Exhibit 4.10
RESTRICTED STOCK AGREEMENT
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THIS RESTRICTED STOCK AGREEMENT (this "Agreement") is entered into on the
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29th day of January, 1999, effective as of December 31, 1998 by and between
OraPharma, Inc., a Delaware corporation (the "Corporation"), and BioMorphics
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Group, Inc. ("BioMorphics").
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W I T N E S S E T H:
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WHEREAS, pursuant to Article IV of the License Agreement effective as of
December 31, 1998 (the "License Agreement") between the Corporation and
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Children's Medical Center Corporation ("CMCC") and a letter agreement dated as
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of December 31, 1998 (the "Letter Agreement") among the Corporation, CMCC and
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BioMorphics, the Corporation is to pay to BioMorphics 31,729 shares of the
Corporation's Common Stock, $.001 par value per share (the "Common Stock"), and
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may in the future pay to BioMorphics additional shares of Common Stock, subject
to the terms and provisions of the License Agreement, the Letter Agreement and
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
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Federal agency administering the Securities Act at the applicable time.
"Common Shares" shall mean the issued and outstanding shares of the
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Corporation's Common Stock, at the applicable time.
"Equity Stock" shall have the meaning set forth in Rule 3a11-1 under the
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Securities Exchange Act of 1934, as amended, and any successor statute and the
rules and regulations thereunder, as shall be in effect from time to time.
"Family" shall include any spouse, lineal ancestor or descendant, or
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sibling, any trust for the exclusive benefit of any of the foregoing, or any
corporation, limited partnership, limited liability company or other entity
majority controlled by any of the foregoing individuals or trusts.
"Group" shall mean as to (a) a partnership, any or all of its general or
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limited partners or any "affiliate" thereof (as defined by Rule 405 promulgated
under the Securities Act), (b) a trust, any of the beneficiaries, settlers or
grantors now existing or hereafter arising of, or any Person under common
control with, such trust, (c) a corporation, any of its stockholders, any
subsidiary of such corporation or any corporation which is under common control
with such corporation, or any directors, officers or employees of such
corporation, and (d) a limited liability company, any of its members.
"Initial Public Offering" or "IPO" shall mean the Corporation's initial
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distribution of New Securities in an underwritten Public Offering to the general
public pursuant to a registration statement filed with and declared effective by
the Commission pursuant to the Securities Act at a price per New Security of not
less than $4.00 (as adjusted for stock splits, stock dividends or similar
recapitalizations) and resulting in gross proceeds (before underwriting
commissions and offering expenses) to the Corporation of not less than $15
million.
"New Securities" shall mean any Equity Stock, including, but not limited
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to, shares of Common Stock, any security which is convertible into or
exercisable or exchangeable for Common Stock, or any right, option or warrant to
acquire any Common Stock of the Corporation.
"Person" shall mean and include a natural person, a corporation, a
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partnership, a limited liability company, a trust, an unincorporated
organization, an educational institution, a government or any department, agency
or political subdivision thereof, or any other entity.
"Preferred Shares" shall mean the issued and outstanding shares of the
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Corporation's Series A Preferred Stock, $.001 par value per share, Series B
Preferred Stock, $.001 par value per share, and Series C Preferred Stock, $.001
par value per share.
"Public Offering" shall mean a distribution of New Securities in a firm
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commitment underwritten public offering to the general public pursuant to a
registration statement filed with and declared effective by the Securities and
Exchange Commission pursuant to the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and any
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successor statute and the rules and regulations of the Securities and Exchange
Commission thereunder, as shall be in effect at the applicable time.
"Shares" shall mean the __________ shares, and any additional shares, of
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Common Stock acquired by BioMorphics under the License Agreement and the Letter
Agreement.
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"Transfer" shall include any direct or indirect sale, assignment, transfer,
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pledge (but not including a pledge in favor of the Corporation), hypothecation
or other disposition of any Shares or of any legal or beneficial interest
therein.
SECTION 2. Payment to BioMorphics of Common Stock. Subject to the terms and
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conditions contained herein and in the License Agreement and the Letter
Agreement, and in consideration for the rights, privileges and licenses granted
to the Corporation under the License Agreement, (a) the Corporation hereby pays,
transfers and assigns to BioMorphics, and BioMorphics hereby acquires from the
Corporation, __________ Shares and (b) if and to the extent required by Article
IV A1(b) and (c) of the License Agreement and by the Letter Agreement, the
Corporation may in the future pay, transfer and assign to BioMorphics, and
BioMorphics may acquire from the Corporation, additional Shares.
