STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement ("Agreement") is made as of March 29,
1996, by and among Dermion, Inc., a Delaware corporation (the "Company"),
Ciba-Geigy Corporation, a New York corporation ("Ciba"), acting through its
Pharmaceuticals Division, and IOMED, Inc., a Utah corporation ("IOMED").
A. The Company and IOMED have entered into that certain Contribution
Agreement, dated of even date herewith (the "Contribution Agreement"), pursuant
to which IOMED has agreed to contribute certain assets to the Company in
exchange for Eight Hundred Thousand (800,000) newly issued shares (the "IOMED
Shares") of the Company's Common Stock, $.001 par value per share (the "Common
Stock").
B. The Company and Ciba have entered into a Stock Purchase Agreement,
dated of even date herewith (the "Stock Purchase Agreement"), pursuant to which
Ciba has agreed to purchase from the Company, and the Company has agreed to sell
to Ciba, Two Hundred Thousand (200,000) newly issued shares (the "Ciba Shares")
of Common Stock.
C. In consideration of the investment to be made by Ciba in the Company
pursuant to the Stock Purchase Agreement, the Company desires to grant certain
rights to Ciba, and IOMED desires to agree to certain provisions, in each case
on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the covenants set forth herein and in
the Contribution Agreement and the Stock Purchase Agreement and as an inducement
for the purchase of the Ciba Shares by Ciba, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement the following terms shall have the
meanings set forth below.
Act. The term "Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
Affiliate. The term "Affiliate" shall mean, with respect to any party
hereto, any person or entity which controls, is controlled by, or is under
common control with, such party, or any shareholder or other equity owner in a
control relationship with any of the foregoing. For this purpose the term
"control" shall mean the direct or indirect beneficial ownership of more than
fifty percent (50%) of the voting stock or interest in the income of such person
or entity, or such other relationship as, in fact, constitutes actual control.
Affiliate Transfer. The term "Affiliate Transfer" means any Transfer to
(i) the ancestors, descendants or spouse of the transferor, (ii) to a trust for
the benefit of either the transferor or any of the persons referred to in clause
(i) above, (iii) to the partners, shareholders or other holders of any equity
interest in the transferor, or (iv) to any Affiliate of the transferor.
Change of Control. The term "Change of Control" means any transaction or
series of related transactions, other than a registered public offering, as a
result of which the owners of the outstanding Voting Stock immediately prior to
such transaction or series of related transactions cease to own a majority of
the outstanding Voting Stock thereafter.
Ciba Percentage. The "Ciba Percentage" shall initially be twenty five
percent (25%); provided, however, that such percentage shall be subject to
reduction from time to time in the event that Ciba and its Affiliates cease to
own in the aggregate at least Two Hundred Thousand (200,000) shares (the
"Initial Share Number") of Eligible Securities (adjusted for stock splits,
combinations and the like). At any such time or times, the Ciba Percentage shall
be reduced by the percentage by which the number of shares of Eligible
Securities then owned by Ciba and its Affiliates in the aggregate is less than
the Initial Share Number. Any downward adjustment made to the Ciba Percentage
pursuant to the previous sentence shall be reversed in a like manner if, when
and to the extent that Ciba or its Affiliates subsequently acquire additional
shares of Eligible Securities; provided, however, that the Ciba Percentage shall
in no event exceed twenty five percent (25%).
Common Stock. The term "Common Stock" means the common stock, $.001 par
value per share, of the Company.
Eligible Securities. The term "Eligible Securities" means (i) the Ciba
Shares, and (B) any Common Stock issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Ciba Shares.
Exchange Act. The term "Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
Form S-3. The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
Holder. The term "Holder" means Ciba and any other person or entity
that acquires any Registrable Securities in compliance with Sections 3. 1 0 and
6.1 hereof
Initial Public Offering. The term "Initial Public Offering" means the
first registered underwritten public offering of the Company's Common Stock that
generates aggregate proceeds to the Company (net of underwriting discounts and
commissions but prior to other offering expenses payable by the Company) of at
least $ 1 0,000,000 at a price per share of at least $ 1.00 (adjusted to reflect
subsequent stock dividends, stock splits and the like).
Initiating Holders. The term "Initiating Holders" means any Holder or
Holders of not less than the lesser of (i) One Hundred Thousand (100,000) shares
of Registrable Securities (as adjusted for stock splits, combinations and the
like) and (ii) seventy-five percent (75%) of all shares of Registrable
Securities then held by the Holders.
Prohibited Transfer. The term "Prohibited Transfer" means any Transfer
other than (i) to the partners, shareholders of other holders of any equity
interest in the transferor, or (ii) pursuant to an effective registration
statement under the Act.
Registrable Securities. The term "Registrable Securities" means (i) the
Ciba Shares, (ii) any Common Stock issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Ciba Shares, and (iii) any Common Stock, and any Common Stock issuable upon
the conversion, exercise or exchange of any warrant, right or other security,
acquired by Ciba pursuant to its preemptive rights under Section 4.4 hereof-,
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which its rights under Article III of this Agreement are not
assigned; provided, however, that such shares of Common Stock shall only be
treated as Registrable Securities if and so long as they have not been sold to
or through a broker or dealer or underwriter in a public distribution or a
public securities transaction or pursuant to Rule 144 under the Act.
