter (as defined in the Securities Act) of
the securities sold by such Stockholder or Employee Stockholder and each Person
who controls (within the meaning of the Securities Act) the Issuer or any such
underwriter (a "CONTROLLER") from and against all losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
claim, cause of action, proceeding or litigation asserted or commenced against
the Issuer or any of its directors and officers or any such underwriter or
Controller concerning:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus or related registration
statement incident to any such registration, qualification or
compliance;
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make any
statement therein, in the light of the circumstances under which it was
made, not misleading; or
(iii) any violation by such Stockholder of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Issuer
or such Stockholder or of any blue sky or other state securities laws
or any rule or regulation promulgated thereunder applicable to the
Issuer or such Stockholder;
in each case, relating to action or inaction required of such Stockholder or
Employee Stockholder in connection with any such registration, qualification or
compliance, and subject to Section 4.6 below, shall reimburse each such Person
entitled to indemnity under this Section 4.1(b) for all legal and other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; PROVIDED, HOWEVER, that, the foregoing
indemnity and reimbursement obligation shall only be applicable to the extent
that any such claim, loss, damage or liability arises out of or is based on any
untrue statement (or alleged untrue statement) or omission (or alleged omission)
made in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of such Stockholder or Employee Stockholder
specifically for use in such prospectus or other document.
4.2 INDEMNIFICATION BY THE STOCKHOLDERS. (a) Subject to the limitations
set forth in this Article IV, the Stockholders, jointly and severally, shall
indemnify and hold harmless the Issuer and its Representatives, stockholders,
controlling persons and Affiliates (collectively, the "Issuer
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Indemnified Persons") for, and shall pay (in the manner provided in Section
4.7(b)) to the Issuer Indemnified Persons the amount of, any loss, liability,
claim, damage (including, with respect to matters unrelated to the Identified
Liabilities (as defined in Section 4.5), incidental and consequential damages),
expense (including, without limitation, defense costs in connection with
third-party claims) or deficiency (including interest, penalties and reasonable
attorneys' fees), whether or not involving a third-party claim (collectively,
"Damages"), that any Issuer Indemnified Person may suffer, sustain, incur or
become subject to arising out of or due to any Identified Liability (as defined
in Section 4.5) or any inaccuracy of any representation or the breach of any
warranty, covenant, undertaking or other agreement of the Trustees, the BioClin
Affiliates or the Stockholders contained in this Agreement, any Securities
Exchange Agreement or in any other document or instrument delivered pursuant
hereto or thereto.
(b) The indemnity by the Stockholders set forth in Section 4.2(a) with
respect to Damages arising out of any Identified Liability shall continue until
the earlier of December 31, 1999 and the date on which the amount, if any, of
all such Damages is finally determined, and the indemnity by the Stockholders
set forth in Section 4.2(a) with respect to all other Damages shall continue
until the date of the independent auditor's report with respect to the audited
consolidated financial statements of the Issuer for fiscal 1996 (the "Report
Date"); provided, however, that in the event that as of December 31, 1999 with
respect to any Identified Liability or as of the Report Date with respect to all
other Damages any Issuer Indemnified Person can establish the existence but not
the amount of any such Damages, and shall have given written notice thereof to
the Stockholders on or prior to December 31, 1999 or the Report Date, as
applicable, depending upon the facts and circumstances existing at such time,
the Stockholders and the Issuer may agree to extend the indemnity with respect
to any such Damages until the date on which the amount, if any, of all such
Damages is finally determined.
4.3 INDEMNIFICATION BY ISSUER. (a) Subject to the limitations set forth
in this Article IV, the Issuer shall indemnify and hold harmless the Trustees
and the Stockholders and their Representatives, shareholders, controlling
persons and Affiliates (collectively, the "Stockholders' Indemnified Persons")
for, and shall pay (in the manner provided in Section 4.7(a)) to the
Stockholders' Indemnified Persons the amount of, any Damages that any
Stockholders' Indemnified Person may suffer, sustain, incur or become subject to
arising out of or due to any inaccuracy of any representation or the breach of
any warranty, covenant, undertaking or other agreement of the Issuer contained
in this Agreement, any Securities Exchange Agreement or in any other document or
instrument delivered pursuant hereto or thereto.