SECTION 3. Legend on Shares and Notice of Transfer.
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3.1 Restrictive Legends. (a) Each certificate evidencing Shares, and
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each certificate evidencing Shares held by subsequent transferees of any such
certificate, shall (unless otherwise permitted by the provisions of Section 3.2
hereof) be stamped or otherwise imprinted with a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY
EXEMPTION THEREFROM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAW.
(b) Each certificate evidencing Shares, and each certificate
evidencing Shares held by subsequent transferees of any such certificate, shall
also be stamped or otherwise imprinted with a legend in substantially the
following form:
ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS
AND CONDITIONS OF A RESTRICTED STOCK AGREEMENT EFFECTIVE AS OF
DECEMBER 31, 1998 BETWEEN ORAPHARMA, INC. AND THE HOLDER OF RECORD OF
THIS CERTIFICATE AND NO SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF SUCH SECURITIES SHALL BE VALID
OR EFFECTIVE EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL
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SUCH TERMS AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF ORAPHARMA,
INC.
3.2 Notice of Transfer. (a) BioMorphics, and any other holder of any
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Shares by acceptance thereof, agrees that, prior to any Transfer of any Shares,
such holder will give written notice to the Corporation of such holder's
intention to effect such Transfer and to comply in all other respects with the
provisions of this Section 3.2. Each such notice shall contain (i) a statement
setting forth the intention of said holder's prospective transferee with respect
to its retention or disposition of said Shares; and (ii) unless waived by the
Corporation, an opinion of counsel for said holder (who may be the inside or
staff counsel employed by said holder), as to the necessity or non-necessity for
registration under the Securities Act and applicable state securities laws in
connection with such Transfer and stating the factual and statutory basis relied
upon by counsel. The following provisions shall then apply:
(i) If the proposed Transfer of Shares may be effected without
registration or qualification under the Securities Act and any applicable
state securities laws, then the registered holder of such Shares shall be
entitled to Transfer such Shares in accordance with Section 4 hereof and
the intended method of disposition specified in the statement delivered by
said holder to the Corporation.
(ii) If the proposed Transfer of such Shares may not be effected
without registration under the Securities Act or registration or
qualification under any applicable state securities laws, the registered
holder of such Shares shall not be entitled to Transfer such Shares
pursuant to Section 4 until the requisite registration or qualification is
effective.
(b) Notwithstanding the provisions of Section 3.2(a), in the case of a
Transfer by a holder to a member of such holder's Family or Group, no such
opinion of counsel shall be necessary; provided, that the transferee agrees in
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writing to be subject to Section 3 hereof to the same extent as if such
transferee were originally a signatory to this Agreement.
(c) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any untransferred balance of such Shares) shall
bear the legend set forth in Section 3.1(a) hereof unless (i) in the opinion of
counsel (acceptable to the Corporation) addressed to the Corporation the
registration of future Transfers is not required by the applicable provisions of
the Securities Act or applicable state securities laws; (ii) the Corporation
shall have waived the requirement of such legend; or (iii) in the reasonable
opinion of counsel to the Corporation, such Transfer shall have been made in
connection with
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an effective registration statement filed pursuant to the Securities Act or in
compliance with the requirements of Rule 144 or Rule 144A (or any similar or
successor rule) promulgated under the Securities Act, and in compliance with
applicable state securities laws.
(d) Each certificate evidencing the Shares issued upon such
Transfer (and each certificate evidencing any untransferred balance of such
Shares) shall bear the legend set forth in Section 3.1(b) hereof, for so long as
this Agreement remains in effect. In the event of the termination of this
Agreement, the holder of Shares may request that the Corporation issue a new
certificate not bearing the legend set forth in Section 3.1(b) hereof.
SECTION 4. Covenants of BioMorphics and Corporation.
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4.1 Prohibited Transfers.
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(a) Notwithstanding anything to the contrary contained herein,
BioMorphics (and any permitted transferee of BioMorphics) may Transfer all of
its, his or her Shares: (i) if the stockholder is a limited partnership or a
trust, to any member of the Group of which BioMorphics (or such permitted
transferee) is a member; provided, that such transferee shall agree in writing
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with the Corporation, prior to and as a condition precedent to such Transfer, to
be bound by all of the provisions of this Agreement; (ii) if the stockholder is
a corporation, to any member of its Group; provided, that such transferee shall
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agree in writing with the Corporation, prior to and as a condition precedent to
such Transfer, to be bound by all of the provisions of this Agreement; (iii) if
the transferor is any such permitted transferee of BioMorphics, to any member
of the Family of such permitted transferee; provided, that such new transferee
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shall agree in writing with the Company, prior to and as a condition precedent
to such Transfer, to be bound by all of the provisions of this Agreement and,
provided, further, that the interests in any Family trusts shall be non-
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transferable; and (iv) if the transferor is any such permitted transferee of
BioMorphics, by will or the laws of descent and distribution, in which event
each such new transferee shall be bound by all of the provisions of this
Agreement to the same extent as if such transferee were sick (or permitted
transferee).
