STOCKHOLDERS’ AGREEMENT
Exhibit 99.1
This STOCKHOLDERS’ AGREEMENT (this “Agreement”), is dated as of May 18, 2009, among Takeda
America Holdings, Inc., a New York corporation (the “Parent”) and the stockholders listed on the
signature pages hereto (each a “Stockholder” and collectively, the “Stockholders”).
WHEREAS, Parent, Jade Subsidiary Corporation, a Delaware corporation and a wholly owned
Subsidiary of the Parent (the “Purchaser”), and IDM Pharma, Inc., a Delaware corporation (the
“Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it
may be amended from time to time in accordance with its terms, the “Merger Agreement”), providing
for, among other things, Purchaser to commence a cash tender offer (the “Offer”) to acquire all of
the outstanding shares of common stock, $0.01 par value per share, of the Company (the “Company
Common Stock”) followed by the subsequent merger of Purchaser with and into the Company with the
Company surviving the merger as a wholly owned Subsidiary of the Parent, in each case, on the terms
and subject to the conditions set forth in therein (capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement); and
WHEREAS, as of the date hereof, each Stockholder is the beneficial owner of the number of
shares of Company Common Stock set forth, and in the manner reflected, on Attachment A
hereto (the “Owned Shares”); and
WHEREAS, as a condition to Parent and Purchaser’s willingness to enter into and perform its
obligations under the Merger Agreement, Parent and Purchaser have required that each Stockholder
agree, and each Stockholder has agreed, (i) on the terms and conditions described herein, to tender
in the Offer (and not withdraw) all of such Stockholders’ Owned Shares as well as any shares of
Company Common Stock acquired by such Stockholder after the execution of this Agreement (all of
which, after so acquired, shall constitute “Owned Shares”), whether upon the exercise of options,
warrants, conversion of convertible securities or otherwise, and (ii) to take the other actions
described herein; and
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration given to each party hereto, the receipt of which is hereby acknowledged, the parties
agree as follows:
1. Agreement to Tender.
1.1 Agreement to Tender. During the Support Period (as defined below), each
Stockholder hereby agrees that, no later than the expiration date of the Offer, such Stockholder
shall (i) deliver to the depositary designated in the Offer (A) a letter of transmittal with
respect to such Stockholder’s Owned Shares complying with the terms of the Offer, (B) certificates
representing such Stockholder’s Owned Shares or an “agent’s message” in the case of a book-entry
transfer of any uncertificated Owned Shares and (C) all other documents or instruments required to
be delivered pursuant to the terms of the Offer, and/or (ii) instruct such Stockholder’s broker or
such other person who is the holder of record of any of such Stockholder’s Owned Shares to so
tender such Owned Shares in the Offer pursuant to the terms and conditions of the
Offer. During the Support Period, each Stockholder hereby agrees not to withdraw any of such
Stockholder’s Owned Shares after such Owned Shares have been tendered in the Offer. The term
“Support Period” means (x) in the case of any Stockholder who is a director or officer of the
Company as of the date hereof, the period commencing on the date hereof and continuing until the
termination of this Agreement pursuant to Section 6.1, (y) in the case of the Stockholders
identified on Attachment A with an “*”,the period commencing on the date hereof and
continuing until the first to occur of (a) the Specified Time, (b) the Outside Date, (c) a Company
Adverse Recommendation Change, (d) the receipt by the Company or the Company Board, or the public
announcement of, a Superior Offer (as defined below) or (e) the termination of this Agreement
pursuant to Section 6.1 and (z) in the case of any other Stockholder not described in clauses (x)
and (y), the period commencing on the date hereof and continuing until the first to occur of (a)
the Specified Time, (b) the Outside Date, (c) a Company Adverse Recommendation Change or (d) the
termination of this Agreement pursuant to Section 6.1. The term “Superior Offer” means any
unsolicited, bona fide written proposal made by a third party to acquire all or substantially all
the equity securities or all or substantially all of the assets of the Company, pursuant to a
tender or exchange offer, a merger, consolidation or a sale of its assets, (i) at a per share price
that is higher than the per share price of the Offer Consideration and (ii) that is reasonably
capable of being completed on the terms proposed, taking into account all financial, regulatory,
legal and other aspects of such proposal; provided, however, that no Acquisition
Proposal shall be deemed to be a Superior Offer if any financing required to consummate the
transaction is not committed.
