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EXHIBIT 4.2
STOCKHOLDER AGREEMENT
This Stockholder Agreement is made and entered into as of this ____ day
of ______________, 2001 by and among the undersigned stockholder (the
"Stockholder") of Coelacanth Corporation, a Delaware corporation (the
"Company"), Lexicon Genetics Incorporated, a Delaware corporation (the "Parent")
and Angler Acquisition Corp., a Delaware corporation and wholly owned subsidiary
of the Parent (the "Merger Sub"). This Agreement is being delivered pursuant to
Sections 4.11 and 5.3(h) of the Agreement and Plan of Merger dated as of June
__, 2001 (the "Merger Agreement") by and among the Parent, the Merger Sub and
the Company. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement.
WHEREAS, the Merger Agreement provides that it is a condition to the
obligations of the Parent and the Merger Sub to consummate and effect the Merger
Agreement and the transactions contemplated thereby that stockholders of the
Company holding at least 90% of the Company's outstanding common stock, $.0001
par value per share (the "Common Stock"), on a fully diluted, as-converted
basis, shall have executed and delivered this Agreement;
WHEREAS, the Parent and the Merger Sub would not consummate and effect
the transactions contemplated by the Merger Agreement if such condition were not
satisfied;
WHEREAS, the Stockholder expects to derive a significant benefit from
the consummation of the transactions contemplated by the Merger Agreement; and
WHEREAS, the Stockholder desires to execute and deliver this Agreement
as an inducement to the Parent and the Merger Sub to consummate and effect the
transactions contemplated by the Merger.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the Stockholder hereby represents and warrants to and
agrees with the Parent and the Merger Sub as follows:
1. Stockholder's Title and Authority. The Stockholder hereby represents
and warrants to the Parent and the Merger Sub that (a) the Stockholder has duly
authorized, executed and delivered this Agreement and this Agreement constitutes
a valid and binding agreement and neither the execution and delivery of this
Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will constitute a violation of, a default under, or conflict
with any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or by which the
Stockholder is bound; (b) consummation by the Stockholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of law applicable to the Stockholder; (c) the shares
of capital stock of the Company and options and warrants to acquire capital
stock of the Company as set forth on the signature page hereto (the "Shares")
and the certificates or other instruments representing same are now and, at the
Closing, will be, held by the Stockholder or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements or any other encumbrances
whatsoever ("Encumbrances") with respect to the ownership or voting of the
Shares or otherwise, other than Encumbrances created by or arising pursuant to
the Agreement and Irrevocable Proxy previously executed by the Stockholder, if
so executed by the Stockholder, and there are no outstanding options, warrants
or rights to purchase or acquire, or proxies, powers-of-attorney, voting
agreements, trust agreements or other agreements relating to, the Shares other
than such Agreement and Irrevocable Proxy; (d) such Shares constitute all of the
securities of the Company owned beneficially or of record by the Stockholder on
the date hereof and as will be so owned on the Closing Date; and (e) the
Stockholder has the present power and right to vote all of the Shares (other
than options and warrants) that are entitled to vote.
2. Stockholders' Representative. The Stockholder hereby irrevocably
ratifies and agrees to the appointment of Xxxxxxx Xxxxxxxxx, on behalf of MPM
Asset Management, as the representative (the "Representative") of the
stockholders of the Company (provided that the Representative may be replaced in
accordance with Section 8.4 of the Merger Agreement) for the purpose of
administering the Merger Agreement on behalf of the Stockholder, to the extent
set forth in the Merger Agreement and the Indemnity Escrow Agreement, including
without limitation, signing the Indemnity Escrow Agreement, performing the
functions and acts of the Representative thereunder, delivering appropriate
instructions and executing any documents or agreements
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necessary or desirable for carrying out the functions of the Representative
thereunder and otherwise administering the indemnification and escrow
distribution provisions set forth in Article 8 of the Merger Agreement. The
Stockholder agrees that the Parent and the Surviving Corporation shall be
entitled to deal exclusively with the Representative and that the Representative
shall have the authority to bind the Stockholder with respect to all such
matters arising under the Merger Agreement and the Escrow Agreement.
3. Registration Rights. The Stockholder has reviewed, and hereby
understands, acknowledges and agrees to, the provisions relating to registration
set forth in Section 4.11 of the Merger Agreement and further agrees to provide
timely to the Representative the information relating to the Stockholder
required by Section 4.11(c) of the Merger Agreement. The Stockholder has
reviewed, and hereby acknowledges and agrees to be bound by and in accordance
with, the indemnification provisions and procedures set forth in Sections
4.11(g) and (h), respectively, of the Merger Agreement.
