SHAREHOLDERS' AND VOTING AGREEMENT
by and among
Q-MED, INC.
and
THE SHAREHOLDERS THAT
ARE SIGNATORIES HERETO
Dated as of November 16, 1998
TABLE OF CONTENTS
Page No.
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Section 1. Definitions............................................ 1
Section 2. Methodology for Calculations........................... 3
Section 3. Voting Agreement....................................... 3
Section 4. Restrictions on Transfers of Stock..................... 3
Section 5. Rights of First Offer.................................. 3
Section 6. Tag-Along Rights....................................... 5
6.1. Tag-Along.............................................. 5
6.2. Tag-Along Obligations.................................. 5
6.3. Closing................................................ 5
6.4. Limitations............................................ 5
Section 7. Certain Covenants...................................... 5
7.1. Financial Statements, Other Information and Access..... 5
7.2. Management Reports..................................... 6
Section 8. Conflicting Agreements................................. 6
Section 9. Legend................................................. 6
Section 10. Representations and Warranties......................... 7
Section 11. Duration of Agreement.................................. 8
Section 12. Further Assurances..................................... 8
Section 13. Amendment and Waiver................................... 8
Section 14. Severability........................................... 8
Section 15. Entire Agreement; Effect on Prior Agreement............ 8
Section 16. Successors and Assigns................................. 9
Section 17. Counterparts........................................... 9
Section 18. Remedies............................................... 9
Section 19. Notices................................................ 9
Section 20. Governing Law, Consent to Jurisdiction................. 10
Section 21. Miscellaneous.......................................... 10
Section 22. Construction........................................... 10
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SHAREHOLDERS' AND VOTING AGREEMENT
THIS SHAREHOLDERS' AND VOTING AGREEMENT (the "Agreement") is made as of
November 16, 1998 by and among Q-MED, INC., a Delaware corporation (the
"Company"), and each of the shareholders of the Company executing one of the
signature pages attached hereto.
W I T N E S S E T H :
WHEREAS, as of the date hereof, Xxxxx Partners III, L.P., Xxxxx Partners
International III, L.P. and Xxxxx Employee Fund III, L.P. (the "Xxxxx
Investors"), and certain other Persons that are signatories hereto, are
purchasing up to 1,926,702 shares of the Company's Common Stock, par value $.001
per share (the "Common Stock"),pursuant to a Common Stock Purchase Agreement
(the "Purchase Agreement"); and
WHEREAS, the parties hereto deem it to be in their best interests to enter
into an agreement establishing and setting forth their agreement with respect to
certain rights and obligations associated with ownership of shares of capital
stock of the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
Section 1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person and (ii) with respect to any
individual, shall also mean the spouse, parent, sibling, child, step-child, or
grandchild of such Person, or the spouse thereof.
"By-laws" means the By-laws of the Company as in effect on the date
hereof, as they may be amended from time to time hereafter.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.001 per share of the
Company and any equity securities issued or issuable with respect to the Common
Stock in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Common Stock Equivalents" means any warrants, options or other securities
convertible into, or exchangeable or exercisable for, shares of Common Stock.
"Company" has the meaning assigned to it in the Preamble.
"Excluded Securities" means (a) options issued by the Company to a
director, officer or employee of the Company pursuant to any stock option or
similar plan (and any shares of Common Stock issuable thereunder) existing or
outstanding as of the date hereof, or to the extent such arrangements are
approved by the Board of Directors after the date hereof, or (b) shares of
Common Stock issuable upon conversion, exchange or exercise of any Common Stock
Equivalent outstanding as of the date hereof or other Common Stock Equivalent
approved by the vote of the Board of Directors after the date hereof in the
manner set forth in clause (a) above.
"First Offer Percentage" means, as to each Offered Shareholder, the
quotient obtained (expressed as a percentage) by dividing (i) the number of
shares of Common Stock owned by such Offered Shareholder on the first day of the
Shareholder Acceptance Period by (ii) the aggregate number of shares of Common
Stock owned
on the first day of the Shareholder Acceptance Period by all Offered
Shareholders who exercise their option to purchase Refused Stock.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976,
as amended.
