FORM OF CONTINGENT VALUE RIGHTS AGREEMENT
EXHIBIT 2.2
Contingent Value Rights Agreement, dated [________] [___], 2008, by and among Clinical
Data, Inc. (“Parent”), a Delaware corporation, and American Stock Transfer and Trust
Co., a New York corporation, as Rights Agent (the “Rights Agent”), in favor of each
person (a “Holder”) who from time to time holds one or more Contingent Value Rights (the “CVRs”) to
receive a number of shares of Parent common stock, $0.01 par value per share (the “Parent Common
Stock”), in the amounts and subject to the terms and conditions set forth herein. A registration
statement on Form S-4 (No. 333-___) (the “Registration Statement”) with respect to, among other
securities, the CVRs, has been prepared and filed by Parent with the Securities and Exchange
Commission (the “Commission”) and has become effective in accordance with the Securities Act of
1933 (the “Act”). This Agreement is entered into in connection with the Agreement and Plan of
Merger (the “Merger Agreement”) dated as of October 27, 2008 by and among Parent, API Acquisition
Sub II, LLC (“Merger Sub”), and Avalon Pharmaceuticals, Inc. (the “Company”), which sets forth the
allocation of one CVR for each outstanding share of Company Common Stock, such CVR payable in up to
0.0470 shares of Parent Common Stock (each as defined in the Merger Agreement).
Section 1. Appointment of Rights Agent. Parent hereby appoints the Rights Agent to act as
agent for the Holders in accordance with the instructions set forth herein, and the Rights Agent
hereby accepts such appointment, upon the terms and conditions hereinafter set forth.
Section 2. Form of CVR Certificate.
2.1 The CVRs shall be evidenced by certificates (the “CVR Certificates”), substantially in the
form set forth in Exhibit A hereto. The CVR Certificates may have such letters, numbers, or other
marks of identification or designation and such legends, summaries, or endorsements printed,
lithographed, or engraved thereon as Parent may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply with applicable law or with any
rule or regulation made pursuant thereto.
2.2 The CVR Certificates shall be executed on behalf of Parent by the manual or facsimile
signature of the present or any future President or Vice President of Parent, attested by the
manual or facsimile signature of the present or any future Secretary or Assistant Secretary of
Parent. CVR Certificates shall be dated as of the date of the initial issuance thereof or the date
of any subsequent transfer, as the case may be.
Section 3. Registration.
3.1 The Rights Agent shall maintain the books and records for the registration, and the
registration of transfer, of the CVR Certificates in which shall be registered the names and
addresses of the Holders of the CVRs evidenced by the CVR Certificates in registered form and the
certificate numbers and denominations of such CVR Certificates.
3.2 Prior to transfer of the CVR Certificates as provided for herein, Parent and the Rights
Agent shall deem and treat the registered Holder thereof as the absolute owner of the CVR
Certificates (notwithstanding any notation of ownership or other writing thereon made by
1
anyone other than Parent or the Rights Agent), for the purpose of the CVR Consideration (as
defined herein) and for all other purposes, and neither Parent nor the Rights Agent shall be
affected by any notice to the contrary.
Section 4. Payment and Exchange of CVRs.
4.1 Milestone and Exchange Ratio. For purposes of this Agreement, “Milestone Date” means June
30, 2010, assuming that during the period from the execution date of the Merger Agreement through and including
June 30, 2010, at least one Milestone Payment has been received by the Company or its affiliates
(including Parent). For purposes of this Agreement, a “Milestone Payment” shall mean the receipt
by the Company or its affiliates (including Parent) during the period commencing on the execution date of the Merger Agreement
through and including June 30, 2010 of a payment under either
the License and Research Collaboration Agreement between the Company and Merck & Co., Inc., dated
March 5, 2007, or the Amended Pilot Study Agreement between the Company and Novartis Institute for
Biomedical Research, Inc., dated September 9, 2005, up to a maximum aggregate amount of $5,000,000.
If the Milestone Date occurs, the Holders shall be entitled to the following consideration, to be
delivered by the Rights Agent in accordance with the procedures set forth herein.