Sale of Control. The term "Sale of Control" means any of the following
events: (i) any transaction or series of related transactions, other than a
registered public offering, as a result of which persons owning the outstanding
Voting Stock of the Company immediately prior to such transaction or series of
related transactions cease to own a majority of the outstanding Voting Stock of
the Company thereafter; (ii) the consolidation or merger of the Company with or
into another person, whether or not the Company is the surviving entity of such
transaction, unless immediately after such consolidation or merger persons
owning (directly or indirectly) the outstanding Voting Stock of the Company
prior to the transaction own a majority of the outstanding Voting Stock of such
new or surviving entity, or (iii) the sale, assignment or other transfer of all
or substantially all of the business or assets of the Company to a third party
in a single transaction or series of related transactions. Notwithstanding the
foregoing, an Affiliate Transfer shall in no event constitute a Sale of Control.
Sale of Control Premium. The term "Sale of Control Premium" means (i)
if the Acquisition Consideration is Seven Million Dollars ($7,000,000) or less,
zero, (ii) if the Acquisition Consideration is more than Seven Million Dollars
($7,000,000) and less than Ten Million Dollars ($10,000,000), the product of (x)
.4167 multiplied by (y) the amount by which the Acquisition Consideration
exceeds Seven Million Dollars ($7,000,000), and (iii) if the Acquisition
Consideration is Ten Million Dollars ($10,000,000) or more, One Million Two
Hundred Fifty Thousand Dollars ($1,250,000).
SEC. The term "SEC" means the Securities and Exchange Commission or any
successor agency thereto.
Securities. The term "Securities" means any shares of, or securities
convertible into or exercisable or exchangeable for any shares of, any class of
capital stock of the Company, excluding (i) up to Eighty Eight Thousand Eight
Hundred Eighty Eight (88,888) shares of Common Stock (or options issued
therefor) to employees, consultants and independent contractors of the Company
in connection with their employment by or performance of services for the
Company, and (ii) any securities issued in connection with a bona fide business
acquisition by the Company, whether by merger, consolidation, purchase of
assets, exchange of stock or otherwise.
Transfer. The term "Transfer" means (i) the making of any sale,
exchange, assignment, conveyance, gift or other disposition (whether voluntary
or involuntary), (ii) the granting of any lien, security interest, pledge or
other encumbrance, or (iii) the entering into any agreement to do any of the
foregoing.
Voting Stock. The term "Voting Stock" means any issued and outstanding
shares of capital stock or other securities of the Company at any given time,
which entitle the holders thereof to vote generally in the election of
directors.
ARTICLE 11
BOARD REPRESENTATION
Section 2.1 Size of Board. The Company agrees to maintain the size of
its board of directors at no more than five persons. IOMED agrees to vote all
shares of Voting Stock owned by it at the time of such vote (a) in favor of any
proposal to fix the size of the Company's board of directors at no more than
five persons and (b) against any proposal to fix the size of the Company's board
of directors at more than five persons.
Section 2.2 Right to Appoint Director. Ciba shall have the right,
exercisable by it at its option, to nominate one (1) person for election to the
Company's board of directors; provided that such person shall be reasonably
acceptable to the Company (the "Ciba Nominee"). Ciba may replace the Ciba
Nominee at any time and from time to time in its discretion, provided that each
replacement is reasonably acceptable to the Company.
Section 2.3 Voting Agreement; Cooperation of Company. In the event Ciba
exercises its right to nominate a Ciba Nominee, IOMED agrees to vote all shares
of Voting Stock owned by it at the time of such vote to nominate, elect and
maintain in office the Ciba Nominee, and the Company agrees promptly to take all
corporate actions required to enable IOMED to fulfill such obligation.
Section 2.4 Certain Restrictions on Participation. Notwithstanding
anything to the contrary contained herein, the Ciba Nominee shall not be
entitled to attend any meeting, vote on or consent to any matter or receive any
material distributed to the directors of the Company if and to the extent that
any subject or document (a) to be reviewed, discussed or voted upon at any such
meeting, (b) to be consented to without a meeting, or (c) contained in any such
distributed material is, in the good faith determination of the members of the
Company's board of directors other than the Ciba Nominee, one that should not be
disclosed to Ciba because of confidentiality or competitive concerns of either
the Company or any person with whom the Company has engaged, or proposes to
engage, in a business relationship.
Section 2.5 Termination. The rights granted to Ciba in this Article II
shall terminate upon the earlier to occur of (a) the closing of the first public
offering of the Company's securities pursuant to a registration statement
declared effective under the Act, or (b) such time as Ciba and its Affiliates
cease to own an aggregate of One Hundred Thousand (100,000) shares of
Registrable Securities (as adjusted for stock splits, combinations and the
like).
Section 2.6 No Assignment. The rights of Ciba under this Article II ma
not be assigned to, or exercised by, any other person or entity, other than a
successor to Ciba's Pharmaceutical Division, whether by merger, consolidation,
stock sale, asset sale or otherwise.