"Investors" means the Xxxxx Investors, and each other Person listed as an
Investor on the signature pages attached hereto.
"Offered Shareholder" has the meaning assigned to it in Section 5(a).
"Permitted Transfer" means, with respect to any Person, (i) a Transfer to
a trust for the benefit of such Person's spouse or issue or to a family
partnership, limited liability company or similar entity of which the members
are solely such Person. or such Person's spouse or issue and as to which such
Person exercises voting control, (ii) a Transfer to an Affiliate of such Person,
(iii) a Transfer between Shareholders, or (iv) if such Person is a limited or
general partnership, a Transfer to its partners in connection with a
distribution of securities held by such Person to its partners.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust. unincorporated organization or government or any agency or political
subdivisions thereof
"Public Sale" means a Transfer pursuant to a bona fide underwritten public
offering pursuant to an effective registration statement filed under the
Securities Act, pursuant to Rule 144 under the Securities Act, or pursuant to
any other provisions of the Securities Act or rules thereunder where subsequent
Transfers would not be subject to Transfer restrictions thereunder.
"Purchase Agreement" has the meaning assigned to it in the Recitals.
"Registration Agreement" means the Registration Rights Agreement, dated as
of the date hereof, between the Company and the other parties thereto as it may
be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Management Shareholder" means each of Xxxxxxx X. Xxx and Xxxxxxx
X. Xxxxx.
"Shareholders" means the parties to this Agreement (other than the
Company) and any other subsequent holder of Stock who agrees to be bound by the
terms of this Agreement.
"Stock" means (i) any shares of Common Stock and (ii) any Common Stock
Equivalents, in each case, whether owned on the date hereof or acquired
hereafter by a Shareholder.
"Subsidiary" means with respect to any Person, (i) any corporation,
partnership or other entity of which shares of capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other similar managing body of such corporation, partnership or
other entity are at the time owned by such Person, or (ii) the management of
which is otherwise controlled, directly or indirectly, through one or more
intermediaries by such Person.
"Transfer" as to any Stock, means to sell, or in any other way directly or
indirectly transfer, assign, distribute, pledge, encumber or otherwise dispose
of, either voluntarily or involuntarily.
"Voting Shares" means any securities of the Company the holders of which
are generally entitled to vote for members of the Board.
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Section 2. Methodology for Calculations. For purposes of this Agreement,
the Transfer of a Common Stock Equivalent shall be treated as the Transfer of
the shares of Common Stock into which such Common Stock Equivalent can be
converted, exchanged or exercised. Except as otherwise provided in this
Agreement, for purposes of calculating (i) the amount of outstanding Common
Stock as of any date, (ii) the amount of Common Stock owned by a Person
hereunder and (iii) related percentages, all Common Stock Equivalents shall be
treated as having been converted, exchanged or exercised.
Section 3. Voting Agreement. Each Shareholder shall vote all of its Voting
Shares and shall take all other necessary or desirable actions within its
control (including, without limitation, attending all meetings in person or by
proxy for purposes of obtaining a quorum, executing all written consents in lieu
of meetings and voting to remove members of the Board, as applicable), and the
Company shall take all necessary and desirable actions within its control to
cause to be elected to the Board of Directors the person designated from time to
time by the Xxxxx Investors (including any person designated as a successor to
fill any vacancy arising by reason of the resignation, death, removal or
inability to serve of any designee of the Xxxxx Investors) pursuant to their
rights contained in the Note Purchase Agreement dated December 18, 1997, as
amended, by and among the Company and the Xxxxx Investors.
