Exhibit 99.2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of October 1, 2001 (this "Agreement"), by
and among Orchid BioSciences, Inc., a Delaware corporation, Persia Merger Sub,
Inc., a Delaware corporation and a newly-formed, special-purpose and wholly-
owned direct subsidiary of Parent ("Merger Sub"), and each of the parties
identified on Schedule A hereto (individually, a "Stockholder," and
collectively, the "Stockholders").
WHEREAS, Lifecodes Corporation, a Delaware corporation (the "Company"),
Parent and Merger Sub have contemporaneously with the execution and delivery of
this Agreement, entered into an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") which provides, among other things, that
Merger Sub will be merged (the "Merger") with and into the Company pursuant to
the terms and conditions thereof (capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement);
and
WHEREAS, as an essential condition and inducement to Parent to enter into
the Merger Agreement and in consideration therefor, the undersigned Stockholders
and Parent have agreed to enter into this Agreement; and
WHEREAS, as of the date hereof, each Stockholder is the record and/or
beneficial owner of the number of shares of Company Shares as set forth opposite
their respective names under Column I on Schedule A hereto (with respect to each
such Stockholder, such Stockholder's "Current Shares" and together with any
shares of Company Shares acquired after the date hereof, whether upon the
exercise of options or otherwise, such Stockholder's "Shares") and the record
and beneficial owner of options or other rights to purchase the number of shares
of Company Common Stock set forth under Column II of Schedule A attached hereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and in the Merger Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
VOTING OF SHARES
1.1 AGREEMENT TO VOTE. Each Stockholder hereby agrees, severally and not
jointly, that it shall, and shall cause the holder of record on any applicable
record date to, from time to time, at the request of Parent, at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting)
of stockholders of the Company, however called, or in connection with any
written consent of the holders of Company Common Stock, (a) if a meeting is
held, appear at such meeting or otherwise cause the Shares to be counted as
present thereat for purposes of establishing a quorum, and (b) vote or consent
(or cause to be voted or consented), in
person or by proxy, all Shares, and any other voting securities of the Company
(whether acquired heretofore or hereafter) that are beneficially owned or held
of record by such Stockholder or as to which such Stockholder has, directly or
indirectly, the right to vote or direct the voting, (i) in favor of the approval
and adoption of the Merger Agreement, the Merger and any action required in
furtherance thereof, (ii) against any action or agreement that would directly or
indirectly result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement, (iii) against any Acquisition Proposal or any other
action or agreement that directly or indirectly, is inconsistent with or that is
reasonably likely, directly or indirectly, to impede, interfere with, delay,
postpone or attempt to discourage the Merger or any other transaction
contemplated by the Merger Agreement.
1.2 GRANT OF PROXY. In furtherance and not in limitation of the
foregoing, each Stockholder, by this Agreement, with respect to all of such
Stockholder's Shares has executed an Irrevocable Proxy (the "Proxy") in favor of
Parent, in the form attached hereto as Exhibit A. By signature of its President
to this Agreement, the Company hereby acknowledges that the Proxy granted by
each Stockholder, when made in the form of Exhibit A, shall be in a form
acceptable to the Company.
1.3 NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
the Company or exercise any power or authority to direct the Stockholders in the
voting of any of the Shares, except as otherwise provided herein or in the
Proxy, or in the performance of the Stockholders' duties or responsibilities as
stockholders of the Company.
1.4 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
the Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement, voting trust or similar
agreement with respect to any of the Shares and (b) has not granted, and shall
not grant at any time while this Agreement remains in effect, and the Shares are
not otherwise subject to, a proxy or power of attorney with respect to any of
the Shares which is inconsistent with such Stockholder's obligations pursuant to
this Agreement or in the Proxy. Each Stockholder also covenants and agrees that
such Stockholder will not, prior to the termination of this Agreement, take any
action that would make any representation or warranty contained herein or in the
Merger Agreement untrue or have the effect of preventing, disabling or hindering
such Stockholder from performing its obligations under this Agreement or the
Company from consummating the transactions contemplated by the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby severally and not jointly represents and warrants
to Parent and Merger Sub as follows:
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2.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by such
Stockholder and no other actions or proceedings on the part of such Stockholder
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Parent and
Merger Sub, constitutes a valid and binding obligation of such Stockholder,
enforceable against it in accordance with its terms.
