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EXHIBIT 2
Following is the form of Stockholder Agreement
entered into by each Stockholder.
Following the form are schedules
and conformed signature pages for
each Stockholder Agreement.
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STOCKHOLDER AGREEMENT dated as of October 3,
1998, among XXXXXXX & XXXXXXX, a New Jersey
corporation ("Parent"), ET/FM ACQUISITION CORP., a
Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and _________ (the "Stockholder").
Preliminary Statement
Parent, Sub and FemRx, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement") providing for (i) the making of a cash tender offer (as such offer
may be amended from time to time as permitted under the Merger Agreement, the
"Offer") by Sub for all the outstanding shares of common stock, par value $0.001
per share, of the Company ("Company Common Stock") and (ii) for the merger of
Sub with and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement. Each Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock set forth
opposite such Stockholder's name on Schedule A attached hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by the Stockholder after the date hereof and during the term of
this Agreement (including through the exercise of any stock options, warrants or
similar instruments), being collectively referred to herein as the "Subject
Shares"). As a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have requested that the Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
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1. Purchase and Sale of Shares. (a) The Stockholder hereby
agrees to sell to Sub, and Sub hereby agrees to purchase, all Subject Shares of
such Stockholder at a price equal to the Offer Price; provided that such
obligation to sell and such obligation to purchase are subject to Sub having
accepted shares of Company Common Stock for payment under the Offer in
accordance with Section 1.01 of the Merger Agreement. Each Stockholder may
tender its Subject Shares into the Offer and Sub may direct that each
Stockholder tender its Subject Shares. Any Subject Shares not purchased in the
Offer will be purchased by Sub immediately following the purchase of shares of
Company Common Stock in the Offer. Sub shall be entitled to deduct and withhold
from the consideration otherwise payable pursuant to this Agreement such amounts
as may be required to be deducted and withheld with respect to the making of
such payment under the Internal Revenue Code of 1986, as amended, or under any
provision of state, local or foreign tax law.
(b) The Stockholder shall not be required to tender its
Subject Shares in the event of any amendment to the Merger Agreement that
creates any additional Offer Condition, reduces the Offer Price or otherwise
adversely affects the Stockholder without the prior written approval of the
Stockholder.
2. Representations and Warranties of the
Stockholder. The Stockholder hereby represents and warrants
to Parent and Sub as follows:
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(a) Authority. Each Stockholder has all requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each Stockholder, and the
consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of each
Stockholder. This Agreement has been duly executed and delivered by
each Stockholder and constitutes a valid and binding obligation of each
Stockholder enforceable against each such Stockholder in accordance
with its terms. Except for the expiration or termination of the
applicable waiting periods, if any, under the Merger Control Laws (as
defined below) and required filings with the Securities and Exchange
Commission, the execution and delivery of this Agreement do not, and
the consummation by Stockholder of the transactions contemplated hereby
and compliance with the terms hereof will not, (i) conflict with, or
result in any violation of, or default (with or without notice or lapse
of time or both) under any provision of, any trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to any Stockholder or to the property or assets
of any Stockholder, (ii) require any filing with, or permit,
authorization, consent or approval of, any Federal, state or local
government or any court, tribunal, administrative agency or commission
or other governmental or regulatory authority or agency, domestic,
foreign or supranational, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any Stockholder or
any of the properties or assets of any Stockholder, including the
Subject Shares. "Merger Control Laws" means the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and all
amendments of, and all other applicable bills, acts, decrees,
regulations or ordinances relating thereto.
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(b) Capitalization. At the close of business on September 30,
1998, the Stockholder was the record and beneficial owner of the number
of Shares set forth in Schedule A hereto.
(c) The Subject Shares. Each Stockholder is the record and
beneficial owner of, and has good and valid title to, the Subject
Shares set forth opposite its name on Schedule A attached hereto, free
and clear of any claims, liens, encumbrances, security interests,
options, charges and restrictions of any kind (other than restrictions
pursuant to applicable securities laws). Each Stockholder does not own,
of record or beneficially, any shares of capital stock of the Company
other than the Subject Shares set forth opposite its name on Schedule A
attached hereto. Each Stockholder has the sole right to vote such
Subject Shares, and none of such Subject Shares are subject to any
voting trust or other agreement, arrangement or restriction with
respect to the voting of such Subject Shares, except as contemplated by
this Agreement, except for __________ shares that are subject to a
right of repurchase by the Company that will expire upon the
consummation of the Offer.
