VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT
Exhibit 9.1
Execution Version
Execution Version
VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT, effective as of October 21, 2005 (this
“Agreement”), by and among the Xxxxxxx X. Xxxxx, Xx. Revocable Living Trust (the “Trust”) and Mr.
Fuad El-Hibri (the “Mr. El-Hibri”).
BACKGROUND
The parties hereto own certain membership interests in Intervac, L.L.C. (“Intervac”), a
Maryland limited liability company governed by the terms of an Amended and Restated Operating
Agreement, dated as of July 1, 1998, among the members thereto, as amended and/or supplemented from
time to time (the “Operating Agreement”).
The Trust is the beneficial and record owner of an 18% Interest (as such term is defined in
the Operating Agreement) in Intervac (together with any other Interest the Trust may hereafter
hold, the “Trust Interest”). Mr. El-Hibri, together with Xxxxx El-Hibri, as tenants by the
entirety, are the beneficial and record owners of a 32.5% Interest (as such term is defined in the
Operating Agreement) in Intervac, four and a half percent (4.5%) of which was purchased pursuant to
a Buy and Sell Agreement, dated as of the date hereof, by and between the Trust (as seller) and
Fuad El-Hibri, and Xxxxx El-Hibri, as tenants by the entirety, and a Buy and Sell Agreement, dated
as of the date hereof, by and between Fuad El-Hibri, and Xxxxx El-Hibri, as tenants by the
entirety, and the United States Naval Academy Foundation, Inc. (as seller) (together, the “Buy and
Sell Agreements”).
In consideration of the above referenced purchases of Interest (as such term is defined in the
Operating Agreement) under the Buy and Sell Agreements, the parties desire to enter into this
Agreement in order to codify their mutual agreement regarding the voting of the Trust Interest and
Mr. El-Hibri’s right of first refusal to acquire certain Trust Interest in certain sales of Trust
Interest.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements contained herein and other good and
adequate consideration, the parties hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the following respective
meanings:
“Business Day” means any day that is not a Saturday, Sunday or day on which banking
institutions in New York, New York are not required to be open.
“Person” means any individual, partnership, corporation, limited liability company, group,
trust or other legal entity.
“Transfer” means any sale, assignment, transfer, pledge, bequest, hypothecation, mortgage,
other disposition, grant of proxy with respect to, or any encumbrance, whether
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voluntary or involuntary or whether by operation of law of a Trust Interest or portion
thereof. The words “Transferred” and “Transfers” as used herein have correlative meanings.
2. Representations and Warranties. Each of the Trust and Mr. El-Hibri hereby represent and
warrant to the other that:
(a) it/he has the requisite power and authority to enter into and perform this Agreement;
(b) it/his execution, delivery and performance of this Agreement have been duly authorized by
all necessary action;
(c) (with respect only to the trust) this Agreement has been duly executed by an authorized
trustee of the Trust; and
(d) the performance of this Agreement by it/he will not require it/him to obtain the consent,
waiver or approval of any person and will not violate, result in a breach of, or constitute a
default under any statute, regulation, agreement, judgment, consent, or decree by which it/him is
bound.
3. Voting. The Trust shall, at any time that it owns any Trust Interest and such Trust
Interest has rights to vote at any annual, special or other general meeting or pursuant to a
written resolution of Intervac’s members, vote such Trust Interest for and against and abstain from
voting with respect to any proposal in the same manner and to the same extent as Mr. El-Hibri. The
Trust hereby irrevocably grants to Mr. El-Hibri, a proxy, coupled with an interest, with full power
of substitution, to vote all Trust Interest in the manner described in the preceding sentence.
4. Right of First Refusal.
(a) In the event that the Trust receives a bona fide arms’ length offer (“Offer”) from a third
party (the “Offeror”) to acquire any Trust Interest for any compensation, including, but not
limited to, cash or marketable securities, the value of which marketable securities shall be
determined based on the trading price on the close of business on the date of such offer, the Trust
shall first deliver to Mr. El-Hibri a written notice (the “First Refusal Notice”), which First
Refusal Notice shall be irrevocable for a period of 14 Business Days after receipt thereof,
offering all of the Trust Interest proposed to be Transferred by the Trust at the same economic
terms (where possible) specified in the Offer (such First Refusal Notice shall include the
foregoing information and all other terms of the Offer). Mr. El-Hibri shall have the right and
option to notify the Trust, in a writing (the “Right Acceptance”) delivered within 14 Business Days
of receipt of the First Refusal Notice, of his intent to purchase all or any portion of the Trust
Interest proposed to be Transferred by matching the economic terms (where possible) of the terms
stated in the First Refusal Notice.