2.2 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings required
under applicable federal and state securities laws and regulations and the HSR
Act, none of the execution, delivery or performance of this Agreement by such
Stockholder nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the provisions hereof will (i) require any
filing with, or Approval of, any Governmental Authority, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other instrument or
obligation to which such Stockholder is a party or by which it or any of its
properties or assets may be bound or (iii) violate any Order or Law applicable
to it or any of its properties or assets.
2.3 SHARES. Such Stockholder's Current Shares are, and all of its Shares
on the Closing Date will be, owned beneficially and of record by such
Stockholder. As of the date hereof, such Stockholder's Current Shares
constitute all of the shares of Company Common Stock owned of record or
beneficially by such Stockholder. All of such Stockholder's Current Shares are
issued and outstanding, and, except as set forth on in Schedule A, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of Company Common Stock or any other capital
stock or securities of the Company and has no interest in or voting rights with
respect to any other securities of the Company. Such Stockholder has sole voting
power, sole power of disposition, sole power to issue instructions with respect
to the matters set forth in Article I hereof, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such Stockholder's Current Shares and will have sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set
forth in Article I hereof, and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of such Stockholder's
Shares on the Closing Date, with no limitations, qualifications or restrictions
on such rights, subject to applicable federal securities laws and the terms of
this Agreement. Such Stockholder has good and marketable title to its Current
Shares and at all times during the term hereof and on the Closing Date will have
good and marketable title to its Shares, free and clear of all Liens, and, upon
delivery thereof to Merger Sub against delivery of the consideration therefor
pursuant to the Merger Agreement, good and marketable title thereto, free and
clear of all Liens (other than any arising as a result of actions taken or
omitted by Merger Sub), will pass to Merger Sub.
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2.4 NO FINDER'S FEES. Except as previously disclosed to Parent in
writing, no broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby or the Merger
based on arrangements made by or on behalf of such Stockholder.
2.5 NO GROUP. Each Stockholder is acting individually and not as part of
a "group" as defined in the Exchange Act.
ARTICLE III
OTHER COVENANTS
3.1 FURTHER AGREEMENTS OF STOCKHOLDER.
(a) No Sale or Transfer of Shares. Each Stockholder, severally and not
jointly, hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to sell, transfer, pledge, encumber, assign or
otherwise dispose of, enforce or permit the execution of the provisions of any
redemption, share purchase or sale, recapitalization or other agreement with the
Company or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of its Current Shares, any
Shares acquired after the date hereof, any securities exercisable for or
convertible into Company Common Stock or any interest in any of the foregoing,
without the prior written consent of Parent, which consent shall not be
unreasonably withheld, conditioned or delayed (provided nothing contained herein
shall be deemed to restrict the exercise of options).
(b) Certificates. Each Stockholder shall not request that the Company or
its transfer agent register the transfer (book-entry or otherwise) of any
certificated or uncertificated interest representing any of such Stockholder's
Shares, and hereby consents to the entry of stop transfer instructions by the
Company of any transfer of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement. Each Stockholder acknowledges and
agrees that each certificate representing any Shares shall, at Parent's request,
bear the following legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN
LIMITATIONS ON TRANSFER AND CERTAIN VOTING RESTRICTIONS SET FORTH IN THE
STOCKHOLDERS AGREEMENT DATED AS OF ______________, 2001 BY AND AMONG ORCHID
BIOSCIENCES, INC. AND THE PARTIES IDENTIFIED ON SCHEDULE A THERETO (A COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE OFFICES OF ORCHID BIOSCIENCES, INC.),
AND NEITHER THIS CERTIFICATE NOR THE SHARES REPRESENTED HEREBY MAY BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH SUCH STOCKHOLDERS AGREEMENT."