(b) If requested in writing by the managing underwriters, if any,
of any Public Offering, BioMorphics agrees not to offer, sell, contract to sell
or otherwise dispose of any Shares except as part of such Public Offering within
thirty (30) days before or one hundred and eighty (180) days after the effective
date of the registration statement filed with respect to said offering, and the
Corporation hereby also so agrees; provided, however, that this restriction will
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not apply to transfers permitted under Section 4.1(a) provided such transferee
agrees to be bound by the restriction contained in this Section 4.1(b).
Notwithstanding the foregoing, in the event that BioMorphics shall have accepted
an offer to purchase Offered Shares (as defined below) which have been offered
pursuant to Section 4.2(a), BioMorphics shall not be prohibited from
consummating such sale, provided, that the purchaser agrees to be bound by the
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restrictions contained in this Section 4.1(b).
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4.2 Right of First Offer on Dispositions.
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(a) Without limiting BioMorphics's right to Transfer all or any part
of its Shares pursuant to any other provisions of this Agreement, if BioMorphics
desires to Transfer all or any part of its Shares pursuant to this Section 4.2
at any time prior to completion of the Corporation's Initial Public Offering,
BioMorphics shall submit a written offer (the "Offer") to sell such Shares (the
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"Offered Shares") to the Corporation, which Offer shall specify the number of
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Offered Shares proposed to be sold, the total number of Shares owned by
BioMorphics, and the terms and conditions, including price, at which the Shares
are being offered.
(b) The Corporation shall have the right to purchase all of the
Offered Shares, on the same terms and conditions specified in the Offer.
(c) If the Corporation desires to purchase all or any part of the
Offered Shares on the same terms and conditions specified in the Offer, the
Corporation shall deliver its Acceptance to BioMorphics, which Acceptance shall
state the number of Offered Shares the Corporation desires to purchase and shall
be delivered in person or mailed to BioMorphics at the address set forth in the
Offer, within 20 days of the date the Offer was made by BioMorphics pursuant to
Section 4.2(a).
(d) If the Corporation elects to purchase all of the Offered Shares,
sale of the Offered Shares pursuant to this Section 4.2 shall be made at the
offices of the Corporation on the 45th day following the expiration of the 20-
day period described above (or if such 45th day is not a business day, then on
the next succeeding business day). Such sale shall be effected by BioMorphics's
delivery to the Corporation of a certificate or certificates evidencing the
Offered Shares to be purchased by it, duly endorsed for transfer to the
Corporation, which Offered Shares shall be delivered free and clear of all
liens, charges, claims and encumbrances of any nature whatsoever, against
payment to BioMorphics of the purchase price therefor by the Corporation.
Payment for the Offered Shares shall be made as provided in the Offer or by wire
transfer or certified check.
(e) If the Corporation does not elect to purchase all of the Offered
Shares, then the Offered Shares may be sold by BioMorphics at any time within
150 days after the date the Offer was made by BioMorphics pursuant to Section
4.2(a). Any such sale shall be upon terms and conditions, including price, not
less favorable to BioMorphics than those specified in the Offer. Any Offered
Shares not sold within such 150-day period shall continue to be subject to the
requirements of a prior offer pursuant to this Section 4.2.
4.3 Drag Along. Subject to Section 4.2 above, anything in this
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Agreement to the contrary notwithstanding, in the event that (i) the Board of
Directors of the Corporation by unanimous vote or unanimous written consent
and/or the holders of sixty-six and two-thirds of the then outstanding Common
Shares by vote or written consent approves a transaction
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pursuant to which any Person or Persons not affiliated with any of the
Stockholders will acquire 50% or more of the Common Shares of the Corporation
(by stock purchase, merger or otherwise) or all or substantially all of the
assets of the Corporation, upon the written request of the holders of sixty-six
and two-thirds of the Common Shares, BioMorphics agrees to offer to sell all of
its Shares, and to sell all of his Shares, to such Person or Persons or to vote
all of his Shares in favor of the sale of assets, as the case may be, in either
case upon the terms and conditions of the transaction approved by the Board of
Directors of the Corporation and/or the holders of sixty-six and two-thirds of
the Common Shares; provided, however, that BioMorphics's obligation to sell its
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Shares pursuant to this Section 4.3 shall only apply if all of the Shares are to
be sold on the same terms and conditions. For purposes of this Section 4.3, each
Preferred Share shall be deemed to be the number of shares of Common Stock into
which the Preferred Share is then convertible.