2. Representations and Warranties of Stockholders. Each Stockholder hereby represents
and warrants, severally and not jointly, to Parent as follows:
2.1 Due Organization. Such Stockholder, if a corporation or other entity, has been
duly organized, is validly existing and is in good standing under the laws of the state of its
formation or organization, except where the failure to be so organized, in valid existence or in
good standing, individually or in the aggregate, would not be reasonably expected to have a
material adverse effect on such Stockholder’s ability to perform its obligations under this
Agreement in a timely manner.
2.2 Power; Due Authorization; Binding Agreement. Such Stockholder has full legal
capacity, power and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance with its terms, except to the
extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to
general principles of equity.
2.3 Ownership of Shares. On the date hereof, the Owned Shares set forth opposite such
Stockholder’s name on Attachment A hereto are owned of record or beneficially by such
Stockholder in the manner reflected thereon, free and clear of any claims, liens, encumbrances and
security interests except for those arising under the federal securities laws and as contemplated
by this Agreement. On the date hereof, such Stockholder does not own of record or beneficially any
voting securities of the Company (“Voting Shares”) other than the
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Owned Shares. As of the date hereof such Stockholder has, and as of the expiration of the
Offer, such Stockholder will have, sole voting power and sole dispositive power with respect to all
of the Owned Shares owned by such Stockholder; provided that in the case of the
Stockholders identified on Attachment A with an “*”, such Stockholders may transfer among
themselves voting power and dispositive power with respect to the Owned Shares owned by any of
them.
2.4 No Conflicts. The execution and delivery of this Agreement by such Stockholder
does not, and the performance of the terms of this Agreement by such Stockholder will not, and the
consummation by such Stockholder of the transactions contemplated hereby will not, (a) require such
Stockholder to obtain the consent or approval of, or make any filing with or notification to, any
governmental or regulatory authority, domestic or foreign, (b) require the consent or approval of
any other person pursuant to any agreement, obligation or instrument binding on such Stockholder or
its properties and assets, (c) conflict with or violate any organizational document or law, rule,
regulation, order, judgment or decree applicable to such Stockholder or pursuant to which any of
its or its affiliates’ respective properties or assets are bound or (d) violate any other agreement
to which such Stockholder or any of its affiliates is a party including any voting agreement,
stockholders agreement, irrevocable proxy or voting trust, except for, in the case of each of
clauses (a) through (d), (i) filings, authorizations, notifications, consents or approvals as may
be required under the Exchange Act, and (ii) where the occurrence of any of the foregoing,
individually or in the aggregate, would not reasonably be expected to have a material adverse
effect on such Stockholder’s ability to perform its obligations under this Agreement in a timely
manner. Such Stockholder’s Voting Shares are not, with respect to the voting or transfer thereof,
subject to any other agreement, including any voting agreement, stockholders agreement, irrevocable
proxy or voting trust.
2.5 Acknowledgment. Such Stockholder understands and acknowledges that each of Parent
and Purchaser is entering into the Merger Agreement in reliance upon such Stockholder’s execution,
delivery and performance of this Agreement.
3. Representations and Warranties of Parent. Parent hereby represents and warrants to
the Stockholders as follows:
3.1 Power; Due Authorization; Binding Agreement. Parent is a corporation duly
organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation. Parent has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation by Parent of the
transactions contemplated hereby have been duly and validly authorized by all necessary corporate
action on the part of Parent, and no other proceedings on the part of Parent are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Parent and constitutes a valid and binding
agreement of Parent, except to the extent that such enforceability (i) may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’
rights generally, and (ii) is subject to general principles of equity.