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If Parent so requests, as soon as practicable after the execution and
delivery of this Agreement (and in no event more than ten (10) business days
thereafter), each Stockholder shall surrender each certificate representing any
of such Shares to the Company in exchange for one or more certificates
representing such Shares bearing the foregoing legend.
(c) Stock Dividend or Distribution. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend or distribution, or any change in the Company Common Stock by reason of
any stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Shares may be changed or exchanged. Each
Stockholder shall be entitled to receive any cash dividend paid by the Company
during the term of this Agreement until the Shares are canceled in the Merger.
(d) Acquisition Proposal. Each Stockholder shall not, nor shall it
authorize or permit any Affiliate, director, officer, employee, or any
investment banker, attorney or other advisor, agent or representative of, such
Stockholder (collectively, the "Representatives") to, directly or indirectly,
(i) solicit, facilitate, initiate, entertain or encourage, or take any action to
solicit, facilitate, initiate, entertain or encourage, any inquiries or
communications or the making of any proposal or offer that constitutes or may
constitute an Acquisition Proposal, or (ii) participate or engage in any
discussions or negotiations with, or provide any information to, or take any
action with the intent to facilitate the efforts of, any Person concerning any
possible Acquisition Proposal or any inquiry or communication which might be
reasonably be expected to result in an Acquisition Proposal. From and after the
date hereof, each Stockholder shall immediately cease and terminate, and shall
cause its Representatives to immediately cease and cause to be terminated, all
existing discussion or negotiations with any Persons conducted heretofore with
respect to, or that could reasonably be expected to lead to, an Acquisition
Proposal.
(e) Performance. Each Stockholder covenants and agrees with the other
Stockholders and for the benefit of the Company (which shall be a third party
beneficiary of this Section 3.1(e)) to comply with and perform all its
obligations under this Agreement.
(f) Optionholders. Each Stockholder which holds any option to purchase
shares of Company Common Stock hereby consents to the treatment of such option
as set forth in Section 1.8 of the Merger Agreement.
(g) Appraisal Rights. Each Stockholder covenants and agrees not to
exercise any rights of appraisal with respect to any of its current Shares, any
Shares acquired after the date hereof, or any securities exercisable for or
convertible into Company Common Stock.
(h) Covenants. The Stockholder hereby represents to and covenants with
Parent that, during the period of effectiveness of the Resale Registration
Statement, the Stockholder will:
(i) Not engage in any stabilization activity in connection with any of
Parent's securities other than as permitted under the Exchange Act;
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(ii) To the extent required by applicable law, cause to be furnished
to any purchaser of the Shares of Parent Common Stock and to the broker-dealer,
if any, through whom Shares of Parent Common Stock may be offered, a copy of the
final prospectus contained in the Resale Registration Statement, as supplemented
or amended through the date of the sale (the "Prospectus"); and
(iii) Not bid for or purchase any securities or Parent or any rights
to acquire Parent's securities, or attempt to induce any person to purchase any
of Parent's securities (except for the Shares to be sold to such person by means
of the Prospectus) or any rights to acquire Parent's securities other than as
permitted under the Exchange Act.
(i) Information for Use in Resale Registration Statement. The Stockholder
hereby agrees to complete and forward to Parent any information requested by
Parent for inclusion in the Resale Registration Statement on Form S-3. The
Stockholder understands that such information is being provided to Parent
specifically for use in, or in connection with, the Resale Registration
Statement and the Prospectus, and has executed this Agreement with such
knowledge.
