Exhibit 10.1
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT
between
Akzo Nobel Chemicals B.V.
BV Licht en Kracht Maatschappij
W.R. Grace & Co.
SmithKline Beecham Plc.
SmithKlineBeecham Corp.
Pfizer International Holdings Limited
The Generics Group A.G.
Inter Ikea Finance S.A.
S.R. One Limited
GSE Systems Inc.
Technische Universiteit Delft
Technische Universiteit Eindhoven Holding B.V.
Holding Technopolis Twente B.V.
Alpinvest Holding N.V.
Eastman Chemical B.V.
Corporate Opportunities Fund, L.P.
Corporate Opportunities Fund (Institutional), L.P.
Cazenove New Europe Access Fund No.1 Limited Partnership
Cazenove New Europe Access Fund No.2 Limited Partnership
EDB Ventures Pte Ltd
MVM International Life Sciences No 1 Limited Partnership
UK Medical Ventures Fund No 1 Limited Partnership
as Investors,
and
Avantium International B.V.
as the Company,
and
Xx. Xxx Xxxxxxx,
Xx. Xxxxxx Xxxxx,
Xx. Xxxx xx Xxxxx,
as the Managers
----------------------------------------------
NautaDutilh
Amsterdam
Place:
Date:
TABLE OF CONTENTS
Article Contents Page
1. INTERPRETATION
1.1 Definitions 7
1.2 Interpretation 7
1.3 Exhibits and Annexes 8
2. INVESTMENT
2.1 Issue and Conversion to Series B Investors 8
2.2 Issue of Tranches 1 and 2 to Series C Investors 9
2.3 Subscription 10
2.4 Notarial Deed of Issue 10
2.5 Use of proceeds 10
2.6 Articles of Association 11
3. CONDITIONS
3.1 Conditions precedent to Completion 11
3.2 Condition precedent to First Closing 12
3.3 Conditions precedent to Second Closing 12
4. COMPLETION AND CLOSING
4.1 Completion 14
4.2 Actions Completion 14
4.3 Documents Completion 14
4.4 First Closing 15
4.5 Second Closing 15
4.6 Documents Second Closing 16
5. MANAGEMENT
5.1 Management Board 16
5.2 Duties 16
5.3 Restrictions 16
5.4 Compliance 17
6. SUPERVISION
6.1 Supervisory Board 17
6.2 Duties 18
6.3 Observer Seats 18
6.4 Remuneration Committee 19
7. VOTING AGREEMENT 19
8. REPORTING 19
9. TRANSFER OF SHARES
9.1 Take-along 21
9.2 Drag-along 23
9.3 Transfer of shares: blocking clause 23
9.4 Permitted Transfers 24
9.5 Anti-dilution provision 25
10. REGISTRATION RIGHTS 25
11. CONVERSION 25
12. EXPENSES 26
13. REPRESENTATIONS AND WARRANTIES
13.1 Warranties 26
13.2 Warranties by the Company 27
13.3 Compensation 28
13.4 Limitations to liability 28
14. CONFIDENTIALITY 29
15. SECURITIES ACT 29
16. MISCELLANEOUS
16.1 Further action 30
16.2 Amendment 30
16.3 Costs 30
16.4 No implied waiver 30
16.5 No rescission 30
16.6 Severability 31
16.7 Notice 31
16.8 Assignment or Encumbrance 36
16.9 Termination 36
16.10 Miscellaneous 37
16.11 Governing law 37
16.12 Disputes 37
Exhibits:
I List of defined terms and expressions 42
Annexes:
A First Closing - Series B
B First Closing - Series C
C Second Closing - Series C
D Notarial deeds of Issue Tranche 1
E Articles of Association
F Overview Shareholdings
G Budget 2001 and 2002
H Notarial deed of Issue Tranche 2
I Anti-dilution calculation example
J Notification form
K Company's Stock Option Plan
L Representations and Warranties
M Disclosure Letter
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT
THE UNDERSIGNED:
1. Akzo Nobel Chemicals B.V., a private company with limited liability
organised under the laws of The Netherlands, whose corporate seat is at
Xxxxxxxxxxxxx 0, 0000 XX Xxxxxxxxxx, xxx Xxxxxxxxxxx;
2. Shell Chemicals (as BV Licht en Kracht Maatschappij), a company organised
under the laws of The Netherlands, whose corporate seat is at Xxxxx xxx
Xxxxxxxxxxx 00, 0000 XX Xxx Xxxxx;
3. W.R. Grace & Co. (Conn.), a company organised under the laws of the United
States of America, whose corporate seat is at 0000 Xxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, XXX;
4. GlaxoSmithKline, through (i) SmithKline Beecham Plc., a company organised
under the laws of the United Kingdom, whose corporate seat is at New
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx, and through
(ii) SmithKline Beecham Corporation, a corporation existing under the laws
of the Commonwealth of Pennsylvania, with office address at Xxx Xxxxxxxx
Xxxxx, X.X. Xxx 0000, Xxxxxxxxxxxx, XX, 00000-0000, Xxxxxx Xxxxxx of
America;
5. Pfizer International Holdings Limited, a company organised under the laws
of Ireland, having its corporate seat at Xx Xxxxxx Xxxxx, Xxxxxxxxxxxxx
Xxxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx;
6. The Generics Group A.G., a company organised under the laws of Switzerland,
whose corporate seat is at Xxxxxxxxxxxxx 0, XX-0000, Xxxxxx;
7. Inter Ikea Finance SA, a company organised under the laws of Luxembourg,
whose corporate seat is at Xxx Xxx Xxxxx 000 X - 0000, Xxxxxxxxxx;
8. S.R. One Limited, a limited liability company organised under the laws of
Pennsylvania, the United States of America, having its registered office at
Xxx Xxxxxxxx Xxxxx, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx,
00000, Xxxxxx Xxxxxx of America and with an office at Xxxx Xxxxx Xxxxxx,
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx, XX 00000;
9. GSE Systems Inc., a corporation existing under the laws of the state of
Delaware, USA, whose corporate seat is at 0000 Xxx Xxxxxx Xxxx, Xxxxxxxx,
00000 Xxxxxxxx, Xxxxxx Xxxxxx of America;
10. Technische Universiteit Delft, a university organised under the laws of The
Netherlands, whose corporate seat is at Xxxxxxxxxxx 000, 0000 XX Xxxxx;
11. Technische Universiteit Eindhoven Holding B.V., a company organised under
the laws of The Netherlands, whose corporate seat is at Den Dolech 2, HG
1.03, 0000 XX Xxxxxxxxx;
12. Holding Technopolis Twente B.V., a company organised under the laws of the
Netherlands, whose corporate seat is at Xxxxxxxxxxxx 0, 0000 XX Xxxxxxxx;
13. Alpinvest Holding N.V., a company organised under the laws of the
Netherlands, whose corporate seat is at Xxxxxxxxxxxxx 000, 0000 XX
Xxxxxxxxx;
14. Eastman Chemical B.V., a company organised under the laws of The
Netherlands, whose corporate seat is at Xxxxxx Xxxxxxxxx 0, 0000 XX Xxx
Xxxxx;
15. Corporate Opportunities Fund, L.P., a limited partnership organised under
the laws of the State of Delaware, whose corporate seat is at Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 Xxxxxx Xxxxxx
of America;
16. Corporate Opportunities Fund (Institutional), L.P., a limited partnership
organised under the laws of the State of Delaware, whose corporate seat is
at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx,
00000 Xxxxxx Xxxxxx of America;
17. Cazenove New Europe Access Fund No.1 Limited Partnership, a limited
partnership organised under the laws of England and Wales, whose corporate
seat is at 00 Xxxxxxxxxx Xxxx, Xxxxxx ("Cazenove No.1");
18. Cazenove New Europe Access Fund No.2 Limited Partnership, a limited
partnership organised under the laws of England and Wales, whose corporate
seat is at 00 Xxxxxxxxxx Xxxx, Xxxxxx ("Cazenove No.2");
19. EDB Ventures Pte Ltd, a company organised under the laws of Singapore,
whose corporate seat is at 000 Xxxxx Xxxxxx Xxxx, #00-00 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxxx 000000 ("EDB");
20. UK Medical Ventures Fund No 1 Limited Partnership, a limited partnership
managed by MVM Limited and organised under the laws of England and Wales,
whose corporate seat is at 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("UK Medical
Ventures");
21. MVM International Life Sciences No 1 Limited Partnership, a limited
partnership managed by MVM Limited and organised under the laws of England
and Wales, whose corporate seat is at 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
("MVM International");
hereinafter referred to as "the Investors";
22. Avantium International B.V., a private company with limited liability
organised under the laws of The Netherlands, whose corporate seat is at
Xxxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx,
hereinafter referred to as "the Company";
23. Xx. Xxx Xxxxxxx, Xx. Xxxxxx Xxxxx and Xx. Xxxx xx Xxxxx,
hereinafter referred to as "the Managers";
WHEREAS:
1. The Company was incorporated by B.V. Licht en Kracht Maatschappij on
January 28, 2000, in order to develop high-speed experimentation and
simulation technologies, also referred to as HSE & S, for application in
new product and process development in the pharmaceutical, petrochemical
and fine chemical, bio technology, energy and polymers industries (the
"Business");
2. After the incorporation of the Company, the Series A Investors subscribed
for Ordinary Shares and Series A Shares in the Company and are presently
party to the Subscription and Shareholders' Agreement dated 24 February
2000, as amended (the "First Round Shareholders Agreement");
3. The Series B Investors have now agreed to convert EUR 11,000,000, plus the
agreed interest (being the Euribor rate for 6 months deposits in Euro at
the signing date of the Convertible Loan Agreement (dated 22 March 2001):
i.e. the margin of 4% per year, as mentioned in article 3.1 of the
Convertible Loan Agreement, has been waived by the Series B Investors),
pursuant to the Convertible Loan Agreement, into Series B Shares in the
Company;
4. The Series C Investors have agreed to subscribe for EUR 11,000,000 Series C
Shares in the Company (Tranche 1), and, subject to the fulfilment of
certain conditions, to subscribe for EUR 9,000,000 Series C Shares in the
Company (Tranche 2)(the conversion by the Series B Investors and the
investment by the Series C Investors will collectively be referred to as
the "Investment"):
5. Each of the Parties has obtained any and all necessary approvals and
permits for the transactions and agreements contemplated hereby;
6. The Parties hereto wish to have their mutual relations and their respective
rights and obligations in respect of their investment and their resulting
shareholdings in the Company to be governed by the provisions of this
Agreement and the Articles of Association of the Company.