(a) Each CVR shall entitle the Holder thereof to receive that number of shares of Parent
Common Stock (the “Rights Shares”) equal to the quotient of (a) a number obtained by (i) dividing
one half of the aggregate Milestone Payments received by the Company or its affiliates (including
Parent) by (ii) $12.49 (the “Per Share Price”); and (b) 17,037,928.
(b) No fractional shares of Parent Common Stock shall be issued pursuant to this Agreement.
In lieu of fractional shares, each Holder who would otherwise have been entitled to a fraction of a
share of Parent Common Stock hereunder (after aggregating all fractional shares to be received by
such Holder), shall receive, without interest, an amount in cash (rounded to the nearest whole
cent) determined by multiplying such fraction by the Per Share Price.
(c) In case prior to the Milestone Date Parent shall (i) pay a stock dividend or make a
distribution on or in respect of Parent Common Stock in shares of Parent Common Stock, (ii)
subdivide the outstanding shares of Parent Common Stock, (iii) combine the outstanding shares of
Parent Common Stock into a smaller number of shares, or (iv) issue by reclassification of shares of
Parent Common Stock any shares of capital stock of the Company, then, in any such case, at the
Milestone Date, the Holder of a CVR shall be entitled to receive the number of shares of capital
stock of Parent which Holder would have owned immediately following such action had the Milestone
Date occurred immediately prior thereto (with any record date requirement being deemed to have been
satisfied).
(d) If Parent shall, prior to the Milestone Date, consolidate with or merge with or into
another Person, or Parent shall sell, transfer or lease all or substantially all of its assets, or
Parent shall change the Parent Common Stock into property or other securities, then, in any such
case, the Holder of a CVR shall thereupon (and thereafter) be entitled to receive, upon the
Milestone Date, the securities or other property to which (and upon the same terms and with the
same rights as) the Holder would have been entitled if the Milestone Date had occurred immediately
prior to such consolidation or merger, such sale of assets or such change (with any
2
record date requirement being deemed to have been satisfied). Parent shall take such steps in
connection with such consolidation or merger, such sale of assets or such change as may be
necessary to assure such Holder that the provisions of this Agreement shall thereafter be
applicable in relation to any securities or property thereafter deliverable upon achievement of
such Milestone Date, including, but not limited to, obtaining a written obligation to supply such
securities or property upon exercise and to be so bound by the CVRs.
(e) The Parent Common Stock (or other securities, cash or other property) and cash in lieu of
fractional shares issuable pursuant to this Section 4.1 are referred to collectively herein as the
“CVR Consideration.”
(f) Upon the occurrence of each adjustment or readjustment pursuant to this Section 4.1,
Parent at its expense shall promptly compute such adjustment or readjustment in accordance with the
terms hereof and furnish (i) to each holder of a CVR a certificate setting forth in reasonable
detail the event requiring the adjustment and the amount of such adjustment, and (ii) to the Rights
Agent a certificate setting forth any adjustments made to any of the certificates.
4.2 Exchange of Certificates. As soon as practicable after the Milestone Date (and in no
event later than thirty (30) days after the Milestone Date), Parent shall notify the Rights Agent
of the occurrence of the Milestone Date, the aggregate Milestone Payments received by the Company
or its affiliates (including Parent) and the Per Share Price, and the Rights Agent shall, upon
being provided with the notice and instructions for surrender referred to below, promptly
thereafter mail to all Holders of record of CVRs (i) notice of the occurrence of the Milestone Date
and of the number of Rights Shares per CVR that Holders are entitled to receive upon surrender of
their CVR Certificates and (ii) instructions for surrendering their CVR Certificates in exchange
for a certificate representing shares of Parent Common Stock and cash in lieu of fractional shares
(calculated in accordance with Section 4.1(a) and 4.1(b), respectively). Upon surrender of CVR
Certificates for cancellation to the Rights Agent, together with a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss of, and title to, the CVR
Certificates shall pass, only upon delivery of the CVR Certificates to the Rights Agent) and other
requested documents and in accordance with the instructions thereon, the Holder of such
Certificates shall be entitled to receive in exchange therefor (a) a certificate representing that
number of whole shares of Parent Common Stock into which the CVRs theretofore represented by the
CVR Certificates so surrendered shall have been converted pursuant to the provisions of this
Agreement and (b) a check in the amount of any cash due pursuant to Section 4.1(b) or Section 4.4.