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(b) The indemnity by the Issuer set forth in Section 4.3(a) shall
continue until the Report Date; provided, however, that in the event that as of
the Report Date any Stockholders' Indemnified Person can establish the existence
but not the amount of any such Damages, and shall have given written notice
thereof to the Issuer on or prior to the Report Date, depending upon the facts
and circumstances existing at such time, the Stockholders and the Issuer may
agree to extend the indemnity with respect to any such Damages until the date on
which the amount, if any, of all such Damages is finally determined.
4.4 THRESHOLD AND CAP. Notwithstanding any provision contained herein
or in any Securities Exchange Agreement to the contrary, with respect to Damages
contemplated by Sections 4.2 and 4.3 other than those arising, directly or
indirectly, from or in connection with any Identified Liability, (i) no party
shall be entitled to any recovery from any other party with respect to any such
inaccuracy or breach which, pursuant to any Securities Exchange Agreement, would
have entitled such party not to perform its obligations thereunder, if such
party is informed in writing pursuant to Section 7.6 of any Securities Exchange
Agreement or otherwise has knowledge of such inaccuracy or breach prior to
Closing and such party nonetheless consummates the Closing, and (ii) no party
shall be entitled to recover Damages from any other party until the Damages
sustained by such party under this Agreement and the Securities Exchange
Agreements exceed, in the aggregate, U.S. $100,000 (the "Threshold"), and then
only amounts over and above such Threshold, and in no event shall the amount of
all such Damages to be recovered by the Issuer Indemnified Persons and the
Stockholders' Indemnified Persons exceed an aggregate amount of U.S. $1,349,207
(the "Cap"). Neither the Threshold nor the Cap shall apply to any Damages
arising, directly or indirectly, from or in connection with any Identified
Liability.
4.5 IDENTIFIED LIABILITIES. For purposes of this Agreement, "Identified
Liabilities" means any and all liabilities or Damages (including, without
limitation, defense costs in connection with any third-party claim) that any
Issuer Indemnified Person may suffer, sustain, incur or become subject to
arising out of or due to (i) the pending or threatened litigation involving,
among others, BioClin, Inc. and Xx. Xxxxxxx X. Xxxx and/or any recovery by Xx.
Xxxx, pursuant to any statutory dissenter's rights to which Xx. Xxxx may be
entitled with respect to the common stock of BioClin, Inc. that he owns, of any
amounts that exceed the market value on the Closing Date of the Acquiror Shares
issuable to Xx. Xxxx pursuant to the Merger Agreement (collectively, the "Xxxx
Liability"); (ii) the pending litigation between BioClin, Inc. and Virginia
Commonwealth University, but only to the extent the aggregate amount of such
liability or Damages (including for this purpose the amount of such liability
previously satisfied by BioClin through the payment of amounts due to employees
and contractors ($201,127.52 in the aggregate), cash payments ($45,000.00 in the
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aggregate), the transfer of non-cash assets to VCU ($107,000 in aggregate
value), all payments received by VCU with respect to analytical contracts
assigned to VCU and the value of services provided by BioClin, Inc. which are
applied to reduce such liability) exceed $1,080,000 (the "VCU Liability"); and
(iii) the pending litigation filed in Texas titled Xxxxx Xxxx Xxxxx v. BioClin,
Inc. and Xxxx Xxxxxx, but only to the extent such liability or Damages exceed
$25,000 (the "Barbut Liability").
4.6 PROCEDURE. (a) Any party seeking indemnification pursuant to this
Article IV (the "Indemnified Person") from another party (the "Indemnifying
Person") may proceed directly against such Indemnifying Person under this
Section 4.6 without first resorting to any other rights of indemnification;
PROVIDED, HOWEVER, that no Indemnifying Person shall be obligated hereunder to
the extent an Indemnified Person has already received, or shall receive, full
indemnification or reimbursement from another source.