Section 2.7 Legends.
(a) Until the termination of the rights granted to Ciba in
this Article II, each certificate representing shares of Common Stock now owned
or hereafter acquired by IOMED shall bear a legend in substantially the,
following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMEENT, DATED MARCH 29, 1996, PURSUANT TO WHICH THE
HOLDER HEREOF HAS AGREED TO VOTE THESE SECURITIES IN THE MANNER SET
FORTH THEREIN. A COPY OF THE STOCKHOLDERS' AGREEMEENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMEPANY.
The Company shall reissue promptly certificates without such legend upon
expiration of the rights granted to Ciba in this Article II.
(b) Until the termination of the restrictions imposed on IOMED
pursuant to Section 4.3(a) hereof, each certificate representing shares of
Common Stock now owned or hereafter acquired by IOMED shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMIENT, DATED MARCH 29, 1996, PURSUANT TO WHICH THE
HOLDER HEREOF IS SUBJECT TO CERTAIN RESTRICTIONS ON ITS ABILITY TO
TRANSFER THESE SECURITIES. A COPY OF THE STOCKHOLDERS' AGREEMEENT IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
COMPANY.
The Company shall reissue promptly certificates without such legend upon
expiration of the restrictions imposed on IOMED pursuant to Section 4.3 (a)
hereof
(c) Until the termination of the restrictions imposed on IOMED
pursuant to Section 4.3(b) hereof, each certificate representing shares of
Common Stock now owned or hereafter acquired by IOMED shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMEENT, DATED MARCH 29, 1996, PURSUANT TO WHICH THE
HOLDER HEREOF IS SUBJECT TO A RIGHT OF FIRST OFFER IN CONNECTION WITH
TRANSFERS OF THESE SECURITIES. A COPY OF THE STOCKHOLDERS' AGREEMENT IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
COMEPANY.
The Company shall reissue promptly certificates without such legend upon
expiration of the restrictions imposed on IOMED pursuant to Section 4.3(b) or
the last sentence of Section 6.1 hereof.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1 Requested Registration.
(a) In case the Company shall receive from Initiating Holders,
at any time after one hundred eighty (180) days following the first registered
public offering of the Company's Common Stock, regardless of whether such
offering is the Initial Public Offering, a written request that the Company
effect any registration under the Act, qualification or compliance with respect
to all of the Registrable Securities then held by such Initiating Holders, or
any portion thereof the sale of which is reasonably expected to yield gross
proceeds to the Initiating Holders of at least $2,000,000, the Company will:
(i) give written notice of the proposed registration,
qualification or compliance to all other Holders within ten (10) days after
receipt thereof, and
(ii) use its diligent best efforts to effect, as soon
as practicable, all such registrations, qualifications and compliances as may be
so requested and as would permit or facilitate the sale and distribution of all
of the Registrable Securities held by such Initiating Holders, together with all
of the Registrable Securities of any Holder or Holders who joins in such request
in a written request received by the Company within thirty (30) days after such
written notice is given; provided, that the Company shall not be obligated to
take any action to effect any such registration, qualification, or compliance
pursuant to this Section 3.1:
(A) In any particular jurisdiction in which
the Company would be required to execute a general consent to service of
process, to register as a dealer, or to cause any officer or employee of the
Company to register as a salesman in effecting such registration, qualification
or compliance;
(B) Within one hundred eighty (180) days
immediately following the effective date of any registration statement
pertaining to an underwritten public offering of securities of the Company for
its own account;
(C) After the Company has effected two (2)
such registrations pursuant to this Section 3.1;
(D) If the Company shall furnish to the
Initiating Holders a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to a material transaction then being pursued by
the Company or its stockholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 3.1 shall be deferred for a period not to
exceed one hundred eighty (180) days from the date of receipt of written request
from the Initiating Holders; provided, however, that the Company shall only be
entitled to such deferral one (1) time with respect to each registration
pursuant to this Section 3.1
(b) Subject to the foregoing, the Company will use its best
efforts to file a registration statement covering the Registrable Securities as
soon as practicable after receipt of the request or requests of the Initiating
Holders.
(c) The Initiating Holders shall include in their request made
pursuant to this Section 3.1 the name, if any, of the underwriter or
underwriters that such Initiating Holders would propose, with the consent of the
Company (which consent shall not be unreasonably withheld), to employ in
connection with the public offering proposed to be made pursuant to the
registration requested, and the Company shall include such information in the
written notice referred to in clause (i) of Section 3.1(a). The right of any
Holder to registration pursuant to this Section 3.1 shall be conditioned on such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting. The Company shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting in the manner set forth above.
Notwithstanding any other provision of this Section 3. 1, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities and the number of
shares of Registrable Securities that may be included in the registration and
underwriting, as determined by the underwriters, shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities requested to be registered by such Holders (or
in such other manner as the Holders requesting registration may elect in a
written notice to the Company signed by all such Holders). No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
Section 3.2 Form S-3 Registration.
