TAG-ALONG RIGHTS AGREEMENT
Exhibit 10.17
This
Tag-Along Rights Agreement (this "Agreement") is entered into effective as of
November l, 2003, by and among Xxxxxx X. Xxxxxxxxxxxx ("Xxxxxxxxxxxx "),
Xxxxxxxxx Xxxxxxxxxx ("Xxxxxxxxxx", and with Xxxxxxxxxxxx, the "Majority
Holders"), and the shareholders and derivative holders of Omnimmune Corp., a
Texas corporation (the "Company") listed on Exhibit A attached hereto (the
"Minority Holders," and with the Majority Holders, the "Holders"),
Recitals:
A. The
Majority Holders collectively own more than 80% of the Fully Diluted equity of
the Company.
B. The
Holders desire to enter into this Agreement to provide for certain rights in the
event either Majority Holder desires to transfer a significant portion of his
shares of Common Stock.
NOW,
THEREFORE, in consideration of the premises and mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereby
agree as follows:
1.
DEFINITIONS. .
1.1
Definitions. For purposes of this Agreement:
(a)
"Common Stock" means the common stock, par value $0.01 per share, of the
Company,
(b)
"Fully Diluted" means the number of shares of voting capital stock entitled to
vote for directors of the Company in a regular election taking into account the
potential issuance of shares of voting capital stock upon: (a) conversion (or
exchange) of any convertible (or exchangeable) securities, and (b) exercise of
any options, warrants or other rights to purchase voting capital stock, and
adjusted to reflect stock dividends, stock splits, combinations, and
recapitalizations or similar events; provided that, securities that are not then
exercisable by their terms at the time of such determination will not be
considered in determining the "fully diluted" equity of the
Company.
(c)
"Required Amount of Common Stock," with respect to either Majority Holder, shall
mean 30% or more of the shares of Common Stock of the Company held by such
Majority Holder, and with respect to the Majority Holders collectively, shall
mean 30% or more of the shares of Common Stock of the Company held by such
Minority Holders.
2.
TAG-ALONG RIGHTS.
2.1 Tag
Notice. If at any time the Majority Holders collectively or either Majority
Holder individually desires to transfer or dispose of the Required Amount of
Common Stock, such person or persons (the "Selling Shareholder") must first give
to the Company and each other Holder (collectively, the "Other Holders") a
written notice signed by the Selling Shareholder (the "Selling Shareholders
Notice") stating: (a) the Selling Shareholders bona fide desire to transfer its
shares of Common Stock; (b) the number of shares of Common Stock offered by the
Selling Shareholder ("Offered Stock"); (c) the form of consideration (the
"Offered Consideration") and price per share at which the Offered Stock is
offered (the "Offered Price"); (d) the proposed time of closing and payment for
the Offered Stock (the "Closing Date"); and (f) any other relevant material
terms of the proposed sale of the Offered Stock.
2.2
Mechanics of Tag-Along.
(a) Upon
delivery of a Selling Shareholder's Notice, each of the Other Holders will have
the right (but not the obligation), exercisable at any time for 30 days (the
"Tag Exercise Period") from the date on which the Selling Shareholders Notice
was given, to require the Selling Shareholder to offer to the proposed
transferee from each respective Other Holder a number of shares of Common Stock
not less than the amount calculated by multiplying (a) the number of shares of
Common Stock offered by Selling Shareholder by (b) the quotient derived by
dividing (i) the number of shares of Common Stock (on an as-converted basis)
owned by the Other Holders by (ii) the total number of shares of Common Stock
owned by the Shareholders (on a Fully Diluted basis);
(b) If
none of the Other Holders provides the Selling Shareholder with notice of its
election to exercise the right set forth in Section 2.2gal within the Tag
Exercise Period, the Other Holders shall be deemed to have elected not to
exercise such right, and the Selling Shareholder shall have the right to offer
the applicable shares of Common Stock to the proposed transferee free of the
Other Holders' tag-along rights under this Article 2; provided, however, that,
(i) such offer (and if such offer is accepted, the sale) must be on terms and
conditions no more favorable in all respects to Selling Shareholder as the terms
and conditions described in the Selling Shareholder’s Notice, and (ii) any
transfer to a proposed transferee must be consummated within 180 days after the
date of the Selling Shareholder's Notice; and
(c) If
any of the Other Holders provides the Selling Shareholder with notice of its
election to exercise its rights set forth in Section 2.2gat within the Tag
Exercise Period, and the proposed transferee accepts the offer of the Selling
Shareholder, the Selling Shareholder shall be required, as a condition to the
consummation of a transfer to the proposed transferee, to either purchase the
number of the Other Holder's shares of Common Stock calculated in accordance
with Section 2.2{a) at the same price per share (on an as-converted basis) and
upon the same terms and conditions as Selling Shareholder’s proposed transfer,
or cause the proposed transferee to do so; provided that in the event that the
proposed transfer is not consummated, the Selling Shareholder shall have no
obligations under this Section 2.2(c).