NOW HEREBY AGREE AS FOLLOWS:
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ARTICLE 1 - INTERPRETATION
1.1 Definitions
The parties to this agreement are collectively referred to as the "Parties", and
each of them as a "Party"; The Parties under 1 through 13 above are collectively
referred to as the "Series A Investors"; The Parties under 6, 8, 13, 14, 15 and
16 above are collectively referred to as the "Series B Investors"; The Parties
under 5, 8, 15, 16, 17, 18, 19, 20 and 21 above are collectively referred to as
the "Series C Investors".
The capitalised terms and expressions used and not otherwise defined in this
Agreement shall have the meanings given to them in Exhibit I.
1.2 Interpretation
(a) No provision of this Agreement shall be interpreted adversely
against a Party solely because that Party was responsible for
drafting that particular provision.
(b) Words denoting the singular shall include the plural and vice
versa. Words denoting one gender shall include another gender.
(c) English language words used in this Agreement intend to describe
Dutch legal concepts only and the consequences of the use of
those words in English law or any other foreign law shall be
disregarded.
(d) This Agreement has been drawn up in English. In the event of any
discrepancy between the English text of this Agreement and any
translation thereof, the English language version shall prevail.
The English language version shall also prevail for
interpretation purposes.
(e) References to any Netherlands legal concept shall, in respect of
any jurisdiction other than The Netherlands, be deemed to include
that which in that jurisdiction most closely approximates The
Netherlands legal concept.
(f) The words "include", "included" or "including" are used to
indicate that the matters listed are not a complete enumeration
of all matters covered.
(g) The titles and headings in this Agreement are for construction
purposes as well as for reference.
1.3 Exhibits and Annexes
Any Exhibit and Annex referred to in this Agreement forms an integral and
inseparable part of this Agreement.
ARTICLE 2 - INVESTMENT
2.1 Issue and Conversion to Series B Investors
The Company shall issue to each of the Series B Investors appearing in column 2
of Annex A the number of Series B Shares as set forth against that Series B
Investor's name in column 1 of Annex A (the "Series B Investor Shares") in
consideration for each of the Series B Investors converting its relative share
in the Convertible Loan Agreement as set forth in column 3 of Annex A
representing full payment by each of the Series B Investors of EUR 2.10 per
Series B Share (the "B price"), consisting of a par value of EUR 1 and a surplus
("agio") of EUR 1.10 per Series B Share, with each of the Series B Investors
investing the total amount as set forth against that Series B Investor's name in
column 3 of Annex A. Upon the issuance of the Series B Shares to the Series B
Investors becoming effective, the set off provided in Article 4.4 shall take
place and the Convertible Loan Agreement shall terminate and no rights and
obligations of any party thereto shall survive such termination. The Series B
Investors hereby confirm that as a result of the termination of the Convertible
Loan Agreement, all security rights and collateral vested in connection
therewith, as well as the relevant security agreements themselves, shall
automatically terminate, as a result of which all shares and intellectual
property rights in the Company will be free of any encumbrance, lien or charges.
The Parties agree to cancel, as a result of such termination, all relevant
registrations of such collateral, amongst others, of the intellectual property
rights, and furthermore agree that (apart from the agreed conversion of
interest) no rights to interest or of conversion of interest into Shares under
the Convertible Loan Agreement will survive such termination.
2.2 Issue of Tranches 1 and 2 to Series C Investors
--- -----------------------------------------------
Effective as of First Closing, the Company will issue to each of the Series C
Investors appearing in column 2 of Annex B the number of Series C Shares as set
forth against that Series C Investor's name in column 1 of Annex B ("Tranche 1
Series C Shares") in consideration for the payment by such Series C Investors of
EUR 3 per Series C Share, consisting of a par value of EUR 1 and a surplus
("agio") of EUR 2 per Series C Share, with each of the Series C Investors
investing the total amount as set forth against that Series C Investor's name in
column 3 of Annex B.
At the earlier of (i) the Conditions Precedent listed in Article 3.3 having been
met or (ii) a majority of the Series C Investors having so resolved (such date:
the "Second Closing"), the Company will issue to each of the Series C Investors
appearing in column 2 of Annex C the number of Series C Shares as set forth
against that Series C Investor's name in column 1 of Annex C ("Tranche 2 Series
C Shares") in consideration for the payment by such Series C Investors of EUR 3
per Series C Share, consisting of a par value of EUR 1 and a surplus ("agio") of
EUR 2 per Series C Share, with each of the Series C Investors investing the
total amount as set forth against that Series C Investor's name in column 3 of
Annex C. In this Agreement, a majority of the Series C Investors shall mean a
simple majority of more than 50% in terms of nominal shareholdings of all issued
and outstanding Series C Shares at that moment.
By signing this Agreement, each Shareholder will be deemed to have waived all of
its pre-emption rights with respect to the issue of the Tranche 1 Series C
Shares, the Tranche 2 Series C Shares and the issue of any bonus-Shares pursuant
to Article 9.5 hereof. The Parties agree that the share-premium reserve of the
Company shall only be used for the issue of bonus shares, unless otherwise
resolved by the general meeting of Shareholders, which must include the consent
of a majority of the Series C Investors.
Only if the share-premium reserve of the Company appears to be insufficient for
an issue of (all or any) bonus shares pursuant to Article 9.5 or if the Company
is not able to use the share-premium reserve for whatever reason, the Parties
agree that they will use their best endeavours (including voting) to issue bonus
shares to the Series B Investors and the Series C Investors to reduce the
dilutive effect on a full basis, by issuing bonus shares having a nominal value
of EUR 0.01, but in all other respects having all rights that the Series B
Shares and the Series C Shares with a nominal value of EUR 1.00 have (including,
but not limited to, voting, rights on a return of capital and dividends).
2.3 Subscription
The Series B Investors and the Series C Investors hereby agree to subscribe for
the Series B Shares referred to in Article 2.1 and for the Series C Shares
referred to in Article 2.2 respectively, all subject to the terms and conditions
of this Agreement. Each of the Series C Investors agrees to procure that as soon
as possible after Completion, it shall have made the payment in cash payable by
it to the Company as contribution to the Tranche 1 Series C Shares into account
number 55.72.97.133 with ABN AMRO Bank (address: Xxxxxxxxxx 000 Xxxxxxxxx, Xxx
Xxxxxxxxxxx) in the name of Derdengelden Notariaat Loyens & Loeff
("kwaliteitsrekening"), SWIFT Code XXXXXX0X (Intl Bank Account Number (IBAN):
NL62 ABNA 055.72.97.133), with reference Avantium/991200183. The notary will
re-transfer the payments of the Series C Investors (plus any accrued interests)
to each of them, if the First Closing does not occur within 21 days after
Completion, and the Series B Investors will then reconsider whether to proceed
with the conversion of the Series B Shares as set forth in Article 2.1.
2.4 Notarial Deed of Issue
The Series B Investor Shares and the Tranche 1 Series C Shares will be issued to
each of the Series B Investors and the Series C Investors pursuant to a notarial
deed in the form attached hereto as Annex D, which will be executed at First
Closing by one of the civil law notaries of Loyens & Loeff in Amsterdam, The
Netherlands. As provided by this notarial deed, the issue will be subject to the
amendment of the articles of association of the Company, in accordance with
Annex E hereto.
2.5 Use of proceeds
The Company will use the proceeds of the transactions contemplated herein for
general working capital requirements, including the continued development of its
technology platform and the related hardware and software components. In
addition hereto, the Company intends to expand and accelerate its discovery
program and expand its sales and marketing force.
2.6 Articles of Association
The legal relationship ("rechtsverhouding") between the Shareholders and the
Company shall be governed by this Agreement and the Articles of Association. The
Parties agree that this Agreement will supersede the First Round Shareholders
Agreement and any other shareholders agreement with respect to the Company - if
any -, upon the actions referred to in Article 4.2 having been effected at
Completion, and that as from such moment the First Round Shareholders Agreement,
and/or such other agreement, shall terminate, and, to the extent applicable, the
Parties hereby waive all rights they may have under the First Round Shareholders
Agreement, and/or such other agreement, as of that moment. In case of any
conflict between the terms of the Articles of Association and this Agreement,
the provisions of this Agreement shall prevail, subject to mandatory law. The
Parties hereby undertake to comply with the Articles of Association and this
Agreement as from the moment that the actions referred to in Article 4.2 have
been effected at Completion and from that date to act as if the Series B
Investors and the Series C Investors were Shareholders. The Parties agree that
no board- and/or shareholders' resolutions will be taken after Completion and
before First Closing without the prior written consent of a majority of the
Series B Investors and a majority of the Series C Investors (such majority to be
determined as if First Closing had already occurred, and as such as if the
Series B Investors and the Series C Investors already were holding the Shares
set out in Annexes A and B to this Agreement).
