EXHIBIT 4.48
STOCKHOLDER AGREEMENT
by and among
XXXXXXXX XxXXXX,
THE RICEX COMPANY,
XXXXXX XXXXXX,
XXXXXX XXXXXXXXX
and
BIOCEUTICS, INC.
Dated as of
November 1, 1999
TABLE OF CONTENTS
PAGE
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1. Restrictions on Transfers of Shares..............................................1
2. Pre-emptive Rights...............................................................3
3. Control Transfer ................................................................4
4. Tag Along Rights ................................................................5
5. Representation and Warranty of Stockholders......................................7
6. Noncompetition...................................................................7
8. Personal Guaranty ...............................................................8
9. RiceX Claims ....................................................................8
10. Definition of Shares.............................................................8
11. Specific Performance ............................................................8
12. Successors and Assigns ..........................................................8
13. Governing Law; Disputes .........................................................9
14. Counterparts and Facsimile Signatures ...........................................9
15. Titles and Subtitles ............................................................9
16. Notices .........................................................................9
17. Entire Agreement; Amendments and Waivers........................................11
18. Severability....................................................................11
19. Termination.....................................................................11
20. Rights of Third Parties.........................................................11
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT is made as of the 1st day of November, 1999 by and
among XXXXXXXX XxXXXX ("Xxxxxxxx"), THE RICEX COMPANY ("RiceX" and, together
with Xxxxxxxx, the "Mc/X Stockholders"), XXXXXX XXXXXX ("Xxx"), XXXXXX
XXXXXXXXX ("Xxxx" and, together with Xxx, the "P/M Stockholders") and
BIOCEUTICS, INC., a Delaware corporation ("Company").
WHEREAS, the Company was formed on August 6,1999 and thereafter issued an
aggregate of 1,000 shares of its common stock, $.01 par value ("Common
Stock"), to Xxxxxxxx, RiceX, Xxx and Gene (collectively, the "Stockholders")
for $1.00 per share, as follows:
Stockholder Number of Share
Xxx 325
Gene 325
Xxxxxxxx 250
RiceX 100
WHEREAS, the Company and RiceX are simultaneously herewith entering into an
agreement pursuant to which the Company is being granted certain exclusive
purchase and distribution rights for RiceX's products ("License Agreement");
and
WHEREAS, the Company and Xxxxxxxx are simultaneously herewith entering into
an employment agreement pursuant to which Xxxxxxxx will be engaged as
President of the Company for a two-year term ("Employment Agreement") and an
Employee Confidentiality, Non-Competition and Assignment of Inventions
Agreement; and
WHEREAS, the Stockholders and the Company desire to set forth certain
agreements among them with respect to the transfer and control of the Common
Stock owned by them ("Shares");
NOW THEREFORE, in consideration of the premises and mutual agreements herein
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. RESTRICTIONS ON TRANSFERS OF SHARES.
(a) TRANSFER OF SHARES. The Mc/X Stockholders may not sell, transfer, assign,
pledge, donate, or otherwise encumber or dispose (a "Transfer") of any
interest in the Shares unless (i) it has first complied with the Offer Right
(described below) and (ii) all Shares owned by it or her are the subject of
such Transfer. Notwithstanding anything to the contrary, neither RiceX nor
Xxxxxxxx shall make any Transfer prior to November 1, 2001, except in
compliance with the terms of Section 4 of this Agreement; PROVIDED, HOWEVER,
that if a P/M Stockholder sells any of his Shares to any unaffiliated third
party, then the Mc/X Stockholder shall have the right, but not the
obligation, to sell a proportionate number of Mc/X Stockholder's Shares,
subject to the Offer Right (as defined below).
(b) FIRST OFFER RIGHT.
(i) If a Mc/X Stockholder wishes to make a Transfer of its Shares ("Offered
Shares"), then, at least ten (10) days before making any such Transfer, the
Mc/X Stockholder shall deliver to the Company and the P/M Stockholders a
written notice (the "Sale Notice") notifying them of the proposed Transfer.
The Sale Notice shall disclose in reasonable detail the proposed terms and
conditions of the Transfer, including, without limitation, the price per
share to be paid by the transferee, the identity of the transferee, evidence
of its financial ability to effectuate the purchase, and confirmation of
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the transferee's agreement to be bound by the terms of this Agreement. Unless
otherwise agreed by the P/M Stockholders, the purchase price for any Transfer
must be payable in cash.