No interest shall be paid or shall accrue on any such amounts. Until surrendered in accordance
with the provisions of this Section, each CVR Certificate shall represent for all purposes only the
right to receive the CVR Consideration and, if applicable, amounts under Section 4.4. Shares of
Parent Common Stock into which the CVRs shall be converted at the Milestone Date shall be deemed to
have been issued on the Milestone Date. Subject to Section 6 hereof, if any certificates
representing shares of Parent Common Stock are to be issued in a name other than that in which the
CVR Certificate surrendered is registered, it shall be a condition of such exchange that the person
requesting such exchange shall deliver to the Rights Agent all documents necessary to evidence and
effect such transfer and shall pay to the Rights Agent any transfer or other taxes required by
reason of the issuance of a certificate representing shares of Parent Common Stock in a name other
than that of the
3
registered Holder of the CVR Certificate surrendered, or establish to the satisfaction of the
Rights Agent that such tax has been paid or is not applicable. Beginning the date which is six
months following the Milestone Date, Parent shall act as the Rights Agent and thereafter any holder
of an unsurrendered CVR Certificate shall look solely to Parent for any amounts to which such
Holder may be due, subject to applicable law. Notwithstanding any other provisions of this
Agreement, any portion of the CVR Consideration remaining unclaimed five years after the Milestone
Date (or such earlier date immediately prior to such time as such amounts would otherwise escheat
to, or become property of, any governmental entity) shall be returned to the Parent.
4.3 Lost Certificates. If any CVR Certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming such CVR Certificate to be lost,
stolen or destroyed and, if required by Parent or the Rights Agent, the posting by such person of a
bond in such reasonable amount as Parent or the Rights Agent may direct as indemnity against any
claim that may be made against it with respect to such CVR Certificate, the Rights Agent shall
deliver in exchange for such lost, stolen or destroyed CVR Certificate (a) if prior to the
Milestone Date, a new CVR Certificate of like tenor and evidencing the number of CVRs evidenced by
the CVR Certificate so lost, stolen or destroyed or (b) if after the Milestone Date, the applicable
certificates representing shares of Parent Common Stock, cash in lieu of fractional shares and any
amounts due pursuant to Section 4.4.
4.4 Distributions with Respect to Unexchanged Shares. No dividend or other distribution
declared with respect to Parent Common Stock with a record date after the Milestone Date shall be
paid to holders of unsurrendered CVR Certificates until such holders surrender such CVR
Certificates. Upon the surrender of such CVR Certificates in accordance with Section 4.2, there
shall be paid to such holders, promptly after such surrender, the amount of dividends or other
distributions, without interest, declared with a record date after the Milestone Date and not paid
because of the failure to surrender such CVR Certificates for exchange.
4.5 Withholding Rights. Parent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any Holder of CVRs such amounts as it
is required to deduct and withhold with respect to the making of such payment under any provision
of federal, state, local or foreign tax law. To the extent that amounts are so withheld by Parent,
such withheld amounts shall be treated for all purposes of this Agreement as having been paid to
the Holder of the CVRs in respect of which such deduction and withholding was made.
Section 5. Non-Transferability and Registration of CVRs.
5.1 The CVRs and any interest therein may not be sold, assigned, pledged, encumbered, or in
any other manner transferred or disposed of, in whole or in part, other than in accordance with
Section 6 hereof.
5.2 The CVRs and the Rights Shares have been registered under the Act pursuant to the
Registration Statement declared effective under the Act. Parent covenants and agrees:
4
(a) to prepare and file with the Commission such amendment and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary;
(b) as expeditiously as possible, to register or qualify the CVRs and the Rights Shares under
the securities or “Blue Sky” laws of each jurisdiction in which such registration or qualification
is necessary; and
(c) to pay all expenses of the Parent in complying with this Section 5.2, including, without
limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and
disbursements of counsel and independent public accountants for the Parent and (D) all Financial
Industry Regulatory Authority (“FINRA”) and “Blue Sky” fees and expenses.
