EXHIBIT B
PUBLIC COMPANY STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement"), dated as of November 18,
2008, is by and among NitroMed, Inc., a Delaware corporation ("Public Company")
(only with respect to Section 2(b) and Section 11 (and any provisions relating
thereto)), Archemix Corp., a Delaware corporation ("Merger Partner"), and the
undersigned stockholder ("Stockholder") of Public Company.
WHEREAS, concurrently with the execution and delivery of this Agreement,
Public Company, Newport Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Public Company (the "Transitory Subsidiary"), and Merger
Partner have entered into an Agreement and Plan of Merger, dated as of the date
hereof (as it may be amended or supplemented from time to time pursuant to the
terms thereof, the "Merger Agreement"), which provides for the merger (the
"Merger") of the Transitory Subsidiary into Merger Partner in accordance with
the terms of the Merger Agreement;
WHEREAS, Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of such number of shares of each class of capital stock
of Public Company as is indicated on the signature page of this Agreement; and
WHEREAS, in consideration of the execution and delivery of the Merger
Agreement by Merger Partner, Stockholder desires to agree to vote the Shares (as
defined herein) over which Stockholder has voting power so as to facilitate the
consummation of the Merger;
NOW, THEREFORE, in consideration of the foregoing, intending to be legally
bound, the parties hereto hereby agree as follows:
1. Certain Definitions.
(a) Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Merger Agreement. For purposes of this
Agreement, the following terms shall have the following meanings:
"Constructive Sale" means with respect to any security, a
short sale with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security, entering
into or acquiring a futures or forward contract to deliver such security
or entering into any other hedging or other derivative transaction that
has the effect of either directly or indirectly materially changing the
economic benefits or risks of ownership.
"Shares" means (i) all shares of capital stock of Public
Company owned, beneficially or of record, by Stockholder as of the date
hereof, and (ii) all additional shares of capital stock of Public Company
acquired by Stockholder, beneficially or of record, during the period
commencing with the execution and delivery of this Agreement and expiring
on the Expiration Date (as such term is defined in Section 10 below).
"Transfer" means, with respect to any security, the direct or
indirect assignment, sale, transfer, tender, exchange, pledge,
hypothecation, or the grant, creation or suffrage of a lien, security
interest or encumbrance in or upon, or the gift, placement in trust, or
the Constructive Sale or other disposition of such security (including
transfers by testamentary or intestate succession or otherwise by
operation of law) or any right, title or interest therein (including, but
not limited to, any right or power to vote to which the holder thereof may
be entitled, whether such right or power is granted by proxy or
otherwise), or the record or beneficial ownership thereof, the offer to
make such a sale, transfer, Constructive Sale or other disposition, and
each agreement, arrangement or understanding, whether or not in writing,
to effect any of the foregoing.
2. Transfer and Voting Restrictions With Respect to the Shares.
(a) At all times during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date, Stockholder
shall not, except as the result of the death of Stockholder or as otherwise
permitted by this Agreement, Transfer any of the Shares, or discuss, negotiate,
make an offer or enter into an agreement, commitment or other arrangement with
respect thereto, unless the person to which such Shares are being Transferred
shall have executed and delivered a counterpart of this Agreement and agreed
pursuant thereto, for the benefit of Merger Partner, to hold such Shares subject
to all terms and conditions of this Agreement.
(b) Stockholder understands and agrees that if Stockholder attempts
to Transfer, vote or provide any other person with the authority to vote any of
the Shares other than in compliance with this Agreement, Public Company shall
not, and Stockholder hereby unconditionally and irrevocably instructs Public
Company to not, (i) permit any such Transfer on its books and records, (ii)
issue a new certificate representing any of the Shares or (iii) record such
vote, in each case, unless and until Stockholder shall have complied with the
terms of this Agreement.
