Exhibit 3
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT dated as of ________, 2006 (this "AGREEMENT") is
entered into by and between the undersigned stockholder ("STOCKHOLDER") of
Porsche, Inc., a Delaware corporation (the "COMPANY"), and AXONYX INC., a Nevada
corporation ("AXONYX"). Capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms in the Merger Agreement (as defined
herein).
RECITALS
WHEREAS, Axonyx, the Company and Autobahn Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Axonyx, have entered into an
Agreement and Plan of Merger and Reorganization dated as of June ___, 2006, as
may be amended in accordance with its terms (the "MERGER AGREEMENT"), providing
for the merger of Merger Sub with and into the Company, with the Company being
the surviving corporation (the "MERGER");
WHEREAS, the Merger Agreement contemplates that, among other things,
upon consummation of the Merger, (i) holders of outstanding shares of the common
stock of the Company will receive shares of common stock of Axonyx ("AXONYX
COMMON STOCK") in exchange for their shares of common stock of the Company, (ii)
holders of outstanding shares of the preferred stock of the Company will receive
shares of Axonyx Common Stock and warrants to purchase shares of Axonyx Common
Stock ("AXONYX WARRANTS") in exchange for their shares of preferred stock of the
Company, (iii) holders of options to acquire shares of common stock of the
Company and warrants to acquire shares of common stock or preferred stock of the
Company will become exercisable for shares of Axonyx Common Stock and (iv) the
Company will become a wholly owned subsidiary of Axonyx;
WHEREAS, the Merger Agreement contemplates that Stockholder will
receive shares of Axonyx Common Stock and, if applicable, Axonyx Warrants in
exchange for their shares of common or preferred stock of the Company and may
receive Axonyx Common Stock upon the exchange, exercise or conversion of options
or warrants or any other securities convertible into or exchangeable or
exercisable for common stock of the Company (other than preferred stock of the
Company) which will become exercisable for shares of Axonyx Common Stock upon
the consummation of the Merger (collectively, the "MERGER SHARES"); and
WHEREAS, Stockholder agrees that all of the Merger Shares received by
Stockholder in connection with the Merger will be subject to certain
restrictions on Disposition (as defined herein) as more fully set forth herein.
AGREEMENT
NOW, THEREFORE, as an inducement to and in consideration of Axonyx's
agreement to enter into the Merger Agreement and proceed with the Merger, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Stockholder hereby agrees as follows:
1.
1. LOCK UP PERIOD. For a period beginning on the Closing Date and
ending 180 days after the Closing Date, Stockholder will not, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, make any short sale or otherwise dispose of or
transfer any Merger Shares, whether now owned or hereafter acquired by
Stockholder or with respect to which Stockholder has or hereafter acquires the
power of disposition or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of any Merger Shares, whether any such swap or
transaction is to be settled by delivery of Axonyx Common Stock or other
securities, in cash or otherwise (each of the above actions referred to herein
as a "DISPOSITION"). The foregoing restriction is expressly intended to preclude
Stockholder from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of any of Stockholder's Merger Shares even if such securities would
be disposed of by someone other than Stockholder. Such prohibited hedging or
other transaction would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of Stockholder's Merger Shares or with respect
to any security that includes, relates to, or derives any significant part of
its value from such Merger Shares.
2. PERMITTED DISPOSITIONS. Notwithstanding the restrictions on
Dispositions contained in Section 1, Stockholder may (a) exercise options and
warrants exercisable for Merger Shares owned by Stockholder as of the date of
the Merger Agreement, it being understood and acknowledged that the Merger
Shares acquired by Stockholder in connection with any such exercise shall be
subject to this Agreement; or (b) effect a Disposition (i) pursuant to a bona
fide gift or gifts, or (ii) by will or intestacy or to a trust, the
beneficiaries of which are Stockholder or, if Stockholder is an individual,
members of Stockholder's family, or (iii) as a distribution to limited partners,
members or shareholders of Stockholder or affiliates of Stockholder, provided
that in each case of clauses "(i)" through "(iii)", such gift, transfer or
distribution shall be conditioned upon the donee's, transferee's or
distributee's execution and delivery to Axonyx of a Lock-Up Agreement containing
terms and conditions substantially identical to the terms and conditions
contained herein.
3. LEGENDS.
(a) In addition to any legends to reflect applicable
transfer restrictions under federal or state securities laws, each stock
certificate representing Merger Shares which Stockholder receives or is entitled
to receive shall be stamped or otherwise imprinted with the following legend:
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A LOCK-UP AGREEMENT DATED __________, 2006
BETWEEN THE HOLDER HEREOF AND THE ISSUER AND MAY ONLY BE SOLD
OR TRANSFERRED IN ACCORDANCE WITH THE TERMS THEREOF."
2.
(b) Axonyx shall be obligated to reissue certificates at
the request of Stockholder without the foregoing legend as and to the extent the
restrictions on Disposition lapse in accordance with Section 1.
(c) Stockholder hereby agrees and consents to the entry
of stop transfer instructions with Axonyx's transfer agent against the transfer
of the Merger Shares other than in compliance with this Agreement.
4. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. Stockholder agrees that in the
event of any breach or threatened breach by Stockholder of any covenant,
obligation or other provision contained in this Agreement, Axonyx shall be
entitled (in addition to any other remedy that may be available to Axonyx) to:
(a) a decree or order of specific performance or mandamus to enforce the
observance and performance of such covenant, obligation or other provision; and
(b) an injunction restraining such breach or threatened breach. Stockholder
further agrees that neither Axonyx nor any other person or entity shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 4,
and Stockholder irrevocably waives any right he, she or it may have to require
the obtaining, furnishing or posting of any such bond or similar instrument.
(b) OTHER AGREEMENTS. Nothing in this Agreement shall
limit any of the rights or remedies of Axonyx under the Merger Agreement, or any
of the rights or remedies of Axonyx or any of the obligations of Stockholder
under any agreement between Stockholder and Axonyx or any certificate or
instrument executed by Stockholder in favor of Axonyx; and nothing in the Merger
Agreement or in any other agreement, certificate or instrument shall limit any
of the rights or remedies of Axonyx or any of the obligations of Stockholder
under this Agreement.
(c) NOTICES. Any notice or other communication required
or permitted to be delivered to Stockholder or Axonyx under this Agreement shall
be in writing and shall be deemed properly delivered, given and received when
delivered (i) for Axonyx, to the address or facsimile telephone number set forth
below, and (ii) for Stockholder, to the address or facsimile telephone number
set forth beneath the Stockholder's signature to this Agreement (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other party):
IF TO AXONYX:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
(d) SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term
3.
or provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the parties hereto agree that the
court making such determination shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified. In the event such court does not exercise the power granted to it in
the prior sentence, the parties hereto agree to replace such invalid or
unenforceable term or provision with a valid and enforceable term or provision
that will achieve, to the extent possible, the economic, business and other
purposes of such invalid or unenforceable term.
(e) APPLICABLE LAW; JURISDICTION. THIS AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between
or among any of the parties, whether arising out of this Agreement or otherwise,
(a) each of the parties irrevocably and unconditionally consents and submits to
the exclusive jurisdiction and venue of the state and federal courts located in
the County of San Diego, State of California; (b) if any such action is
commended in a state court, then, subject to applicable law, no party shall
object to the removal of such action to any federal court located in the
Southern District of California; (c) each of the parties irrevocably waives the
right to trial by jury; and (d) each of the parties irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepared, to the address at which such party is to receive notice in
accordance with this Agreement.
(f) WAIVER; TERMINATION. No failure on the part of Axonyx
to exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of Axonyx in exercising any power, right, privilege or remedy
under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Axonyx shall not be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy
under this Agreement, unless the waiver of such claim, power, right, privilege
or remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of Axonyx; and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given. If the
Merger Agreement is terminated, this Agreement shall thereupon terminate.
(g) CAPTIONS. The captions contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
(h) FURTHER ASSURANCES. Stockholder shall execute and/or
cause to be delivered to Axonyx such instruments and other documents and shall
take such other actions as Axonyx may reasonably request to effectuate the
intent and purposes of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement, the Merger
Agreement, the Axonyx Warrant and any Voting Agreement (and any Proxy) between
Stockholder and Axonyx
4.
collectively set forth the entire understanding of Axonyx and Stockholder
relating to the subject matter hereof and thereof and supersede all other prior
agreements and understandings between Axonyx and Stockholder relating to the
subject matter hereof and thereof.
(j) NON-EXCLUSIVITY. The rights and remedies of Axonyx
hereunder are not exclusive of or limited by any other rights or remedies which
Axonyx may have, whether at law, in equity, by contract or otherwise, all of
which shall be cumulative (and not alternative).
(k) AMENDMENTS. This Agreement may not be amended,
modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Axonyx and Stockholder.
(l) ASSIGNMENT. This Agreement and all obligations of
Stockholder hereunder are personal to Stockholder and may not be transferred or
delegated by Stockholder at any time. Axonyx may freely assign any or all of its
rights under this Agreement, in whole or in part, to any other person or entity
without obtaining the consent or approval of Stockholder.
(m) BINDING NATURE. Subject to Section 4(l), this
Agreement will inure to the benefit of Axonyx and its successors and assigns and
will be binding upon Stockholder and Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
(n) SURVIVAL. Each of the representations, warranties,
covenants and obligations contained in this Agreement shall survive the
consummation of the Merger.
(o) COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which shall be deemed an original and both of
which shall constitute one and the same instrument.
(p) FIDUCIARY DUTIES. Each Stockholder is signing this
Agreement in such Stockholder's capacity as an owner of his, her or its
respective Merger Shares, and nothing herein shall prohibit, prevent or preclude
such Stockholder from taking or not taking any action in his or her capacity as
an officer or director of the Company, to the extent permitted by the Merger
Agreement.
5.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
AXONYX INC.
By:
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Name:
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Title:
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STOCKHOLDER
Advent Healthcare and Life Sciences II Limited Partnership
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Senior Vice President of Finance
STOCKHOLDER
Advent Healthcare and Life Sciences II Beteiligung GmbH & Co. KG
By: Advent International Limited Partnership,
Managing Limited Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Senior Vice President of Finance
STOCKHOLDER
Advent Partners HLS II Limited Partnership
Advent Partners Limited Partnership
By: Advent International Corporation,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Senior Vice President of Finance
STOCKHOLDER
/s/ Xxxxx X. Fisherman
Xxxxx X. Fisherman
Managing Director
Address:
c/c Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
6.