(b) In the event any action, suit or proceeding shall be brought
against any Indemnified Person in connection with any matter for which
indemnification may be sought by such Indemnified Person pursuant to this
Article IV, the Indemnifying Person may, and upon the request of such
Indemnified Person shall, at the Indemnifying Person's expense, resist and
defend such action, suit or proceeding, or cause the same to be resisted or
defended, by counsel selected by the Indemnifying Person, subject to the
approval, which shall not be unreasonably withheld, of such Indemnified Person
and, in the event of any failure by the Indemnifying Person to do so, the
Indemnifying Person shall pay all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by such
Indemnified Person in connection with such action, suit or proceeding.
(c) In case any claim is made, or any suit or action is commenced,
against an Indemnified Person in respect of which indemnification may be sought
by such Indemnified Person pursuant to this Article IV, such Indemnified Person
shall promptly give the Indemnifying Person notice thereof. If any Indemnified
Person fails to give prompt notice of any claim being made or any suit or action
being commenced in respect of which indemnification under this Article IV may be
sought, such failure shall not limit the liability of the Indemnifying Person;
PROVIDED, HOWEVER, that this provision shall not be deemed to limit the
Indemnifying Person's rights to recover for any loss, cost or expense which such
Indemnifying Person can establish resulted from such failure to give prompt
notice.
4.7 PAYMENT OF INDEMNITY. (a) The Issuer shall pay all amounts in
satisfaction of its indemnification obligations under Section 4.3 by delivering
to such Stockholders' Indemnified Persons such number of shares of Common Stock
computed by dividing the aggregate dollar amount of such Damages subject to
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indemnification thereunder by the closing sales price of the Common Stock as
reported on the NASDAQ National Market for the Business Day immediately
preceding the Closing Date (the "Closing Price").
(b) Except as provided in Section 4.7(f), the Stockholders shall pay
all amounts in satisfaction of their respective indemnification obligations
under Section 4.2 by delivering to such Issuer Indemnified Persons such number
of Acquiror Shares computed by dividing the dollar amount of such Damages
subject to indemnification thereunder by the Closing Price.
(c) In order to secure the payment by the Stockholders to the Issuer
Indemnified Persons of any Damages relating to Identified Liabilities and the
inaccuracy of the representations or breach of the warranties, covenants,
undertakings or other agreements of the Trustees, the BioClin Affiliates and the
Stockholders made hereunder or pursuant to any Securities Exchange Agreement
(collectively, the "General Liabilities"), a total of 599,260 shares (the
"Recovery Shares") of the Acquiror Shares delivered to the Stockholders pursuant
to the Securities Exchange Agreements shall be subject to the escrow provisions
set forth in paragraph (d) of this Section 4.7. Such aggregate number of
Recovery Shares shall be allocated as follows: with respect to (i) the General
Liabilities, 263,260 Recovery Shares (the "General Recovery Shares"); (ii) the
Xxxx Liability, 200,000 Recovery Shares; (iii) the VCU Liability, 112,000
Recovery Shares; and (iv) the Barbut Liability, 24,000 Recovery Shares (items
(ii) through (iv) above being hereinafter referred to collectively as the
"Identified Recovery Shares"). The aggregate number of Recovery Shares has been
determined, and the Recovery Shares have been allocated as set forth above, in
reasonable relation to the dollar value reasonably estimated to be attributable
to the respective contingencies existing as of the date of this Agreement
against which such Recovery Shares secure payment of indemnity. The Recovery
Shares shall be allocated among the Stockholders in proportion to their
respective ownership of the Acquiror Shares.
