EXHIBIT 4.4
AMENDMENT TO
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STOCKHOLDERS AGREEMENT
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THIS AMENDMENT (THIS"AMENDMENT") TO STOCKHOLDERS AGREEMENT AND TO THE
CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES OF SERIES A CONVERTIBLE
PREFERRED STOCK (the "Certificate of Designation") of STC Technologies, Inc., a
Delaware corporation (the "Company") by the holders (the "Preferred
Stockholders") of the Company's Series A Convertible Preferred Stock, par value
$0.000001 per share (the "Series A Preferred Stock"). This Amendment amends the
Certificate of Designation and the Stockholders Agreement dated as of the 30th
day of March, 1999 by and among the Company and the Preferred Stockholders (the
"Stockholders Agreement").
W I T N E S S E T H :
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WHEREAS, the Board of Directors of the Company (the "Board") has
received and reviewed the terms and conditions of a proposed merger with
Epitope, Inc., an Oregon corporation ("Epitope"), pursuant to the provisions of
an Agreement and Plan of Merger by and among the Company, Epitope, and Xxxxxx
Merger Subsidiary, Inc., a Delaware corporation and a wholly-owned subsidiary of
Epitope ("Merger Sub") (the "Merger Agreement").
WHEREAS, the Merger Agreement contemplates the merger of the Company
with and into Merger Sub (the "Company Merger"), and the merger of Epitope with
and into Merger Sub (the "Epitope Merger") (together, the "Mergers"), and that
the Mergers shall be effectuated at the time (the "Effective Time") specified in
such certificates of merger, articles of merger or other appropriate documents
which are executed in accordance with the relevant provisions of the General
Corporation Law of the State of Delaware (the "DGCL") and the Business
Corporation Act of the State of Oregon (the "BCAO").
WHEREAS, upon the terms and subject to the conditions set forth in the
Merger Agreement, at the Effective Time and in accordance with the Mergers, the
separate corporate existence of the Company shall cease and Merger Sub shall
continue as the surviving corporation and succeed to and assume all rights,
properties, liabilities and obligations of the Company (the "Surviving
Corporation"); and the separate corporate existence of Epitope shall cease and
the Surviving Corporation shall continue as the surviving corporation and
succeed to and assume all rights, properties, liabilities and obligations of
Epitope.
WHEREAS, as a condition and inducement to the parties' willingness to
enter into the Merger Agreement, the Merger Agreement provides that, as of the
Effective Time: (a) each issued and outstanding share of common stock of the
Company, par value $.000001 per share, (the "Company Common Stock"), which is
issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive shares of fully paid nonassessable common
stock of the Surviving Corporation calculated in accordance with an exchange
ratio (the "Exchange Ratio") based on the Average Epitope Stock Price (as
defined in the Merger Agreement); (b) each share of common stock of Epitope , no
par value, issued and outstanding
immediately prior to the Effective Time shall be converted into the right to
receive one fully paid and nonassessable share of common stock of the Surviving
Corporation; and (c) each share of common stock of Merger Sub shall be canceled.
WHEREAS, as a condition and inducement to the parties' willingness to
enter into the Merger Agreement, the Merger Agreement provides that, as a
condition to the consummation of the Mergers, all shares of Series A Preferred
Stock shall have been converted into shares of Company Common Stock.
WHEREAS, in connection with the Mergers and pursuant to Section 7 of
the Certificate of Designation, the Preferred Stockholders have the right to
have their shares of Series A Preferred Stock automatically converted into
shares of Company Common Stock at the relevant conversion prices set forth in
the Certificate of Designation (as such conversion prices may be adjusted
pursuant to the provisions thereof) effective on a date specified by their
affirmative vote or written consent.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration the sufficiency of which is
hereby acknowledged, the undersigned hereto intending to be legally bound,
hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used and not otherwise
defined shall have the meanings assigned to such terms in the Certificate of
Designation.
Section 2. Waivers of Rights.
2.1. Waivers of Notice. The Preferred Stockholders hereby waive any
and all applicable requirements of notice with respect to this Amendment and the
automatic conversion of their shares of Series A Preferred Stock hereunder that
may be contained in the Certificate of Designation, the Company's bylaws,
Delaware law and/or any agreements or instruments related to the issuance of the
Series A Preferred Stock.
2.2. Mergers Deemed a "Qualified IPO". By execution of the
Agreement, the Preferred Stockholders agree that the Mergers and the issuance of
common stock of the Surviving Corporation shall be deemed a "Qualified IPO" as
defined in the Stockholders Agreement and a firm commitment underwritten public
offering of Common Stock of the Company registered under the Securities Act of
1933 as contemplated by Section 7(j) of the Certificate of Designation. As
such, each Share of Series A Preferred Stock by virtue of and immediately prior
to the consummation of the Mergers and without any action on the part of any
Preferred Stockholder, shall be automatically converted into that number of
Shares of Common Stock in which the Series A Preferred Stock would be
convertible if such conversion were to occur at the time of the public offering
of Common Stock.
Section 3. Miscellaneous.
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3.1. This Amendment may be executed in any number of counterparts by
the parties hereto, and all of said counterparts when taken together shall be
deemed to constitute one and the same instrument. The Amendment shall be
effective upon execution by the holders of not less than 50 percent of the
outstanding shares of Series A Preferred Stock pursuant to Section 10 of the
Certificate of Designation and Section 11 of the Stockholders Agreement.
3.2. This Amendment shall inure to the benefit of the parties hereto
and their respective successors and assigns, except that no party may assign or
transfer its rights or obligations under this Agreement without the prior
written consent of the other parties hereto.
3.3. The provisions of this Amendment are independent of and
separable from one another, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
3.4. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
CONFLICT OF LAW PRINCIPLES.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed and delivered as of the date first above written.
HOLDERS OF SERIES A PREFERRED STOCK:
HEALTHCARE VENTURES V, L.P.
By: HealthCare Partners V,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Administrative Partner
RHO MANAGEMENT TRUST II
By: Rho Management Company, Inc., as
Investment Advisor
By:____________________________
Name: Xxxxxx Xxxx
Title: President
XXXXXX TRUST
By:____________________________
Name: Xxxxx X. Xxxxxxx
Title: Trustee
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PENNSYLVANIA EARLY STAGE PARTNERS, L.P.
By: Pennsylvania Early Stage Partners GP, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Managing Director
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