ARTICLE 3 - CONDITIONS
3.1 Conditions Precedent to Completion
The obligations of the Parties to proceed with the transactions contemplated by
this Agreement at Completion shall be subject to the satisfaction or to the
waiver on or prior to Completion of each of the following conditions (the
signing of this Agreement by the Parties expresses their confirmation that all
conditions have been satisfied or waived):
(a) completion by the Series C Investors of their legal and commercial due
diligence investigation of the Company with results satisfactory to the
Series C Investors;
(b) agreement by the Series C Investors on the Budget 2002 of the Company, as
prepared by the Management Board;
(c) completion of documentation acceptable to the Series B Investors and the
Series C Investors;
(d) no material adverse change, as determined by a simple majority by votes of
the Series B Investors and by a simple majority of the Series C Investors,
has occurred with respect to the Company or the financial markets between 5
November 2001 and Completion;
(e) all board resolutions and shareholders' approval including resolutions of
the Company having been obtained;
(f) approval by each of the Series C Investors respective governing bodies;
(g) agreement on the Dutch version of the Articles of Association.
Conditions (a), (b) and (f) are for the benefit of the Series C Investors and
conditions (a) and (b) may be waived (either in whole or in part) by a majority
(in terms of nominal shareholdings in the Company, based on the respective
shareholdings as they will be after the issue of the Tranche 1 Series C Shares,
as reflected in Annex F, of the Series C Investors, and condition (f) by the
relevant Series C Investor, at any time, by giving notice to the other Parties.
Conditions (c), (d), (e) and (g) are for the benefit of the Series B Investors
and the Series C Investors and may be waived (either in whole or in part) by a
majority (in terms of nominal shareholdings in the Company, based on the
respective shareholdings as they will be after the issue of the Series B
Investor Shares and the Tranche 1 Series C Shares, as reflected in Annex F) of
the Series B Investors and the Series C Investors, at any time, by giving notice
to the other Parties.
3.2 Condition Precedent to First Closing
The obligations of the Parties to proceed with the transactions contemplated by
this Agreement at the date of First Closing shall be subject to: (i) obtaining
the necessary statement from the Dutch Ministry of Justice with respect to the
Articles of
Association;
(ii) the entering into a registration rights agreement;
(iii)the Parties having complied with the last two sentences of Article 2.6
hereof;
(iv) all (and not some only) Series C Investors have fully fulfilled their
payment obligations by a transfer of the amounts mentioned in Annex B to
this Agreement into the third parties bank account of Loyens & Loeff, the
details of which are set out in Article 4.5 sub (b) hereof.
3.3 Conditions Precedent to Second Closing
The obligations of the Parties to proceed with the transactions contemplated by
this Agreement at the date of Second Closing or on any earlier date, should the
majority of the Series C Investors so decide, shall be subject to the
satisfaction, as determined by a majority of the Series C Investors, or to the
waiver by a majority of the Series C Investors on or prior to the Date of Second
Closing of each of the following conditions:
(a) the Company will have provided the results for the end of the
second quarter of 2002 to the Series C Investors on a basis consistent
with the basis employed in the Company's accounts for each of the 3
(three) preceding financial periods without any change in the
accounting policies used;
(b) the Company having achieved EUR 8,771,200 in revenues between 1
October 2001 and 30 June 2002, being 80% of the cumulative projected
revenues for that period (based on the revenues as mentioned in the
Budgets for the years 2001 and 2002 and on a basis consistent with the
basis employed in the Company's accounts for each of the 3 (three)
preceding financial periods without any change in the accounting
policies used). The Budgets for the years 2001 and 2002 are attached
hereto as Annex G;
(c) no material adverse change, as determined by a majority of the
Series C Investors, has occurred with respect to the Company between
Completion and the date of Second Closing. Each of the Warrantors
undertakes to provide the Series C Investors with all relevant
information which may be reasonably required for them to establish
whether a material adverse change (for the purposes hereof) has
occurred.
Upon fulfilment or waiver of the conditions set forth herein, the Series C
Investors shall, by way of notification in the form as attached hereto as Annex
J, notify the notary in writing that all the relevant conditions have been
fulfilled to proceed with the Second Closing. The sending of such notification
by a majority of such Shareholders to the notary will be deemed to be an
explicit instruction from all the Series C Investors to proceed with Second
Closing.
Each of the Series C Investors as well as the Company herewith grants an
irrevocable power of attorney to each (deputy) civil-law notary of Loyens &
Loeff, Amsterdam office and/or each attorney in fact or (deputy)) civil law
notary of Allen & Overy, Amsterdam office to appear before one of the notary's
of Loyens & Loeff and sign the notarial deed of issue of the Tranche 2 Series C
Shares with due observance of the following conditions:
(i) Series C Investorsrepresenting more than 50% of the then issued and
outstanding Series C Shares have signed and delivered to the notary the
notification as mentioned in Article 3.3 and attached hereto as Annex J;
(ii) all (and not some only) Series C Investors have fully fulfilled their
payment obligations by a transfer of the amounts mentioned in Annex C into
the third parties bank account of Loyens & Loeff as mentioned in Article
4.5 sub (b).
For the avoidance of doubt, the Series C Investors and the Company acknowledge
that the powers of attorney granted herewith cannot be revoked or ended and that
the powers of attorney become effective automatically as per the moment the
above mentioned conditions (i) and (ii) have been fulfilled.
The fulfillment of the above conditions and the execution of the notarial deed
of issue of the Tranche 2 Series C Shares shall deem an instruction to the
notary of Loyens & Loeff to transfer the amounts paid by the Series C Investors
to the bank account in the name of the Company as mentioned in Article 4.5 (c).
ARTICLE 4 - COMPLETION AND CLOSING
4.1 Completion
Subject to the provisions of Article 3.1, completion shall take place on 22
January 2002 or at such other date as Parties have agreed upon ("Completion") at
the offices of Loyens & Loeff in Amsterdam, The Netherlands, or at such other
place as shall be agreed between the Parties.
4.2 Actions Completion
At Completion, the Parties shall execute the documents as hereinafter described
in Article 4.3.
4.3 Documents Completion
At Completion, all of the following documents shall be executed:
(a) this Agreement;
(b) a resolution of the existing shareholders of the Company
resolving to amend the articles of association of the Company in
accordance with Annex E hereto and to issue Series B Investor Shares to
the Series B Investors and Tranche 1 Series C Shares to the Series C
Investors, subject to the Articles of Association becoming effective,
and the Tranche 2 Series C Shares to the Series C Investors subject to
the conditions set forth in Article 3.3 becoming satisfied and/or
waived;
(c) resignation letters of the resigning members of the Supervisory
Board as well as a resolution of the Shareholders granting discharge to
such persons and appointing the new members of the Supervisory Board in
accordance with Article 6.1 hereof, all of the foregoing as per the
date of First Closing.
4.4 First Closing
At First Closing, the notarial deeds of issue of the Series B Investor Shares
and the Tranche 1 Series C Shares referred to in Article 2.4 shall be executed
by one of the civil law notaries of Loyens & Loeff in Amsterdam, the
Netherlands. Subsequently, the deed of amendment of the articles of association
of the Company shall be executed by one of the civil law notaries of Loyens &
Loeff in Amsterdam, the Netherlands, for the purpose of amending the articles of
association in accordance with Annex E hereto.
Immediately upon the execution of this deed of amendment, the issue of the
Series B Investor Shares and the Tranche 1 Series C Shares shall become
unconditional and such issue shall be fully effected. Immediately after such
issue having become unconditional, the Series C Shareholders will be deemed to
have instructed Derdengelden Notariaat Loyens & Loeff ("kwaliteitsrekening") to
transfer the amounts of cash as referred to in Article 2.3 to the Company's bank
account number 00.00.00.000 with ING Bank N.V. in Amsterdam. The obligation of
the Series B Investors to pay up the Series B Investor Shares shall be set off
against their rights under the Convertible Loan Agreement as set forth in
Article 2 hereof.
4.5 Second Closing
As soon as the notary has received the required notifications mentioned in
Article 3.3, or at any earlier date as resolved by a majority of the Series C
Investors, the Company and the Series C Investors shall establish a date, which
shall be as early as possible but ultimately within 5 working days after the
last payment due from the Series C Investors has been received by the notary (as
described in Article 3.3), for the Second Closing, which shall take place at the
offices of Loyens & Loeff in Amsterdam, The Netherlands or at such other place
as shall be agreed between the Company and the Series C Investors.
At Second Closing, the following actions shall be effected and all Parties shall
fully co-operate to effect these actions:
(a) the Parties shall execute the document as hereinafter described in Article
4.6;
(b) prior to the date of Second Closing, each of the Series C Investors shall
have made payment in cash payable by it to the Company as contribution to
the Tranche 2 Series C Shares into account number 55.72.97.133 with ABN
Amro Bank (address: Xxxxxxxxxx 000 Xxxxxxxxx, Xxx Xxxxxxxxxxx) in the name
of Derdengelden Notariaat Loyens & Loeff ("kwaliteitsrekening"), SWIFT Code
XXXXXX0X (Intl Bank Account Number (IBAN): NL62 ABNA 055.72.97.133), with
reference Avantium/991200183.