(d) Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Stockholder.
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3. Representation and Warranty of Parent and Sub. Parent and
Sub hereby jointly and severally represent and warrant to the Stockholder as
follows:
(a) Authority. Parent and Sub have all requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each of Parent and Sub,
and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of each
of Parent and Sub. This Agreement has been duly executed and delivered
by Parent and Sub and constitutes a valid and binding obligation of
Parent and Sub enforceable against Parent and Sub in accordance with
its terms. Except for the expiration or termination of the applicable
waiting periods under the Merger Control Laws and required filings with
the Securities and Exchange Commission, the execution and delivery of
this Agreement do not, and the consummation by Parent and Sub of the
transactions contemplated hereby and compliance with the terms hereof
will not, (i) conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision
of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to Parent or Sub
or to the property or assets of Parent or Sub, (ii) require any filing
with, or permit, authorization, consent or approval of, any Federal,
state or local government or any court, tribunal, administrative agency
or commission or other governmental or regulatory authority or agency,
domestic, foreign or supranational, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
Sub or any of the properties or assets of Parent or Sub.
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(b) Securities Act. The Subject Shares will be acquired in
compliance with, and Sub will not offer to sell or otherwise dispose of
any Shares so acquired by it in violation of the registration
requirements of, the Securities Act of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any
payment is required to be made to any Stockholder hereunder, the funds
necessary to make such payment to such Stockholder.
(d) Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Parent or Sub.
4. Covenants of Stockholder. The Stockholder
agrees as follows:
(a) At any meeting of stockholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the
Merger and the Merger Agreement is sought, the Stockholder shall vote
(or cause to be voted) the Subject Shares in favor of the Merger, the
adoption by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other transactions contemplated by the
Merger Agreement; provided that no amendment to the Merger Agreement
will be made that creates additional Offer Conditions, reduces the
Offer Price or otherwise adversely affects the Stockholder without the
prior approval of the Stockholder.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's votes, consents or other approvals are sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares
against (i) any Takeover Proposal (as such term is
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defined in Section 6.02 of the Merger Agreement) and (ii) any amendment
of the Company's Certificate of Incorporation or Bylaws or other
proposal or transaction involving the Company, which amendment or other
proposal or transaction would be reasonably likely to impede,
frustrate, prevent, delay or nullify the Offer, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement or change in any manner the voting rights of any class of
Company Common Stock or other voting securities of the Company. The
Stockholder further agrees not to enter into any agreement inconsistent
with the foregoing.
(c) The Stockholder shall not (i) sell, transfer, give,
pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or consent to any Transfer of, any or all
of such Subject Shares or any interest therein or enter into any
contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, the Subject Shares to any
person other than pursuant to the terms of the Offer or the Merger or
otherwise to Sub in accordance with Section 1 or (ii) enter into any
voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Subject Shares in
connection with, directly or indirectly, any Takeover Proposal. The
Stockholder shall not commit or agree to take any of the foregoing
actions.
(d) The Stockholder shall not, and shall use its reasonable
efforts to cause any investment banker, financial advisor, attorney,
accountant or other representative of any such Stockholder not to,
directly or indirectly, (i) solicit, initiate or encourage (including
by way of furnishing information), or take any other action to
facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Takeover
Proposal or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal. The
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foregoing provisions of this Paragraph (d) shall not, however, prohibit
an individual Stockholder, or any partner, stockholder, officer or
affiliate of a Stockholder that is a legal entity, who is a director of
the Company from performing his or her legally required fiduciary
duties as a director of the Company as permitted or required under the
Merger Agreement.
5. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each
Stockholder hereby irrevocably grants to, and appoints, Sub and Xxxxxx
Xxxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxx, in their respective capacities as
officers of Sub, and any individual who shall hereafter succeed to any such
office of Sub, and each of them individually, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Stockholder, to vote such Stockholder's Subject Shares, or
grant a consent or approval in respect of such Subject Shares against (i) any
Takeover Proposal or (ii) any amendment of the Company's Certificate of
Incorporation or Bylaws, or other proposal or transaction (including any consent
solicitation to remove or elect any directors of the Company) involving the
Company which amendment or other proposal or transaction would be reasonably
likely to impede, frustrate, prevent, delay or nullify the Offer, the Merger,
the Merger Agreement or any of the other transactions contemplated by the Merger
Agreement.
(b) Each Stockholder represents that any proxies heretofore
given in respect of such Stockholder's Subject Shares are not irrevocable, and
that any such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 5 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder in accordance with this Agreement.