(ii) The P/M Stockholders shall have the right to purchase all (but not less
than all) of the Offered Shares, at the price and on the terms specified in
the Sale Notice (the "Offer Right"). The P/M Stockholders may decide, as
between themselves, who shall purchase the Offered Shares. The P/M
Stockholders shall deliver written notice of their election to exercise the
Offer Right (the "Purchase Election Notice") to the Mc/X Stockholders within
5 days after the Sale Notice is given. Failure by the P/M Stockholders to
give a timely Purchase Election Notice to the Mc/X Stockholders shall be
deemed an election by them not to exercise the Offer Right.
(iii) If the P/M Stockholders elect to purchase all of the Offered Shares
pursuant to the Offer Right, then such purchase shall, unless the parties
thereto otherwise agree, be completed
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at a closing to be held at the principal office of the Company at 10:00 a.m.
local time on the 10th day following the exercise of the Offer Right.
(iv) The purchase price for the Shares sold pursuant to the Offer Right shall
be the purchase price contained in the Sale Notice, and shall be on the
applicable terms and conditions contained in the Sale Notice and this
Agreement.
(v) In the event that the P/M Stockholders fail to exercise the Offer Right,
then the Mc/X Stockholder shall be permitted to transfer the Offered Shares
solely to the proposed transferee and solely on the terms and conditions set
forth in the Sale Notice.
(c) RIGHTS AND OBLIGATIONS ATTACHED TO COMMON STOCK, SECURITIES LAWS. Upon a
Transfer by a Mc/X Stockholder, the recipient of the Shares shall be entitled
to all of the rights and benefits, and subject to all the obligations, of the
transferring Mc/X Stockholder arising under this Agreement. Prior to any
Transfer, the Mc/X Stockholders shall cause (i) the prospective transferee to
execute and deliver documents evidencing same to the Company and the P/M
Stockholders, in type and form reasonably satisfactory to the Company and the
P/M Stockholder and (ii) its counsel to deliver an opinion to the. Company,
in form reasonably satisfactory to the Company and the P/M Stockholder, to
the effect that such Transfer may be made without registration under federal
securities laws.
(d) IMPROPER TRANSFER. Any attempt to transfer any Shares which is not in
accordance with this Agreement or is in violation of law shall be null and
void, and the Company shall not give any effect to such attempted transfer in
the share records of the Company.
2. PRE-EMPTIVE RIGHTS.
(a) Except with respect to (i) the grant of options; (and the issuance of
shares of Common Stock upon exercise thereof) to employees, consultants,
directors and officers of the Company other than the Stockholders, and (ii)
the issuance of securities by the Company in an underwritten public offering,
if the Company proposes to offer or sell, in consideration for cash, shares
of Common Stock or any other class of capital stock or securities convertible
or exercisable into or exchangeable for shares of Common Stock or any other
class of the Company's capital stock ("New Offer"), the Company shall offer
to each Stockholder the right ("Pre-emptive Right"), on the same terms
specified below, to purchase up to that number of securities sufficient to
permit the Stockholder to maintain its proportionate equity interest in the
Company
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(as determined by dividing all of the Shares then owned by such Stockholder
by the shares of Common Stock then outstanding.
(b) The Company shall send a written notice of the New Offer to each
Stockholder at least ten (10) days prior to the consummation of any New Offer
specifying in reasonable detail the material terms of the New Offer
including, without limitation, the material terms of the proposed security,
the material terms of any proposed agreement to be executed by the purchaser,
the consideration per share to be paid by the purchaser, and the identity (if
known) of each proposed purchaser. Each Stockholder shall notify the Company
within five (5) days of the receipt of such notice whether it intends to
exercise its Pre-emptive Right. The closing of any purchase of securities by
a Stockholder under this Section shall take place on the same day as the
closing of the New Offer or, at the Stockholders' discretion, at anytime
within ten (10) days ("Stockholder Closing Period") thereafter; PROVIDED
HOWEVER, that the Stockholder Closing Period shall be six (6) months for any
New Offer made prior to November 1, 2000.
(c) The Pre-emptive Right afforded under this Section 2 shall terminate with
respect to a Stockholder at such time as it owns less than 5% of the
outstanding Common Stock.
3. CONTROL TRANSFER.
(a) If the P/M Stockholders propose to make a Control Transfer (as
hereinafter defined) of any of their Shares, then they shall have the right,
but not the obligation, to require the Mc/X Stockholders to participate
("Bring Along Right") in any such sale on the same terms as the P/M
Stockholders by requiring the purchaser to purchase from the Mc/X Stockholder
the "Mc/X Stockholders Proportionate Share" (as hereinafter defined) of the
Shares to be sold, on the same terms and conditions as pertain to the Shares
to be sold by the P/M Stockholders in the Control Transfer.