Section 6. Exchange, Transfer, or Assignment of CVRs.
6.1 CVRs and any interest therein shall not be sold, assigned, transferred, pledged,
encumbered or in any other manner transferred or disposed of, in whole or in part, other than
through a Permitted Transfer (as defined herein). A “Permitted Transfer” shall mean (i) the
transfer of any or all of the CVRs on death by will or intestacy; (ii) transfer by instrument to an
inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the
death of the trustee, (iii) transfers made pursuant to a court order; (iv) if the Holder is a
partnership, a distribution from the transferring partnership to its partners or former partners in
accordance with their partnership interests; (v) if the Holder is a limited liability company, a
distribution from the distributing limited liability company to its members or former members in
accordance with their interest in the limited liability company, or (vi) a transfer made by
operation of law (including a consolidation or merger) or in connection with the dissolution of any
corporation or other entity.
6.2 In the event of a Permitted Transfer, CVRs may be assigned or transferred upon surrender
of CVR Certificates to the Rights Agent, accompanied (if so required by Parent or the Rights Agent)
by a written instrument or instruments of transfer in form satisfactory to Parent and the Rights
Agent, duly executed by the registered holder or by a duly authorized representative or attorney,
such signature to be guaranteed by a member of a recognized guarantee medallion program. Upon any
such registration of transfer, a new CVR Certificate shall be issued to the transferee and the
surrendered CVR Certificate shall be cancelled by the Rights Agent. CVR Certificates so cancelled
shall be delivered by the Rights Agent to Parent from time to time or otherwise disposed of by the
Rights Agent in its customary manner.
6.3 Any transfer or assignment of CVRs shall be without charge (other than the cost of any
transfer tax) to the holder and any new CVR Certificates issued pursuant to this Section 6 shall be
dated the date of such transfer or assignment.
Section 7. Rights of CVR Certificate Holder. The Holder of any CVR Certificate or CVR, shall
not, by virtue thereof, be entitled to any rights of a stockholder of Parent, either at law or in
equity, and the rights of the Holders are limited to those expressed in this Agreement.
5
Section 8. Availability of Information. Parent will provide to the Rights Agent all
information and documentation in connection with this Agreement and the CVRs that the Rights Agent
may reasonably request.
Section 9. Reservation of Stock. Parent covenants that it will reserve from its authorized
and unissued Parent Common Stock a sufficient number of shares to provide for the issuance of
Parent Common Stock pursuant to the CVRs. Parent further covenants that all shares that may be
issued pursuant to the CVRs will be free from all taxes, liens and charges in respect of the issue
thereof. Parent agrees that its issuance of the CVRs shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Parent Common Stock issuable pursuant hereto and that upon
issuance such shares of Parent Common Stock shall be validly issued, fully paid and non-assessable.
Section 10. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of which Parent and the
Holders, by their acceptance hereof, shall be bound.
10.1 The statements contained herein and in the CVR Certificates shall be taken as statements
of Parent, and the Rights Agent assumes no responsibility for the correctness of any of the same
except such as describe the Rights Agent or actions taken or to be taken by it. The Rights Agent
assumes no responsibility with respect to the delivery of CVRs and the CVR Consideration except as
herein otherwise provided.
10.2 The Rights Agent shall not be responsible for any failure of Parent to comply with any of
the covenants contained in this Agreement or in the CVR Certificates to be complied with by Parent.
10.3 The Rights Agent shall not be responsible for (i) determining if the Milestone Date has
occurred, nor (ii) assessing the amount of any Milestone Payments received by the Company or its
affiliates (including Parent). Parent shall be responsible for providing this information to the
Rights Agent.