Such Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Such Stockholder
hereby ratifies and confirms all that such
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irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212(e) of the Delaware General Corporation Law (the
"DGCL"). Such irrevocable proxy shall be valid until the earlier to occur of (i)
eleven months from the date hereof or (ii) the termination of this Agreement
pursuant to Section 9.
6. Further Assurances. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use all
reasonable efforts (as described in Section 7.03(a) of the Merger Agreement) to
consummate and make effective, in the most expeditious manner practicable, the
Offer and the Merger, and the other transactions contemplated by this Agreement
and the Merger Agreement. The foregoing provisions of this Section shall not,
however, prohibit an individual Stockholder, or any partner, stockholder,
officer or affiliate of a Stockholder that is a legal entity, who is a director
of the Company from performing his or her legally required fiduciary duties as a
director of the Company as permitted or required under the Merger Agreement.
7. Certain Events. (a) Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by operation of
law or otherwise, including such Stockholder's administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares of
Company Common Stock or other voting securities of the Company by any
Stockholder, the number of Subject Shares listed in Schedule A beside the name
of such Stockholder shall be deemed adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired by
such Stockholder.
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(b) Each Stockholder agrees that it will deliver to the
Company, within 10 business days after the date hereof (or, in the event Subject
Shares are acquired subsequent to the date hereof within 10 business days after
the date of such acquisition), any and all certificates representing such
Stockholder's Subject Shares solely for the purpose of the Company inscribing
upon such certificates the following legend:
"The shares of Common Stock, $0.001 par value, of FemRx, Inc.
represented by this certificate are subject to a Stockholder Agreement
dated as of October 3, 1998, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of FemRx, Inc."
8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that (i) Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any U.S. subsidiary of Parent that may be substituted
for Sub as contemplated by Section 2.01 of the Merger Agreement, and (ii) Parent
may assign, in its sole discretion, any and all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent, provided that Parent will remain liable for its obligations hereunder in
the event of any assignment pursuant to this clause (ii). Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
9. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate as follows: (i) in the case of a
termination of the Merger Agreement by the Company pursuant to Section 9.01(c)
or Section 9.01(g) thereof, on the date 120 days after the date of such
termination of the Merger Agreement, provided, that Sub continues to fulfill its
obligations under the credit
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arrangement entered into pursuant to Section 7.13 of the Merger Agreement, and,
if Sub shall cease to fulfill such obligations after such a termination pursuant
to Section 9.01(c) or Section 9.01(g), then on the date five days after the date
of such cessation, and (ii) in the case of a termination of the Merger Agreement
other than pursuant to Section 9.01(c) or Section 9.01(g) thereof, on the date
five days after the date of such termination of the Merger Agreement.
Notwithstanding the foregoing, Sections 8, 9 and 10 shall survive any
termination of this Agreement.
10. General Provisions.
(a) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
(b) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed), sent by overnight courier (providing proof of
delivery) or mailed by registered or certified mail (return receipt requested)
to Parent and Sub in accordance with Section 10.02 of the Merger Agreement and
to the Stockholder at its address or telecopier number set forth on Schedule A
attached hereto (or at such other address or telecopier number for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
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(d) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been signed
by each of the parties and delivered to the other party, it being understood
that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
11. Public Announcements. Parent and Sub, on the one hand, and
the Stockholder, on the other hand, will consult with each other before issuing,
and provide each other with a reasonable opportunity to review and comment upon,
any press release or other public statements with respect to the transactions
contemplated by this Agreement
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and the Merger Agreement, including the Offer and the Merger, and shall not
issue, or permit any of their respective subsidiaries to issue, any such press
release or make any such public statement prior to such consultation, except as
may be required by applicable law, court process or by obligations pursuant to
any listing agreement with any national securities exchange or national
securities quotation system, in which case the party making such release will
use reasonable efforts to obtain comments from the other party before issuance
of such release or statement.
12. Dispute Resolution. (a) Any dispute, claim or controversy
arising from or related in any way to this Agreement or the interpretation,
application, breach, termination or validity thereof, including without
limitation any claim of inducement of this agreement by fraud or otherwise, or
to any transactions contemplated thereby shall be submitted for resolution to
arbitration pursuant to the commercial arbitration rules then pertaining of the
Center for Public Resources ("CPR"), New York, NY, except where those rules
conflict with these provisions, in which case these provisions control. The
arbitration shall be held in Dover, Delaware unless the parties agree otherwise.