(a) In case the Company shall receive from any Holder or
Holders a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, the Company
will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(ii) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request given
within thirty (30) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 3.2: (i) if
the Company is not qualified as a registrant entitled to use Form S-3; (ii) if
the Holders propose to sell Registrable Securities at an aggregate sales price
to the public of less than $1,000,000; (iii) in any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance and in which
it has not already filed such a consent; (iv) if the Company has effected one
such registration pursuant to this Section 3.2 during the preceding twelve (12)
months; or (v) if the Company has effected a registration on Form SI within the
preceding one hundred eighty (180) days. Subject to the foregoing, the Company
shall file a registration statement covering the Registrable " Securities and
other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
(b) Registrations effected pursuant to this Section 3.2 shall
not be counted as a Request for Registration effected pursuant to Section 3.1
hereof.
Section 3.3 Company Registration.
(a) If at any time, or from time to time, the Company shall
determine to register any of its securities, either for its own account or f6r
the account of a security holder or holders, other than (i) a registration on
Form S-8 relating solely to employee benefit plans, or a registration on Form
S-4 relating solely to an SEC Rule 145 transaction, or a registration on any
other form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities, (ii) a registration pursuant to Sections 3.1 or 3.2
hereof, or (iii) the Initial Public Offering (provided that at least ninety
percent (90%) of the securities sold therein are sold for the account of the
Company and that any selling shareholders acquired their shares in their
capacity as employees of the Company or its Affiliates), the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration, and in any
underwriting involved therein, all the Registrable securities specified in any
written request or requests by any Holder or Holders received by the Company
within thirty (30) days after such written notice is given on the same terms and
conditions as the Common Stock, if any, otherwise being sold through the
underwriter in such registration.
(b) If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to clause (i)
of Section 3.3(a). In such event the right of any Holder to registration
pursuant to this Section 3.3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. The
Company and all Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting agreement
in-customary form with the underwriter or underwriters selected for such
underwriting by the Company.
(c) Notwithstanding any other provision of this Section 3.3,
if the underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, and gives written notice
thereof to the Company or the Holders, the underwriter may limit the amount of
Registrable Securities to be included in the registration and underwriting. The
Company shall so advise all Holders of Registrable Securities which would
otherwise be registered and underwritten pursuant hereto, and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all of the Holders, in proportion, as
nearly as practicable, to the amounts of Registrable Securities requested to be
registered by such Holder.- 'or in such ot4ier manner as the Holders requesting
registration may eject in a written notice to the Company signed by all such
Holders). No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
Section 3.4 Expenses of Registration. All expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Article III, including without limitation, all registration, filing and
qualification fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements of one counsel
to the selling stockholders, accounting fees and expenses, and expenses of any
special audits incidental to or required by such registration, shall be borne by
the Company; provided, however, that the Company shall not be required to pay
underwriters' discounts or commissions relating to Registrable Securities.
Section 3.5 Registration Procedures. If and whenever the Company is
required by the provisions of this Article III to use its best efforts to effect
the registration of any of the Registrable Securities under the Act, the Company
will, as expeditiously as possible:
(a) Prepare and file with the SEC a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for such period as may be
necessary to permit the successful marketing of such securities (but not
exceeding one hundred eighty (180) days) or until the Holder or Holders have
completed the distribution described in the registration statement relating
thereto, whichever first occurs.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act; and to
keep such registration statement effective for that period of time specified in
Section 3.5(a) hereof.
(c) Furnish to each Holder participating in the registration
such number of prospectuses and preliminary prospectuses in conformity with the
requirements of the Act, and such other documents as such Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities being sold by such Holder;
(d) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(e) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(f) Furnish, at the request of' any Holder requesting
registration of Registrable Securities pursuant to this Article III, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Article III, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
(g) Use its best efforts to register or qualify the
Registrable Securities covered by such registration statements under such other
securities or blue sky laws of such jurisdictions as each such selling Holder of
Registrable Securities shall reasonably request and do any and all other acts
and things which may be necessary or desirable to enable such Holder to
consummate the public sale or other disposition in such jurisdictions, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or file a general consent to service of
process in any such jurisdictions.
(h) Give the Holders requesting registration of Registrable
Securities pursuant to this Article III, their underwriters, if any, and their
respective counsel and accountants, the opportunity to participate in the
preparation of any registration statement, each prospectus included therein or
filed with the SEC, and each amendment thereof or supplement thereto, and will
give each of them such access to its books and records and such opportunities to
discuss the business, finances and accounts of the Company and its subsidiaries
with its officers, directors and the independent public accountants who have
certified its financial statements as shall be necessary, in the reasonable
judgment of such Holders' and such underwriters' respective counsel, to conduct
a reasonable investigation within the meaning of the Act.
(i) Provide a transfer agent and registrar for all Registrable
Securities covered by such registration not later than the effective date of the
registration statement with respect to such Registrable Securities.
(j) Use its best efforts to list all Registrable Securities
covered by the registration statement on any securities exchange on which any of
the Registrable Securities are then listed.