(b) "Mc/X Stockholders Proportionate Share" means the percentage determined
by dividing (x) the number of Shares then owned by the Mc/X Stockholders, by
(y) the sum of (i) the number of Shares then owned by the P/M Stockholders
plus (ii) the number of Shares then owned by the Mc/X Stockholders.
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(c) PROCEDURE.
(i) If the P/M Stockholders desire to make a Control Transfer, then at least
ten (10) days before making any such Control Transfer, the P/M Stockholders
may deliver to the Mc/X Stockholders a written notice (the "Change of Control
Notice") notifying it of the proposed Control Transfer. The Change of Control
Notice shall specify the proposed number of Shares to be the subject of the
Control Transfer (the "Subject Shares") and disclose in detail the proposed
terms and conditions of the Control Transfer, including, without limitation,
the price per share to be paid by the transferee, the identity of the
transferee, evidence of its financial ability to effectuate the purchase and,
if applicable, notice that the Mc/X Stockholders are obligated to include and
sell all of their Shares or the Mc/X Stockholders Proportionate Share, as the
case may be, as part of such Control Transfer pursuant to the Bring Along
Right.
(ii) If the P/M Stockholders exercise the Bring Along Right, the Mc/X
Stockholders shall cooperate in consummating the Control Transfer, including,
without limitation, by becoming parties to the sale agreement and all other
appropriate related agreements, delivery of certificates and other
instruments for its Shares duly endorsed for transfer, free and clear of all
liens and encumbrances, and voting or consenting in favor of such transaction
(to the extent a vote or consent is required) and taking any other necessary
or appropriate action in furtherance thereof, including the execution and
delivery of any other appropriate agreements, certificates, instruments and
other documents, including becoming a party to standard representations,
warranties and indemnities in such agreements.
(d) "Control Transfer" means the first transaction or series of related
transactions as a result of which any third party, or group of third parties
acting in concert, who are not affiliates of the P/M Stockholders, acquires,
directly or indirectly, from the P/M Stockholders for cash or other
consideration, a majority of the Common Stock owned by the P/M Stockholders
prior to such transaction or series of related transactions or the power or
ability to exercise voting rights in respect of a majority of such shares of
Common Stock.
4. TAG ALONG RIGHTS.
(a) If the P/M Stockholders propose to make a Control Transfer of any of
their Shares, then the Mc/X Stockholders shall have the right ("Tag-Along
Right"), but not the obligation, to participate
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in any such sale on the same terms as the P/M Stockholders by requiring the
purchaser to purchase from the Mc/X Stockholder the Mc/X Stockholders
Proportionate Share of the Shares to be sold, on the same terms and
conditions as pertain to the Shares to be sold by the P/M Stockholders in the
Control Transfer.
(b) If the P/M Stockholders desire to make a Control Transfer, then at least
10 days before making any such Control Transfer, the P/M Stockholders shall
deliver to the Mc/X Stockholders a Change of Control Notice notifying of the
proposed Control Transfer. The Change of Control Notice shall specify the
subject Shares and disclose in detail the proposed terms and conditions of
the Control Transfer, including without limitation, the price per share to be
paid by the transferee, the identity of the transferee, evidence of its
financial ability to effectuate the purchase and, if applicable, notice that
the Minority Shareholder may include and sell the Mc/X Stockholders
Proportionate Share as part of such Control Transfer pursuant to the
Tag-Along Right.
(c) If the Mc/X Stockholder wishes to participate in the Control Transfer, it
shall provide written notice thereof ("Tag-Along Notice") to the P/M
Stockholders no less than 5 days prior to the proposed date of the Control
Transfer. The Tag-Along Notice shall constitute the Mc/X Stockholder's
binding agreement to sell the Mc/X Stockholders Proportionate Share on the
terms and conditions applicable. to the Control Transfer. If the proposed
transferee or purchaser does not consummate the purchase of all of the Shares
on the terms and conditions applicable to the P/M Stockholders, then neither
the P/M Stockholders nor the Mc/X Stockholders shall consummate the sale of
any of its Shares to such transferee or purchaser.
(d) If the Mc/X Stockholders exercise the Tag-Along Right, the Mc/X
Stockholder shall cooperate in consummating the Control Transfer, including,
without limitation, by becoming a party to the sale agreement and all other
appropriate related agreements, delivery of certificates and other
instruments for their Shares duly endorsed for transfer, free and clear of
all liens and encumbrances, and voting or consenting in favor of such
transaction (to the extent a voter consent is required) and taking any other
necessary or appropriate action in furtherance thereof, and including the
execution and delivery of any other appropriate agreements, certificates,
instruments and other documents, including becoming a party to standard
representations, warranties and indemnities in such agreements.