3.2 No Conflicts. The execution and delivery of this Agreement by Parent does not,
the performance of the terms of this Agreement by Parent will not, and the
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consummation by Parent of the transactions contemplated hereby will not, (a) require Parent to
obtain the consent or approval of, or make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign or (b) conflict with or violate any organizational
document or law, rule, regulation, order, judgment or decree applicable to Parent or pursuant to
which any of its or its Subsidiaries’ respective assets are bound.
3.3 Acknowledgement; Funds. Parent understands and acknowledges that the Stockholders
are entering into this Agreement in reliance upon Parent’s execution, delivery and performance of
the Merger Agreement. Parent has available cash resources in an amount sufficient to consummate
the Offer and the Merger.
4. Certain Covenants of the Stockholders. Each Stockholder hereby covenants and
agrees, severally and not jointly, with Parent as follows:
4.1 Restriction on Transfer, Proxies and Non-Interference. Each Stockholder hereby
agrees, during the Support Period, at any time prior to the Specified Time, not to (a) other than
as may be required by law or court order, sell, transfer, pledge, encumber (other than the
encumbrances set forth in this Agreement), assign or otherwise dispose of, or enter into any
agreement (other than this Agreement) or option with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, or limitation on the voting rights of, any of the
Owned Shares (any such action, a “Transfer”), provided that nothing in this Agreement shall
prohibit such Stockholder from tendering any Owned Shares in the Offer, voting in favor of adoption
of the Merger Agreement, or from exercising any options or warrants to purchase Owned Shares; and
provided, further, that each Stockholder who is not a director or executive officer
of the Company as of the date hereof shall be permitted to distribute Owned Shares to its general
partners, limited partners or Affiliates if and only if such Stockholder and its general partners,
limited partners or Affiliates enter into an agreement with Parent in a form reasonably acceptable
to Parent providing (x) a power of attorney allowing such Stockholder to tender such Owned Shares
as provided in Section 1.1, (y) requiring the Stockholder to exercise such power of attorney and
tender such Owned Shares as provided in Section 1.1, and (z) that such general partners, limited
partners or Affiliates will comply with the other restrictions in this Agreement as such
restrictions bind such Stockholder, (b) grant any proxies or powers of attorney, deposit any Owned
Shares into a voting trust or enter into a voting agreement (other than this Agreement) with
respect to any Owned Shares, or (c) commit or agree to take any of the foregoing actions. Any
action taken in violation of the foregoing sentence shall be null and void ab initio and each
Stockholder agrees that any such prohibited action may and should be enjoined. If any involuntary
Transfer of any of the Owned Shares shall occur (including a sale by a Stockholder’s trustee in any
bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term,
as used herein, shall include any transferees and subsequent transferees of the initial transferee)
shall take and hold such Owned Shares subject to all of the restrictions, liabilities and rights
under this Agreement, which shall continue in full force and effect until valid termination of this
Agreement. During the Support Period, each Stockholder shall use commercially reasonable efforts
to cause any Owned Shares that are Transferred in any manner by such Stockholder, other than Owned
Shares tendered in and accepted for payment in the Offer, to be subject to this Agreement
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4.2 Additional Shares. During the Support Period, each Stockholder hereby agrees that
any new Owned Shares acquired by such Stockholder, if any, after the date hereof shall be subject
to the terms of this Agreement as though owned by such Stockholder on the date hereof.