10.4 The Rights Agent may consult at any time with counsel of its own selection (who may be
counsel for Parent), and the Rights Agent shall incur no liability or responsibility to Parent or
to any Holder with respect to any action taken, suffered, or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel, provided that the Rights Agent
shall have exercised reasonable care in the selection of such counsel.
10.5 The Rights Agent shall incur no liability or responsibility to Parent or to any Holder
for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document, or instrument (whether in original or facsimile form) believed by it to be
genuine and to have been signed, sent, or presented by the proper party or parties. Parent agrees
(i) to pay to the Rights Agent reasonable compensation for all services rendered by the Rights
Agent in the execution of this Agreement and (ii) to reimburse the Rights Agent for all taxes and
governmental charges, reasonable expenses, and other charges of any
6
kind and nature incurred by the Rights Agent in connection with this Agreement. Parent shall
reimburse the Rights Agent for the reasonable costs of any counsel engaged by the Rights Agent for
the purposes contemplated by Section 10.4. The Rights Agent shall be paid any compensation or
reimbursement owed to it directly.
10.6 The Holders of at least a majority of the outstanding CVRs may direct the Rights Agent to
act on behalf of the Holders in enforcing any of their rights hereunder and pursuant to the CVRs.
The Rights Agent shall be under no obligation to institute any action, suit, or legal proceeding or
to take any other action likely to involve material expense unless the Holders shall furnish the
Rights Agent with reasonable security and indemnity satisfactory to it for any costs and expenses
which may be incurred. All rights of action under this Agreement or under any of the CVR
Certificates may be enforced by the Rights Agent without the possession of any of the CVR
Certificates or the production thereof at any trial or other proceeding relative thereto, and any
such action, suit, or proceeding instituted by the Rights Agent shall be brought in its name as
Rights Agent, and any recovery of judgment shall be for the ratable benefit of the registered
Holders, as their respective rights or interests may appear.
10.7 The Rights Agent shall act hereunder solely as agent, and its duties shall be determined
solely by the provisions hereof. The Rights Agent shall not be liable for anything which it may do
or refrain from doing in connection with this Agreement except for its own gross negligence or
willful misconduct.
10.8 Parent agrees to indemnify Rights Agent for, and hold Rights Agent harmless against, any
and all loss, liability, claim, damage or expense (“Loss”) arising out of or in connection with
Rights Agent’s duties under this Agreement, including the costs and expenses of defending Rights
Agent against any Loss, unless such Loss shall have been determined by a court of competent
jurisdiction to be a result of Rights Agent’s own gross negligence or willful misconduct. Rights
Agent agrees to notify Parent in writing of any receipt of an assertion of a claim or any action
commenced against Rights Agent, promptly after the receipt of notice of such assertion or having
been served with the summons or other first legal process giving information as to the nature and
basis of any such assertion or action. The failure to so notify Parent will not relieve Parent
from liability hereunder unless prejudice is suffered by Parent as a result of such failure. At
its election, Parent may assume the conduct of Rights Agent’s defense in any such action or claim,
at its sole cost and expense. In the event that Parent elects to assume the defense, Parent shall
not be liable for fees and expenses of any counsel thereafter retained by Rights Agent except in
the event Rights Agent determines that it has defenses different from those of Parent. In no case
will Rights Agent be liable for special, indirect, incidental or consequential loss or damages of
any kind whatsoever (including but not limited to lost profits). The obligations of Parent under
this section shall survive the termination of this Agreement.
Section 11. Change of Rights Agent.
11.1 Any corporation into which the Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Rights
Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate
trust business of the Rights Agent, shall be the successor to the Rights Agent
7
hereunder without the execution or filing of any paper or any further act on the part of any
of the parties hereto.
11.2 The Rights Agent may resign and be discharged from its duties under this Agreement by
giving to Parent notice in writing, specifying a date when such resignation shall take effect,
which notice shall be sent at least 30 days prior to the date so specified. If the Rights Agent
shall resign or otherwise become incapable of acting, Parent shall appoint a successor to the
Rights Agent. If no successor is appointed within 30 days of the resignation date, Rights Agent
may petition a court for the appointment of a successor. After appointment the successor Rights
Agent shall be vested with the same powers, rights, duties, and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the former Rights Agent shall
deliver and transfer to the successor Rights Agent copies of all books, records, plans, and other
documents in the former Rights Agent’s possession relating to the CVRs or this Agreement and
execute and deliver any further assurance, conveyance, act, or deed necessary for the purpose.