(e) If a Tag-Along Notice is not received by the P/M Stockholders from the
Mc/X Stockholders prior to the 5 day period specified above, the P/M
Stockholders shall have the right to sell or otherwise transfer the number of
Shares specified in the Change of Control Notice to the proposed purchaser
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or transferee without any participation by the Mc/X Stockholder, but only on
the terms and conditions set forth in the Change of Control Notice.
5. REPRESENTATION AND WARRANTY OF STOCKHOLDERS. Each of the Stockholders
hereby represents and warrants that, except for this Agreement, it is not a
party to any contract or agreement respecting the Shares, including any
voting trust or other voting arrangement, option or transfer agreement.
6. NONCOMPETITION. If Xxxxxxxx breaches any provisions of the Employee
Confidentiality, NonCompetition and Assignment of Inventions Agreement, being
signed simultaneously herewith (even if such Agreement, or any section of
such Agreement is held to be unenforceable by a court of law or other
tribunal), then from and after such date, (i) all rights provided to Xxxxxxxx
in this Agreement shall terminate and (ii) the Company shall have the right
to purchase Patricia's shares for a price of $.01 per share.
7. LOAN OBLIGATION. Each of Xxx, Xxxx and Xxxxxxxx agree that, if the Company
needs working capital to operate its business at any time during the period
commencing on the date hereof and ending on the "Due Date," as defined below,
each of them will lend to the Company the Company's working capital
requirements, up to a maximum outstanding at any one point in time of
$400,000 in the following ratio:
Xxx and Gene - 36.11% each
Xxxxxxxx - 27.78%.
All amounts loaned will bear interest at the minimum rate to avoid imputation
of interest under the Internal Revenue Code and will be due and payable,
together with interest, on the earlier of November 1, 2001 or the date the
Company closes an equity debt financing from unaffiliated parties (such date
referenced to herein as the "Due Date"). All such loans will be secured by a
first priority perfected security interest in favor of Xxx, Gene and Xxxxxxxx
(on a pro rata basis) on all the Company's assets. Prior to making such
loans, the Company will execute, for the benefit of Xxx, Gene and Xxxxxxxx,
appropriate promissory notes and security agreements.
If Xxxxxxxx determines to borrow funds to fulfill her loan obligation under
this Paragraph 7, each of Xxx and Xxxx will lend 50% of the amount to be
borrowed by Xxxxxxxx. All amounts loaned to Xxxxxxxx will bear interest at
the minimum rate to avoid imputation of interest under the Internal Revenue
Code and will be due and payable, together with interest, on the earlier of.
(1) three (3) years from the date of the loan or (2) the date Xxxxxxxx is
repaid by the Company. All of the shares of Common Stock held by Xxxxxxxx as
of the date of this Agreement, plus any additional shares acquired by
Xxxxxxxx, in the future, shall
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be pledged to the Xxx and Xxxx as security. Prior to making such loans to
Xxxxxxxx, Xxxxxxxx will execute, for the benefit of Xxx and Gene, appropriate
promissory notes, and pledge and escrow agreements.
8. PERSONAL GUARANTY. Xxx and Xxxx each agree to guaranty 50% (for an
aggregate of 100%) of the salary owed to Xxxxxxxx under the Employment
Agreement through November 1, 2001. Any funds advanced by Xxx or Xxxx
pursuant to this guarantee shall be deemed to be loans to the Company with
the same terms (and subject to the same security) as those described in
Section 6, above. Prior to making any such loans, the Company will execute,
for the benefit of Xxx and Gene, appropriate promissory notes and security
agreements.
9. RICEX CLAIMS. Each of Xxxxxxxx and RiceX agree to jointly and severally
indemnify the Company, Xxx and Gene ("Indemnified Parties") for, and hold
them harmless from and against, any and all costs, expenses and damages
(including reasonable attorneys' fees and expenses) incurred in connection
with any suit, action and claim brought by or on behalf of RiceX or its
stockholders against any Indemnified Party based on RiceX's failure to
capitalize on a corporate opportunity (or any related claim) arising out of,
or as a result of, RiceX entering into the License Agreement, Xxxxxxxx
entering into the Employment Agreement or either RiceX or Xxxxxxxx becoming a
Stockholder or entering into this Agreement.
10. DEFINITION OF "SHARES". The term "Shares" shall mean any and all shares
of Common Stock outstanding as of the date here of and any additional shares
of Common Stock hereafter acquired by the owner thereof.