(c) immediately after the execution of the deed of issue of the Tranche 2
Series C Shares, the Series C Investors shall be deemed to have instructed
Derdengelden Notariaat Loyens & Loeff ("kwaliteitsrekening") to forthwith
transfer the amounts of cash as referred to in Article 4.5 (b) on the
Second Closing Date to the Company's bank account number 00.00.00.000 with
ING Bank N.V. in Amsterdam.
4.6 Documents Second Closing
At Second Closing, the notarial deed of issue of Shares shall be executed, by
which the Tranche 2 Series C Shares are issued to the Series C Investors, such
deed in the form as attached hereto as Annex H.
ARTICLE 5 - MANAGEMENT
5.1 Management Board
The Company shall have a Management Board composed of one or more managing
directors who shall be appointed, suspended and dismissed by the General Meeting
and may be suspended by the Supervisory Board.
5.2 Duties
The Management Board shall be charged with the management of the business and
affairs, the administration and the representation of the Company, subject to
the restrictions as set forth in this Agreement and the Articles of Association.
5.3 Restrictions
Without prejudice to any applicable provisions of Netherlands law and Articles
19.1 and 35.2 of the Articles of Association, the Management Board or any other
competent body of the Company shall require the prior written consent of a
resolution taken by a Joint B and C Meeting adopted with a majority representing
at least 55% (fifty-five percent) of the votes cast on all issued and
outstanding Series B Shares and Series C Shares (the "Investor Majority") in
respect of each of the matters listed below:
(a) take any action or permit any action to be taken to effect or which would
effect a Liquidation Event;
(b) appoint any committee of the Supervisory Board and establish its terms of
reference including the delegation by the Supervisory Board of any of its
powers to any Supervisory Board committee;
(c) approve any terms and conditions of an IPO (other than a Qualified IPO) of
the Shares;
(d) grant any registration rights to any person (other than pursuant to the
terms of this Agreement or the Registration Rights Agreement).
5.4 Compliance
The Management Board members hereby undertake towards the Shareholders to comply
- to the extent permitted under Netherlands law - with the Articles of
Association and the provisions of this Agreement, for avoidance of doubt,
including but not limited to Article 2.6 hereof.
ARTICLE 6 - SUPERVISION
6.1 Supervisory Board
The Company shall have a Supervisory Board composed of 7 (seven) supervisory
directors for which the holders of Preferred Shares shall be entitled to make
binding nominations in accordance with Article 21 of the Articles of
Association.
Out of the binding nominations for members of the Supervisory Board by the
Series A Investors not more than one shall be a representative of the Strategic
Investors, unless otherwise approved on a case by case basis by an Investor
Majority. No restrictions on the binding nominations apply for the Series B
Investors and the Series C Investors.
The Supervisory Board shall as of First Closing consist of:
(a) Xxxxxx Xxxxx (B/C);
(b) Xxxxx Xxxxxxxxx (A);
(c) Xxxxx Xxxxxxx (A);
(d) Xxxx Xxxxxxx (A);
(e) Xxx Xxxx (B/C);
(f) Paul Triniman (B/C);
(g) Independent member, to be nominated (by A/B/C).
Each of the Shareholders hereby declares to accept the Supervisory Board members
as nominated by the group of Shareholders entitled to nominate a Supervisory
Board member in accordance with this Agreement and the Articles of Association,
and shall vote in favour of the resolution to appoint the first person on the
list of preferred nominees. Likewise, each of the Shareholders hereby declares:
(i) to accept the proposal by a group of Shareholders pursuant to whose binding
nomination a particular Supervisory Board member has been appointed, to
dismiss or suspend the Supervisory Board member; and
(ii) that it shall vote in favour of such proposal to dismiss or suspend such
Supervisory Board member.
6.2 Duties
The Supervisory Board shall be charged with the supervision of the policies
pursued by the Management Board and the general course of affairs of and
business enterprise conducted by the Company. The Supervisory Board shall also
assist the Management Board by providing advice. In carrying out their duties,
the members of the Supervisory Board shall be guided by the best interests of
the Company and the business enterprise connected thereto.
6.3 Observer Seats
Each of the Strategic Investors, each of the University Investors, each of the
Financial Investors and each of the New Investors (as defined in the Definitions
for the purposes of this Article 6.3) shall be entitled to appoint one person,
which shall be reasonably acceptable to the members of the Supervisory Board, to
attend all meetings of the Supervisory Board as an observer, unless such
Strategic Investor, University Investor, Financial Investor or New Investor
already has a representative in the Supervisory Board, and unless the
Supervisory Board has reasonably resolved that for a specific meeting observers
should not be allowed, and any person so appointed (an "Observer") shall be
given (at the same time as the directors) notice of such meetings and agendas,
minutes and other papers relating to such meetings. The Company and the
Shareholders shall use their best efforts to realise that the Observers will
actually be able to participate in the meetings as set forth in this Article
6.3.
Notwithstanding the foregoing, each MVM Partnership shall have the right to
appoint and remove a representative to attend as an Observer each and every
meeting of the Supervisory Board of the Company, and also to meetings of each
and every committee thereof, unless the chairman of the committee concerned
reports about the discussions in such committee during the next Supervisory
Board meeting. Such right shall belong solely to and be exercised exclusively by
the MVM Partnership for its own benefit and for its own account. The appointment
and removal of such a representative shall be by written notice from the MVM
Partnership to the Company and shall take effect on delivery at the Company's
registered office or at any meeting of the Supervisory Board.
6.4 Remuneration Committee
The Supervisory Board shall create a remuneration committee (the "Remuneration
Committee") which shall consist of at least 2 (two) members, at least one of
whom shall be a member of the Supervisory Board who is nominated by the holders
of the Series B Shares and the holders of the Series C Shares. The Remuneration
Committee shall be responsible for establishing and reviewing the compensation
policies applicable to the employees of the Company earning more than EUR 75,000
annually, as well as recommending the number of options to be granted.
ARTICLE 7 - Voting Agreement
The Shareholders agree and commit themselves to cast their votes in the General
Meeting and to apply their voting power in the Company in accordance with the
provisions of this Agreement and the Articles of Association, and more
specifically in such a way that the Company will observe such provisions.
ARTICLE 8 - REPORTING
The Management Board shall:
(a) keep books of account and therein make true and complete entries of all its
dealings and transactions of and in relation to the Business (such books of
account and all other records and documents relating to the business
affairs of the Company shall be open to inspection by each of the
Shareholders during normal business hours and on 2 (two) working days'
prior notice;
(b) provide each member of the Supervisory Board (including Observers) within
15 (fifteen) days from the end of each calendar month in writing with
management accounts for such month, the format of these accounts to be in a
form acceptable to the Shareholders (and such accounts to include a balance
sheet, a profit and loss account and a cash flow statement of the prior
month and an estimate of the coming months);
(c) provide each Shareholder within 30 (thirty) days from the end of each
quarter with a management report, containing information on, inter alia,
commercial, technical, sales and marketing progress, new and potential
customers and sales-pipeline;
(d) provide each Shareholder as soon as the same are available (and in any
event within 3 (three) months after the end of each financial year) with
the audited annual accounts of the Company and a cash flow statement of the
Company for that financial year, each such audited accounts to be
accompanied by an unqualified declaration ("verklaring") of the external
auditor as meant in article 2:393(5) of The Netherlands Civil Code, or in
the case of any future subsidiaries established outside The Netherlands, a
comparable unqualified declaration of an external auditor in the respective
jurisdictions where any such subsidiary is established, or if such
unqualified declaration can not be obtained within such period, the
Management Board shall use its best efforts to obtain unaudited annual
accounts or annual accounts with any other declaration, together with a
letter of the external auditor specifying the reasons for which no
unqualified declaration can be provided; it being understood that such
shall not release the Management Board from its obligation to provide to
each Shareholder annual accounts to be accompanied by an unqualified
declaration;
(e) each year prepare a Business Plan and a Budget no later than 75 (seventy
five) days prior to the beginning of each financial year;
(f) keep each Shareholder fully informed as to all its financial and business
affairs and in particular shall provide each Shareholder with full details
of any actual or prospective material change in such affairs as soon as
such details are available; and
(g) provide each Shareholder within 2 (two) weeks of receipt with copies of all
reports and documents drawn up or designated by the external auditor,
including in any case the management letter, to be provided with the annual
accounts; and
(h) if the Management Board fails to prepare the documents mentioned under (b)
and (c) and (d) above by the time specified in these clauses, each
Shareholder shall be authorised to appoint an auditor to prepare the
documents. The Company shall fully co-operate with the auditor in preparing
the documents. The costs and expenses incurred in relation to the
preparation and negotiation of these documents shall be borne by the
Company.
Notwithstanding the foregoing, in addition to the information rights to which it
is entitled pursuant to Article 8 of this Agreement, each MVM Partnership shall
have the right, through its appointed Observer to the Supervisory Board, to:
(i) access at all reasonable times to the premises, books and records (and to
inspect the properties and assets) of the Company and each of its
subsidiaries, and
(ii) meet on a regular basis with senior management personnel of the Company and
each of its subsidiaries upon reasonable advance notice to the Company, for
the purpose of consulting with and advising and influencing management,
obtaining information regarding the business and prospects of the Company
and its subsidiaries and expressing its views thereon.
