NOMINATION AGREEMENT
THIS NOMINATION AGREEMENT (this “Agreement”) is made,
entered into, and effective as of February 23, 2010, by and among Derma
Sciences, Inc., a Pennsylvania corporation with its principal place
of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx
00000 (the “Company”) and Comvita New Zealand Limited (“Comvita”).
RECITALS
WHEREAS, concurrently with the
execution and delivery of this Agreement, Comvita has licensed certain medical
honey technology to the Company (the “License Transaction”) pursuant to a
License Agreement and other related agreements (collectively the “License
Transaction Documents”);
WHEREAS, Comvita is a stockholder of
the Company and owns as of the consummation of the License Transaction more than
10% of the outstanding common stock of the Company; and
WHEREAS, as an inducement and
a condition to entering into the License Transaction Documents, Comvita and the
Company have agreed to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in and as
consideration of and for the foregoing premises and the representations,
warranties, agreements, and covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. One
Designee. For so long as Comvita owns more than 10% of the
outstanding common stock of the Company, the Company shall nominate, in
connection with each shareholder solicitation relating to the election of
directors of the Company, one candidate designated by Comvita. The
candidate shall be the Chief Executive Officer of Comvita, the Chairman of the
Board of Comvita, or such other person as is reasonably acceptable to the
Company (the “Comvita Designee”).
2. Affiliates. For
purposes of this Agreement, all shares held by an Affiliate (as defined in Rule
405 promulgated under the Securities Act of 1933, as amended) of Comvita shall
be deemed to be owned by Comvita.
3. Voting of Management
Shares. The Company shall uses its best efforts (i) to cause
to be voted the shares for which the Company’s management or Board of Directors
hold proxies, or are otherwise entitled to vote, in favor of the Comvita
Designee and (ii) to cause the Board of Directors to unanimously
recommend to its shareholders to vote in favor of the Comvita
Designee.
4. Vacancies. In
the event that the Comvita Designee shall cease to serve as a director of the
Company for any reason, the vacancy resulting therefrom will shall be filled by
another Comvita designee.
5. Termination.
This Agreement shall terminate on the date when Comvita no longer beneficially
owns at least 10% of the outstanding common stock of the Company.
6. Equal
Treatment. The Company shall provide the Comvita Designee with
the same rights, benefits and indemnities as other non-employee directors of the
Company.
7. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties hereto with respect to the subject matter hereof.
(b) Assignment.
This Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the Company and Comvita.
(c) Amendment. This
Agreement may not be amended, changed, supplemented or otherwise modified except
by an instrument in writing signed by each the Company and Comvita.
(d) Notice. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly received if
given) by hand delivery or by facsimile transmission with confirmation of
receipt, as follows:
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If to the
Company:
000
Xxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx
Xxx
Xxxxxx 00000
Xxxxxx
Xxxxxx of America
Facsimile: x0
(000) 000-0000
Attention: Chief
Executive Officer
If to
Comvita:
Comvita
New Zealand Limited
Xxxxxx
Road South
Paengaroa
New
Zealand
Facsimile: x00
0 000 0000
Attention: Chief
Executive Officer
or to
such other address or facsimile number as the person to whom notice is given may
have previously furnished to the other parties hereto in writing in the manner
set forth above.
(f)
Severability. Whenever
possible, each provision or portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law but
if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction such invalidity, illegality or unenforceability shall
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
(g) Remedies. All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such
party.
(h) Waiver. The
failure of any party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
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(i)
Third
Parties. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and any other third party successor, and
nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
(j)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New Jersey.
(k)
Specific Performance;
Consent to Jurisdiction. 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 an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any state court
located in the State of New Jersey, or any Federal court located in the State of
New Jersey, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any state court
located in the State of New Jersey, or any Federal court located in the State of
New Jersey in the event any dispute arises out of this Agreement or any
transaction contemplated by this Agreement, (ii) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iii) agrees that it shall not bring any
action relating to this Agreement or any transaction contemplated by this
Agreement in any court other than any such court. The parties hereto
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the state courts of the State of New Jersey, or any
Federal court located in New Jersey, and further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in a
inconvenient forum.
(l)
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.
(m) Counterparts. This
Agreement may be executed in counterparts (by fax or otherwise), each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
Remainder
of Page Intentionally Left Blank.
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IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Nomination Agreement effective
as of the date first written above.
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/s/ Xxxxxx X. Xxxxxx
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By:
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Name: Xxxxxx
X. Xxxxxx
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Title: President
and Chief Executive Officer
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COMVITA
NEW ZEALAND LIMITED
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/s/Xxxxx X. Xxxxxxx
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By:
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Name: Xxxxx
X. Xxxxxxx
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Title: Chief
Executive Officer
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