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EXHIBIT 2
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MASTER SHAREHOLDER AGREEMENT
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This MASTER SHAREHOLDER AGREEMENT, made at Cleveland, Ohio
this 7th day of February, 1992, by and among Xxxxxx X. Xxxx ("Xxxxxx"), Xxxxxx
X. Xxxx ("Xxxxxx"), A.P. Venture I Corp., a Delaware corporation ("AP"), H. Xxxx
Xxxxxx ("Xxxxxx"), Holcan Ltd. ("Holcan") and Pine Street Partners II ("PSP")
(Thomas, Robert, AP, Xxxxxx, Holcan and PSP being referred to herein
collectively as the "Principal Shareholders," and individually as a "Principal
Shareholder").
WITNESSETH; That,
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WHEREAS, the capital stock of Bio Holdings, Inc., an Ohio
corporation (the "Corporation"), consists of shares of Class A common stock
without par value (the "Class A Shares") and shares of Class B common stock
without par value (the "Class B Shares"). The term "Common Stock" shall mean all
of the Class A shares and Class B shares from time to time outstanding, but
shall not include any treasury shares of the Corporation.
WHEREAS, the Principal Shareholders have subscribed for all
the Class A shares and more than 90% of the Class B shares to be issued in
connection with the initial capitalization of the Corporation.
WHEREAS, the Corporation intends to invest in the common stock
of Ribozyme Pharmaceuticals, Inc. ("RPI"), a Delaware corporation to be formed
for the purpose of conducting a research and development program to
commercialize ribozyme technology.
NOW THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Potential Merger into RPI.
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The parties acknowledge that if RPI is successful, at some
time in the future it may be desirable to merge the Corporation into RPI, with
RPI being the surviving corporation.
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The parties agree that if fifty percent (50%) of the Class A shares is voted in
favor of such a merger or other form of corporate reorganization having
substantially the same effect (the "Merger"), then the parties hereto will be
bound by such vote, will tender all of their Common Stock pursuant to the terms
of the Merger and will waive any dissenter's rights with respect thereto.
2. Disposition of Shares.
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The parties understand that under current federal income tax
law, if the Merger is to qualify as a tax free reorganization, there must be a
continuity of interest with respect to the ownership of the shares of the
surviving corporation. With such understanding in mind, each of the Principal
Shareholders agrees that for a period of three years following the Merger (the
"Three Year Period"), such Principal Shareholder will not dispose of more than
25% of the shares of stock it may receive in the Merger (the "25% Limit"),
without giving at least 45 days advance written notice to all the other
Principal Shareholders of the number of shares such Principal Shareholder (the
"Selling Shareholder") proposes to dispose of, the number of shares it has
disposed of previously, and the reasons for its proposed disposition. Within 15
days of the giving of such notice, each of the other Principal Shareholders
shall give written notice to Xxxxxx of its intention to dispose (within the
remainder of the Three Year period) of shares of stock it shall have received in
the Merger. Following the receipt of all such notices and such additional
information as he shall reasonably require, Xxxxxx shall consult with competent
tax counsel. In the event such competent tax counsel shall advise Xxxxxx that
the proposed disposition of shares (including the proposed disposition of shares
by the other Principal Shareholders) may jeopardize the tax free nature of the
Merger, none of the Selling Shareholders or the other Principal Shareholders
will dispose of any shares in excess of the 25% Limit, unless and until such
competent tax counsel advises that the proposed disposition will not jeopardize
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the tax free nature of the Merger. All the Principal Shareholders will confer
and reasonably cooperate with each other toward the end that the tax free nature
of the merger shall not be jeopardized. The fees and expenses of such competent
tax counsel shall be borne by the Principal Shareholders in relation to the
number of shares of which they advise Xxxxxx they intend to dispose.
3. Future Actions.
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The parties acknowledge that the Board of Directors of the
Corporation may consider the issuance of Class A Shares and/or Class B Shares up
to an aggregate of an additional 8% of the outstanding stock of the Corporation,
or options therefor, to certain persons. Such shares may be offered or be the
subject of options at purchase prices that are less than the amount per share
paid by the parties or their Class A and Class B shares and to such persons and
upon such other terms as are determined hereafter by the Board of Directors.
Under no circumstances shall any such stock be issued or options granted to any
such person without the approval of the Board of Directors. If shareholder
approval is required for the authorization of additional shares of the
Corporation's stock for such purpose and/or for the issuance of such stock or
grant of options therefor to such persons, the parties agree to vote their Class
A Shares in favor thereof.
4. Agent for the Xxxxxx Group.
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Xxxxxx, Holcan and PSP constitute the Members of the Xxxxxx
Group. Each Member of the Xxxxxx Group hereby irrevocably appoints Xxxxxx his or
its agent to act for and on behalf of it, with full power and authority to
perform all obligations, to exercise all rights and to take any and all action
in the name of and on behalf of such Member of the Xxxxxx Group as may be
permitted or required hereunder, including without limitation receiving and
accepting delivery of any notices required to be delivered hereunder.
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5. Notices.
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All notices, requests, demands and other communications
hereunder shall be in writing and shall be given either by personal delivery and
a receipt obtained therefor or by United States mail duly certified or
registered, return receipt requested, or by delivery by a recognized air courier
providing receipt, with postage or fee prepaid and addressed as follows:
To Xxxxxx: Xxxxxx X. Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxxx & Parks
0000 XX Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
To Xxxxxx: Xxxxxx X. Xxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxx 00000
To AP: AP Venture I Corp.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
To the Xxxxxx Group: H. Xxxx Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Xxxxxxx Xxxxxxxxx
Wachtell, Lipton, Xxxxx & Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any party may, from time to time, by written notice to the other parties in the
manner herein specified, designated a different address or representative to
receive notice.
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6. Further Assurances.
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The parties will, upon the request of any party, execute,
deliver and/or furnish all documents, instruments and writings and do or cause
to be done all acts, deeds or things which may be reasonably necessary or
convenient to carry out the provisions, purposes and intent of this Agreement.
7. General Provisions.
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This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings of the parties in connection herewith. Except as
herein specified, no supplement, modification or termination of this Agreement
shall be binding unless executed in writing by the parties hereto. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver. All terms and conditions of this Agreement shall bind and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, except as otherwise provided herein.
The subject headings contained in this Agreement are included for purposes of
convenience only and shall not affect the construction or interpretation of any
of the provisions of this Agreement. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
This Agreement shall be interpreted in accordance with and governed by the laws
of the State of Ohio.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
/s/ Xxxxxx X. Xxxx
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XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
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XXXXXX X. XXXX
AP VENTURE I CORP.
By /s/ Xxxxxxxx Xxxxxxx, Chairman
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/s/ H. Xxxx Xxxxxx
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H. XXXX XXXXXX
HOLCAN LTD.
By /s/ Xxxxxx Xxxxxxxxx
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PINE STREET PARTNERS II
By /s/ Xxxxxxx X. Xxxxxxxx
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