(d) If at any time prior to, with respect to (i) the General Recovery
Shares, the date on which the indemnity by the Stockholders with respect to
General Liabilities terminates as provided in Section 4.2(b) of this Agreement
and (ii) each group of Identified Recovery Shares, the date on which the
indemnity with respect to Damages relating to such corresponding Identified
Liability terminates pursuant to Section 4.2(b), the Stockholders shall sell,
assign, hypothecate, pledge or otherwise transfer any Acquiror Shares such that
thereafter the aggregate number of Acquiror Shares held by the Stockholders free
and clear of all such liens and encumbrances is less than the aggregate number
of Recovery Shares contemplated by this Section 4.7 (an "Early Transfer"), then
the Stockholders shall deposit the portion of the cash proceeds from such Early
Transfer as computed in
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accordance with Section 4.7(e) into an escrow account (the "Escrow Account")
with a national bank or other financial institution (the "Escrow Agent") agreed
to by the Trustees, the Stockholders and the Issuer pursuant to an escrow
agreement, in form and substance reasonably satisfactory to the Trustees, the
Stockholders and the Issuer to be held and dispersed subject to the provisions
of Section 4.7(f).
(e) The cash proceeds from an Early Transfer to be deposited into the
Escrow Account pursuant to Section 4.7(d) shall be computed as follows: (i) the
aggregate number of Recovery Shares contemplated by Section 4.7 less (ii) the
aggregate number of Acquiror Shares held by the Stockholders free and clear of
all such liens and encumbrances following such Early Transfer multiplied by
(iii) the Closing Price.
(f) In the event an Early Transfer has occurred, to the extent that a
sufficient number of Acquiror Shares are not then held by the Stockholders in
order to enable the Stockholders to satisfy their respective indemnification
obligations as contemplated by Section 4.7(b), the Stockholders and the Escrow
Agent shall deliver to the Issuer Indemnified Persons (i) all Acquiror Shares
then held by the Stockholders free and clear of all such liens and encumbrances
(the "Delivered Shares") and (ii) that portion of the cash proceeds deposited in
the Escrow Account computed by subtracting from (A) the aggregate dollar amount
of Damages subject to indemnification pursuant to Section 4.2, (B) the product
of the Delivered Shares and the Closing Price. The Issuer and the Stockholders
hereby agree to cause the Escrow Agent to promptly release all remaining cash
proceeds from the Escrow Account upon expiration of the Stockholders'
indemnification obligations or confirmation that the Stockholders then hold the
aggregate number of Recovery Shares contemplated by this Section 4.7.
4.8 EXCLUSIVITY. The rights and remedies of the parties hereto under
this Article IV shall be the exclusive rights and remedies with respect to the
matters set forth herein, except for (i) the rights of any party to seek
equitable relief and (ii) any other rights and remedies provided by this
Agreement or any Securities Exchange Agreement.
ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 AMENDMENTS. The parties may, from time to time, enter into written
amendments, supplements, or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights of either of
the parties hereunder. No amendment, supplement, or modification shall be
binding on any party unless made in writing and signed by a duly authorized
representative of such party.
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5.2 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission, which transmission is confirmed by first
class mail (postage pre-paid) or guaranteed overnight delivery:
(a) if to the Issuer to:
DNX Corporation
000 Xxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Xxxxxx to:
Xxxx Xxxxxx
Xxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Telephone: 000-00-00-000-0000
Facsimile: 011-41-41-377-3053
with copies to:
Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(c) if to Barbut to:
Xx. Xxxx Xxxxxx
c/o Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) if to Xxxxxx to:
Xx. Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx 0x
0000 Xxx
Xxxxxxxxxxx
Telephone: 000-00-00-000-0000
Facsimile: 011-41-41-710-2341
with copies to:
Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(e) if to Xxxxxx to:
x/x XXXXX
Xx Xxxxxxxxxx 00
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Telephone: 000-0-000000
Facsimile: 000-0-000000
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with copies to:
Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(f) if to the Trustees/Employee Trustee:
Xx. Xxxxxx Xxxxxxxxxxx
c/o Rittershaus, Xxxxxxxx & von Xxxxxxxxxx
Xxxxxxx-Xxxxx-Xxxxxx 0
00000 Xxxxxxxx
Xxxxxxx
Telephone: 000-00-000-00-000
Facsimile: 011-49-621-42-56-250
(g) if to Xxxxxxxx:
Xx. Xxxxxx Xxx Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
(h) if to Dvorchik:
Xx. Xxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxx. 000
Xxxxxxxxxx, XX 00000
(i) if to Xxxxxx:
Ms. Xxxxxxxxx Dune-Xxxxxx
x/x XxxXxxx XxxX
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx-xxxxxx 00-00
00000 Xxxxxxxx, Xxxxxxx
(j) if to Donhardt:
Xx. Xxxxxxx Xxxxxxxx
c/o BioClin GmbH
Klinische Forschung
Xxxxxxx-xxxxxx 00-00
00000 Xxxxxxxx, Xxxxxxx
(k) or, in each case, at such other address or to such
other person as may be specified in writing to the other parties.