(c) Except as otherwise permitted by this Agreement or by order of a
court of competent jurisdiction, Stockholder will not commit any act that could
restrict or affect Stockholder's legal power, authority and right to vote all of
the Shares then owned of record or beneficially by Stockholder or otherwise
prevent or disable Stockholder from performing any of his, her or its
obligations under this Agreement. Without limiting the generality of the
foregoing, except for this Agreement and as otherwise permitted by this
Agreement, Stockholder will not enter into any voting agreement with any person
or entity with respect to any of the Shares, grant any person or entity any
proxy (revocable or irrevocable) or power of attorney with respect to any of the
Shares, deposit any of the Shares in a voting trust or otherwise enter into any
agreement or arrangement with any person or entity limiting or affecting
Stockholder's legal power, authority or right to vote the Shares in favor of the
approval of the Proposed Transaction.
3. Agreement to Vote Shares.
(a) Prior to the Expiration Date, at every meeting of the
stockholders of Public Company called, and at every adjournment or postponement
thereof, Stockholder (in Stockholder's capacity as such) shall appear at the
meeting or otherwise cause the Shares to be present thereat for purposes of
establishing a quorum and, to the extent not voted by the persons appointed as
proxies pursuant to this Agreement, vote (i) in favor of adoption of the Merger
Agreement and approval of the transactions contemplated thereby (collectively,
the "Proposed Transaction"), (ii) against the approval or adoption of any
proposal made in opposition to, or in competition with, the Proposed
Transaction, and (iii) against any of the following (to the extent unrelated to
the Proposed Transaction): (A) any merger, consolidation or business combination
involving Public Company or any of its subsidiaries other than the Proposed
Transaction; (B) any sale, lease or transfer of all or substantially all of the
assets of Public Company or any of its subsidiaries; (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of Public Company or
any of its subsidiaries that is prohibited by the Merger Agreement; or (D) any
other action that is a breach of any covenant, representation or warranty or any
other obligation or agreement of Public Company under the Merger Agreement or of
Stockholder under this Agreement (each of (ii) and (iii), a "Competing
Transaction").
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(b) If Stockholder is the beneficial owner, but not the record
holder, of the Shares, Stockholder agrees to take all actions necessary to cause
the record holder and any nominees to vote all of the Shares in accordance with
Section 3(a).
4. Grant of Irrevocable Proxy.
(a) Except as set forth in Section 4(f) hereof, Stockholder hereby
irrevocably (to the fullest extent permitted by law) grants to, and appoints,
Merger Partner and each of its executive officers and any of them, in their
capacities as officers of Merger Partner (the "Grantees"), as Stockholder's
proxy and attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of Stockholder, to vote
the Shares, to instruct nominees or record holders to vote the Shares, or grant
a consent or approval in respect of such Shares in accordance with Section 3
hereof and, in the discretion of the Grantees with respect to any proposed
adjournments or postponements of any meeting of stockholders at which any of the
matters described in Section 3 hereof is to be considered.
(b) Except with respect to any proxy given by the Stockholder in
connection with the BiDil Sale, which shall remain in full force and effect and
is not revoked or otherwise modified hereby, Stockholder represents that any
proxies heretofore given in respect of the Shares that may still be in effect
are not irrevocable, and such proxies are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Stockholder under this Agreement. Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212 of the Delaware General Corporation Law.
(d) The Grantees may not exercise this irrevocable proxy on any
other matter except as provided above. Stockholder may vote the Shares on all
other matters.
(e) Merger Partner may terminate this proxy with respect to
Stockholder at any time at its sole election by written notice provided to
Stockholder.
(f) The proxy set forth in this Section 4 shall terminate upon the
termination of this Agreement in accordance with Section 10 hereof.
5. No Solicitation. Stockholder, in his, her or its capacity as a
Stockholder, shall not directly or indirectly, (a) solicit, initiate, encourage,
induce or knowingly facilitate the communication, making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry or take any
action that could reasonably be expected to lead to an Acquisition Proposal or
Acquisition Inquiry, (b) engage in discussions or negotiations with any Person
with respect to any Acquisition Proposal or Acquisition Inquiry, (c) approve,
endorse or recommend any Acquisition Proposal, or (d) enter into any letter of
intent or similar document or any Contract contemplating or otherwise relating
to any Acquisition Transaction.