4. Investment Intent. The Stockholder hereby represents and warrants to
each of the Parent and Merger Sub as follows: (i) the Stockholder is acquiring
the shares of Parent Common Stock to be issued pursuant to the Merger Agreement
and the Merger to such Stockholder solely for such Stockholder's account, for
investment purposes only and with no current intention or plan to distribute,
sell or otherwise dispose of any of those shares in connection with any
distribution in violation of the securities laws; (ii) the Stockholder is not a
party to any agreement or other arrangement for the disposition of any shares of
Parent Common Stock; (iii) the Stockholder is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"); (iv) the Stockholder (A) is able to bear the economic risk of
an investment in the Parent Common Stock acquired pursuant to the Merger
Agreement and the Merger, (B) can afford to sustain a total loss of that
investment, (C) has such knowledge and experience in financial and business
matters, and such past participation in investments, that he is capable of
evaluating the merits and risks of the proposed investment in the Parent Common
Stock, (D) has received and reviewed copies of the Merger Agreement, the Parent
SEC Reports and the Company's unaudited consolidated balance sheet dated April
30, 2001 and the Company's unaudited consolidated statement of operations for
the 10-month period ending on April 30, 2001; and (v) the Stockholder, if a
corporation, partnership, trust or other entity, acknowledges that it was not
formed for the specific purpose of acquiring the Parent Common Stock. Without
limiting any of the foregoing, the Stockholder acknowledges that the shares of
Parent Common Stock to be delivered to such Stockholder pursuant to the Merger
Agreement and the Merger have not been registered under the Securities Act or
qualified under applicable blue sky laws, and the Stockholder agrees not to
dispose of any portion of Parent Common Stock unless either (x) a registration
statement under the Securities Act is in effect as to the applicable shares and
the disposition is made in accordance with that registration statement, or (y)
an exemption from the registration requirements of the Securities Act is
available with respect to the applicable shares and the disposition is made in
accordance with that exemption; and, in the case of either (x) or (y), the
disposition is made in accordance with the provisions of Sections 6 and 7 of
this Agreement.
5. Receipt and Release. As of the Closing and upon distribution of the
Purchase Price in accordance with the Merger Agreement, the Stockholder
acknowledges, confirms and agrees that the shares of Parent Common Stock
allocated to such Stockholder, and issued to such Stockholder or to the
Representative on behalf of such Stockholder, at the Effective Time pursuant to
the Merger and the Merger Agreement constitute in full such Stockholder's
proportionate share of the Purchase Price determined in accordance with Section
1.6 of the Merger Agreement and to which such Stockholder is entitled pursuant
to the Merger Agreement. The Stockholder hereby remits, releases, acquits and
forever discharges the Company, the Surviving Corporation and the Parent of and
from any Claims (as defined below) relating to the sufficiency or amount of
consideration allocated to and received by such Stockholder (or by the
Representative on behalf of such Stockholder) at the Effective Time pursuant to
the Merger Agreement and the Merger.
As of the Closing, the Stockholder does hereby for the Stockholder and
any of the Stockholder's heirs, executors, administrators and legal
representatives remise, release, acquit and forever discharge the Company (and,
as of the Effective Time, the Surviving Corporation) of and from any and all
claims, demands, liabilities, responsibilities, disputes, causes of action and
obligations (collectively "Claims") of every nature whatsoever, liquidated or
unliquidated, known or unknown, matured or unmatured, fixed or contingent, which
such Stockholder now has, owns or holds or has at any time previously had, owned
or held against the Company including, without limitation, any and all Claims
arising out of the negligence, gross negligence or willful acts of the Company
and its employees and agents, whether any such Claim exists as of the Closing or
relates to any matter that occurred on or
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prior to the Closing; provided, however, that, except as set forth in the
preceding paragraph, any Claim that may arise in connection with the failure of
any of the parties hereto to perform any of their obligations hereunder or under
the Merger Agreement or under any other agreement relating to the transactions
contemplated hereby or by the Merger Agreement or from any breaches by any such
party of any of such party's representations or warranties herein or in any
other agreement relating to the transactions contemplated hereby or by the
Merger Agreement shall not be remised, released, acquitted or discharged
pursuant to this Agreement.
The Stockholder hereby represents and warrants that the Stockholder has
not previously assigned or transferred, or purported to assign or transfer, to
any person all or any part of any such Claims. The Stockholder covenants and
agrees not to assign or transfer to any person all or any part of any such
Claims. The Stockholder represents and warrants that the Stockholder has read
and understands all of the provisions of this Section 5 and that the Stockholder
has been represented by legal counsel of his own choosing in connection with the
negotiation, execution and delivery of this Agreement.
6. Certain Prohibited Transactions. The Stockholder hereby agrees that,
except with the prior written consent of Parent, the Stockholder will not sell,
offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any
right with respect to any Parent Common Stock issued to the Stockholder pursuant
to the Merger Agreement and the Merger (collectively, a "Disposition"), or
engage in any hedging or other transaction which is designed to or could
reasonably be expected to lead to or result in a Disposition of any such Parent
Common Stock by such Stockholder or any other person or entity. Such prohibited
hedging or other transaction shall include, without limitation, effecting any
short sale or having in effect any short position (whether or not such sale or
position is against the box and regardless of when such position was entered
into) or making any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any such Parent Common Stock
or with respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its value
from Parent Common Stock.