Section 4. Restrictions on Transfers of Stock. (a) No Senior Management
Shareholder shall Transfer any Stock, whether owned on the date hereof or
acquired hereafter, without first, if applicable, complying with the provisions
of Section 5 hereof and then, in each case as applicable, complying with the
provisions of Section 6 hereof if, after giving effect to such Transfer, such
Senior Management Shareholder shall have Transferred in the aggregate an amount
of Common Stock in excess of 5% of the outstanding Common Stock held by such
Senior Management Shareholder as of the date hereof, except that (i) any Senior
Management Shareholder may Transfer Stock in connection with the bona fide
merger of the Company or bona fide sale of all or substantially all of the
assets or equity securities of the Company, (ii) any Senior Management
Shareholder may Transfer Stock in connection with a Permitted Transfer, and
(iii) any Senior Management Shareholder may make the Transfers required by
Section 7 and any Transfer pursuant to a Public Sale.
(b) Except in connection with a Public Sale, any Transfer by a
Shareholder of Stock to any transferee (including any transferee that is an
Affiliate of a transferor) who is not a Shareholder shall upon consummation
of, and as a condition to, such Transfer execute and deliver to the Company
(which the Company shall then deliver to all other Shareholders) an
agreement in form and substance satisfactory to the Company pursuant to
which it agrees to be bound by the terms of this Agreement for the benefit
of the parties hereto and such transferee shall thereafter be deemed to be
a Shareholder for all purposes of this Agreement.
(c) Any Transfer or attempted Transfer of Stock in violation of any
provision of this Agreement shall be void, and the Company shall not record
such Transfer on its books or treat any purported transferee of such Stock
as the owner of such Stock for any purpose.
Section 5. Rights of First Offer. In addition to and not in limitation of
any other restrictions on Transfers of Stock contained in this Agreement, any
Transfers of Stock by a Senior Management Shareholder shall be consummated only
in accordance with the following procedures:
(a) The transferring Senior Management Shareholder shall first deliver
to the Company and each Shareholder (the "Offered Shareholders") a written
notice (an "Offer Notice"), which shall (i) state the transferring Senior
Management Shareholder's intention to Transfer Stock to one or more Persons
in a bona fide, arm's length transaction, the amount and type of Stock to
be Transferred (the "Subject Stock"), the purchase price therefor (which
shall be payable in cash) and a summary of the other material terms of the
proposed Transfer and (ii) offer the Company and the Offered Shareholders
the option to acquire all or a portion of such Subject Stock upon the terms
and subject to the conditions of the proposed Transfer as set forth in the
Offer Notice (the "Offer"), provided that such Offer may provide that it
must be accepted by the Company and the Offered Shareholders (in the
aggregate) on an all or nothing basis (an "All or Nothing Sale").
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The Offer shall remain open and irrevocable for the periods set forth below
(and, to the extent the Offer is accepted during such periods, until the
consummation of the sale contemplated by the Offer). The Company shall have
the right and option, for a period of 15 days after delivery of the Offer
Notice (the "Company Acceptance Period"), to accept all or any part of the
Subject Stock at the cash purchase price and on the terms stated in the
Offer Notice. Such acceptance shall be made by delivering a written notice
to the transferring Senior Management Shareholder and each of the Offered
Shareholders within the Company Acceptance Period.
(b) If the Company shall fail to accept all of the Subject Stock
offered pursuant to, or shall reject in writing, the Offer (the Company
being required to notify in writing the transferring Senior Management
Shareholder and each of the Offered Shareholders of its rejection or
failure to accept in the event of the same), then, upon the earlier of the
expiration of the Company Acceptance Period or the giving of such written
notice of rejection or failure to accept such offer by the Company, each
Offered Shareholder shall have the right and option, for a period of 30
days thereafter (the "Shareholder Acceptance Period"), to accept all or any
part of the Subject Stock so offered and not accepted by the Company (the
"Refused Stock") at the cash purchase price and on the terms stated in the
Offer Notice; provided, however, that, if the Offer contemplated an All or
Nothing Sale, the Offered Shareholders, in the aggregate, may accept,
during the Shareholder Acceptance Period, all, but not less than all, of
the Refused Stock, at the cash purchase price and on the terms stated in
the Offer Notice. Such acceptance shall be made by delivering a written
notice to the Company and the transferring Senior Management Shareholder
within the Shareholder Acceptance Period specifying the maximum number of
shares such Offered Shareholder will purchase (the "First Offer Shares").