Section 3.6 Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Holder of Registrable Securities with respect to which a registration statement
has been filed under the Act pursuant to this Article III, each of such Holder's
partners, officers, directors, employees, agents and advisors, each underwriter
of any of the Registrable Securities included in such registration statement,
and each person, if any, who controls any such Holder or underwriter within the
meaning of the Act or the Exchange Act (hereinafter collectively referred to as
the "Holder Underwriters"), as follows:
(i) against any and all loss, liability, claim (joint
or several), damage and expense whatsoever arising out of any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any final prospectus
(or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company by any Holder-Underwriter expressly for use in such
registration statement (or any amendment thereto) or such final prospectus (or
any amendment or supplement thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such alleged
untrue statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all legal or other expense
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause (i) or
(ii) above, which expenses under this clause (iii) shall be paid by the Company
as incurred.
(b) The Company shall be notified in writing of any matter
potentially giving rise to a claim under this Section 3.6 within a reasonable
time after the assertion thereof, but failure to so notify the Company shall not
relieve the Company from any liability which it may have pursuant to this
indemnity agreement or otherwise, except if and to the extent that the Company
is materially prejudiced by such delay. In case of any such notice, the Company
shall be entitled to participate at its expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim (unless in the
Holder-Underwriter's reasonable judgment a conflict of interest between such
Holder-Underwriter and the Company may exist in respect of such claim); but if
it so elects to assume the defense, such defense shall be conducted by counsel
chosen by it and reasonably acceptable to the Holder-Underwriter or
Holder-Underwriters. In the event that the Company elects to assume the defense
of any such suit and retain such counsel, the Holder-Underwriter or
Holder-Underwriters shall have the right to retain separate counsel to
participate in such proceedings, but at the sole cost. and expense of the
Holder-Underwriters. No indemnifying party shall consent to entry of any
judgment or enter into any settlement of any pending or threatened proceeding in
respect of which an indemnified party is or could have been a party and
indemnity could have been sought under paragraph (a) of this Section 3.6 which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation without the consent of the indemnified party.
(c) Each Holder severally agrees that it will indemnify and
hold harmless the Company, each officer, director, employee, agent and advisor
of the Company, each person, if any, who controls the Company within the meaning
of the Act, each underwriter of Registrable Securities included in any
registration statement which has been filed under the Act pursuant to this
Article III, and each person, if any, who controls such underwriter within the
meaning of the Act, against any and all loss, liability, claim, damage and
expense described in clauses (a)(i) through (a)(iii), inclusive, of Section 3.6
above, up to the amount of the gross proceeds actually received from the
offering by such Holder, but only with respect to statements or omissions, or
alleged statements or omissions made in such registration statement (or any
amendment thereto) or final prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such Holder expressly for use in such registration statement (or any
amendment thereto) or such final prospectus (or any amendment or supplement
thereto). In case any action shall be brought against the Company or any person
so indemnified pursuant to the provisions of this Section 3.6(c) and in respect
of which indemnity may be sought against any Holder, the Holders from whom
indemnity is sought shall have the rights and duties given to the Company, and
the Company and the other persons so indemnified shall have the rights and
duties given to the persons entitled to indemnification by the provisions of
Section 3.6(b) above.
Section 3.7 Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, and the distribution proposed by
such Holder or Holders, as the Company may reasonably request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to in this Article III.
Section 3.8 Sale Without Registration. If at the time of any transfer
(other than a transfer not involving a change in beneficial ownership) of any
Registrable Securities, such Registrable Securities shall not be registered
under the Act, the Company may require, as a condition of allowing such
transfer, that the Holder or transferee furnish to the Company (a) such
information as is necessary in order to establish that such transfer may be made
without registration under the Act, and (b) (if the transfer is not made in
compliance with Rule 144) at the expense of the Holder or transferee, an opinion
of counsel reasonably satisfactory to the Company in form and substance to the
effect that such transfer may be made without registration under the Act.
Section 3.9 Rule 144 Reporting. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for an offering of its Common Stock to the general public; and
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act.
Section 3.10 Transfer of Registration Rights. The rights to cause the
Company to register securities granted by the Company under Sections 3.1, 3.2
and 3.3 hereof may be assigned in writing by any Holder of Registrable
Securities to a transferee or assignee of not less than Forty Thousand (40,000)
shares of the Registrable Securities (as appropriately adjusted from time to
time for stock splits and the like); provided, that such transfer may otherwise
be effected in accordance with the terms of this Agreement and applicable
securities laws; and provided further, that the Company is given written notice
by such holder of Registrable Securities at the time of or within a reasonable
time after said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being assigned.
Section 3.11 "Market Stand-off" Agreement.
(a) If requested by the underwriter in any registration
pursuant to Section 3.3, the Holders shall not sell or otherwise transfer or
dispose of any Registrable Securities held by them during the one hundred eighty
(180) day period following the effective date of a registration statement of the
Company filed under the Act; provided that (i) such agreement shall not apply to
any shares of Registrable Securities that are included in such public offering
in accordance with the terms hereof and (ii) all executive officers and
directors of the Company, and all persons who own more than ten percent (10%) of
the issued and outstanding shares of capital stock of the Company, enter into
similar agreements. The Company may impose stop transfer instructions with
respect to the Registrable Securities subject to the foregoing restriction until
the end of said one hundred eighty (180) day period.