3.2 FURTHER AGREEMENTS OF PARENT.
(a) Registration Rights. The parties agree that the provisions of
Sections 6.1 and 6.14 of the Merger Agreement shall be deemed to be incorporated
by reference in this Agreement as if such provisions had been set forth in their
entirety herein and that such provisions constitute a binding agreement between
the Stockholder and Parent with respect to the subject matter thereof.
(b) Additional Obligations of Parent. Parent shall (i) furnish to each
Stockholder such number of copies of any prospectus (including any preliminary
prospectus and any amended or supplemented prospectus) in conformity with the
requirements of the Securities Act, and such other documents, as each
Stockholder may reasonably request in order to effect the offering and sale of
the Shares to be offered and sold, but only while Parent shall be required under
the provisions of this Agreement to cause the Resale Registration Statement to
remain current; (ii) notify each Stockholder upon the happening of any event as
a result of which the prospectus included in the Resale Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated in the prospectus or necessary to
make the statements in the prospectus not misleading in the light of the
circumstances then existing and thereafter promptly take reasonable action to
correct the misstatement or omission; (iii) so long as the Resale Registration
Statement remains effective, promptly furnish to each Stockholder a reasonable
number of copies of any supplements to such prospectus as may have been filed by
Parent; (iv) notify each Stockholder, promptly after it shall receive notice
thereof, of the date and time the Resale Registration Statement and each post-
effective amendment thereto has become effective or a supplement to any
prospectus forming a part of the Resale Registration Statement has been filed;
(v) notify each Stockholder promptly after it obtains knowledge thereof, of the
issuance of any stop order by the Commission suspending the effectiveness of the
Resale Registration Statement or the initiation or threatening
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of any proceeding for that purpose and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop order
should be issued.
(c) Reports under the Exchange Act. Parent agrees to use its best efforts
to file with the SEC in a timely manner all reports and other documents required
of Parent under the Securities Act and Exchange Act.
(d) Survival. The provisions of this Section 3.2 shall survive the
termination of this Agreement until such time the Registrable Securities may be
sold in accordance with Rule 145 or under Rule 144(k) of the Securities Act.
ARTICLE IV
MISCELLANEOUS
4.1 BEST EFFORTS. Prior to the Effective Time, each Stockholder shall use
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with Parent in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable and without further consideration, the
Merger and the other transactions contemplated by the Merger Agreement and this
Agreement, including (i) the obtaining of all necessary actions or non-actions,
waivers, consents and approvals from Governmental Authorities and the making of
all necessary registrations and filings and the taking of all reasonable steps
as may be necessary to obtain an approval or waiver from, or to avoid an action
or proceeding by, any Governmental Authority, (ii) the obtaining of all
necessary Approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging the Merger Agreement or this Agreement or the consummation of any of
the transactions contemplated by the Merger Agreement and this Agreement,
including seeking to have any stay or temporary restraining order entered by any
Court or other Governmental Authority vacated or reversed, and (iv) the
execution and delivery of any additional instruments and the taking of such
further action as may be necessary or desirable to consummate the transactions
contemplated by, and to fully carry out the purposes of, the Merger Agreement
and this Agreement.
4.2 TERMINATION. This Agreement shall terminate and no party shall have
any rights or duties hereunder upon the earlier of (a) the Effective Time or
(b) termination of the Merger Agreement pursuant to Section 8.1 thereof.
Nothing in this Section 4.2 shall relieve or otherwise limit any party of
liability for breach of this Agreement. Upon such termination, no party shall
have any further obligations or liabilities hereunder, provided that no such
termination shall relieve any party from liability for any breach of this
Agreement prior to such termination.
4.3 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement, the
Merger Agreement and the other Related Agreements constitute the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and
thereof, and, except as provided for in Section 3.1(e), is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
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4.4 AMENDMENTS; ASSIGNMENTS; SUCCESSORS. This Agreement may not be
amended except by an instrument in writing signed by all the parties hereto.