If, upon the expiration of the Shareholder Acceptance Period, the aggregate
amount of First Offer Shares exceeds the amount of Refused Stock, the
Refused Stock shall be allocated among the Offered Shareholders as follows:
(i) first, each Offered Shareholder shall be entitled to purchase no more
than its First Offer Percentage of Refused Stock; (ii) second, if any
shares of Refused Stock have not been allocated for purchase pursuant to
(i) above (the "Remaining Shares"), each Offered Shareholder (an
"Oversubscribed Shareholder") which had offered to purchase a number of
shares of Refused Stock in excess of the amount of stock allocated for
purchase to it in accordance with previous allocations of such shares of
Refused Stock, shall be entitled to purchase an amount of Remaining Shares
equal to no more than its First Offer Percentage (treating only
Oversubscribed Shareholders as Offered Shareholders for these purposes) of
the Remaining Shares; and (iii) third, the process set forth in (ii) above
shall be repeated with respect to any shares of Refused Stock not allocated
for purchase until all shares of Refused Stock are allocated for purchase.
(c) If effective acceptance shall not be received pursuant to Sections
5(a) and/or 5(b) above with respect to all of the Subject Stock offered for
sale pursuant to the Offer Notice, then the transferring Senior Management
Shareholder may Transfer all or any portion of the Stock so offered for
sale and not so accepted (or, in the case of an All or Nothing Sale, all,
but not less than all, of the Subject Stock offered for sale pursuant to
the Offer Notice), at a cash price not less than the price, and on terms
not more favorable to the purchaser thereof than the terms, stated in the
Offer Notice at any time within 90 days after the expiration of the
Shareholder Acceptance Period (the "Sale Period"). In the event that all of
the Stock is not sold by the transferring Shareholder during the Sale
Period, the right of the transferring Senior Management Shareholder to
Transfer such Stock shall expire and the obligations of this Section 5
shall be reinstated.
(d) All Transfers of Subject Stock to the Company and/or the Offered
Shareholders pursuant to this Section 5 shall be made free and clear of all
liens and shall be consummated contemporaneously at the offices of the
Company on the later of (i) a mutually satisfactory business day within 30
days after the expiration of the later of the Company Acceptance Period or
the Shareholder Acceptance Period, as applicable, and (ii) the fifth
business day following the expiration or termination of all waiting periods
under the HSR Act applicable to such Transfers, or at such other time
and/or place as the parties may agree. The delivery of certificates or
other instruments evidencing such Subject Stock duly endorsed for transfer
shall be made on such date against payment of the purchase price for such
Subject Stock.
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(e) The requirements of this Section 5 shall not apply to (i) any
Permitted Transfer of Stock by a Senior Management Shareholder or (ii) any
Transfer pursuant to a Public Sale.
Section 6. Tag-Along Rights.
6.1. Tag-Along. No Senior Management Shareholder shall Transfer any Stock
owned by such Senior Management Shareholder without complying with the terms and
conditions set forth in this Section 6 (after having complied with the
provisions of Section 5).