(b) If requested by an underwriter in any registration
pursuant to Section 3.1 or 3.2, the Company shall not sell or otherwise transfer
or dispose of any shares of the Company's capital stock during the one hundred
eighty (180) day period following the effective date of a registration statement
of the Company filed under the Act, except for sales by the Company (i) pursuant
to registrations on Form S-4 or S-8 (or any successor or similar forms thereto),
or (ii) in connection with a bona fide acquisition or strategic alliance
transaction.
Section 3.12 Additional Registration Rights. The Company has not
previously entered into any agreement granting any registration rights to any
person or entity. If on or after the date of this Agreement the Company enters
into any agreement with respect to its securities which grants more favorable
registration rights to any person or entity than those granted to the Holders
pursuant to this Agreement, this Agreement shall be deemed to be amended, as of
the date of any such agreement, to grant such more favorable registration rights
to the Holders.
ARTICLE IV
COVENANTS
Section 4.1 Transactions with Affiliates. Prior to the occurrence of an
Initial Public Offering, the Company shall not (and shall not permit any of its
subsidiaries to), without the consent of Ciba, enter into or perform any
transaction, including without limitation, the purchase, leasing, sale or
exchange of property or assets or the hiring or rendering of any service (a
"Transaction"), with any affiliate of the Company (including IOMED and
directors, officers or employees of the Company or IONLED), except at prices and
on terms not less favorable to the Company or such subsidiary than that which
would have been obtained in an arms-length transaction with a non-affiliated
party.
Section 4.2 Financial Statements. So long as Ciba holds at least five
percent (5%) of the outstanding shares of the Company's capital stock and the
Company is not otherwise publicly reporting, the Company will deliver to Ciba
the following financial statements. As soon as available and in any event within
forty five (45) days after the end of each fiscal quarter (other than the fiscal
quarter ending on the fiscal year end), the Company will deliver an unaudited
consolidated balance sheet of the Company and its subsidiaries as of the end of
such fiscal quarter and the related consolidated statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such fiscal
quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous fiscal year. As soon as
available and in any event within ninety (90) days after the end of each fiscal
year, the Company will deliver (a) the consolidated balance sheet of the Company
and its subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the corresponding
figures for the previous fiscal year, and (b) a report thereon of independent
certified public accountants of recognized national standing selected by the
Company and stating that such consolidated financial statements fairly present
the consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the results of their operations and their cash flows for
the periods indicated in accordance with generally accepted accounting
principles applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants has been made in accordance with Unites States generally accepted
auditing standards.
Section 4.3 Transfer Restrictions.
(a) Prohibition on Certain Transfers. For a period of two (2)
years from the date of this Agreement, IOMED shall not, without the prior
written consent of Ciba, make a Prohibited Transfer of any, shares of Common
Stock (or securities convertible into, exchangeable for or otherwise entitling
the holder thereof to receive shares of Common Stock) now owned or hereafter
acquired by it.
(b) Right of First Offer on Certain Transfers.
(i) Offer. Subject to Section 4.3(a), if at any time
IOMED proposes to enter into a Prohibited Transfer of any shares of Common Stock
(or securities convertible into, exchangeable for or otherwise entitling the
holder thereof to receive shares of Common Stock) now owned or hereafter
acquired by it, and the consequence of such Prohibited Transfer would be to
cause a Change of Control of the Company (any such Prohibited Transfer, a
"Transaction"), then it shall promptly forward to Ciba a written notice (the
"Offer Notice") offering to enter into a Transaction with Ciba and specifying
the purchase price (the "Proposed Purchase Price") and other terms and
conditions under which it would enter into such Transaction with Ciba (the offer
made in any such Offer Notice, the "Offer"). Ciba shall have sixty (60) days
after its receipt of an Offer Notice (the "Acceptance Period") to provide
written notice to IOMED of its acceptance of the Offer.
(ii) Response to Offer. If Ciba accepts the Offer, it
shall be obligated to consummate such Transaction at the price and other terms
specified in the Offer Notice within one hundred twenty (120) days after the
acceptance of the Offer, subject to negotiation of a definitive acquisition
agreement containing representations and warranties, covenants, conditions to
closing and such other terms and conditions customary for agreements of its
type. If Ciba rejects the Offer (or otherwise fails to forward an acceptance of
the Offer prior to the expiration of the Acceptance Period), IOMED shall, for a
period of two hundred seventy (270) days after expiration of the Acceptance
Period, have the right to consummate a Transaction of the type described in the
Offer Notice only at a price greater than ninety percent (90%) of the Proposed
Purchase Price and on such other terms and conditions more favorable to it than
those offered to Ciba (unless Ciba consents to such lower price or other terms
and conditions, which consent shall not be unreasonably withheld, it being
understood that Ciba's withholding of consent based on its desire to consummate
a Transaction at such lower price or other terms and conditions shall be deemed
reasonable), provided, however, that in the event that a Transaction has not
been consummated within such two hundred seventy (270) day period, then any
proposed future Transaction shall continue to be subject to this Section 4.3(b).