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective heirs, legal representatives and permitted
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned delegated or otherwise transferred , in
whole or in part, by any of the parties without prior written consent of the
other parties, and any purported assignment, delegation or transfer without such
consent shall be null and void; provided, however that Parent may assign its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of the Parent without such consent. If any Stockholder shall at any
time hereafter acquire ownership of, or voting power with respect to, any
additional Shares in any manner, whether by the exercise of any options or other
rights, by operation of law or otherwise, such Shares shall be held subject to
all of the terms and provisions of this Agreement. Without limiting the
foregoing, each Stockholder specifically agrees that the obligations of such
Stockholder hereunder shall not be terminated by operation of law, whether by
death or incapacity of the Stockholder or otherwise.
4.5 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
4.6 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
will impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor will any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive to, and not exclusive of, any
rights or remedies otherwise available.
4.7 GOVERNING LAW; SPECIFIC PERFORMANCE; ENFORCEMENT. This Agreement and
the rights and duties of the parties hereunder shall be governed by, and
construed in accordance with, Delaware Law. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to seek
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in the state
courts in the State of Delaware, this being in addition to any other remedy to
which they are entitled at law or in equity. Delaware Courts within the State
of Delaware and, more particularly, to the fullest extent such Court shall have
subject matter jurisdiction over the matter, the Court of Chancery of the State
of Delaware, will have exclusive jurisdiction over any and all disputes between
the parties hereto, whether in law or equity, arising out of or relating to this
Agreement and the agreements,
8
instruments and documents contemplated hereby. The parties consent to and agree
to submit to the jurisdiction of such Courts, provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
4.7 and shall not be deemed to be a general submission to the jurisdiction of
such Courts or in the State of Delaware other than for such purpose. Each of the
parties hereby waives, and agrees not to assert in any such dispute, to the
fullest extent permitted by applicable Delaware Law, any claim, that (i) such
party is not personally subject to the jurisdiction of such Courts, (ii) such
party and such party's property is immune from any legal process issued by such
Courts, or (iii) any litigation commenced in such Courts is brought in an
inconvenient forum.
4.8 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by nationally-recognized overnight courier or by registered or certified
mail, postage prepaid, return receipt requested, or by electronic mail, with a
copy thereof to be delivered by mail (as aforesaid) within 24 hours of such
electronic mail, or by facsimile, with confirmation as provided above addressed
as follows:
If to a Stockholder:
At the address set forth opposite such
Stockholder's name on Schedule A hereto
With a copy to:
If to Parent:
Orchid BioSciences, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxx.xxx
Attention: Xxxxx Xxxx, Esq.
With a copy (which shall not constitute notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx Esq.
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxx.xxx
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such
notices or communications shall be deemed to be received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of nationally-
recognized overnight courier, on the next Business Day after the date when
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sent (c) in the case of facsimile transmission or facsimile or electronic mail,
upon confirmed receipt, and (d) in the case of mailing, on the third Business
Day following the date on which the piece of mail containing such communication
was posted.
4.9 OBLIGATIONS OF STOCKHOLDERS. Except as otherwise provided herein, the
representations, warranties, covenants, agreements and conditions of this
Agreement applicable to the Stockholders are several and not joint. The
obligations of the Stockholders hereunder are several and not joint and the
covenants and agreements of the Stockholders herein are made only in their
capacity as stockholders of the Company and not as directors.
4.10 INTERPRETATION. The parties have participated jointly in the
negotiation of this Agreement. In the event that an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of the provisions
of this Agreement.
4.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. As to any Stockholder,
this Agreement shall become effective when two or more counterparts have been
signed by each of such Stockholder and Parent and delivered to the other.
4.12 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
4.13 ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements, in
addition to any other relief to which such party may be entitled.
4.14 SURVIVAL. The representations and warranties of the Stockholders set
forth in Article II and Sections 4.2, 4.7 and 4.8 of this Agreement shall
survive the termination of this Agreement.