6.2. Tag-Along Obligations. Any Senior Management Shareholder (the
"Tag-Along Initiator") desiring to Transfer any shares of Stock shall, after
expiration of all required notice periods under Section 5, give not less than 20
days prior written notice of such intended Transfer to each other Shareholder
("Tag-Along Offeree") and to the Company. Such notice (the "Tag-Along Notice")
shall set forth the terms and conditions of such proposed Transfer, including
the name of the proposed transferee, the number of shares proposed to be
transferred by the Tag-Along Initiator (the "Tag-Along Shares"), the purchase
price per share proposed to be paid therefor and the payment terms and type of
transfer to be effectuated. Within 10 days after delivery of the Tag-Along
Notice by the Tag-Along Initiator to each Tag-Along Offeree and to the Company,
each Tag-Along Offeree shall, by written notice to the Tag-Along Initiator and
the Company, have the opportunity and right to sell to the transferee in such
proposed Transfer (upon the same terms and conditions as the Tag-Along
Initiator) up to that number of shares of such Stock owned by the Tag-Along
Offeree as shall equal the product of (x) a fraction, the numerator of which is
the number of shares of such Stock owned by the Tag-Along Offeree as of the date
of the Tag-Along Notice and the denominator of which is the aggregate number of
shares of such Stock owned as of the date of the Tag-Along Notice by the
Tag-Along Initiator and all of the Tag-Along Offerees, times (y) the number of
shares of such Stock owned as of the date of the Tag-Along Notice by the
Tag-Along Offeree; provided, however, that the number of shares of Stock to be
sold by any Tag-Along Offeree shall not exceed the same proportion as the number
of shares of Stock to be Transferred by the Tag-Along Initiator bears to the
number of shares of Stock held by the Tag-Along Initiator. The amount of
Tag-Along Shares to be sold by any Tag-Along Initiator shall be reduced to the
extent necessary to provide for such sales of shares by Tag- Along Offerees. No
Person may Transfer shares in any transaction that is subject to this Section 6
unless the transferee agrees to be bound by and complies with the terms of this
Agreement.
6.3. Closing. At the closing of any proposed Transfer in respect of which
a Tag-Along Notice has been delivered, the Tag-Along Initiator together with all
Tag-Along Offerees electing to sell shares, shall deliver, free and clear of all
liens, to the proposed transferee certificates evidencing the shares to be sold
thereto duly endorsed with transfer powers and shall receive in exchange
therefore the consideration to be paid or delivered by the proposed transferee
in respect of such shares as described in the Tag-Along Notice.
6.4. Limitations. The provisions of this Section 6 shall not apply to (x)
any Public Sale, (y) any Permitted Transfer by a Shareholder, or (z) any
Transfers pursuant to Section 5.
Section 7. Certain Covenants.
7.1. Financial Statements, Other Information and Access. (a) So long as
Investors hold in the aggregate at least 1,000,000 shares of Common Stock (as
such number may be adjusted to reflect any stock split, combination, dividend or
other similar transaction), the Company shall deliver to each Investor:
(i) within 50 days after the end of each quarterly period (other than
the last quarterly period) in each fiscal year, statements of consolidated
operations and cash flows and a statement of consolidated stockholder's
equity of the Company and its Subsidiaries for the period from the
beginning of the then current fiscal year to the end of such quarterly
period, and a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarterly period, setting forth in each
case in comparative form figures for the corresponding
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period or date in the preceding fiscal year, all in reasonable detail and
certified by the Chief Financial Officer of the Company, subject to changes
resulting from year-end adjustments; provided, however, that delivery
pursuant to clause (iii) below of a copy of the Quarterly Report on Form
10-Q of the Company for such quarterly period filed with the Commission
shall be deemed to satisfy the requirements of this clause (i);
(ii) within 105 days after the end of each fiscal year, statements of
consolidated operations and cash flows and a statement of changes in
consolidated stockholder's equity of the Company and its Subsidiaries for
such year, and a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such year, setting forth in each case in
comparative form the corresponding figures from the preceding fiscal year,
all in reasonable detail and examined and certified, without qualification
by independent public accountants of recognized national standing selected
by the Company; provided, however, that delivery pursuant to clause (iii)
below of a copy of the Annual Report on Form 10-K of the Company for such
fiscal year filed with the Commission shall be deemed to satisfy the
requirements of this clause (ii);
(iii) promptly upon transmission thereof, copies of all such financial
statements, proxy statements, notices and reports it sends to its
stockholders and copies of all such registration statements (without
exhibits), other than registration statements relating to employee benefit
or dividend reinvestment plans, and all such regular and periodic reports
as it shall file with the Commission; and
(iv) with reasonable promptness, such other information and financial
data concerning the Company as any Person entitled to receive information
under this Section 10.1 may reasonably request.