4.3 No Limitations on Actions. Each Stockholder signs this Agreement solely in its
capacity as the record and/or beneficial owner, as applicable, of the Owned Shares. Any trustee
who signs this Agreement on behalf of a Stockholder that is a trust is signing only in his
fiduciary capacity and not as an individual. This Agreement shall not limit or otherwise affect
the actions of any Stockholder or any affiliate, employee or designee of such Stockholder or any of
its affiliates in any other capacity, including such person’s capacity, if any, as an officer of
the Company or a member of the board of directors of the Company. Nothing herein shall limit or
affect the Company’s rights in connection with the Merger Agreement.
4.4 No Solicitation. Until the termination of this Agreement pursuant to Section 6.1,
each Stockholder agrees that it will not, nor will it permit any of its Representatives to,
directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any
inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal or (ii) during the Support Period, enter into, continue or
otherwise participate in any discussions or negotiations regarding, furnish to any person any
information with respect to, knowingly assist, or participate in any effort or attempt by any
person with respect to, or otherwise knowingly cooperate in any way with, any Acquisition Proposal.
Except as may be permitted following the end of the Support Period pursuant to clause (ii) of the
immediately preceding sentence, each Stockholder shall, and shall cause its Representatives to,
cease immediately all discussions and negotiations regarding any proposal that constitutes, or may
reasonably be expected to lead to, an Acquisition Proposal. Notwithstanding anything to the
contrary contained herein, (x) if the Company Board has entered into discussions or negotiations
with, or provided non-public information to, any person in response to an Acquisition Proposal by
such person in compliance with the provisions of the Merger Agreement, each Stockholder who is not
a director or officer of the Company as of the date hereof may provide information and engage in
discussions or negotiations with such person as and to the extent that the Company is permitted to
do so pursuant to the terms of the Merger Agreement and (y) if the Company terminates the Merger
Agreement pursuant to Section 9.1(d)(ii) thereof in order to enter into a definitive agreement
providing for the implementation of a Superior Proposal, each Stockholder who is not a director or
officer of the Company as of the date hereof shall be entitled to enter into a voting or other
support agreement with the Person making the Superior Proposal.
4.5 Agreement Not to Exercise Appraisal Rights. Each Stockholder agrees not to
exercise any rights (including under Section 262 of the Delaware General Corporation Law) to demand
appraisal of any Owned Shares that may arise with respect to the Merger.
4.6 Further Assurances. From time to time, at the reasonable request of Parent and
without further consideration, each Stockholder shall execute and deliver, and at the reasonable
request of a Stockholder and without further consideration, Parent shall execute and deliver, such
additional documents and take all such further action as may be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
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5. Stop Transfer Order. In furtherance of this Agreement, and concurrently herewith,
each Stockholder shall and hereby does authorize the Company or the Company’s counsel during the
Support Period to notify the Company’s transfer agent that there is a stop transfer order with
respect to all of the Owned Shares and other Voting Shares. The parties agree that such stop
transfer order shall be removed and shall be of no further force and effect upon the termination of
the Support Period.
6. Miscellaneous.
6.1 Termination of this Agreement. This Agreement shall terminate upon the earlier to
occur of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the
occurrence of a Non-Permissible Amendment (as defined below), and (iii) the Specified Time. The
term “Non-Permissible Amendment” means any amendment, waiver or modification to the Merger
Agreement made without the prior written consent of the Stockholders that (i) changes the form of
the Offer Consideration, (ii) decreases the amount of the Offer Consideration, (iii) extends the
Outside Date, (iv) adds additional conditions to the Offer or (v) otherwise materially and
adversely affects the Stockholders.
6.2 Effect of Termination. In the event of termination of this Agreement pursuant to
Section 6.1, all obligations and agreements of the parties set forth in this Agreement shall
forthwith terminate and be of no further force or effect; provided, however, no
such termination shall relieve any party hereto from any liability for any breach of this Agreement
occurring prior to such termination.
6.3 Non-Survival. The respective representations and warranties of Parent and each
Stockholder contained in this Agreement shall expire with, and be terminated and extinguished upon,
the Specified Time.
6.4 Expenses. All fees, costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring such fees, costs and
expenses.