(b) The arbitration panel shall consist of three arbitrators
chosen from the CPR Panels of Distinguished Neutrals for Delaware each of whom
shall be either (1) a lawyer specializing in business litigation with at least
15 years experience with a law firm having more than 25 lawyers or (2) a judge
of a court of general jurisdiction in Delaware. Notwithstanding the foregoing,
in the event the aggregate damages sought by the claimant are stated to be less
than Five Million Dollars, and the aggregate damages sought by the
counterclaimant are stated to be less than Five Million Dollars, and neither
party seeks equitable relief, then a single arbitrator shall be chosen, having
the same qualifications and experience specified above.
(c) The parties agree to cooperate (1) to obtain selection of
the arbitrator(s) within 30 days after
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initiation of the arbitration, (2) to meet with the arbitrator(s) within 30 days
after selection and (3) to agree at that meeting or before upon procedures for
discovery and as to the conduct of the hearing which shall result in the hearing
being concluded within no more than 9 months after selection of the
arbitrator(s) and in the award being rendered within 60 days after the
conclusion of the hearings, or of any post-hearing briefing, which briefing
shall be completed by both sides within 20 days after the conclusion of the
hearings. In the event no such agreement is reached, the CPR shall select
arbitrator(s), allowing appropriate strikes for reasons of conflict or other
cause and three peremptory challenges for each side. The arbitrator(s) shall set
a date for the hearing, commit to the rendering of the award within 60 days
after the conclusion of the presentation of evidence at the hearing, or of any
post-hearing briefing (which briefing shall be completed by both parties in no
more than 20 days after the conclusion of the hearings), and provide for
discovery according to these time limits, giving recognition to the
understanding of the parties hereto that they contemplate reasonable discovery,
including document demands and depositions, but that such discovery be limited
so that the time limits specified herein may be met without undue difficulty. In
no event shall the arbitrator(s) allow either side to obtain more than a total
of 40 hours of deposition testimony from all witnesses, including both fact and
expert witnesses. In the event multiple hearing days are required, they shall be
scheduled consecutively to the greatest extent possible.
(d) The arbitrator(s) shall be bound by, and this Agreement
shall be governed by, the substantive law of Delaware, exclusive of conflict of
laws rules, except for such matters as are expressly governed by the DGCL.
Further, the arbitrator(s) shall be bound by the express terms of this
Agreement. The arbitrator(s) shall render a written opinion setting forth
findings of fact and conclusions of law with the reasons therefor stated. A
transcript of the evidence adduced at the hearing shall be made and shall, upon
request, be made available to each party.
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(e) To the extent possible, the arbitration hearings and award
shall be maintained in confidence.
(f) The United States District Court for the District of
Delaware may enter judgment upon any award. In the event the panel's award
exceeds Five Million Dollars in monetary damages or includes or consists of
equitable relief, then such court shall vacate, modify or correct any award
where the arbitrator's or arbitrators' findings of fact are clearly erroneous,
and/or where the arbitrators' conclusions of law are erroneous. It is the
intention of the parties that such court shall undertake the same review as if
it were a Federal appellate court reviewing a district court's findings of fact
and conclusions of law rendered after a bench trial. An award for less than Five
Million Dollars in damages and not including equitable relief may be vacated,
modified or corrected only upon the grounds for such an action specified in the
Federal Arbitration Act. The parties consent to the jurisdiction of the
above-specified Court for the enforcement of these provisions, the entry of
judgment on any award, and the vacatur, modification and correction of any award
as above specified. In the event such Court lacks jurisdiction, then any court
having jurisdiction of this matter may enter judgment upon any award and provide
the same relief, and undertake the same review, as specified herein.
(g) Each party has the right before or during the arbitration
to seek and obtain from the appropriate court provisional remedies such as
attachment, preliminary injunction, replevin, etc. to avoid irreparable harm,
maintain the status quo, or preserve the subject matter of the arbitration.
(h) EACH PARTY HERETO WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE
BY JURY.
(i) EACH PARTY HERETO WAIVES ANY CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES FROM THE OTHER.
(j) EACH PARTY HERETO WAIVES ANY CLAIM OF CONSEQUENTIAL
DAMAGES FROM THE OTHER UNLESS (1) THE
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FORESEEABILITY OF SUCH DAMAGES AT THE TIME OF THE CONTRACT AND (2) THE AMOUNT OF
SUCH DAMAGES ARE PROVEN BY CLEAR AND CONVINCING EVIDENCE.