(b) Transfers of Trust Interest under the terms of Section 4(a) above shall be made at such
location as Mr. El-Hibri may specify on a mutually satisfactory Business Day within 30 days after
the delivery by Mr. El-Hibri of the Right Acceptance. Delivery of certificates or other
instruments, documents, agreements or amendments evidencing such Transferred Trust Interest
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(duly endorsed for Transfer, if required) shall be made on such date against payment of the
purchase price therefor.
(c) If effective Right Acceptance shall not be received pursuant to Section 3(a) above with
respect to all of the Trust Interest offered for Transfer pursuant to a First Refusal Notice, then
the Trust may Transfer to the Offeror (and no other Person) all but not less than all of the Trust
Interest so offered and not so accepted at a price not less than the price, and on the same terms
and conditions as stated in the First Refusal Notice at any time within 30 days after the
expiration of the 14 Business Day period specified in Section 3(a) which commences upon Mr.
El-Hibri’s receipt of the First Refusal Notice; provided, however, that the Offerer agrees in
writing to be bound by the terms of this Agreement as provided in Section 5(a) below.
(d) In the event that such Trust Interest are not Transferred by the Trust to the Offeror
during the 30 day period specified in Section 3(c), then the right of the Trust to Transfer such
Trust Interest to the Offeror pursuant to the Offer shall expire and any Transfer of such Trust
Interest shall be made in accordance with this Section 3.
5. Transfer Restrictions; Legend.
(a) Transfer Restrictions. The Trust on behalf of itself, and each and any executor,
administrator, heir, successors or permitted assigns, hereby agrees that all Transfers of Trust
Interest made by it shall be made subject to this Agreement and any transferee, including, but not
limited to, any Affiliate, heir, successors or permitted assigns, will agree in writing to be bound
by the terms and provisions of this Agreement as a condition precedent to any such Transfer.
(b) Legend. If at any time any certificate(s) is/are issued by Intervac representing
any Interest held by the Trust, then each such certificate shall be endorsed with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN VOTING REQUIREMENTS AND OTHER RESTRICTIONS SET FORTH IN A
VOTING AND RIGHTS AGREEMENT BETWEEN THE HOLDER OF THIS CERTIFICATE
AND CERTAIN OTHER PARTIES. TRANSFER OF THE SECURITIES IS SUBJECT TO
THE RESTRICTIONS CONTAINED IN SUCH AGREEMENT.
6. Additional Interest. If, after the effective date hereof, the Trust, or any trustee
thereof acquires beneficial or record ownership of any additional Interest in Intervac (any such
Interest, “Additional Interest”), including, without limitation, upon exercise of any right to
acquire Interest in Intervac, the provisions of this Agreement shall thereafter be applicable to
such Additional Interest as if such Additional Interest had been held by such party as of the
effective date hereof. The provisions of the immediately preceding sentence shall be effective with
respect to Additional Interest without action by any Person immediately upon the acquisition by
such party or its Affiliates of beneficial ownership of such Additional Interest. Such party shall
cause
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any Affiliate or trustee that acquires Additional Interest to enter into a written joinder to this
Agreement in form and substance satisfactory to the other party.
7. Termination. This Agreement shall automatically terminate five (5) years from the
effective date of this Agreement first written above. Upon the termination of this Agreement,
except as otherwise set forth herein, the restrictions and obligations set forth herein shall
terminate and be of no further effect, except that such termination shall not affect rights
perfected or obligations incurred under this Agreement prior to such termination.
8. Miscellaneous.
(a) Binding Effect. This Agreement and all the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, estates, successors and
permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent of the other
parties. The parties hereto agree to cause their Affiliates to agree in writing to be bound by the
terms of this Agreement prior to, or immediately upon, the acquisition of any Interests by such
Affiliates.
(b) Amendments. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by each of the parties
hereto. However, any party may waive any condition to the obligations of any other party
hereunder.
(c) Notices. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered by
hand, facsimile or mail, certified or registered mail (return receipt requested) with postage
prepaid:
| (i) | If to Mr. Fuad El-Hibri, to: | |||
| Mr. Fuad El-Hibri | ||||
| 00000 Xxxxxx Xxxx Xxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| (ii) | If to the Trust, to: | |||
| Xxxxxxx X. Xxxxx, Xx. Revocable Living Trust | ||||
| c/o Xxxxxxx X. Xxxxxxx | ||||
| 00000 Xxxxxx Xxxxx Xx. | ||||
| Xxxxxxxxx, XX 00000 |
or to such other address as any party may have furnished to the others in writing in accordance
herewith.