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5.3 WAIVER BY CONSENT. Any party hereto may execute and deliver to the
other parties hereto a written instrument waiving, on such terms and conditions
as such party may specify in such instrument, any of the requirements of this
Agreement.
5.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The failure to exercise
or the delay in exercising by any party of any right, remedy, power, or
privilege under this Agreement, shall not operate as a waiver thereof. The
single or partial exercise of any right, remedy, or privilege under this
Agreement shall not preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege. The rights, remedies,
powers, and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers, and privileges provided by law.
5.5 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, construed and interpreted in accordance
with the laws of the State of New York (except, to the extent the General
Corporation Law of the State of Delaware (the "DGCL") applies to the matters set
forth in Article II, the DGCL shall govern) applicable to agreements executed by
residents of that state, and fully to be performed in that state.
5.6 SEVERABILITY. If any provision of this Agreement is found to be
unenforceable for any reason whatsoever, such provision shall be deemed null and
void to the extent of such unenforceability but shall be deemed separable from
and shall not invalidate any other provision of this Agreement.
5.7 CAPTIONS. Captions to the various paragraphs of this Agreement are
provided for convenience only and shall not be used to construe the provisions
of this Agreement.
5.8 ENTIRE AGREEMENT. This Agreement, the Securities Exchange
Agreements and the other agreements contemplated hereby and thereby, constitute
the entire understanding of the parties hereto with respect to the subject
matter of this Agreement and supersedes all prior discussions, agreements, and
representations, whether oral or written, concerning the subject matter hereof
and whether or not executed by the parties hereto.
5.9 FURTHER ASSURANCES. From and after the Closing, upon the reasonable
request of any of the parties hereto, each of the other parties hereto shall
execute, acknowledge, and deliver all such further acts, deeds, bills of sale,
certificates, assignments, transfers, conveyances, sales, use or other transfer
tax documentation, powers of attorney, and assurances as may be required to
evidence the consummation of the transactions contemplated hereby and as may be
appropriate to carry out the transactions contemplated by this Agreement.
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5.10 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns,
heirs and legal representatives. Except as specifically provided herein, no
party hereto may assign its rights or delegate its duties hereunder without the
prior written consent of the other parties hereto.
5.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
or caused this Agreement to be duly executed and delivered by the proper and
duly authorized officers, as the case may be, as of the day and year first above
written.
ISSUER:
DNX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
TRUSTEES:
By: /s/ Xx. Xxxxxx Xxxxxxxxxxx
-------------------------------
Xx. Xxxxxx Xxxxxxxxxxx, as Trustee
under the Rittershaus Trust Agreement
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx, as Trustee
under the Xxxxxxxx Trust Agreement
STOCKHOLDERS:
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/s/ Xx. Xxxx Xxxxxx
-----------------------------------
Xx. Xxxx Xxxxxx
/s/ Xx. Xxxx Xxxxxxxxx Xxxxxx
-----------------------------------
Xx. Xxxx Xxxxxxxxx Xxxxxx
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XXXXXX N.V.
By: /s/ Curacao Corporation Company N.V.
-------------------------------
Name: Curacao Corporation Company N.V.
Title: Managing Director
EMPLOYEE STOCKHOLDERS:
/s/ Xxxxxx Xxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxxxx Dune-Xxxxxx
-----------------------------------
Xxxxxxxxx Dune-Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx
EMPLOYEE TRUSTEE:
/s/ Xx. Xxxxxx Xxxxxxxxxxx
-----------------------------------
Xx. Xxxxxx Xxxxxxxxxxx, as Trustee
under the Employee Trust Agreement
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