(b) The Company will permit each Investor and its representatives, upon
reasonable advance notice, to visit and inspect, during normal business hours
and at the Investor's expense, any of the properties of the Company and its
Subsidiaries, to examine the corporate books and make copies or extracts
therefrom and to discuss the affairs, finances and accounts of the Company and
its Subsidiaries with the senior management officers of the Company as well as
the accountants of the Company; provided, that, without the Company's consent,
which shall not be unreasonably withheld, the Investors' right to visit and
inspect the Company's properties shall not exceed four times a year.
7.2. Management Reports. So long as Investors hold in the aggregate at
least 1,000,000 shares of Common Stock (as such number may be adjusted to
reflect any stock split, combination, dividend or other similar transaction),
the Company shall promptly deliver to each Investor (but in any event with ten
(10) business days) after the end of each month, a monthly operations report
including a month to month comparative analysis of revenues and expenses against
budget and significant business matters, as well as copies of all reports or
other information provided to the members of the Board and/or senior management
of the Company during such month.
Section 8. Conflicting Agreements. Each Shareholder represents and
warrants that such Shareholder has not granted and is not a party to any proxy,
voting trust or other agreement which is inconsistent with or conflicts with any
provision of this Agreement, and no holder of Stock shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with any provision of this Agreement.
Section 9. Legend. (a) Each Shareholder and the Company shall take all
such action necessary (including exchanging with the Company certificates
representing shares of Stock issued prior to the date hereof)
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to cause each certificate representing outstanding shares of Stock beneficially
owned by such Shareholder to bear a legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED,
SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF (i)
UNLESS (A) REGISTERED UNDER SUCH ACT AND ANY APPLICABLE STATE
SECURITIES AND "BLUE SKY" LAWS OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO Q-MED, INC. (THE "COMPANY") THAT SUCH REGISTRATION IS
NOT NECESSARY HAS BEEN DELIVERED TO THE COMPANY OR (ii) UNLESS SOLD
PURSUANT TO AND IN COMPLIANCE WITH RULE 144 OF SUCH ACT AND APPLICABLE
SECURITIES OR "BLUE SKY" LAWS."
"IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER AND TO THE VOTING AGREEMENTS
SET FORTH IN THE SHAREHOLDERS' AGREEMENT DATED AS OF NOVEMBER 16,1998
BY THE COMPANY AND THE PARTIES THERETO, A COPY OF WHICH IS ON FILE IN
THE OFFICE OF THE COMPANY."
(b) The requirement that the above securities legend be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the
earliest of the following events: (i) when such shares are transferred in an
underwritten public offering, (ii) when such shares are transferred pursuant to
Rule 144 under the Securities Act or (iii) when such shares are transferred in
any other transaction if the seller delivers to the Company an opinion of its
counsel, which counsel and opinion shall be reasonably satisfactory to the
Company to the effect that such legend is no longer necessary in order to
protect the Company against a violation by it of the Securities Act upon any
sale or other disposition of such shares without registration thereunder. The
requirement that the above legend regarding this Agreement be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the sale
of such shares of Stock pursuant to a Public Sale. Upon the consummation of any
event requiring the removal of a legend hereunder, the Company, upon the
surrender of certificates containing such legend, shall, at its own expense,
deliver to the holder of any such shares as to which the requirement for such
legend shall have terminated, one or more new certificates evidencing such
shares not bearing such legend.
Section 10. Representations and Warranties.
(a) Each party hereto represents and warrants to the other parties
hereto as follows:
(i) It has full power and authority to execute, deliver and
perform its obligations under this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by it, and constitutes a valid and binding
obligation of it, enforceable against it in accordance with its terms
except to the extent that enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights
generally.
(iii) The execution, delivery and performance of this Agreement
by it does not (x) violate, conflict with, or constitute a breach of
or default under its organizational documents, if any, or any
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material agreement to which it is a party or by which it is bound or (y) violate
any law, regulation, order, writ, judgment, injunction or decree applicable to
it.