(iii) Survival. The offer rights of Ciba described in
this Section 4.3(b) shall survive for a period of twelve (12) months from the
effective date of termination of that certain Research and Development
Agreement, dated of even date herewith, by and between the Company, IOMED and
Ciba, and shall thereafter terminate automatically and cease to be of any
further force and effect.
Section 4.4 Preemptive Rights.
(a) At least ten (10) days prior to consummating any sale of
Securities (a "Sale"), the Company shall notify Ciba in writing of such pending
Sale (the "Sale Notice"). Each Sale Notice shall describe all of the material
terms of the Sale and of the Securities to be sold therein (including, without
limitation, the number of such Securities to be sold and the sale price). Ciba
shall have the right, exercisable for a period of ninety (90) days following its
receipt of each Sale Notice, to purchase from the Company, at the purchase price
set forth in such Sale Notice, up to a number of newly issued Securities of the
type to be sold in such Sale (which Securities shall be in addition to those
sold by the Company in such Sale) equal to the product of the Ciba Percentage
multiplied by the total number of such Securities proposed to be sold in such
Sale. Such right shall be exercised by delivering to the Company, within the
ninety (90) day period noted above, a written notice of exercise (an "Exercise
Notice"), which shall specify the number of Securities Ciba wishes to purchase
and the date on which Ciba wishes to consummate such purchase (the "Closing
Date"), which shall be no later than ten (10) business days after the later of
(i) the date of the consummation of the, Sale and (ii) the date of the Exercise
Notice.
(b) The preemptive right granted in this Section 4.4 shall
terminate upon the consummation of, and shall not be valid with respect to, the
Initial Public Offering.
(c) The closing of a purchase of Securities by Ciba pursuant
to this Section 4.4 shall take place at the principal office of the Company on
the Closing Date (or at such other time and place. as the Company and Ciba shall
agree upon). At such closing the Company shall issue and deliver the applicable
Securities and Ciba shall deliver a certified check to the Company for the
applicable purchase price. The parties shall also execute and deliver customary
closing documents, including, without limitation, investment representations.
(d) The rights of Ciba under this Section 4.4 may not be
assigned to, or exercised by, any other person or entity, other than a successor
to Ciba's Pharmaceutical Division, whether by merger, consolidation, stock sale,
asset sale or otherwise.
Section 4.5 Payment upon First Sale of Control. No later than thirty
(30) days after consummation of the first Sale of Control of the Company
occurring after March 29, 1996 in which the consideration paid by the acquiring
party or parties (the "Acquisition Consideration") is more than Seven Million
Dollars ($7,000,000) (the "First Sale of Control"), the Company shall pay to the
holders of the Ciba Shares, on a pro-rata basis, cash in an aggregate amount
equal to the product of (x) the Sale of Control Premium, multiplied by (y) the
percentage of the Ciba Shares that remain outstanding immediately prior to the
closing of the First Sale of Control. Such payment shall be paid prior and in
preference to any dividend or distribution of the assets or surplus funds of the
Company to the holders of any other shares of stock of the Company by reason of
their ownership of such stock.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Company. The Company
hereby represents and warrants to Ciba and IOMED as follows:
(a) Corporate Authorization. The Company has full corporate
power and authority to execute and deliver this Agreement and to perform its
respective obligations hereunder. The execution, delivery and performance by the
Company of this Agreement has been duly and validly authorized, and no
additional corporate authorization or consent is required in connection with the
execution, delivery and performance by the Company of this Agreement.
(b) Consents and Approvals. No consent, approval, waiver or
authorization is required to be obtained by the Company from, and no notice or
filing is required to be given by the Company to, or to be made by the Company
with, any federal, state, local or other governmental authority or any other
person in connection with the execution, delivery and performance by the Company
of this Agreement.
(c) Non-Contravention. The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby does not and will not (i) violate any provision
of the charter, bylaws or other organizational documents of the Company, (ii)
conflict with, or result in the breach of, or constitute a default under, or
result in the termination, cancellation or acceleration (whether after the
filing of notice or the lapse of time or both) of any right or obligation of the
Company under, or to a loss of any benefit to which the Company is entitled
under, any agreement, contract, lease, license, note, bond, indenture or other
written document of any type, or result in the creation of any encumbrance upon
any of the assets of the Company, or (iii) violate or result in a breach of or
constitute a default under any law, rule, regulation, judgment, injunction,
order, decree or other restriction of any court or governmental authority to
which the Company is subject.
(d) Binding Effect. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors, rights and to general equity principles.
(e) Capitalization. The authorized capital stock of the
Company consists of Four Million (4,000,000) shares of Common Stock, $.001 par
value per share, Eight Hundred Thousand (800,000) of which are issued and
outstanding, and One Million (1,000,000) shares of Preferred Stock, $.001 par
value per share, none of which are issued and outstanding. Except as set forth
in this Agreement, the Company does not have outstanding any rights (preemptive
or other) or options to subscribe for or purchase, or any warrants or other
agreements providing for or requiring the issuance by the Company of, any
capital stock or securities convertible into or exchangeable for its capital
stock.