13. Mediation. (a) Any dispute, controversy or claim arising
out of or related to this agreement, or the interpretation, application, breach,
termination or validity thereof, including any claim of inducement by fraud or
otherwise, or any transaction contemplated hereby which claim would, but for
this provision, be submitted to arbitration pursuant to Section 12 above shall,
before submission to arbitration, first be mediated through non-binding
mediation in accordance with the Model Procedures for the Mediation of Business
Disputes then in effect promulgated by the Center for Public Resources ("CPR"),
except where those rules conflict with the provisions of this Agreement, in
which case these provisions control. The mediation shall be conducted in Dover,
Delaware and shall be attended by a senior executive of each party to this
Agreement with authority to resolve the dispute.
(b) The mediator shall be appointed from the list of neutrals
maintained by CPR and shall be either (1) an attorney specializing in business
litigation who has at least 15 years of experience as a lawyer with a law firm
having more than 25 lawyers, or (2) a former judge of a court of general
jurisdiction.
(c) The parties shall promptly confer in an effort to select a
mediator by mutual agreement. In the absence of such an agreement, the mediator
shall be selected from a list generated by CPR with each party having the right
to exercise challenges for cause and two peremptory challenges within 72 hours
of receiving the CPR list.
(d) The mediator shall confer with the parties to design
procedures to conclude the mediation within no more than 45 days after
initiation. Under no circumstances shall the commencement of arbitration under
Section 10.11 above be delayed more than 45 days by the mediation process
specified herein.
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(e) Each party agrees to toll all applicable statutes of
limitation during the mediation process and not to use the period or pendancy of
the mediation to disadvantage the other party procedurally or otherwise. No
statements made by either side during the mediation may be used by the other
during any subsequent arbitration or other proceedings.
(f) Each party has the right to pursue from any court of
competent jurisdiction provisional relief, such as attachment, preliminary
injunction, replevin, etc., to avoid irreparable harm, maintain the status quo,
or preserve the subject matter of the arbitration, even though mediation has not
been commenced or completed.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholder have
caused this Agreement to be duly executed and delivered as of the date first
written above.
XXXXXXX & XXXXXXX,
By:___________________________
Name:
Title:
ET/FM ACQUISITION CORP.,
By:___________________________
Name:
Title:
[NAME OF STOCKHOLDER]
By:___________________________
Name:
Title:
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SCHEDULE A
Name, Address Number of Shares
and Telecopier of Company Common
Number of Stockholder Stock Owned of Record
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Following are schedules and
conformed signature pages
for each Stockholder Agreement.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
------------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
------------------------------------
Name:
Title:
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
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SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
----------------------------------- --------------------------------
Xxxxxx X. Xxxxxxxx -0-
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------- -------------- ----------------------------
03/03/97 $2.9375 80,000
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IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
XXXXXX XXXXXXX XXXXXXXX AND
XXXXXX XXXXXX XXXXXXX XXXXXXXX
TTEES XXXXXXXX FAMILY TRUST
U/A DTD 04/22/93
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxx
Trustee
25
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
----------------------------------- ----------------------------------
Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx 448,128
Xxxxxx Xxxxxxx Xxxxxxxx TTEES Xxxxxxxx
Family Trust U/A DTD 04/22/93
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xx 00000
(000)000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
------------------- ---------------------- ---------------------------------
-0-
26
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /S/ X. Xxxxxxx
-------------------------------
Name:
Title:
XXXXXXX TRUST COMPANY AS TRUSTEE
OF THE XXXXXXX MAP VENTURE CAPITAL
FUND III
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Trust Officer
27
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
--------------------------------------- ----------------------------
Xxxxxxx Trust Company as Trustee of the 61,345
Xxxxxxx MAP Venture Capital Fund III
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
----------------- ------------------- ----------------------------
0
28
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
-------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
-------------------------------
Name:
Title:
XXXXXXX VENTURE CAPITAL FUND III, L.P.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name:
Title:
29
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDERS COMMON STOCK OWNED OF RECORD
------------------------------------- ----------------------------
Xxxxxxx Venture Capital Fund III, L.P. 376,154
000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------------------- ---------------- ----------------------------
-0-
30
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxxxx XxXxxxx
--------------------------
Name: Xxxxxxxx XxXxxxx
Title: Attorney In Fact
31
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
------------------------------------- ----------------------------
DLJ Capital Corporation 113,181
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------------------- ---------------- ----------------------------
-0-
32
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
------------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
------------------------------------
Name:
Title:
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
33
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
-------------------------------- -----------------------------
Xxxxxx X. Xxxxxx 15,105
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------- -------------- ----------------------------
03/03/97 $2.9375 75,000
34
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
XXXXXX X. XXXXXX AND XXXXXXX X.