Failure to give any notice provided for in this Section 11.2 or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 12. Termination.
12.1 This Agreement shall terminate six months after the Milestone Date (the “Termination
Date”).
12.2 Notwithstanding the provisions of Section 12.1 above, the termination of this Agreement
shall not terminate the rights of the Holders to receive the CVR Consideration from the Parent in
accordance with the terms of the CVR Certificate.
Section 13. Successors. All covenants and provisions of this Agreement by or for the benefit
of Parent, the Rights Agent, or the Holders shall bind and inure to the benefit of their respective
successors, assigns, heirs, and personal representatives.
Section 14. Counterparts. This Agreement may be executed in any number of counterparts; and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same agreement.
Section 15. Headings. The headings of sections of this Agreement have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.
Section 16. Amendments. This Agreement may be amended by the written consent of Parent, the
Rights Agent and the affirmative vote or the written consent of holders holding not less than a
majority-in-interest of the then outstanding CVRs; provided, however, that no such modification or
amendment to this Agreement may, without the consent of each Holder adversely affected thereby,
change in manner adverse to the Holders (a) any provision contained herein with respect to
termination of this Agreement or the CVRs, (b) the amount of CVR Consideration to be issued
according to the terms of this Agreement to the Holders of the CVRs, or (c) the provisions of this
Section 16. Notwithstanding the foregoing, Parent and the Rights Agent may from time to time
supplement or amend this Agreement, without the approval of any
8
Holder, in order to cure any ambiguity or to correct or supplement any provision contained in
this Agreement which may be defective or inconsistent with any other provision in this Agreement,
or to make any other provisions in regard to matters or questions arising under this Agreement
which Parent and the Rights Agent may deem necessary or desirable and which shall not be
inconsistent with the provisions of the CVRs and which shall not adversely affect the interests of
the Holders.
Section 17. Notices. Any notice required to be given hereunder shall be sufficient if in
writing and sent by facsimile transmission, by courier or other national overnight express mail
service (with proof of service), hand delivery, or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
If to Parent:
Clinical Data, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx
Facsimile No: (617) 965 — 0445
Attention: Xxxxxx Xxxxxx, EVP and Chief Legal Officer
Xxxxxx, Xxxxxxxxxxxxx
Facsimile No: (617) 965 — 0445
Attention: Xxxxxx Xxxxxx, EVP and Chief Legal Officer
If to the Rights Agent:
American Stock Transfer and Trust Co.
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (781) 921 — 8337
Attention: Xxxx Xxxxxx
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (781) 921 — 8337
Attention: Xxxx Xxxxxx
Section 18. Benefits of this Agreement. Nothing in this Agreement shall be construed to give
to any person or corporation, other than Parent, the Rights Agent, and the registered Holders, any
legal or equitable right, remedy, or claim under this Agreement; but this Agreement shall be for
the sole and exclusive benefit of Parent, the Rights Agent, and the registered Holders.
Section 19. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without regard to its rules of
conflict of laws. The parties hereto agree that any suit, action, or proceeding seeking to enforce
any provision of, or based on any matter arising out of, this Agreement may be brought in the
United States District Court for the District of New York, and each of the parties hereby consents
to the jurisdiction of such courts (and of the appropriate appellate courts) in any such suit,
action, or proceeding and irrevocably waives any objection which it may now or hereafter have to
the laying of the venue of any such suit, action, or proceeding in any such court or that any such
suit, action, or proceeding which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action, or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party in the
9
manner provided for notices in Section 17 shall be deemed effective service of process on such
party.
In Witness Whereof, the parties hereto have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year first written above.
| Clinical Data, Inc. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, Chief Legal Officer & Secretary |
|||
| American Stock Transfer and Trust Co., as Rights Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
10