7. Restrictions on Sale of Parent Company Stock. The restrictions
described in Section 6 above will lapse as follows: (i) on the earlier to occur
of (A) the effective date of the Registration Statement or (B) the 90th day
after the Closing Date, with respect to 50% of the Parent Common Stock received
by the Stockholder pursuant to the Merger Agreement and the Merger, (ii) on the
180th day after the Closing Date with respect to 20% of such Parent Company
Stock, (iii) on the 270th day after the Closing Date with respect to 20% of such
Parent Company Stock and (iv) on the first anniversary of the Closing Date with
respect to the remainder of such Parent Common Stock, which remainder shall be
the Parent Common Stock held in escrow pursuant to the Indemnity Escrow
Agreement.
8. Escrow. The Stockholder hereby acknowledges that the Stockholder has
reviewed Section 9.1 of the Merger Agreement, and agrees that Parent is entitled
to deduct from the Escrow Fund amounts equal to the Excess Expenses. The
Stockholder has reviewed and understands the indemnification provisions in
Articles 7 and 8 of the Merger Agreement and hereby agrees that the Escrow Fund
shall be available to satisfy such matters for which the Escrow Fund is
available under the terms of the Merger Agreement, subject to the limitations
and procedures set forth in Articles 7 and 8 of the Merger Agreement. The
provisions of Articles 7 and 8 of the Merger Agreement shall apply mutatis
mutandis to any such misrepresentation or breach by the Stockholder.
9. Notices. Any notice, demand, or communication required or permitted
to be given by any provision of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if (a) personally delivered, (b)
mailed by registered or certified first-class mail, prepaid with return receipt
requested, (c) sent by a nationally recognized overnight courier service, to the
recipient at the address below indicated or (d) delivered by facsimile which is
confirmed in writing by sending a copy of such facsimile to the recipient
thereof pursuant to clause (a) or (c) above:
If to Parent/Merger Sub:
Lexicon Genetics Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxx, President and CEO
Telefax: 000-000-0000
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with a copy to:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telefax: (000) 000-0000
If to the Stockholder:
________________________
________________________
________________________
with a copy to:
________________________
________________________
________________________
with a copy to:
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Telefax: ________________
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner.
Except as otherwise provided herein, any notice under this Agreement
will be deemed to have been given (x) on the date such notice is personally
delivered or delivered by facsimile, (y) four days after the date of mailing if
sent by certified or registered mail or (z) the next succeeding business day
after the date such notice is delivered to the overnight courier service if sent
by overnight courier; provided that in each case notices received after 4:00
p.m. (local time of the recipient) shall be deemed to have been duly given on
the next business day.
10. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
11. Governing Law. This Agreement shall be construed under and governed
by the laws of the State of Delaware applicable to contracts made and to be
performed entirely within such state without giving effect to the provisions
thereof relating to conflicts of law.
12. Amendment. This Agreement may not be amended, modified or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
13. Binding Effect; Assignment. The terms and provisions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the successors and permitted assigns of the parties hereto. No party hereunder
shall have the right to assign its rights hereunder or any interest herein
without the prior consent of the other parties hereto. Nothing in this Agreement
is intended or shall be construed to confer upon any person other than the
parties hereto and their respective permitted assigns any right, remedy or claim
under or by reason of this Agreement or any part hereof.
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14. Headings. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
15. Construction. This Agreement has been negotiated by the Stockholder
and the Parent and their respective legal counsel, and legal and equitable
principles that might require the construction of this Agreement against the
party drafting this Agreement shall not apply in any construction or
interpretation of this Agreement.
16. Severability. Any provision of this Agreement which is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
17. Further Assurances. The Stockholder will, upon request, execute and
deliver any additional documents and take such further actions as may reasonably
be necessary or desirable to carry out the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholder
Agreement as of this _____ day of __________, 2001.
______________________________________
Signature of Stockholder
______________________________________
Name of Stockholder
Shares Owned:
___________ shares of Common Stock
___________ shares of Series A Preferred Stock
___________ shares of Series B Preferred Stock
___________ shares of Series C Preferred Stock
___________ shares of Series D Preferred Stock
Options and Warrants Owned:
Options to purchase ______________ shares of Common Stock
Warrants to purchase _____________ shares of Common Stock
Agreed and Accepted:
LEXICON GENETICS INCORPORATED
By: ____________________________________
Name:____________________________________
Title:___________________________________
ANGLER ACQUISITION CORP.
By: ____________________________________
Name:____________________________________
Title:___________________________________
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