11. SPECIFIC PERFORMANCE. If any Stockholder commits a breach, or threatens
to commit a breach, of any of the provisions of this Agreement, the other
parties shall have the right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed by the parties that the transactions
contemplated hereunder are of a special, unique and extraordinary character
and that any such breach or threatened breach by a party will cause
irreparable injury to the other parties and that money damages will not
provide an adequate remedy to such other parties.
12. SUCCESSORS AND ASSIGNS. None of the rights or obligations of the parties
hereto may be assigned without the written consent of each of the parties,
and any attempt to do so shall be null and void. Subject to the preceding
sentence, the rights and obligations of each party hereto shall be binding on
and inure to the benefit of its successors and permitted assigns.
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13. GOVERNING LAW; DISPUTES. This Agreement shall be governed by and
construed under the law of the State of Delaware, disregarding any principles
of conflicts of law that would otherwise provide for the application of the
substantive law of another jurisdiction. Each of the undersigned (i) agrees
that any legal suit, action or proceeding arising out of or relating to this
Agreement shall be instituted exclusively in the Superior Court of the State
of Delaware, (ii) waives any objection to the venue of any such suit, action
or proceeding and the right to assert that such forum is not a convenient
forum, and (iii) irrevocably consents to the jurisdiction of the Superior
Court of the State of Delaware in any such suit, action or proceeding. Each
of the undersigned further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or proceeding in
the Superior Court of the State of Delaware and agrees that service of
process upon it mailed by certified mail to its address shall be deemed in
every respect effective service of process upon it in any such suit, action
or proceeding.
14. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. A signature
received via facsimile shall be deemed an original for all purposes.
15. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
16. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or
made as of the date delivered if delivered personally or by nationally
recognized overnight courier, or four business days after deposit with the
United States Post Office by certified mail, postage prepaid, to the parties
at the following addresses and numbers (or at such other address or number
for a party as shall be specified by like notice, except that notices of
changes of address or number shall be effective upon receipt):
If to Xxxxxxxx:
Xxxxxxxx XxXxxx
000 Xxxx Xxxx
Xx Xxxxxx Xxxxx Xxxxxxxxxx 00000
Telephone No.: (000)000-0000
Facsimile No.: (000) 000-0000
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If to RiceX:
The RiceX Company 0000 Xxxx'x Xxxxxx Xxxxx Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxx, Xx. Telephone No.: (000) 000-0000 Facsimile No.:
(000) 000-0000
If to Xxx or the Company:
Xxxxxxxx Xxxxxx & Xxxxxx 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 100 16 Attn:
Xxxxx Xxxx Xxxxxx, Esq. Telephone No.: (000) 000-0000 Facsimile No: (212)
818-8881
If to Gene:
Xxxxxx Xxxxxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000 Telephone
No.: (000) 000-0000 Facsimile No.: (000) 000-0000
with a copy in any case to:
Crosby, Heafey, Xxxxx & May 000 Xxxxx Xxxxxx Xxxxxx - Xxxxx 0000 Xxx Xxxxxxx,
Xxxxxxxxxx 00000 Attn: Xxxxxxx W, Xxxxxxx II Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Xxxxxxxx Mollen & Xxxxxx 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 100 16 Attn:
Xxxxx Xxxx Xxxxxx, Esq. Telephone No.: (000) 000-0000 Facsimile No: (212)
818-8881)
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and
Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP 0 Xxxxxxxxxxx Xxxxxx - 00xx Xxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000 Attn: Xxxxxxx X. Xxxxxxxx, Esq. Telephone
No.: (000) 000-0000 Facsimile No.: (000) 000-0000
17. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard
to the subjects hereof. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and each Stockholder.
18. SEVERABILITY. If one or more provisions of this Agreement is or are held
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as
if such provision(s) were so excluded and shall be enforceable in accordance
with its remaining terms.
19. TERMINATION. The provisions of this Agreement will terminate
automatically and be of no further force and effect upon the earliest of (i)
consummation of a Control Transfer, and (ii) consummation of the initial
public offering of the Company's equity securities.
20. RIGHTS OF THIRD PARTIES. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective permitted successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
NEXT PAGE IS THE SIGNATURE PAGE
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IN WITNESS WHEREOF, the parties here to have executed this Stockholder
Agreement on the day and year first above written.
XXXXXXXX XxXXXX
By:/s/Xxxxxxxx XxXxxx
THE RICEX COMPANY
By:/s/Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Chief Executive Officer and
Chairman of the Board
XXXXXX XXXXXX
By:/s/Xxxxxx Xxxxxx
XXXXXX XXXXXXXXX
By:/s/Xxxxxx Xxxxxxxxx
BIOCEUTICS, INC.
By:/s/Xxxxxx Xxxxx
Name: XXXXXX XXXXX
Title: VICE PRESIDENT
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