ARTICLE 9 - TRANSFER OF SHARES
9.1 Take-along
(a) If, before an IPO, any Shareholder (or Shareholders) proposes to transfer
Shares to a proposed co-Shareholder or third party transferee, or to
Persons connected with such transferee (each, or, if applicable,
collectively: a "Transferee"), such that the Transferee would, after such
proposed transfer hold 50% or more of the Shares of the Company (by a
single or series of connected transactions) as a result of the sale and
transfer of Shares by one or more Shareholders in connection with such
transaction (the "Take-Over"), the selling Shareholder (or Shareholders)
shall procure that the Transferee will make an offer to all the
Shareholders to buy their Shares simultaneously at the highest price
offered by the Transferee per Share and on the best terms and conditions as
the Transferee has paid on any previous transfer.
(b) If, before an IPO, other than in case of a Take-Over, in which case Article
9.1(a) applies, any holder of Series A Shares ("Initiating A Shareholder")
wishes to sell any of its Series A Shares in the Company to a Transferee,
it must first obtain the consent of an Investor Majority. Provided consent
is given, the Initiating A Shareholder shall be obligated to ensure that,
upon the Investor Majority's request, each of the holders of the Series B
Shares and the holders of the Series C Shares may sell their Shares in full
or the same percentage of its entire shareholding in the Company as the
Initiating A Shareholder is selling to such Transferee as well, at the same
price per Share and on the same terms and conditions as the Initiating A
Shareholder.
(c) If, before an IPO, other than in case of a Take-Over, in which case Article
9.1(a) applies, any holder of Series B Shares or Series C Shares
("Initiating B/C Shareholder") wishes to sell any of its Shares in the
Company to a Transferee, the Initiating B/C Shareholder shall be obligated
to ensure that upon the Investor Majority's request, each of the other
holders of Series B Shares or Series C Shares may sell the same percentage
of its entire shareholding in the Company as the initiating Shareholder is
selling to such Transferee as well, at the same price per Share and on the
same terms and conditions as the Initiating B/C Shareholder.
For the avoidance of doubt, Articles 9.1 (a), (b) and (c) do not affect the
obligation of the Initiating A Shareholder or the Initiating B/C
Shareholder to first have offered the relevant Shares to the other
Shareholders in accordance with the blocking provisions set forth in
Article 9.3.1 and 9.3.2 hereof and in the Articles of Association.
Furthermore, the take-along right of any of the holders of the Series B
Shares or Series C Shares is not affected by the fact that such Shareholder
has not, or has only partly, made use of such offer. Finally, no transfer
may be made if any of the selling Shareholders does not comply with the
provisions set forth in Article 9.1 (a), (b), (c) and (d).
(d) If, before an IPO, a Shareholder wishes to transfer all or part of its
Shares, it shall be obliged to impose on its successor in title the
obligation to enter into this Agreement and to be bound to any and all
provisions thereof if the successor is not already a party to this
Agreement, and the Shareholders shall withhold their approval to any
transfer unless:
(i) any successor has signed a deed of adherence as mentioned in
subparagraph (e) below, which may only be subject to the actual
transfer of the Shares, and
(ii) the same shall be specified in the notarial deed of transfer of the
Shares, and each group of Shareholders which nominated a director of
the Company shall procure that, to the extent legally possible, the
directors nominated by it shall vote in accordance therewith. For the
avoidance of doubt: the same shall be applicable to any subsequent
transfer.
(e) All Parties agree in advance that by executing a deed of adherence, any
successor in title becomes a party to this Agreement without any further
act being required.
(f) If a Shareholder has transferred all of its Shares to a proposed
co-Shareholder or a third party, it ceases to be a party to this Agreement,
which shall remain in full force and effect between the other Parties
thereto. This Agreement for that party shall remain in force and effect
thereafter only in respect of any matters, covenants or conditions which
shall not have been duly observed or performed prior thereto by that party
and in respect of matters, covenants or conditions which by the terms of
this Agreement will survive the termination thereof (including but not
limited to Article 14) and the other parties shall be at liberty to enforce
the same in accordance with the provisions of this Agreement.
9.2 Drag-along
If at any time before an IPO Shareholders owning at least 51% of the Shares
("Proposing Shareholders") elect to sell all of their Shares to a third party or
a co-Shareholder, all remaining Shareholders will be required, upon written
notice from the Proposing Shareholders, to sell all their Shares to such third
party or co-Shareholder at the same price per Share and upon the same terms and
conditions as the Proposing Shareholders.
For the avoidance of doubt, Shareholders selling pursuant to this Article 9.2
will not be first required to offer the relevant Shares in accordance with the
blocking provisions of Article 9.3 and the Articles of Association.
9.3 Transfer of shares: blocking clause
9.3.1 If any holder of Series B Shares or Series C Shares wishes to sell
any of its shares to a third party or a co-Shareholder, such Shares
shall be offered at the same price per Share upon the same terms and
conditions: first (i) to the holders of Series B Shares and Series C
Shares in accordance with their pro-rata ownership, and (ii) (if any of
such Shares are not taken up) to any of the holders of Series B Shares
and Series C Shares who wish to take in excess of their pro-rata
entitlement, and (iii) to the holders of Series A Shares in accordance
with their pro-rata ownership ("Preferred Pre-emption").
9.3.2 If any holder of Series A Shares wishes to sell any of its Shares
to a third party or a co-Shareholder, such Shares shall be offered at
the same price per Share upon the same terms and conditions: first (i)
to all the other existing Shareholders in accordance with their
pro-rata ownership, then (ii) (if any of such Shares are not taken up)
to any of the Shareholders who wish to take in excess of their pro-rata
entitlement.
9.3.3 The pre-emptive right described in the Articles 9.3.1 and 9.3.2
shall not apply to transfers in relation to the IPO and any subsequent
registered public offerings. In the case of a proposed capital increase
in the Company, the Company will offer all such Shares as per the
Preferred Pre-emption as described in this Article 9.3.2.
9.4 Permitted Transfers
In respect of any Shareholder which is an Investment Fund, any Investor or a
Transferee pursuant to this Article or a nominee or a trustee or custodian for
any of the foregoing (each: a "Transferor") may at any time transfer all or any
of its shares to a related Transferee, without having to comply with the
pre-emption provisions as described in Article 9.3, and each person holding
shares as a result of any such permitted transfer shall also be an Investor for
the purposes of these Articles and this Agreement.
For avoidance of doubt, the Parties agree that pursuant to this Article 9.4,
Cazenove No.1 and Cazenove No.2 may, without having to comply with the
pre-emption provisions as described in Article 9.3, transfer all or part of
their Shares to Greenwood Nominees (Account CNEAF) Limited (a company organised
under the laws of England and Wales, whose corporate seat is at 00 Xxxxxxxxxx
Xxxx, Xxxxxx) and vice versa.
A related Transferee for the purposes hereof shall mean:
(i) any member for the time being of the same Investor Group as the Transferor;
(ii) any body corporate controlled by the Transferor or another member of its
Investor Group or which immediately following such transfer will be such a
body corporate; and
(iii) any nominee, trustee or custodian for such fund and vice versa; or
(iv) any unit holder, shareholders, partner, participant, manager or adviser (or
any employee of such manager or adviser) in any such fund; or
(v) any other Investment Fund or its trustee, nominee or custodian managed or
advised by the same manager or adviser as any such fund; or
(vi) any person, company or fund whose business consists of holding securities
for investment purposes.
When, after a permitted transfer pursuant to this Article 9.4, it is resolved
that the entity (or entities) at that time holding (any) Shares in the Company,
will be disposed of, sold, merged or in any other way the control over such
entity (or entities) will no longer be with the (group of entities under direct
control of the) original Shareholder (which for avoidance of doubt, means any
Shareholder having used its right to transfer its interest in the Company as set
forth in this Article 9.4), then, prior to such disposal, sale, merger or other
way in which the control over the entity holding (any) Shares will end, the
Shares in the Company will be re-transferred to the original Shareholder or any
other entity which is under control of such original Shareholder, failing which,
the shares held by such permitted Transferee will be deemed to have been offered
to the other relevant Shareholder(s), in accordance with the provisions of
Article 9 of this Agreement.
In order to secure the interests of the other Shareholders, the Transferor
undertakes to guarantee vis-a-vis the other Shareholders, as from the time of
any permitted transfer, the due performance by the Transferee of all obligations
it will have as a Shareholder under this Agreement, the Articles of Association
and any related agreements regarding the Company which will be in force at that
time, and to obligate the Transferee to guarantee to the other Shareholders that
it will co-operate with a re-transfer as contemplated in this Article 9.4.
9.5 Anti-dilution provision
In the event of an issue of new Shares (including but not limited to issue of
Shares or instruments convertible into shares of any class) or any other class
of shares in the Company (the "New Shares")(but not including conversion of
Series A Shares, Series B Shares or Series C Shares into Ordinary Shares), each
of the Shareholders shall have such pre-emptive rights as contained in the
Articles of Association and Article 9.3.2 of this Agreement. If the Company
issues New Shares at a purchase price less than the amount per share contributed
by the Series B Investors and the Series C Investors pursuant to this Agreement,
additional Series B Shares and Series C Shares will be issued to the Series B
Investors and the Series C Investors respectively by way of a bonus issue, so as
to reduce the effect of such dilutive issuance on the Series B Shares and the
Series C Shares on a full basis. Reference is made to Annex I to this Agreement,
which contains a detailed example of how the amount of bonus shares should be
calculated.