(iv) No consent or approval of, or filing with, any governmental
or regulatory body is required to be obtained or made by it in
connection with the transactions contemplated hereby.
(v) It is not a party to any agreement which is inconsistent with
the rights of any party hereunder or otherwise conflicts with the
provisions hereof.
(b) Each Senior Management Shareholder represents and warrants to the
Investors that Schedule 10(b) hereto sets forth a list of all securities of
the Company (including, without limitation, shares of capital stock,
convertible securities, debentures, etc.) held of record or beneficially
owned by such Senior Management Shareholder immediately after the date
hereof. All such securities are free and clear of any liens, encumbrances,
rights of first refusal or other rights of third parties of any nature with
respect thereto.
(c) Each Shareholder represents and warrants to the Investors that,
except as set forth on Schedule 10(b) hereto and other than this Agreement
and the Registration Agreement, such Shareholder is not a party to any
contract or agreement, written or oral, (i) with respect to the securities
of the Company (including, without limitation, any voting agreement, voting
trust, stockholder's agreement, registration rights agreement, etc.) or
(ii) otherwise with or relating to the Company, except for employment
agreements entered into in the ordinary course of business.
Section 11. Duration of Agreement. The rights and obligations of a
Shareholder under this Agreement shall terminate at such time as such
Shareholder no longer is the beneficial owner of any shares of Stock. This
Agreement shall terminate five years after the date hereof, except that the
terms of Sections 8, 15 and 22 shall survive until, by their respective terms,
they are no longer operative.
Section 12. Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the request
of any other party, to execute and deliver any further instruments or documents
and to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
Section 13. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or any Shareholder unless such modification,
amendment or waiver is approved in writing by the Company, and Shareholders
owning at least a majority of the outstanding shares of Stock. The failure of
any party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
Section 14. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 15. Entire Agreement; Effect on Prior Agreement. Except as
otherwise expressly set forth herein, this document and the other documents
dated the date hereof embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may
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have related to the subject matter hereof in any way. Without limiting the
generality of the foregoing, to the extent that any of the terms hereof are
inconsistent with the rights or obligations of any Shareholder under any other
agreement with the Company, the terms of this Agreement shall govern.
Section 16. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and each Shareholder and their respective
successors, assigns, heirs and personal representatives, so long as they hold
Stock. Except pursuant to a Permitted Transfer or a Transfer of Stock in
compliance with Section 4, no Shareholder shall have the right to assign its
rights and obligations under this Agreement, without the consent of each of the
other Shareholders.
Section 17. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
Section 18. Remedies. Each Shareholder shall be entitled to enforce its
rights under this Agreement specifically to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that each party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
Section 19. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the signature pages hereto and to any
subsequent holder of Stock subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices will be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
Q-Med, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxx
with a copy to:
Xxxxxx & Xxxxxxxxx LLP
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
The Shareholders' address for notice purposes is:
The address set forth below their respective names on
the signature pages hereto;
9
with a copy to:
Xxxxxx Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 20. Governing Law, Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of law thereof.
Section 21. Miscellaneous. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
This Agreement is intended to be a voting agreement among stockholders as
permitted by Section 218(c) of the Delaware General Corporation Law.
Section 22. Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders'
and Voting Agreement on the day and year first above written.
Q-MED, INC.
By:
---------------------------------------
Name:
Title:
10
XXXXX PARTNERS III, L.P.
By: Claudius, L.L.C.
By:
---------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXX PARTNERS INTERNATIONAL III, L.P.
By: Claudius, L.L.C.
By:
---------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXX EMPLOYEE FUND III, L.P.
By: Wesson Enterprises, Inc.
By:
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------
Xxxxxxx X. Xxx
00 Xxx Xxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
------------------------------------------
Xxxxxxx X. Xxxxx, M.D.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
11
Other Shareholders:
-------------------------------------------
Name:
---------------------------------------
Address:
-----------------------------------
12
Schedule 10(b)
SECURITIES HOLDINGS OF
SENIOR MANAGEMENT SHAREHOLDERS
13