6. Lock-Up With Respect to Public Company Common Stock.
(a) Stockholder shall not Transfer any shares of Public Company
Common Stock or any securities convertible into or exercisable or exchangeable
for Public Company Common Stock owned of record or beneficially by Stockholder
during the period commencing upon the Effective Time and ending 90 days after
the date on which the Effective Time occurs with respect to 50% of such shares
and 180 days after the Effective Time with respect to the remainder of such
shares. The foregoing sentence shall not apply to (a) transactions relating
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to shares of Public Company Common Stock or other securities acquired in open
market transactions after the Effective Time; (b) transfers of shares of Public
Company Common Stock or other securities as a bona fide gift; (c) distributions
of shares of Public Company Common Stock or other securities to partners,
members or shareholders of the Stockholder or to the estate of any deceased
partner or member of the Stockholder; (d) transfers to any family limited
partnership or family limited liability company whose partnership or equity
interests are owned by, or a trust for the direct or indirect benefit of, or
controlled by, the Stockholder or the immediate family of the Stockholder; (e)
transfers to the Stockholder's Affiliates or to any investment fund or other
entity controlled or managed by the Stockholder; provided that in the case of
any transfer or distribution pursuant to clause (b), (c), (d) or (e), (i) each
donee, distributee or transferee shall sign and deliver a lock-up letter
containing substantially similar provisions as are set forth in this Section 6;
or (f) transfers to any beneficiary of the Stockholder pursuant to will,
intestacy, trust or other testamentary document or applicable laws of descent.
In addition, the Stockholder agrees that, without the prior written consent of
Public Company, it will not, during the period commencing on the Effective Time
and ending 180 days after the date on which the Effective Time occurs, make any
demand for or exercise any right with respect to, the registration of any shares
of Public Company Common Stock or any securities convertible into or exercisable
or exchangeable for Public Company Common Stock. The Stockholder also agrees and
consents to the entry of stop transfer instructions with Public Company's
transfer agent and registrar against the transfer of the undersigned's shares of
Public Company Common Stock or any securities convertible into or exercisable or
exchangeable for Public Company Common Stock except in compliance with the
foregoing restrictions.
(b) In the event that Public Company releases any shares of Public
Company Common Stock from the lock-up restrictions set forth above, the same
percentage of shares of Public Company Common Stock held by such persons that
are so released from the lock-up restrictions shall be immediately and fully
released with respect to shares of Public Company Common Stock held by the
Stockholder.
7. Action in Stockholder Capacity Only. Stockholder makes no agreement
or understanding herein as a director or officer of Public Company. Stockholder
signs solely in Stockholder's capacity as a record holder and beneficial owner,
as applicable, of Shares, and nothing herein shall limit or affect any actions
taken in Stockholder's capacity as an officer or director of Public Company.
Nothing herein shall prevent or preclude an officer, director or manager of the
Stockholder who is serving as a director of Public Company from taking or not
taking any action in his capacity as a director of Public Company.
8. Representations and Warranties of Stockholder.
(a) Stockholder hereby represents and warrants to Merger Partner as
follows: (i) Stockholder is the beneficial or record owner of the shares of
capital stock of Public Company indicated on the signature page of this
Agreement free and clear of any and all pledges, liens, security interests,
mortgage, claims, charges, restrictions, options, title defects or encumbrances
except as provided in the Voting Agreement; (ii) Stockholder does not
beneficially own any securities of Public Company other than the shares of
capital stock and rights to purchase shares of capital stock of Public Company
set forth on the signature page of this Agreement; (iii) Stockholder has full
power and authority to make, enter into and carry out the terms of this
Agreement and to grant the irrevocable proxy as set forth in Section 4; and (iv)
this Agreement has been duly and validly executed and delivered by Stockholder
and constitutes a valid and binding agreement of Stockholder enforceable against
Stockholder in accordance with its terms. Stockholder agrees to notify Merger
Partner promptly of any additional shares of capital stock of Public Company of
which Stockholder becomes the beneficial owner after the date of this Agreement.