4.4 "Piggyback" Registrations. (a) If the Corporation at any time
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proposes to register any of its securities under the Securities Act on Form X-0,
X-0 or S-3 or on any other form upon which the Common Shares may be registered
for sale to the general public, other than on Form S-4 or S-8 or other similar
form, whether for its own account or for the account of others, the Corporation
will at each such time promptly give written notice to BioMorphics of such
proposal, which shall set forth information, to the extent then known, as to
offering price or range, the number of shares to be offered, the proposed manner
of distribution and the proposed managing underwriter(s) of the offering. Upon
the written request of BioMorphics given within 20 days after the Corporation
has given such notice, the Corporation will cause the Shares which the
Corporation has been requested to register by BioMorphics to be registered under
the Securities Act (and any related qualification under blue sky laws or other
compliance), all to the extent required to permit the sale or other disposition
by BioMorphics of the Shares so registered.
(b) If securities are to be registered for sale under a registration
and are to be distributed for the account of the Corporation by or through a
firm of underwriter(s), then any Shares which the Corporation has been requested
to register pursuant to clause (a) of this Section 4.4 shall also be included in
such underwriting on the same terms as other securities of the same class as the
Shares included in such underwriting; provided, that if, in the written opinion
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of the managing underwriter(s), the total amount of such securities to be so
registered, when added to the Shares, will exceed the maximum amount of the
Corporation's securities which can be marketed (i) at a price reasonably related
to their then current market value, or (ii) without otherwise materially and
adversely affecting the entire offering, then (subject to clause (d) of this
Section 4.4) the Corporation shall exclude from such underwriting, first, the
number of Shares being sold for the account of BioMorphics as is necessary, in
the opinion of the managing underwriter(s), to reduce the size of the offering.
(c) If securities are to be registered for sale under a registration
and are to be distributed for the account of holders of Common Shares held by
third parties or holders (other than the Corporation) of other securities of the
Corporation other than Common Shares
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by or through a firm of underwriter(s) of recognized standing under underwriting
terms appropriate for such transaction, then any Shares which the Corporation
has been requested to register pursuant to clause (a) of this Section 4.4 shall
also be included in such underwriting on the same terms as other securities
included in such underwriting, provided, that if, in the written opinion of the
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managing underwriter(s), the total amount of such securities to be so
registered, when added to such Shares, will exceed the maximum amount of the
Corporation's securities which can be marketed (i) at a price reasonably related
to their then current market value, or (ii) without otherwise materially and
adversely affecting the entire offering, then the Corporation shall exclude from
such underwriting the number of Shares and other securities, pro rata to the
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extent practicable, on the basis of the number of securities requested to be
registered, as is necessary in the opinion of the managing underwriter(s) to
reduce the size of the offering.
(d) Notwithstanding Section 4.4(a), (b) and (c), the Corporation may
exclude all Shares from registration in connection with the Corporation's
Initial Public Offering if the inclusion of such Shares would, in the written
opinion of the managing underwriter(s) adversely affect the marketing of the New
Securities to be sold by the Corporation therein; provided that such exclusion
of Shares shall be made pro rata with all other Common Stock held by third
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parties which are not then and were not previously holders of Preferred Shares.
SECTION 5. Representations.
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5.1. Representations of BioMorphics. In connection with BioMorphics's
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purchase of the Shares, BioMorphics hereby represents and warrants to the
Corporation as follows:
(a) Investment Intent; Capacity to Protect Interests. BioMorphics is
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purchasing the Shares solely for its own account for investment and not with a
view to or for sale in connection with any distribution of the Shares or any
portion thereof and not with any present intention of selling, offering to sell
or otherwise disposing of or distributing the Shares or any portion thereof in
any transaction other than a transaction exempt from registration under the
Securities Act. BioMorphics also represents that the entire legal and
beneficial interest of the Shares is being purchased, and will be held, for its
account only, and neither in whole or in part for any other person.