ARTICLE 10 - REGISTRATION RIGHTS
If, at any time after the earlier or (a) the Company's IPO or (b) 31 December
2004, the holders of at least 20% (twenty per cent) of the issued and
outstanding Series B Shares and the Series C Shares request registration for at
least 20% (twenty per cent) of the Ordinary Shares issued or issuable upon
conversion of the Series B Shares and the Series C Shares then outstanding, the
Company will use commercially reasonable efforts to cause such shares to be
registered under the Securities Xxx 0000. The provisions of registration,
secondary registration rights and piggy-back registration rights, as well as
registration expenses and other registration provisions shall be covered in a
separate registration rights agreement.
ARTICLE 11 - CONVERSION
The Series B Shares and the Series C Shares shall be automatically convertible
into Ordinary Shares in accordance with this Article 11 and Article 4 of the
Articles of Association at a conversion ratio of one to one in the event of (i)
a Qualified IPO or (ii) upon the vote or the written consent of at least 80%
(eighty per cent) of the Series B Shares and the Series C Shares then
outstanding. Except for the issuance of Shares under the Company's Stock Option
Plan, the conversion ratio will be proportionately adjusted for stock splits,
stock dividends, combinations of stock, the issuance of warrants, or similar
events. The Series A Shares shall convert automatically at a conversion ratio of
one to one into Ordinary Shares in accordance with the Articles of Association
in the event the Series B Shares and the Series C Shares convert.
ARTICLE 12 - EXPENSES
The Company will bear the legal and other reasonable expenses of Cazenove Xx.0,
Xxxxxxxx Xx.0, XXX, XX Medical Ventures and MVM International with respect to
the consummation of the transactions as contemplated by this Agreement after the
signing of the term sheet related to this Agreement (the "Term Sheet") up to a
maximum of EUR 85,000. Additional expenses will be borne by Cazenove Xx.0,
Xxxxxxxx Xx.0, XXX, XX Medical Ventures and MVM International, each for their
own expenses, and if this cannot be determined, proportionally to their
participation in the Investment. The expenses will not include the expenses
incurred as a result of due diligence investigations or the negotiating of the
Term Sheet which will be borne by the Series B Investors and the Series C
Investors, each for their own expenses. The Parties will use their best efforts
to mitigate transaction expenses.
ARTICLE 13 - REPRESENTATIONS AND WARRANTIES
13.1 General Warranties
Each of the Parties, including the Company and the Management Board, hereto
represents and warrants to the other Parties that:
(a) each Party except for Cazenove No.1, Cazenove No.2, Corporate Opportunities
Fund, Corporate Opportunities Fund (Institutional), MVM International and
UK Medical Ventures, is a company, and in case of the Shareholder mentioned
under No. 10 on page 5 of this Agreement it is a university under the laws
of The Netherlands, duly organised and validly existing under the laws of
its incorporation, and has all requisite corporate power and authority to
own its property and to conduct its business in the manner presently
conducted;
(b) each Party has full power and authority (corporate or otherwise) to enter
into, execute, deliver and carry out the terms of this Agreement and to
incur the obligation provided for herein, all of which have been duly
authorised by all proper and necessary corporate action and are not in
violation of its articles of association or governing documents;
(c) except as specifically set forth in this Agreement, no consent,
authorisation or approval of, filing with, notice to, or exemption by, any
person or any governmental instrumentality is required to authorise or is
required in connection with the execution, delivery and performance of this
Agreement, or is required as a condition to the validity or enforceability
of this Agreement;
(d) this Agreement is its legal and binding obligation, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganisation or other similar laws
affecting the enforcement of the creditors' rights generally or by general
principles of equity;
(e) the execution, delivery and carrying out by each Party of the terms of this
Agreement will not constitute a default under, conflict with, or require
any consent under (other than consents which have been obtained), any
mortgage, indenture, contract, agreement, judgment, decree or order to
which it is party or by which it or its assets is bound, which defaults,
conflicts and consents, if not obtained, would have a material adverse
effect on the rights or obligations of any of the Parties under this
Agreement, or the ability of it to perform its obligations hereunder; and
(f) there is no litigation pending or, to the best of its knowledge, threatened
to which any Party is a party and which affects the rights and obligations
of the Parties under this Agreement.
13.2 Warranties to the New Investors
(a) Each Warrantor represents and warrants to the New Investors that at
Completion and on the date of First Closing and except as fairly disclosed
in the Disclosure Letter (attached hereto as Annex M):
(i) each of the statements set out in Annex L is true and accurate;
(ii) to the best of his knowledge, information and belief (without
having made enquiry) no other Warrantor, in giving the representations
and warranties, will be in breach of them;
(b) Each of the Warranties set out in the several paragraphs of Annex L is
separate and independent and none of the Warranties shall be treated as
qualified by any actual or constructive knowledge on the part of any of the
New Investors or any of their respective representatives, officers,
employees or advisers and no Warranty shall be limited if it is not
referred to in the Warranties or the Disclosure Letter.
(c) Where any statement in this clause or in Annex L is qualified by the
expression "so far as the Warrantor is aware" or "to the best of the
Warrantor's knowledge, information and belief" or any similar expression,
that statement shall be deemed to include an additional statement that it
has been made after due and careful enquiry.
13.3 Compensation
In the event of a breach of any of the Representations and Warranties the
New Investors shall have the right to submit to the Warrantors a Claim for
Compensation. In that event, the Warrantors shall pay to the New Investors
an amount necessary to compensate the New Investors' damages, which shall
not include any consequential loss suffered directly by the New Investors.
13.4 Limitations to liability
Notwithstanding the foregoing, unless in case of fraud, dishonesty or
wilful concealment, the liability of each Warrantor in respect of the
Warranties:
(i) shall not arise unless the amount of all Claims against the Warrantors in
respect of the Warranties (or which would have been claimed but for the
operation of this subclause) exceeds EUR 50,000, in which case the whole
amount and not only the excess over that amount shall be recovered;
(ii) shall for the Company not exceed a total amount equal to EUR 9,350,000 as
from the date of First Closing but before the date of Second Closing, and
shall for the Company not exceed a total amount of EUR 17,000,000 (being
the investment amount of the Tranche 1 Series C Shares invested by the New
Investors, EUR 9,350,000 plus EUR 7,650,000, being the investment amount of
the Tranche 2 Series C Shares invested by the New Investors) as from the
date of Second Closing;
(iii)shall for the Managers not exceed the amount equal to 75% of 6 months
gross salary (these amounts being for Xxx Xxxxxxx NLG 167,523, for Xxxxxx
Xxxxx NLG 96,563 and for Xxxx xx Xxxxx NLG 116,588);
(iv) in determining the Compensation or whether the threshold referred to in
Article 13.4 (i) hereof has been reached, the following factors shall be
taken into account: (a) any tax refund actually received by the Company and
any reduction in tax actually payable by the Company, to the extent that
such refund or reduction is directly attributable to the facts giving rise
to the Claim; and/or (b) any amount actually received by the Company under
any insurance policy or from any third party, to the extent that such
amount is directly attributable to the facts giving rise to the Claim; and
(v) shall terminate two months after the audited accounts for year ended 31
December 2002 have been circulated to the Investors.
ARTICLE 14 - CONFIDENTIALITY
Each of the Parties agrees to keep secret and confidential and not to use,
disclose or divulge to any third party or to enable or cause any person to
become aware of (except for the purpose of the Business) any confidential
information relating to this Agreement and to the Company including but not
limited to intellectual property (whether owned or licensed by the Company),
lists of customers, reports, notes, memoranda and all other documentary records
pertaining to the Company, or its business affairs, finances, suppliers,
customers or contractual or other arrangements but excluding any information
which is in the public domain (otherwise than through the wrongful disclosure of
any party, and any of their successors and predecessors) or which they are
required to disclose by law and by the rules of any regulatory body to which the
relevant party is subject. For the avoidance of doubt, Cazenove No.1 and
Cazenove No.2 may give any confidential information given to them to the
partners of the partnership and this will not constitute a breach of this
Article 14, provided that such partners have agreed in writing to be bound to
the confidentiality obligations of this Article 14.
The Parties agree that the prior written consent of the relevant Series C
Investor will be required for any public announcement regarding the Company in
which the name (these names for avoidance of doubt being "Cazenove", "EDB",
"Singapore Economic Development Board" or "MVM") of any such Series C Investor
is used.
ARTICLE 15 - SECURITIES ACT
The Shares in the share capital of Avantium International B.V. to be offered and
purchased pursuant to this Agreement are only offered, sold, transferred or
delivered to individuals or legal entities who or which trade or invest in
securities in the conduct of business or a profession - such as banks, brokers,
dealers, institutional investors and multinationals with a treasury department -
in accordance with Article 2 of The Netherlands Exemption Regulation to the Act
on the Supervision on Securities Transactions 1995 ("Vrijstellingsregeling Wet
toezicht effectenverkeer 1995"). Any offer materials have been sent to the
Security Board of The Netherlands ("Stichting Toezicht Effectenverkeer").
ARTICLE 16 - MISCELLANEOUS
16.1 Further action
If at any time after Closing any further action is necessary or desirable in
order to implement this Agreement, the directors or other representatives of
each Party shall execute and deliver any further documents and take all such
necessary action as may reasonably be requested from any of them.
16.2 Amendment
An amendment to this Agreement shall have force or effect when it is in writing
and signed by such amount of Shareholders representing at least 95% of the votes
of each class of Shares which may be validly cast on all issued and paid up
Shares.
16.3 Costs
Except as provided otherwise herein, each Party shall bear its own costs in
connection with the preparation, negotiation and signing of this Agreement.
