Exhibit 6
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of January 7, 2002 (this
"AGREEMENT"), is by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and XXXXX X. XXXXXXXXX (the
"PRINCIPAL STOCKHOLDER"), an individual and a stockholder of MediChem Life
Sciences, Inc., a Delaware corporation (the "COMPANY"), on the other hand.
WHEREAS, Buyer, Merger Sub and the Company, are, concurrently
with the execution hereof, entering into an Agreement and Plan of Merger, dated
as of January 7, 2002 (the "MERGER AGREEMENT"), pursuant to which, upon the
terms and subject to the conditions set forth in the Merger Agreement, Merger
Sub will merge with and into the Company, with the Company being the surviving
corporation (the "MERGER");
WHEREAS, the Principal Stockholder is the record and/or
beneficial owner, as of the date of this Agreement, of such number of shares of
common stock of the Company, par value $0.01 per share (the "COMPANY COMMON
STOCK"), as is set forth opposite his name on Schedule I attached hereto
(collectively, the "OWNED Shares"). All such Owned Shares, together with any
shares of capital stock or other voting securities of the Company, beneficial
ownership of which is directly or indirectly acquired by the Principal
Stockholder after the date hereof, including, without limitation, shares
received pursuant to any stock splits, stock dividends or distributions, shares
acquired by purchase or upon the exercise, conversion or exchange of any option,
warrant or convertible security or otherwise, and shares or any voting
securities of the Company received pursuant to any change in the capital stock
of the Company by reason of any recapitalization, merger, reorganization,
consolidation, combination, exchange of shares or the like, are referred to
herein as the "SHARES." For purposes of this Agreement, "beneficial ownership"
shall have the meaning set forth in Rule 13d-3 under the Exchange Act;
WHEREAS, each of the parties hereto desires to enter into this
Agreement to provide for, among other things, (1) the obligation of the
Principal Stockholder to vote, or cause the record holder of the Shares to vote,
all of the Shares beneficially owned by the Principal Stockholder (other than
Shares subject to unexercised options) (the "VOTING SHARES") in the manner
specified herein and (2) certain restrictions on the sale or the transfer of the
record and beneficial ownership of Shares by the Principal Stockholder; and
WHEREAS, the Principal Stockholder acknowledges that Buyer,
Merger Sub and the Company are entering into the Merger Agreement in reliance on
the representations, warranties, covenants and other agreements of the Principal
Stockholder set forth in this Agreement and would not enter into the Merger
Agreement if the Principal Stockholder did not enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein and in the Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound hereby, Buyer, Merger Sub and the
Principal Stockholder agree as follows:
1. Defined Terms. All capitalized terms used but not
specifically defined herein shall have the meanings ascribed to such term in the
Merger Agreement.
2. Agreement to Vote. The Principal Stockholder hereby agrees
that, from and after the date hereof and until the Termination Date (as defined
in Section 17), at any meeting of the stockholders of the Company, however
called, or in connection with any written consent of the stockholders of the
Company, the Principal Stockholder shall appear at each such meeting, in person
or by proxy, or otherwise cause the Voting Shares to be counted as present
thereat for purposes of establishing a quorum, and the Principal Stockholder
shall vote (or cause to be voted) or act by written consent with respect to all
of the Voting Shares that are beneficially owned by the Principal Stockholder or
as to which the Principal Stockholder has, directly or indirectly, the right to
vote or direct the voting, (a) in favor of adoption of the Merger Agreement and
the Merger and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement; (b) against any action that is intended
to, or could reasonably be expected to, impede, delay or prevent the
consummation of the transactions contemplated by the Merger Agreement; and (c)
against any Acquisition Proposal made by any person other than Buyer or any of
its Affiliates. The Principal Stockholder hereby agrees that it will not enter
into any voting or other similar agreement or understanding with any person or
entity or grant a proxy or power of attorney with respect to the Shares prior to
the Termination Date (other than a proxy or power of attorney to an officer of
the Company that may be exercised solely in accordance with this Section 2 and
except as provided in Section 3 below) or vote or give instructions in any
manner inconsistent with clause (a), (b) or (c) of the preceding sentence. The
Principal Stockholder hereby agrees, during the period commencing on the date
hereof and ending on the Termination Date, not to, and, if applicable, not to