XXXXXX, TRUSTEES OF THE XXXXX XXXXXX
FAMILY TRUST U/D/A AUGUST 26, 1987
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Trustee
35
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
---------------------------------- --------------------------------
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx, 78,125
Trustees of the Xxxxx Xxxxxx Family Trust
U/D/A August 26, 1987
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
----------- ---------------- ------------------------------
-0-
36
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------
37
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
--------------------------------- -----------------------------
Xxxxxx X. Xxxxxx, M.D. -0-
FernRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000)000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------------- --------------------- --------------------------------
03/03/97 $2,9375 80,000
38
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
---------------------------
Name:
Title:
XXXXXX X. XXXXXX AND XXXXX XXXXXX,
TRUSTEES OF THE XXXXXX AND XXXXX
XXXXXX LIVING TRUST
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Trustee
39
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
--------------------------------- -----------------------------
Xxxxxx X. Xxxxxx and Xxxxx Xxxxxx, Trustees 458,128
of the Xxxxxx and Xxxxx Xxxxxx Living Trust
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000)000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------------- --------------------- --------------------------------
-0-
40
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
XXXXXX MEDICAL RESEARCH, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx, M.D.
-------------------------
Xxxxxx X. Xxxxxx, M.D.
Manager
41
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED AND RECORD
-------------------------------- -----------------------------
Xxxxxx Medical Research, L.L.C. 451,626
000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATA EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
------------------- --------------------- -------------------------------------
-0-
42
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
-------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.
By: /s/ X. Xxxxxxx
--------------------------------
Name:
Title:
XXXXXX-XXXXXXXX MANAGEMENT
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Partner
43
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
----------------------------------- ----------------------------------
Xxxxxx-Xxxxxxxx Management 10,000
FemRx, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------------- -------------------- ----------------------------------
-0-
44
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
----------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
----------------------
Name:
Title:
SECOND VENTURES II, L.P.
By: Presidio Management Group; its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title:General Partner
45
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
------------------------------------ --------------------------------------
Second Ventures II, L.P. 114,843
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
-------------- ---------------------- ------------------------------
-0-
46
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
------------------------------
name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
------------------------------
Name:
Title:
SPROUT CAPITAL VI, L.P.
By: DLJ Capital Corporation
Its Managing General Partner
By: /s/ Xxxxxxxx Xx Xxxxx
------------------------------
Name: Xxxxxxxx Xx Xxxxx
Title: General Partner and
Attorney In Fact
47
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
----------------------------------- ------------------------------------
Sprout Capital VI, L.P. 714,700
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
----------------- ------------------ ----------------------------------
0
48
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
-------------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
-------------------------------
Name:
Title:
SPROUT CAPITAL VII, L.P.
By: DLJ Capital Corporation
Its Managing General Partner
By: /s/ Xxxxxxxx XxXxxxx
-------------------------------
Name: Xxxxxxxx XxXxxxx
Title: General Partner and
Attorney In Fact
49
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
--------------------------------------- ----------------------------
Sprout Capital VII, L.P. 1,359,618
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
----------------- ------------------- ----------------------------
-0-
50
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
--------------------------
Name:
Title:
U.S. VENTURE PARTNERS IV, L.P.
By: Presidio Management Group IV, L.P.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
51
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
-------------------------------- -----------------------------
U.S. Venture Partners IV, L.P. 946,093
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
---------- --------------- ----------------------------
-0-
52
IN WITNESS WHEREOF, Parent, Sub and the Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ X. Xxxxxxx
-------------------------
Name:
Title:
ET/FM ACQUISITION CORP.,
By: /s/ X. Xxxxxxx
-------------------------
Name:
Title:
USVP ENTREPRENEUR PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
53
SCHEDULE A
NAME, ADDRESS AND NUMBER OF SHARES OF COMPANY
TELECOPIER NUMBER OF STOCKHOLDER COMMON STOCK OWNED OF RECORD
--------------------------------------- ----------------------------
USVP Entrepreneur Partners II, L.P. 32,812
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
(000) 000-0000
GRANT DATE EXERCISE PRICE NUMBER OF OUTSTANDING SHARES
----------------- ------------------- ----------------------------
-0-