16.4 No implied waiver
(a) Nothing shall be construed as a waiver under this
Agreement unless a document to that effect has been signed by
the Parties or notice to that effect has been given.
(b) The failure of a Party to exercise any right under this
Agreement (which shall include the granting by a Party to
either (any) of the other Parties of an extension of time in
which to perform its obligations under any provision hereof)
shall not be deemed to constitute a waiver of the right to
exercise any such right in the future.
16.5 No rescission
To the extent permitted by law, the Parties hereby waive their rights under
Articles 6:265 to 6:272 inclusive of the Civil Code to (partly) rescind
("ontbinden"), or demand in legal proceedings the (partly) rescission
("ontbinding") of, this Agreement.
16.6 Severability
If any provision of this Agreement shall be held by any court of competent
jurisdiction or arbitral tribunal to be illegal, void or unenforceable, such
provision shall (i) be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement and (ii) the
Parties shall commit themselves to replace the non-binding and/or
non-enforceable provisions by provisions that are binding and enforceable and
differ as little as possible - taking into account the object and purpose of
this Agreement - from the non-binding and/or non-enforceable provisions.
16.7 Notice
16.7.1 Any notice or other communication under or in connection with this
Agreement shall be in writing and may be sent by facsimile, by courier,
or by registered mail and shall be effective when received, and in any
event no later than:
(a) when sent by courier service 3 (three) Business Days after
dispatch,
(b) when sent by registered mail 3 (three) Business Days after
dispatch,
(c) when sent by facsimile 8 (eight) hours after transmission of such
facsimile communication has been completed and a positive
transmission report is produced by the transmitting machine
(provided further that if the date of dispatch is not a Business
Day in the country of the addressee it shall be effective at the
opening of business on the next such Business Day).
16.7.2 For the purposes hereof, the addresses of the Parties shall be as
specified below:
Akzo Nobel Chemicals B.V.
Address Xxxxxxxxx 00
0000 XX Xxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 00 (0) 00 000 00 49
Attn W.F. Verhelst
B.V. Licht en Kracht Maatschappij
Address Xxxxx xxx Xxxxxxxxxxx 00
0000 XX Xxx Xxxx
Xxx Xxxxxxxxxxx
Fax number 00 00 (0) 00 000 00 45
Attn Legal Counsel
W.R. Grace & Co.
Address 0000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000, XXX
Fax number 00 1 410 531 43 67
Attn Legal Counsel
SmithKline Beecham Plc./Corp.
Address Xxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000, XXX
Fax number 00 1 215 75 132 33
Attn Legal Counsel
Pfizer International Holdings Limited
Xxxxxxx Xx Xxxxxx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Fax number 00 1 212 573 07 68
Attn General Counsel
The Generics Group A.G.
Address Xxxxxxxxxxxxx 0
XX-0000, Xxxxxx
Xxxxxxxxxxx
Fax number 00 44 1223 875 200
Attn Xxxxxx Xxxxx and Gordon Edge
With copy to Group Legal advisor
Fax number 00 44 1223 875 209
Alpinvest Holding N.V.
Address Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 31 20 540 75 06
Attn Xxxxxxx Xxxxxxx
With copy to E.M.J. Thyssen
Address Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 31 20 540 75 00
S.R. One Limited
Addres Xxx Xxxxxxxx Xxxxx, 000 Xxxxx 00xx xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000
Xxxxxx Xxxxxx of America
Fax number 00 1 610 567 10 39
Attn Legal Counsel
GSE Systems Inc.
Address 0000 Xxx Xxxxxx Xxxx
Xxxxxxxx, 00000 Xxxxxxxx
Xxxxxx Xxxxxx of America
Fax number 00 0 (000) 000 00 00
Attn Corporate Counsel
Technische Universiteit Delft
Address Xxxxxxxxxxx 000
0000 XX Xxxxx
Fax number 00 00 (0)00 000 00 49
Attn J. Krul, L.L.M.
With copy to X. xxx xxx Xxxxxx MBA
Address Xxxxxxxxxxx 000
0000 XX Xxxxx
Fax number 00 00 (0)00 000 00 14
Technische Universiteit Eindhoven Holding B.V.
Address Den Dolech 2 HG 1.03
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 31 118 693 227
Attn B.D. Hiddinga
Holding Technolpolis Twente B.V.
Address Xxxxxxxxxxxx 0
0000 XX Xxxxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 00 (0)00 000 00 00
Attn Xxxx Xxxxxx
Eastman Chemical B.V.
Address Xxxxxx Xxxxxxxxx 0
0000 XX Xxx Xxxxx
Xxx Xxxxxxxxxxx
Fax number 00 00 (0)00 000 00 06
Attn G.A.F.E. Motte
Corporate Opportunities Fund, L.P.
Address Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Xxxxxx Xxxxxx of America
Fax number 00 1 212 593 61 50
Attn Xxxxx X. Xxxx
C/x Xxxxxxx Xxxxxx Xxxxxx
000 X. 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Corporate Opportunities Fund (Institutional), L.P.
Address Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Xxxxxx Xxxxxx of America
Fax number 00 1 212 593 61 50
Attn Xxxxx X. Xxxx
C/x Xxxxxxx Xxxxxx Xxxxxx
000 X. 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Cazenove New Europe Access Fund No.1 Limited Partnership
Address 12 Tokenhouse Yard
London
Fax number 00 00 (0) 00 00 00 0000
Attn Tod Xxxxxx
With copy to Xxxxxxx Xxxxx
Address 12 Tokenhouse Yard
London
Fax number 00 00 (0) 00 00 00 0000
Cazenove New Europe Access Fund No.2 Limited Partnership
Address 12 Tokenhouse Yard
London
Fax number 00 00 (0) 00 00 00 0000
Attn Tod Xxxxxx
With copy to Xxxxxxx Xxxxx
Address 12 Tokenhouse Yard
London
Fax number 00 00 (0) 00 00 00 0000
EDB Ventures Xxx Xxx
Xxxxxxx 000 Xxxxx Xxxxxx Xxxx,
#00-00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx 000000
Fax number 00 65 336 25 03
Attn General Manager
With copy to EDB Ventures Pte Ltd.
Address 000 Xxxxx Xxxxxx Xxxx,
#00-00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx 000000
Fax number 00 65 336 25 03
Attn Ms Xxxxx Xxxx;
Xx Xxx Xxx Lock; and
Company Secretary
MVM International Life Sciences No 1 Limited Partnership
Address 0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax number 00 00 (0) 000 000 00 01
Attn C. Paul Triniman
With copy to Xxxxxxx Xxxxxxx
Fax number 00 00 (0) 000 000 00 01
UK Medical Ventures Fund No 1 Limited Partnership
Address 0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax number 00 00 (0) 000 000 00 01
Attn C. Paul Triniman
With copy to Xxxxxxx Xxxxxxx
Fax number 00 00 (0) 000 000 00 01
Avantium International B.V.
Address Xxxxxxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax number 00 00 (0)00 000 00 85
Attn Legal counsel
or at such other address as the Party to be given notice may have
notified to the other Parties from time to time in accordance with this
Article as its address for receiving notices.
16.7.3 The provisions of this Article shall not apply in relation to the
service of documents for the purpose of litigation.
16.8 Assignment or Encumbrance
No Party may assign this Agreement ("contractsoverneming") or assign or Encumber
any of its rights thereunder without the prior written consent of the other
Parties.
In the event that any other limited partnership managed by MVM Limited
("Additional Partnerships"), becomes a Shareholder in the Company, each such
Additional Partnership shall at the request of MVM Limited become a party to
this Agreement as a Shareholder and an MVM Partnership by the execution of an
agreement supplemental hereto.
16.9 Termination
All parties to this Agreement hereby waive their right to terminate this
Agreement or to seek dissolution of this Agreement. This Agreement is entered
into for an indefinite period but shall terminate automatically (i) vis-a-vis
all parties hereto upon IPO and (ii) vis-a-vis the relevant Shareholder ceasing
to be a shareholder in the Company, both except for those provisions of this
Agreement which pursuant to their extent and nature are meant to remain in
effect after termination of this Agreement.
A Shareholder shall be obliged to irrevocably offer to sell and transfer all its
Shares in the Company, in accordance with the transfer restrictions contained in
the Articles of Association and this Agreement, within one month after
occurrence of one or more of the following events:
(a) such Shareholder commits any material breach of any of the provisions of
this Agreement and/or the articles of association of the Company (or its
subsidiaries) and, in case of a breach capable of remedy, it fails to
remedy the same within 30 business days of the receipt of a written notice
by other Shareholder(s), giving particulars of the breach and requiring it
to be remedied;
(b) such Shareholder makes a voluntary arrangement with all or a substantial
part of its creditors or becomes subject to an administrative order to that
effect, or is granted suspension of payment (surseance van betaling);
(c) such Shareholder goes into bankruptcy or liquidation (except for the
purpose of amalgamation or reorganisation, or except in such manner that
the company resulting therefrom effectively agrees to be bound by or
assumes the obligations imposed on such Shareholder of this Agreement and
is acceptable to the other Shareholders);
16.10 Miscellaneous
The Company will use all reasonable endeavours to realise, as soon as
practicable after First Closing, sufficient coverage on its Directors' and
Officers' liability insurance and to maintain sufficient coverage henceforth.
16.11 Governing law
This Agreement shall be governed by and construed in accordance with the laws of
The Netherlands.