permit any of the Principal Stockholder's Affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote, if such consent or
vote by the stockholders of the Company would be inconsistent with or frustrate
the purposes of the other covenants of the Principal Stockholder pursuant to
this paragraph. As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
3. PROXY. SUBJECT TO SECTION 17 HEREOF, THE PRINCIPAL
STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS EACH OF XXXX XXXXXXXXXX, XXXXXX
XXXXXXXX AND XXXXX XXXXXX, ACTING INDIVIDUALLY OR COLLECTIVELY IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF BUYER, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED ANY SUCH OFFICER OF BUYER, AND ANY OTHER PERSON DESIGNATED IN
WRITING BY BUYER, EACH OF THEM INDIVIDUALLY, THE PRINCIPAL STOCKHOLDER'S PROXY
AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN
CONSENT, TO THE FULLEST EXTENT PERMITTED BY AND SUBJECT TO APPLICABLE LAW, WITH
RESPECT TO THE SHARES IN ACCORDANCE WITH SECTION 2 HEREOF IN RESPECT OF ANY
MATTER SPECIFIED IN CLAUSE (a), (b) or (c) OF SUCH SECTION 2. THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. THE STOCKHOLDER WILL TAKE
SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE SHARES. NOTWITHSTANDING THE
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FOREGOING, NEITHER BUYER NOR ANY OF THE AFORE-NAMED PROXIES SHALL EXERCISE THE
POWERS SET FORTH IN THIS SECTION 3 UNLESS AND UNTIL BUYER SHALL HAVE RECEIVED
ALL APPLICABLE REGULATORY APPROVALS REQUIRED UNDER APPLICABLE LAW FOR SUCH
EXERCISE.
4. Representations and Warranties of Buyer and Merger Sub.
Buyer and Merger Sub represent and warrant to the Principal Stockholder as
follows:
a. Each of Buyer and Merger Sub is a corporation
duly organized, validly existing and in good standing under the
laws of the state of Delaware.
b. Each of Buyer and Merger Sub has the requisite
corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery
of this Agreement by Buyer and Merger Sub and the consummation by
Buyer and Merger Sub of the transactions contemplated hereby have
been duly authorized by the respective Boards of Directors of
Buyer and Merger Sub and no other corporate proceedings on the
part of Buyer or Merger Sub are necessary to authorize the
execution and delivery of this Agreement by Buyer and Merger Sub
and the consummation by them of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by
Buyer and Merger Sub and (assuming the valid authorization,
execution and delivery of this Agreement by the Principal
Stockholder) is a valid and binding obligation of each of Buyer
and Merger Sub, enforceable against each of Buyer and Merger Sub
in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
c. The execution and delivery of this Agreement by
Buyer and Merger Sub do not, and the performance of this
Agreement by Buyer and Merger Sub will not, (i) conflict with or
violate the certificate of incorporation or bylaws of Buyer or
Merger Sub, (ii) conflict with or violate any law, rule,
regulation or order applicable to Buyer or Merger Sub or by which
any of their respective properties is bound, or (iii) conflict
with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment
under, or result in the creation of any Lien on the properties or
assets of Buyer or Merger Sub pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Buyer or
Merger Sub is a party or by which Buyer or Merger Sub or any of
their respective properties is bound, except for any thereof that
would not materially impair the ability of Buyer or Merger Sub to
perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
d. The execution and delivery of this Agreement by
Buyer and Merger Sub do not, and the performance by Buyer and
Merger Sub of their obligations hereunder will not, require Buyer
or Merger Sub to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any
Governmental Entity, other than as set forth in Section 4.2(d) of
the Merger Agreement.
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e. There is no suit, action, investigation or
proceeding pending or, to the knowledge of Buyer or Merger Sub,
threatened against Buyer or Merger Sub at law or in equity before
or by any Governmental Entity that could reasonably be expected
to materially impair the ability of Buyer or Merger Sub to
perform their obligations hereunder on a timely basis, and there
is no agreement, commitment or law to which Buyer or Merger Sub
is subject that could reasonably be expected to materially impair
the ability of Buyer or Merger Sub to perform their obligations
hereunder on a timely basis.
5. Representations and Warranties of the Principal
Stockholder. The Principal Stockholder represents and warrants to Buyer and
Merger Sub as follows:
a. This Agreement has been duly executed and
delivered by the Principal Stockholder and (assuming the valid
authorization, execution and delivery of this Agreement by Buyer
and Merger Sub) is a valid and binding obligation of the
Principal Stockholder, enforceable against the Principal
Stockholder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in
equity or at law).