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(b) As of the date hereof and for so long as this Agreement remains
in effect, except for this Agreement or as otherwise permitted by this
Agreement, Stockholder has full legal power, authority and right to vote all of
the Shares then owned of record or beneficially by Stockholder, in favor of the
approval and authorization of the Proposed Transaction without the consent or
approval of, or any other action on the part of, any other person or entity
(including, without limitation, any governmental entity). Without limiting the
generality of the foregoing, Stockholder has not entered into any voting
agreement (other than this Agreement and the Voting Agreement) with any person
with respect to any of the Shares, granted any person any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Shares, deposited
any of the Shares in a voting trust or entered into any arrangement or agreement
with any person limiting or affecting Stockholder's legal power, authority or
right to vote the Shares on any matter (except, in each case, with respect to
the Voting Agreement and the Voting Agreement).
(c) The execution and delivery of this Agreement and the performance
by Stockholder of his, her or its agreements and obligations hereunder will not
result in any breach or violation of or be in conflict with or constitute a
default under any term of any agreement, judgment, injunction, order, decree,
law, regulation or arrangement to which Stockholder is a party and which
Stockholder is aware or by which Stockholder (or any of his, her or its assets)
is bound and which Stockholder is aware, except for any such breach, violation,
conflict or default which, individually or in the aggregate, would not
materially impair or materially adversely affect Stockholder's ability to
perform his, her or its obligations under this Agreement or render inaccurate
any of the representations made by Stockholder herein.
(d) Stockholder understands and acknowledges that Public Company,
the Transitory Subsidiary and Merger Partner are entering into the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement and the representations and warranties of Stockholder contained
herein.
9. Confidentiality. Stockholder recognizes that successful consummation
of the Proposed Transaction may be dependent upon confidentiality with respect
to the matters referred to herein. In this connection, pending public disclosure
thereof, and so that Public Company may rely on the safe harbor provisions of
Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act,
Stockholder hereby agrees not to disclose or discuss such matters with anyone
not a party to this Agreement (other than its counsel and advisors, if any, and
the officers, directors, counsel and advisors of Public Company) without the
prior written consent of Public Company and Merger Partner, except for
disclosures Stockholder's counsel advises are required by applicable law, in
which case Stockholder shall give notice of such disclosure to Public Company
and Merger Partner as promptly as practicable so as to enable Public Company and
Merger Partner to seek a protective order from a court of competent jurisdiction
with respect thereto. The parties understand and agree that to the extent
required by law Stockholder may make a filing on Schedule 13D (or an amended
filing) concerning this Agreement and that such filing will not constitute a
violation of this Section 9.
10. Termination. This Agreement, including without limitation, Section
4, shall terminate and be of no further force or effect whatsoever as of the
earlier of (a) such date and time as the Merger Agreement shall have been
validly terminated pursuant to the terms of Article 9 thereof or (b) other than
Sections 6, 11 and 12 hereof, the Effective Time (the "Expiration Date").
Notwithstanding anything in this Agreement to the contrary, (i) Section 11 (and
any provision relating thereto) shall survive expiration or termination of this
Agreement, (ii) Sections 6 and 12 hereof shall remain in full force and effect
following the Effective Time for the time period provided in Section 6 and (iii)
if the Effective Time of the Merger has not occurred prior to June 30, 2009,
this Agreement, including without limitation Sections 6 and 12 shall be of no
further force or effect.