16.12 Disputes
The Parties agree to pursue the settlement of any dispute in connection with
this Agreement or any Agreement resulting therefrom through mediation, conducted
in the English language, in accordance with the rules of The Netherlands
Mediation Institute ("Stichting Nederlands Mediation Instituut") in Rotterdam.
In the event that the dispute cannot be settled through mediation, or in the
event that a dispute arises from a settlement which has been reached through
mediation (unless such settlement provides otherwise), this dispute shall
finally be submitted to arbitration in accordance with the arbitration rules of
the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) as at
present in force, to be conducted in the English language at Amsterdam with a
tribunal of three arbitrators in accordance with the rules of law.
This Agreement has been signed in [_] counterparts, each of equal tenor and
validity, on 22 January 2002.
Akzo Nobel Chemicals B.V. B.V. Licht en Kracht Maatschappij
----------------------- ----------------------
By: By:
Title: Title:
W.R. Grace & Co. GlaxoSmithKline
----------------------- ----------------------
By: By:
Title: Title:
Pfizer International Holdings Limited The Generics Group A.G.
----------------------- ----------------------
By: By:
Title: Title:
Alpinvest Holding N.V. S.R. One Limited
----------------------- ----------------------
By: By:
Title: Title:
GSE Systems Inc. Technische Universiteit Delft
----------------------- ----------------------
By: By:
Title: Title:
Technische Universiteit Eindhoven Holding Technopolis Twente B.V.
Holding B.V.
----------------------- ----------------------
By: By:
Title: Title:
Eastman Chemical B.V.
----------------------
By:
Title:
Corporate Opportunities Fund, L.P. Corporate Opportunities Fund
(Institutional), L.P.
----------------------- ----------------------
By: By:
Title: Title:
Sanders Xxxxxx Xxxxxx Cazenove New Europe Access Fund
No.1 Limited Partnership,
acting by its general
partner, Cazenove New Europe
(GP) Ltd.
----------------------- ----------------------
By: By:
Title: Title:
Cazenove New Europe Access Fund EDB Ventures Pte Ltd
No.2 Limited Partnership, acting by
its general partner, Cazenove New
Europe (GP) Ltd.
----------------------- ----------------------
By: By:
Title: Title:
UK Medical Ventures Fund MVM International Life Sciences No 1
No 1 Limited Partnership, Limited Partnership, acting by its
acting by its Fund Manager, Fund Manager, MVM Limited
MVM Limited
----------------------- -----------------------
By: By:
Title: Title:
Avantium International B.V.
-----------------------
By:
Title:
Xx Xxx Xxxxxxx Ms Maxwell (pursuant to Article 1:88
Dutch Civil Code)
----------------------- -----------------------
Xx Xxxxxx Xxxxx Ms Purdy (pursuant to Article 1:88
Dutch Civil Code)
----------------------- -----------------------
Xx Xxxx xx Xxxxx
-----------------------
EXHIBIT I
LIST OF DEFINED TERMS AND EXPRESSIONS
The following defined terms and expressions are used in this Agreement.
Agreement this subscription and shareholders' agreement,
including the recitals
Annex any annex to this Agreement
Articles of Association the amended articles of association
("statuten") of the Company, attached in
draft form as Annex E to this Agreement
Budget at any time, the then effective financial year
operating and capital budget forthe Company
prepared, approved or amended in the manner
contemplated by Article 8 (e)
Business has the meaning ascribed to it in the recitals
of the Agreement
Business Day a day on which banks and foreign exchange
markets are open in The Netherlands
Business Plan at any time, the then effective business plan
for the Company prepared and
approved in the manner contemplated by
Article 8 (e)
Claim means any claim for payment made by the New
Investors pursuant to Article 13 of this
Agreement
Company Avantium International B.V.
Compensation means any amount to be paid to the New
nvestors under a Claim pursuant to Article
13.3 hereof
Completion shall mean 22 January 2002 or such other date
as the Parties hereto may agree
Convertible Loan Agreement the convertible loan agreement dated 22 March
2001 and the supplemental agreementthereto
dated 31 May 2001 between the Company,
Alpinvest Holding N.V., S.R. One Limited, the
Generics Group A.G., Eastman Chemicals B.V.,
Corporate Opportunities Fund, L.P., and
Corporate Opportunities Fund (Institutional),
L.P., and as extended by extension letter of
18 December 2001, signed by all parties
thereto
Exhibit any exhibit to this Agreement
Financial Investors means Generics (as the Generics Group A.G.
and Inter Ikea Finance S.A.), S.R. One
Limited, GSE Systems Inc., Alpinvest
Holding N.V., Eastman Chemical B.V. and
Sanders Xxxxxx Xxxxxx (as Corporate
Opportunities Fund, L.P. and Corporate
Opportunities Fund (Institutional), L.P.)
First Closing shall mean the
first Business Day after obtaining the
statement of no objection from the Dutch
Ministry of Justice with respect to the
Articles of Association
First Round Shareholders
Agreement has the meaning ascribed thereto in the
recitals of the Agreement
General Meeting the general meeting of shareholders of the
Company as described in the Articles of
Association
Initiating A Shareholder has the meaning ascribed to in Article 9.1.b
Initiating B/C Shareholder has the meaning ascribed to in Article 9.1.c
Investment has the meaning ascribed to it in the
recitals of the Agreement
Investment Fund means any person (other than a natural
person), company, trust, limited partnership
or fund holdingshares for investment purposes
Investor Group means in relation to any person, such
person and each corporatebody, partnership,
fund, trust or person that is related by way
of ownership, common trusteeship, nomineeship,
custodianship or management to such person
Investor Majority has the meaning ascribed to in Article 5.3
IPO means an initial public offering and
admission tolisting of all or any portion of
the Shares(of any kind) or depository receipts
of Shares in the capital of the Company
Joint B and C Meeting meeting of the holders of Series B Shares and
holders of Series C Shares
Liquidation Event means a Take-Over or a sale of substantially
all of the assets of the Company, a
merger, the liquidation or winding up of the
Company
Management Board the management board of the Company
MVM Partnership shall mean
UK Medical Ventures Fund No 1 Limited
Partnership and MVM International Life
Sciences No 1 Limited Partnership, as well as
any other limited partnership managed by MVM
Limited which becomes a party to this
Agreement
New Investors means
Cazenove (as Cazenove New Europe Access Fund
No.1 Limited Partnership and Cazenove New
Europe Access Fund No.2 Limited Partnership),
EDB Ventures Pte Ltd and MVM Limited (as UK
Medical Ventures Fund No 1 Limited
Partnership and MVM International Life
Sciences No 1 Limited Partnership)
Observer has the meaning ascribed to it in Article 6.3
Ordinary Shares all of the issued and outstanding ordinary
shares in the capital of the Company
Parties the parties to this Agreement
Person any natural person, incorporated or
unincorporated body, including an association
and a partnership
Preferred Shares All of the Series A Shares, the Series B
Shares and the Series C Shares
Proposing Shareholders has the meaning ascribed to it in Article 9.2
Qualified IPO means an IPO at a price per share which
is greater than 300% of
the original subscription amount of a Series
C Share (being EUR 3) and in which the gross
proceeds received by the Company is not less
than EUR 35,000,000
Remuneration Committee has the meaning ascribed to it in Article 6.4
of this Agreement
Representations
and Warranties means the representations and warranties set
out in Annex L to this Agreement
Second Closing has the meaning ascribed to it in Article 4.5
Securities Xxx 0000 the US Securities Act of 1933
Series A Investors has the meaning as ascribed thereto in
Article 1.1
Series A Shares shall mean the convertible preferred
shares of class A inthe capital of the
Company with a nominal
value of EUR 1 each, with the rights set
forth in the Articles of Association and in
this Agreement
Series B Shares shall mean the
convertible preferred shares of class B in
the capital of the Company with a nominal
value of EUR 1 each, with the rights set
forth in the Articles of Association and in
this Agreement
Series B Investor Shares has the meaning ascribed thereto in
Article
Series B Investors has the meaning as ascribed thereto in
Article 1.1
Series C Shares shall mean the
convertible preferred shares of class C in
the capital of the Company with a nominal
value of EUR 1 each, with the rights set
forth in the Articles of Association and in
this Agreement
Series C Investors has the meaning as ascribed thereto in
Article 1.1
Shareholders shall mean all of the holders of the Shares
of the Company
Shares all of the issued and outstanding Ordinary
Shares and Preferred Shares
Stock Option Plan the stock option plan adopted by the Company
on 24 February 2000, attached hereto
as Annex K
Strategic Investors means Akzo Nobel Chemicals B.V., Shell
Chemicals (as BV Licht en Kracht
Maatschappij), W.R. Grace & Co.,
GlaxoSmithKline (as SmithKline Beecham
Plc./Corp.), Pfizer International Holdings
Limited and GSE Systems Inc.
Supervisory Board means the supervisory board of the Company
Take-Over has the meaning ascribed to it in
Article 9.1.a
Term Sheet has the meaning ascribed to it in Article 12
Tranche 1 Series C Shares has the meaning ascribed to it in Article 2.2
Tranche 2 Series C Shares has the meaning ascribed to it in Article 2.2
Transferee has the meaning ascribed to it in Article 9.1
Transferor has the meaning ascribed to it in Article 9.4
University Investors means the Technische Universiteit Delft,
Technische Universiteit Eindhoven
Holding B.V. and Holding Technopolis Twente
Warrantors means the Company, Xx Xxx Xxxxxxx, Xx Xxxxxx
Xxxxx and Xx Xxxx xx Xxxxx