6.5 Entire Agreement; Assignment. This Agreement (including Attachment A
hereto) constitutes the entire agreement among the parties hereto and supersedes any prior
understandings, agreements or representations by or among the parties hereto, or any of them,
written or oral, with respect to the subject matter hereof. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the prior written
consent of the other parties, and any such assignment without such prior written consent shall be
null and void.
6.6 Amendments. This Agreement may not be modified, amended, altered or supplemented,
except upon the execution and delivery of a written agreement executed by each of the parties
hereto.
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6.7 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly delivered (i) four business days after being sent by registered or certified
mail, return receipt requested, postage prepaid, or (ii) one business day after being sent for next
business day delivery, fees prepaid, via a reputable nationwide overnight courier service, in each
case to the intended recipient as set forth below:
If to the Stockholders:
President and Chief Executive Officer
Telecopy No.: (000) 000-0000
with a copy, in the case of the Stockholders identified on Attachment A with an “*”, to:
O’Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and with a copy, in the case of any Stockholder who is an officer or director of the Company
as of the date hereof, to:
Xxxxxx Godward Kronish llp
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and with a copy, in the case of Medarex, Inc., to:
Corporate Xxxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
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If to the Parent:
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President and General Counsel
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President and General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Any party to this Agreement may give any notice or other communication hereunder using any other
means (including personal delivery, messenger service, telecopy, ordinary mail or electronic mail),
but no such notice or other communication shall be deemed to have been duly given unless and until
it actually is received by the party for whom it is intended. Any party to this Agreement may
change the address to which notices and other communications hereunder are to be delivered by
giving the other parties to this Agreement notice in the manner herein set forth.
6.8 Governing Law; Venue.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of
the State of Delaware without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause the application of
laws of any jurisdictions other than those of the State of Delaware.
(b) Each of the parties hereto (i) consents to submit itself to the exclusive personal
jurisdiction of the Delaware Court of Chancery, New Castle County, or if that court does not have
jurisdiction, a federal court sitting in the State of Delaware in any action or proceeding arising
out of or relating to this Agreement or any of the transactions contemplated by this Agreement,
(ii) agrees that all claims in respect of such action or proceeding may be heard and determined in
any such court, (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, and (iv) agrees not to bring any action
or proceeding arising out of or relating to this Agreement or any of the transaction contemplated
by this Agreement in any other court. Each of the parties hereto waives any defense or
inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect thereto. To the
extent permitted by applicable law, any party hereto may make service on
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another party by sending or delivering a copy of the process to the party to be served at the
address and in the manner provided for the giving of notices in Section 6.7. Nothing in this
Section 6.8(b), however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
6.9 WAIVER OF JURY TRIAL. EACH OF THE PARENT AND THE STOCKHOLDERS HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF THE PARENT OR ANY STOCKHOLDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
6.10 Specific Performance. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with its
specific terms or were otherwise breached. Each of the parties agrees that, in the event of any
breach or threatened breach by such party of any covenant or obligation contained in this
Agreement, the other parties hereto shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or obligation, and (b) an
injunction restraining such breach or threatened breach.
6.11 Counterparts and Signature. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which together shall be
considered one and the same agreement and shall become effective when counterparts have been signed
by each of the parties hereto and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. This Agreement may be executed and delivered by
facsimile or “PDF” transmission.
6.12 Interpretation. When reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against any party. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context requires otherwise. Whenever
the words “include”, “includes” or “including” are used in this Agreement, including Attachment
A, they shall be deemed to be followed by the words “without limitation.” As used in this
Agreement, the term “person” means any individual, corporation, partnership, joint venture,
association, trust, limited liability company, unincorporated organization or other entity. As
used in this Agreement, references to any “agreement” to which a person is bound means any
contract, agreement, instrument, obligation, undertaking, lease, license, arrangement, commitment
or understanding, whether written or oral, in each case that is legally binding on such person and
as it may be amended or otherwise modified from time to time. As used in this
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Agreement, a “business day” means any day that is not a Saturday, Sunday or other day on which
banking institutions are required or authorized by law to be closed in New York, New York. No
summary of this Agreement prepared by any party shall affect the meaning or interpretation of this
Agreement.