(b) Restricted Securities. BioMorphics understands and acknowledges
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that the sale of the Shares has not been registered under the Securities Act;
that the Shares must be held indefinitely unless subsequently registered under
the Securities Act or an exemption from such registration is available; and
that, except as provided in Section 4.4, the Corporation is under no obligation
to register the Shares.
(c) Disposition under Rule 144. BioMorphics understands that the
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Shares are restricted securities within the meaning of Rule 144 promulgated
under the Securities Act;
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that the exemption from registration under Rule 144 will not be available in any
event for at least two years from the date of purchase of any payment for the
Shares, and even then will not be available unless (i) a public trading market
then exists for the Shares, (ii) adequate information concerning the Corporation
is then available to the public, and (iii) other terms and conditions of Rule
144 are complied with; and that any sale of the Shares may be made only in
limited amounts in accordance with such terms and conditions.
(d) Accredited Investor. BioMorphics is an "accredited investor", as
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defined in Rule 501 under the Securities Act.
5.2. Representations of the Corporation. The Corporation represents to
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BioMorphics that:
(a) The execution, delivery and performance by the Corporation of
this Agreement and all transactions contemplated by this Agreement have been
duly authorized by all action required by law, its Certificate of Incorporation,
its Bylaws or otherwise.
(b) This Agreement has been duly executed and delivered by the
Corporation and constitutes the legal, valid and binding obligation of the
Corporation enforceable against it in accordance with its terms.
SECTION 6. Withholding. Upon the request of the Corporation, BioMorphics
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shall promptly pay to the Corporation, or make arrangements satisfactory to the
Corporation regarding payment of, any Federal, state or local taxes of any kind
required by law to be withheld with respect to the Shares (or any distributions
of other securities or property (including cash) thereon or issued in
replacement thereof).
SECTION 7. Remedies. In case any one or more of the covenants and/or
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agreements set forth in this Agreement shall have been breached by any party
hereto, the party entitled to the benefit of such covenants or agreements may
proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including, but not limited to, (a) an action for damages as a
result of any such breach, (b) an action for specific performance of any such
covenant or agreement contained in this Agreement, and/or (c) a temporary or
permanent injunction, in any case without showing any actual damage. The
rights, power and remedies of the parties under this Agreement are cumulative
and not exclusive of any other agreement or law. No single or partial assertion
or exercise of any right, power or remedy of a party hereunder shall preclude
any other or further assertion or exercise thereof. Any purported Transfer in
violation of the provisions of this Agreement shall be null and void ab initio.
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SECTION 8. Successors and Assigns. Except as otherwise expressly provided
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herein, this Agreement shall bind and inure to the benefit of the Corporation,
BioMorphics, the respective successors or heirs, distributees and personal
representatives and permitted assigns of the Corporation and BioMorphics, and
each other person who shall properly become a
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registered holder of any Shares that have not theretofore been sold to the
public pursuant to a registration statement under the Securities Act or Rule 144
or Rule 144A (or any similar or successor rule).
SECTION 9. Entire Agreement. This Agreement contains the entire agreement
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among the parties with respect to the subject matter hereof and supersedes other
prior and contemporaneous arrangements or understandings with respect thereto.
SECTION 10. Notices. All notices, consents and other communications under
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this Agreement shall be in writing and shall be deemed to have been duly given
(a) when delivered by hand, (b) one (1) business day after the business day of
transmission, if sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or (c) one
(1) business day after the business day of deposit with the carrier, if sent by
Express Mail, Federal Express or other express delivery service (receipt
requested), in each case to the appropriate addresses, telex numbers and
telecopier numbers set forth below (or to such other addresses or telecopy
numbers as a party may designate as to itself by notice to the other parties):
(a) If to BioMorphics:
BioMorphics Group, Inc.
0 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
(b) If to the Corporation:
OraPharma, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx, Esq.
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SECTION 11. Changes. The terms and provisions of this Agreement may not
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be modified or amended, or any of the provisions hereof waived, temporarily or
permanently, without the prior written consent of each of the parties hereto.
SECTION 12. Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 13. Headings. The benefits of the various sections of this
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Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 14. Nouns and Pronouns. Whenever the context may require, any
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pronouns used herein shall include the corresponding masculine feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 15. Severability. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 16. Governing Law; Jurisdiction. This Agreement and (unless
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otherwise provided) all amendments hereof and waivers and consents hereunder
shall be governed by the internal law of the State of New Jersey, without regard
to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
WITNESS ORAPHARMA, INC.
By:
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Xxxxxxx Xxxxxxxxx, President
WITNESS BIOMORPHICS GROUP, INC.
By:
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Title:
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