b. The execution and delivery of this Agreement by
the Principal Stockholder do not, and the performance of this
Agreement by the Principal Stockholder will not, (i) conflict
with or violate any law, rule, regulation or order applicable to
the Principal Stockholder or by which any of the Principal
Stockholder's properties is bound, or (ii) conflict with, result
in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, or require payment under, or result in the
creation of any Lien on the properties or assets of the Principal
Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Principal Stockholder is a
party or by which the Principal Stockholder or any of its
properties is bound, except for any thereof that would not result
in the imposition of a Lien on the Principal Stockholder's Shares
or materially impair the ability of the Principal Stockholder to
perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
c. The execution and delivery of this Agreement by
the Principal Stockholder does not, and the performance by the
Principal Stockholder of the Principal Stockholder's obligations
hereunder will not, require the Principal Stockholder to obtain
any consent, approval, authorization or permit of, or to make any
filing with or notification to, any Governmental Entity, except
for an amendment to the Statement on Schedule 13D filed by the
Principal Stockholder with respect to the Company.
d. There is no suit, action, investigation or
proceeding pending or, to the knowledge of the Principal
Stockholder, threatened against the Principal Stockholder at law
or in equity before or by any Governmental Entity that could
reasonably be expected to materially impair the ability of the
Principal Stockholder to perform its obligations hereunder on a
timely basis, and there is no agreement, commitment or law to
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which the Principal Stockholder is subject that could reasonably
be expected to materially impair the ability of the Principal
Stockholder to perform its obligations hereunder on a timely
basis.
e. Except as set forth on Schedule I hereto, (i)
the Principal Stockholder's Owned Shares are owned beneficially
and of record by the Principal Stockholder and none of such Owned
Shares are pledged or otherwise encumbered in any manner; (ii)
the Principal Stockholder has not appointed or granted any proxy
which is still effective with respect to any Shares other than as
provided in this Agreement; and (iii) the Principal Stockholder
has sole voting power and sole power of disposition with respect
to all of the Principal Stockholder's Owned Shares, with no
restrictions on the Principal Stockholder's rights of disposition
pertaining thereto. The Owned Shares constitute all of the shares
of Company Common Stock owned of record or beneficially by the
Principal Stockholder. Except as set forth on Schedule I hereto,
all of the Owned Shares are issued and outstanding and the
Principal Stockholder does not own, of record or beneficially,
any warrants, options, convertible securities or other rights to
acquire any shares of Company Common Stock.
6. Agreements of the Principal Stockholder.
a. The Principal Stockholder hereby agrees, until
the earlier of (i) the Effective Time or (ii) the Termination
Date, and except as expressly contemplated hereby or for the
redemption by the Company of certain holdback shares of the
Principal Stockholder for the satisfaction of indemnity claims of
the Company relating to past acquisitions, not to (i) sell,
transfer, pledge, encumber, grant, assign or otherwise dispose
of, enforce any redemption agreement with the Company or enter
into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer,
pledge, encumbrance, grant, assignment or other disposition of,
record or beneficial ownership of any of the Shares (whether
acquired heretofore or hereafter) or any interest in any of the
foregoing, except to Buyer or Merger Sub, (ii) grant any proxies
or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares, or any
interest in any of the Shares, except pursuant to Section 3
herein or (iii) take any action that would make any
representation or warranty of Principal Stockholder contained
herein untrue or incorrect or have the effect of preventing or
disabling the Principal Stockholder from performing its
obligations under this Agreement.
b. The Principal Stockholder hereby agrees, until
the earlier of (i) the Effective Time or (ii) the Termination
Date, except (i) with respect to Buyer and its Affiliates, and
(ii) for actions taken by persons in their capacity as officers
or directors of the Company in accordance with Section 6.4(b) of
the Merger Agreement, that the Principal Stockholder shall not,
and shall not permit any of its Affiliates or, if applicable, any
director, officer, employee consultant, agent, advisor or
representative of the Principal Stockholder or any of the
Principal Stockholder's Affiliates (collectively, the
"REPRESENTATIVES") to (i) initiate, solicit or encourage,
directly or indirectly, any inquiries or the making of any
proposal with respect to any matter described in Section 6(a)
hereof or any Acquisition Proposal or (ii) participate in any
negotiations concerning, or provide to any other person any
information or data relating to the Company or any of its
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Subsidiaries for the purpose of, or have any discussions with any
person relating to, or cooperate with or assist or participate
in, or facilitate, any inquiries or the making of any proposal
which constitutes, or would reasonably be expected to lead to,
any effort or attempt by any other person to seek to effect any
matter described in Section 6(a) hereof or any Acquisition
Proposal, or agree to or endorse any Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement
such an Acquisition Proposal. The Principal Stockholder agrees
immediately to cease and cause to be terminated any existing
activities, discussions or negotiations with any persons
conducted heretofore by Principal Stockholder with respect to any
possible Acquisition Proposal, or any matter described in Section
6(a) hereof, and will take the necessary steps to inform
Principal Stockholder's Representatives of the obligations
undertaken by Principal Stockholder with respect to Principal
Stockholder's Representatives in this Section 6.
7. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, none of the parties hereto shall enter
into an agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) if such action would materially impair the ability of
such party to effectuate, carry out or comply with all the terms of this
Agreement.
8. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given if given in the manner set
forth in Section 9.2 of the Merger Agreement. All notices hereunder shall be
given to a party at his address stated on Schedule I to this Agreement or at its
address set forth in Section 9.2 of the Merger Agreement or at any other address
as the party may specify for this purpose by notice to the other parties
pursuant to this Section 8.
9. No Waivers. No failure or delay by Buyer or Merger Sub in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of that right, power or privilege. A single or partial exercise of any
right, power or privilege shall not preclude any other or further exercise of
that right, power or privilege or the exercise of any other right, power or
privilege. The rights and remedies provided in this Agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
10. Amendments, Etc. No amendment, modification, termination
or waiver of any provision of this Agreement, and no consent to any departure by
any Principal Stockholder or Buyer or Merger Sub from any provision of this
Agreement, shall be effective unless it shall be in writing and signed and
delivered by each party hereto, and then it shall be effective only in the
specific instance and for the specific purpose for which it is given.
11. Successors and Assigns; Third Party Beneficiaries.
a. No party shall assign any of such party's
rights or remedies or delegate any of such party's obligations or
liabilities, in whole or in part, under this Agreement, except
that Buyer or Merger Sub may assign all or any of its rights
hereunder to any Affiliate of Buyer or Merger Sub. Any assignment
or delegation in contravention
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of this Section 11 shall be void ab initio and shall not relieve
the assigning or delegating party of any obligation under this
Agreement.
b. The provisions of this Agreement shall be
binding upon and inure solely to the benefit of the parties
hereto and their respective permitted heirs, executors, legal
representatives, successors and assigns, and no other person.
12. Governing Law; Submission to Jurisdiction. This Agreement
and all rights, remedies, liabilities, powers and duties of the parties hereto
and thereto, shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts executed in and to be performed
entirely within that State. Buyer, Merger Sub and the Principal Stockholder
irrevocably agree that any legal action or proceeding with respect to this
Agreement or for recognition or enforcement of any judgment in respect hereof by
brought by the other party hereto or its successors and assigns may be brought
and determined in the Chancery or other courts in the State of Delaware, and
Buyer, Merger Sub and the Principal Stockholder hereby irrevocably submit with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts and to accept service of process in any manner permitted by
such courts. Buyer, Merger Sub and the Company hereby irrevocably waive, and
agree not to assert, by way of motion, as a defense, counterclaim or otherwise,
in any action or proceeding with respect to this Agreement, (a) any claim that
it is not personally subject to the jurisdiction of the aforesaid courts for any
reason other than the failure to lawfully serve process; (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise); (c) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts; or (d) any right to a trial by jury.
13. Severability of Provisions. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
14. Headings and References. Section headings in this
Agreement are included for convenience of reference only and do not constitute a
part of this Agreement for any other purpose. References to Sections in this
Agreement are references to the Sections of this Agreement unless the context
shall require otherwise. Any of the terms defined in this Agreement may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference. The use in this Agreement of the word "include" or
"including," when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such
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word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or "but not limited to" or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.
15. Entire Agreement. This Agreement and the Merger Agreement
embody the entire agreement and understanding of each of the parties hereto, and
supersede all other written or oral prior agreements or understandings, with
respect to the subject matter of this Agreement.
16. Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement was not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to specific performance
of the terms hereof, this being in addition to any other remedy to which they
are entitled at law or in equity.
17. Termination. This Agreement and the proxy set forth in
Section 3 shall terminate upon the earliest of the following dates (such date is
referred to herein as the "TERMINATION DATE"): (i) the date on which the Merger
Agreement is terminated; (ii) the date on which Buyer terminates this Agreement
upon written notice to the Principal Stockholder (Buyer may so terminate this
Agreement and the proxy set forth herein at any time); or (iii) the Effective
Time.
18. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
all signatures were on the same instrument.
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IN WITNESS WHEREOF, Buyer, Merger Sub and the Principal
Stockholder have caused this Agreement to be duly executed as of the day and
year first above written.
DECODE GENETICS, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: CEO and President
SAGA ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Director
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