6.13 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 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 to negotiate in good faith to modify this Agreement so as
to come closest to expressing the intention of the invalid or unenforceable term or provision.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders’ Agreement to be duly
executed as of the day and year first above written.
| TAKEDA AMERICA HOLDINGS, INC. |
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| By: | /s/ Iwaaki Taniguchi | |||
| Name: | Iwaaki Taniguchi | |||
| Title: | President | |||
[Stockholders’ Agreement — Parent Signature Page]
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| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| /s/ Xxxxxx X. De Vaere | ||||
| Xxxxxx X. De Vaere | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx, M.D. | ||||
| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx, M.D. | ||||
| /s/ Xxxxxxx X. Grey | ||||
| Xxxxxxx X. Grey | ||||
| /s/ Xxxx X. XxXxxxx | ||||
| Xxxx X. XxXxxxx, Ph.D. | ||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
| MEDAREX, INC. |
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| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxx | |||
| Title: | CFO | |||
[Stockholders’ Agreement — Stockholders’ Signature Page]
| MICRO CAP PARTNERS, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
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| Title: Chief Operating Officer | ||||||||||
| PALO ALTO FUND II, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||||||
| Title: Chief Operating Officer | ||||||||||
| PALO ALTO HEALTHCARE MASTER FUND, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||||||
| Title: Chief Operating Officer | ||||||||||
[Stockholders’ Agreement — Stockholders’ Signature Page]
| PALO ALTO HEALTHCARE MASTER FUND II, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||||||
| Title: Chief Operating Officer | ||||||||||
| PALO ALTO SMALL CAP MASTER FUND, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||||||
| Title: Chief Operating Officer | ||||||||||
| UBTI FREE, L.P. | ||||||||||
| By: | PALO ALTO INVESTORS, LLC, General Partner | |||||||||
| By: | PALO ALTO INVESTORS, Manager | |||||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||||||
| Title: Chief Operating Officer | ||||||||||
[Stockholders’ Agreement — Stockholders’ Signature Page]
Attachment A
Owned Shares
| Stockholder | Shares | Options | RSUs | Warrants | ||||||||||||
Micro Cap Partners, L.P. (*) |
1,950,946 | 283,079 | ||||||||||||||
Palo Alto Fund II, L.P. (*) |
885,539 | 66,918 | ||||||||||||||
Palo Alto Healthcare Master
Fund, L.P. (*) |
2,931,029 | 381,571 | ||||||||||||||
Palo Alto Healthcare Master
Fund II, L.P. (*) |
2,047,136 | 42,518 | ||||||||||||||
Palo Alto Small Cap Master
Fund, L.P. (*) |
2,341,500 | 190,719 | ||||||||||||||
UBTI Free, L.P. (*) |
201,707 | |||||||||||||||
Medarex, Inc. |
2,624,279 | |||||||||||||||
Xxxxxxx X. Xxxxxxx |
107,354 | 313,000 | ||||||||||||||
Xxxx X. XxXxxxx |
20,000 | 116,840 | ||||||||||||||
Xxxxxx X. De Vaere |
10,401 | 55,235 | 154,000 | |||||||||||||
Xxxxxxx X. Xxxxxxx |
47,091 | 83,000 | ||||||||||||||
Xxxxxxx X. Xxxxxx |
2,714 | 31,207 | 68,000 | |||||||||||||
Xxxxxxx X. Grey |
40,000 | 40,411 | ||||||||||||||
Xxxxxx Xxxx |
36,841 | |||||||||||||||
Xxxxxxx X. Xxxxxxxx |
16,250 | |||||||||||||||