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11. No Effect Upon Voting Agreement. Notwithstanding anything contained in
this Agreement or elsewhere to the contrary, each of the Merger Partner, the
Public Company and the Stockholder acknowledges and agrees that:
(a) the sale of the BiDil and BiDil XR drug businesses and the other
transactions contemplated (the "BiDil Sale") pursuant to the Purchase and Sale
Agreement dated October 22, 2008 (the "Purchase Agreement") by and between the
Public Company and JHP Pharmaceuticals, LLC ("JHP") shall not constitute a
Competing Transaction for purposes of this Agreement and this Agreement shall
not apply to any action taken by Stockholder in connection with the BiDil Sale;
(b) Stockholder is a party to that certain Voting Agreement, dated
October 22, 2008, by and among Stockholder, Public Company, JHP and certain
other parties (the "Voting Agreement") related to the BiDil Sale;
(c) all actions taken or refrained from by Stockholder in accordance
with the terms of the Voting Agreement shall be permitted under this Agreement
regardless of any other provision hereof;
(d) in no event shall this Agreement affect, limit or alter the
rights or obligations of the parties to the Voting Agreement, or the rights or
obligations of the Public Company or JHP under the Purchase Agreement,
including, without limitation, the obligation of Stockholder to vote in favor of
the Voting Proposal, as such term is defined in the Purchase Agreement, for the
Public Company to consummate the Purchase Agreement in accordance with its terms
or the rights of JHP to take any action or exercise any right permitted under
the Voting Agreement; and
(e) to the extent that any provision of this Agreement can be viewed
as inconsistent with any right, power or privilege of the parties under the
Voting Agreement, such provision of this Agreement shall have no force and
effect.
12. Miscellaneous Provisions.
(a) Amendments, Modifications and Waivers. This Agreement may not be
amended or modified except by an instrument in writing signed on behalf of each
of the parties hereto. Any agreement on the part of a party hereto to any waiver
of any term or condition hereof shall be valid only if set forth in a written
instrument signed on behalf of such party. Such waiver shall not be deemed to
apply to any term or condition other than that which is specified in such
waiver. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
(b) Entire Agreement. This Agreement constitutes the entire
agreement among the parties to this Agreement and supersedes any prior
understandings, agreements or representations by or among the parties hereto, or
any of them, written or oral, with respect to the subject matter hereof. In no
event shall the parties have the right to amend, modify or delete, in whole or
in part, the provisions of Section 11 or any other provision that relates
thereto without the written consent of JHP.
(c) Governing Law. All matters arising out of or relating to this
Agreement and the transactions contemplated hereby (including without limitation
its interpretation, construction, performance and enforcement) shall be governed
by and construed in accordance with the internal laws of the State of Delaware
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdictions other than those of the State of
Delaware.
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(d) Submission to Jurisdiction. Each of the parties to this
Agreement (i) consents to submit itself to the exclusive personal jurisdiction
of the Court of Chancery of the State of Delaware in any action or proceeding
arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that all claims in respect of such
action or proceeding may be heard and determined in such court, (iii) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from such court and (d) agrees not to bring any
action or proceeding arising out of or relating to this Agreement or any of the
transaction contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party may make service on another party by sending or delivering a copy of the
process to the party to be served at the address and in the manner provided for
the giving of notices in Section 12(m) hereof. Nothing in this Section 12(d),
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.
(f) Attorneys' Fees. In any action at law or suit in equity to
enforce this Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive its
reasonable attorneys' fees and all other reasonable costs and expenses incurred
in such action or suit.
(g) Assignment and Successors. Except for any Transfer made in
compliance with Section 2(a) hereof, no party may assign any of its rights or
delegate any of its performance obligations under this Agreement, in whole or in
part, by operation of law or otherwise without the prior written consent of the
other parties, except that Merger Partner, without obtaining the consent of any
other parties hereto, shall be entitled to assign this Agreement or all or any
of its rights or obligations hereunder to any one or more of its Affiliates. No
assignment by Merger Partner under this Section 12(g) shall relieve Merger
Partner of its obligations under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including, without limitation, Stockholder's estate and heirs upon the death of
Stockholder. Any purported assignment of rights or delegation of performance
obligations in violation of this Section 12(g) shall be null and void.
(h) No Third Party Beneficiaries. This Agreement is not intended,
and shall not be deemed, to confer any rights or remedies upon any person other
than the parties hereto, JHP as it relates to Section 11 (or any other provision
that relates thereto) and their respective successors and permitted assigns, or
to otherwise create any third-party beneficiary hereto.