(d) Arbitration. Any controversy or claim arising out of or relating to this Agreement
will be settled by arbitration in accordance with the following provisions:
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(i) Disputes Covered. The agreement of the parties to arbitrate covers all disputes
of every kind relating to or arising out of this Agreement, except disputes determined not
to be arbitratable by the arbitrator. Disputes include actions for breach of contract with respect
to this Agreement or the related agreement. In addition, the arbitrator selected according to
procedures set forth below will determine the arbitrability of any matter brought to them,
including their authority to impose equitable remedies that may be requested in good faith by a
party, and their decision will be final and binding on the parties.
(ii) Venue. The venue for the arbitration will be in Rockville, Maryland.
(iii) Law. The governing law for the arbitration will be the law of the State of
Maryland without reference to its conflicts of laws provisions.
(iv) Selection. There will be a single arbitrator appointed by the American
Arbitration Association.
(v) Administration. The arbitration will be administered by the American Arbitration
Association.
(vi) Rules. The rules of arbitration will be the Commercial Arbitration Rules of the
American Arbitration Association, as modified by any other instructions that the parties may agree
upon at the time. If there is any conflict between the Commercial Arbitration Rules and the
provisions of this section, the provisions of this section will prevail.
(vii) Substantive Law. The arbitrator will be bound by and shall strictly enforce the
terms of this Agreement and may not limit, expand or otherwise modify its terms. The arbitrator
will make a good faith effort to apply substantive applicable law, but an arbitration decision
shall not be subject to review because of errors of law.
(viii) Decision. The arbitrator’s decision will provide a reasoned basis for the
resolution of each dispute and for any award. The arbitrator will not have power to award damages
in connection with any dispute in excess of actual compensatory damages.
(ix) Fees; Expenses. Unless the arbitrator’s decision otherwise directs each party
will bear its own fees and expenses with respect to the arbitration and any proceeding related
thereto and the parties will share equally the fees and expenses of the American Arbitration
Association and the arbitrator.
(x) Remedies; Award. The arbitrator will have power and authority to award any remedy
or judgment that could be awarded by a court of law in Maryland, subject to the limitations set
forth in this Agreement. The award rendered by arbitrator will be final and binding upon the
parties, and judgment upon the award may be entered in any court of competent jurisdiction in the
United States.
(e) Equitable Relief. The parties agree that it is impossible to determine the
monetary damages which would accrue to any party by reason of the failure of any party to perform
any of its obligations under this Agreement. Each party shall be entitled to enforce its rights
under this Agreement specifically and to exercise all other rights existing in its favor. The
parties hereto
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agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement. Accordingly, notwithstanding the agreement of the parties to
arbitrate set forth in Section 8(d), in addition to any other right or remedy (including money
damages) to which a party may be entitled, at law or in equity, each party shall be entitled in its
sole discretion to apply to any court of law, or equity, of competent jurisdiction for specific
performance, injunctive relief or such other relief as such court may deem just and proper in order
to enforce any provision or prevent any breach or threatened breach of this Agreement and, to the
extent permitted by applicable law, each party waives (a) any objection to the imposition of such
relief and any claim or defense that there is an adequate remedy at law for such breach or
threatened breach, and (b) any requirement to post any bond or make any other undertaking or other
security. The availability of such remedies shall not prohibit any party from pursuing any other
remedies for such breach or threatened breach, including the recovery of damages from a breaching
party.
(f) Applicable Law. This Agreement and the legal relations among the parties hereto
arising from this Agreement shall be governed by and construed in accordance with the laws of the
State of Maryland, without reference to or application of any conflicts of law principles.
(g) Counterparts; Facsimile Execution. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed original but all of which shall
constitute one and the same instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
(h) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties, covenants or undertakings, other than those expressly set forth
or referred to herein. This Agreement supersedes all prior agreements and understandings among the
parties with respect to such subject matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and made
and entered into effective as of the date first set forth above.
Xxxxxxx
|
X. Xxxxx, Xx. Revocable Living Trust | |||
By:
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/s/ Xxxxxxx X. Xxxxx, Xx., Trustee
|
|||
| /s/ Fuad El-Hibri | ||||
| Mr. Fuad El-Hibri | ||||