[THE REMAINDER OF THIS PAGE REMAINS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Stockholders Agreement to be duly executed as of the date first written above.
ORCHID BIOSCIENCES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer,
Chief Operating Officer and Senior Vice
President, Corporate Development
PERSIA MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxx, Ph.D.
--------------------------- 0 Xxxxxx Xxxx Xxxx
Name: Xxxxxxx X. Xxxxx, Ph.D. Xxxxxx, XX 00000
/s/ Xxxx Xxxxxx, Ph.D.
---------------------- 00 Xxxx Xxxxx Xxxxxx
Name: Xxxx Xxxxxx, Ph.D. Xxx Xxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
-------------------- 00 Xxxx Xxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxxx Xxxxxx Xxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
-------------------- c/o ILI.
Name: Xxxxxx X. Xxxxxx 000 Xxxx Xxxxx, Xxxxx 0
Xxxx Xxxxx, XX 00000
/s/ Prof. Xx. Xxxxxxx Xxxxxxxx
------------------------------ Plattleite 9
Name: Prof. Xx. Xxxxxxx Ehininger 01326 Dresden, Germany
/s/ Xxxxxxxx X. Xxxxxxx, Xx.
---------------------------- 00 Xxxxxxxx Xxxxx
Name: Xxxxxxxx X. Xxxxxx, Xx. Xxxxxx, XX 00000
11
/s/ Xxxx Xxxxxx
--------------- 25 West Elm
Name: Xxxx Xxxxxx Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
------------------- 00 Xxxxxxx Xxxxx Xxx
Name: Xxxxxx X. Xxxxx Xxxx Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
------------------- 00 Xxxxxxx Xxxxx Xxx
Name: Xxxxxx X. Xxxxx, Xxxx Xxxxxx, XX 00000
Custodian for Xxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxxxxxx
---------------------- 00 Xxxxx Xxxx Xxxx
Name: Xxxxxxx Xxxxxxxxxx Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------ 000 XxXxxx Xxxxx
Name: Xxxxxx X. Xxxxxxxxxx Xxxxxxxx Xxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------ 000 XxXxxx Xxxxx
Name: Xxxxxx X. Xxxxxxxxxx, Ballston Spa, NY 12020
Custodian for Xxxx X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------ 00 Xxxxx Xxxx Xxxx
Name: Xxxxxx X. Xxxxxxxxxx Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxxxxx
--------------------- 00 Xxxxx Xxxx Xxxx
Name: Xxxxxx Xxxxxxxxxx Xxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxx, Xx.
----------------------- 0000 Xxxxxxxxxxxxxx Xx.
Name: Xxxx X. Xxxxxx, Xx. Xxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
----------------------- 000 Xxxxxx Xxxxx
Name: Xxxxxxx X. Xxxxxxxx Xxxxxx, XX 00000
/s/ Xxxxx Xxxxxx, Ph.D.
----------------------- 00 Xxxxxxxx Xxxxxx
Name: Xxxxx Xxxxxx, Ph.D. Xxxxxxx, XX 00000
12
XXXXXX FAMILY TRUST
By: /s/ Xxxxxx X. Xxxxxx
-------------------- c/o Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx 85 East Bridge Street
Title: Trustee Xxxxxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
CENTURY II CORP.
By: /s/ Xxxx Xxxxxx
------------------ 0000 Xxxxxxxxxxxxxx Xx.
Name: Xxxx Xxxxxx Xxxxxxxxx, XX 00000
Title: President
XXXXXXXXXX FAMILY LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------ c/o Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx 00 Xxxxx Xxxx Xxxx
Xxxxx: Manager Xxxxxxx, XX 00000
AS TO THE LAST SENTENCE OF
SECTION 1.2:
LIFECODES CORPORATION
By: /s/ Xxxxxxx X.X. Xxxxxx
-----------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Chief Financial Officer
13
SCHEDULE A
Stockholders
------------
Name (Current Shares) (Options)
---- ---------------- ---------
14