(i) Cooperation. Stockholder agrees to cooperate fully with Merger
Partner and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably
requested by Merger Partner to evidence or reflect the transactions contemplated
by this Agreement and to carry out the intent and purpose of this Agreement.
Stockholder hereby agrees that Public Company and Merger Partner may publish and
disclose in the Registration Statement and any resale registration statement
relating thereto (including all documents and schedules filed with the SEC) and
the Proxy Statement/Prospectus, such Stockholder's identity and ownership of
Shares and the nature of such Stockholder's commitments, arrangements and
understandings under this Agreement and may further file this Agreement as an
exhibit to the Registration Statement or in any other filing made by Public
Company or Merger Partner with the SEC relating to the Proposed Transaction.
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(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction; provided however, that in the event that
any provision of Section 11 (or any provision relating thereto) is deemed
invalid, the parties will negotiate in good faith with HIP to agree upon
replacement language that would overcome invalidity to address the intention of
Section 11 (or any provision relating thereto). If the final judgment of a court
of competent jurisdiction declares that any term or provision hereof is invalid
or unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified. In the event
such court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
(k) Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
(1) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Public Company and Merger Partner shall be irreparably harmed
and that there shall be no adequate remedy at law for a violation of any of the
covenants or agreements of Stockholder set forth in this Agreement. Stockholder
accordingly agrees that, in addition to any other remedies that may be available
to Public Company or Merger Partner, as applicable upon any such violation, such
party shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to such party at
law or in equity without posting any bond or other undertaking.
(m) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered (i) four business days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
or (ii) one business day after being sent for next business day delivery, fees
prepaid, via a reputable nationwide overnight courier service, in each case to
the intended recipient as follows: (A) if to Public Company or Merger Partner,
to the address provided in the Merger Agreement, including to the persons
designated therein to receive copies, and (B) if to Stockholder, to
Stockholder's address shown below Stockholder's signature on the signature page
hereof.
(n) Counterparts and Signature. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties hereto and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart. The exchange of copies of this Agreement of
amendments thereto and of signature pages by facsimile transmission or by email
transmission in portable document format, or similar format, shall constitute
effective execution and delivery of such instrument(s) as to the parties and may
be used in lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile or by email transmission in portable document
format, or similar format, shall be deemed to be their original signatures for
all purposes.
(o) Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(p) Legal Representation. This Agreement was negotiated by the
parties with the benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to any construction or interpretation thereof.
(q) Parallel Stockholder Agreements. The Public Company represents
to the Stockholder that each of the following stockholders have entered into
Stockholder Agreements with Public Company in connection with the Merger (the
"Stockholder Agreements"): (i) HealthCare Ventures V, L.P., (ii) HealthCare
Ventures VI, L.P., (iii) Rho Ventures IV (QP), L.P., (iv) Rho Ventures IV, L.P.,
(v) Rho Ventures N GmbH & Co. Beteiligungs KG, (vi) Rho Management Trust II,
(vii) Care Capital, and (viii) Invus Public Equities L.P.. All of such
Stockholder Agreements, including without limitation this Agreement, have
identical terms and the Public Company agrees not to amend or waive any
provision of any of such Stockholder Agreements without (i) providing
Stockholder with an opportunity to have the same amendment or waiver in
connection with this Agreement and (ii) the approval of HIP for any amendment or
waiver in connection with Section 11 (or any provision relating thereto) .
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first written above.
ARCHEMIX CORP.: STOCKHOLDER:
------------------------------ INVUS PUBLIC EQUITIES, L.P.
Name:
Title: By: Invus Public Equities Advisors, LLC
As General Partner
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
Address: 000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail Address: xx@xxxxx.xxx
Shares Beneficially Owned by Stockholder:
4,989,024 shares of Public Company Common Stock
__________ Public Company Stock Options
With respect to Section 2(b) and Section 11 (and any provisions that relate
thereto) only:
NITROMED, INC.:
------------------------------
Name:
Title:
[Signature Page to Merger Partner Stockholder Agreement]