2.3
Termination of Tag-Along.
The
Majority Holders' and Minority Holders' rights and obligations under this
Article 2 shall terminate on the effective date of the Company's firm commitment
underwritten initial public offering pursuant to a Registration Statement under
the Securities Act of 1933, as amended.
3.
MISCELLANEOUS.
3.1
Notices. Any notice, request, demand or other communication required or
permitted to be given to a party pursuant to the provisions of this Agreement
will be in writing and will be effective and deemed given or delivered under
this Agreement on the earliest of: (a) the date of personal delivery, (b) the
date of transmission by facsimile, with confirmed transmission and receipt, (c)
two days after deposit with a nationally-recognized courier or overnight service
such as Federal Express, or (d) five days after mailing via certified mail,
return receipt requested. All notices not delivered personally or by facsimile
will be sent with postage and other charges prepaid and properly addressed to
the party to be notified at the address set forth for such party on the
signature page hereof Any party hereto (and such party’s permitted assigns) may
change such party’s address for receipt of future notices hereunder by giving
written notice to the Company and the other parties hereto.
3.2
Governing Law. This Agreement and the performance of the transactions and the
obligations of the parties hereunder will be governed by and construed and
enforced in accordance with the laws of the State of Texas.
3.3
Entire Agreement, This Agreement constitutes the entire agreement and
understanding of the parties in respect of its subject matters and supersedes
all prior understandings, agreements, or representations by or among the parties
hereto, written or oral, to the extent they relate in any way to the subject
matter hereof or the transactions contemplated hereby,
3.4
Counterparts, This Agreement may be executed in two or more counterparts, each
of which will be deemed an original but all of which together will constitute
one and the same instrument.
3.5
Amendment. This Agreement may be amended or modified only upon the written
consent of each of the parties hereto.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the date first written above.
/s/Xxxxxx X.
Xxxxxxxxxxxx
XXXXXX X.
XXXXXXXXXXXX
Address
for Notice Purposes:
0000 Xxxx
Xxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Facsimile:
000-000-0000
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the date first written above.
/s/Xxxxxxxxx
Xxxxxxxxxx
XXXXXXXXX
XXXXXXXXXX
Address
for Notice Purposes:
________________________________
________________________________
Facsimile:
000-000-0000
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the date first written above.
/s/Xxxxxxx X.
Xxxxx
XXXXXXX
X. XXXXX
Address
for Notice Purposes:
0000
Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Facsimile:
000-000-0000
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the date first written above.
________________________________
Address
for Notice Purposes:
________________________________
________________________________
Facsimile:
________________________
Exhibit
A
Allegheny-Singer
Research Institute
Xxxxxx
Xxxxx
S.C.
Weil
X.
Xxxx
X.
Xxxxx
X.
Xxxxxxxxx
X.
Xxxxxx
X.
Xxxxxxxxx
Xxxxx
Foundation
Xxxx
Xxxxxxxxx
X.
Xxxxxx
XxxXxxxxxx/Xxxxxxxx
X.
Xxxxxxxx
X.
Xxxxxxx
X.
Xxxxxxx
X.
Xxxxxxxx
X.
Xxxxxxx
X.
Xxxxxxxx
X.
Xxxxx
X.
Xxxx
S.C.
Xxxx
X.
Xxxxxxxxxxxx
X.
Xxxxxx
Xxxxxxx
X. Xxxxx
Xxxxxxxxx
X. Xxxxxx