Section 5.2 Representations and Warranties of Ciba. Ciba hereby
represents and warrants to the Company and IOMED as follows:
(a) Corporate Authorization. Ciba has full corporate power and
authority to execute and deliver this Agreement and to perform its respective
obligations hereunder. The execution, delivery and performance by Ciba of this
Agreement has been duly and validly authorized, and no additional corporate
authorization or consent is required in connection with the execution, delivery
and performance by Ciba of this Agreement.
(b) Consents and Approvals. No consent, approval, waiver or
authorization is required to be obtained by Ciba from, and no notice or filing
is required to be given by Ciba to, or to be made by Ciba with, any federal,
state, local or other governmental authority or any other person in connection
with the execution, delivery and performance by Ciba of this Agreement.
(c) Non-Contravention. The execution, delivery and performance
by Ciba of this Agreement and the consummation by Ciba of the transactions
contemplated hereby does not and will not (i) violate any provision of the
charter, bylaws or other organizational documents of Ciba, (ii) conflict with,
or result in the breach of, or constitute a default under, or result in the
termination, cancellation or acceleration (whether after the filing of notice or
the lapse of time or both) of any right or obligation of Ciba under, or to a
loss of any benefit to which Ciba is entitled under, any agreement, contract
lease, license, note, bond, indenture or other written document of any type, or
result in the creation of any encumbrance upon any of the assets of Ciba, or
(iii) violate or result in a breach of or constitute a default under any law,
rule, regulation, judgment, injunction, order, decree or other restriction of
any court or governmental authority to which Ciba is subject.
(d) Binding Effect. This Agreement has been duly executed and
delivered by Ciba and constitutes a valid and legally binding obligation of
Ciba, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors, rights and to general equity principles.
Section 5.3 Representations and Warranties of IOMED. IOMED hereby
represents and warrants to the Company and Ciba as follows:
(a) Authorization. IOMED has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by IOMED of this Agreement
has been duly and validly authorized, and no additional corporate authorization
or consent is required in connection with the execution, delivery and
performance by IOMED of this Agreement.
(b) Consents and Approvals. No consent, approval, waiver or
authorization is required to be obtained by IOMED from, and no notice or filing
is required to be given by IOMED to, or to be made by IOMED with, any federal,
state, local or other governmental authority or any other person in connection
with the execution, delivery and performance by IOMED of this Agreement.
(c) Non-Contravention. The execution, delivery and performance
by IOMED of this Agreement and the consummation by IOMED of the transactions
contemplated hereby does not and will not (i) violate any provision of the
articles of incorporation or bylaws of IOMED, (ii) conflict with, or result in
the breach of, or constitute a default under, or result in the termination,
cancellation or acceleration (whether after the filing of notice or the lapse of
time or both) of any right or obligation of IOMED under, or to a loss of any
benefit to which IOMED is entitled under, any agreement, contract, lease,
license, note, bond, indenture or other written document of any type, or result
in the creation of any encumbrance upon any of the assets of IOMED, or (iii)
violate or result in a breach of or constitute a default under any law, rule,
regulation, judgment, injunction, order, decree or other restriction of any
court or governmental authority to which IOMED is subject.
(d) Binding Effect. This Agreement has been duly executed and
delivered by IOMED and constitutes a valid and legally binding obligation of
IOMED, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors, rights and to general equity principles.
(e) Ownership of Shares. IOMED owns of record and beneficially
the IOMED Shares, free and clear of any judgment, lien, charge, claim, security
interest or other encumbrance of any kind whatsoever, other than as set forth on
Schedule 5.3(e).
ARTICLE VI
MISCELLANEOUS
Section 6.1 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes. Without limiting the generality of the foregoing,
the provisions of Article II and Section 4.3 hereof shall be binding upon any
persons who acquire shares of Common Stock from IOMED; provided, however, that
the provisions of Section 4.3(b) shall not be binding upon any shareholders of
IOMED who acquire shares of Common Stock from IOMED pursuant to the declaration
and payment by IOMED of a dividend payable in Common Stock.
Section 6.2 Amendment and Waiver. Any term hereof may be amended and
the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with (a) the
written consent of the Company, Ciba and IOMED, with respect to the terms of
Article II hereof or any other provision of this Agreement as it pertains to
such Article II, and (b) the written consent of the Company and of the Holders
of a majority of the outstanding Registrable Securities, with respect to any
other terms or provisions of this Agreement. Any amendment or waiver of this
Agreement so effected shall be binding upon the Company, Ciba, IOMED and all
Holders of Registrable Securities.
Section 6.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
Section 6.4 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to contracts among
New York residents entered into and to be performed entirely within New York.
Section 6.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.6 Notice. Any notice required under this Agreement shall be
given in writing and shall be deemed effectively given upon actual receipt if
delivered either personally (including by overnight express courier) or by
facsimile to the party to be notified or three (3) business days after deposit
with the United States Post Office by registered or certified mail, postage
prepaid (or with an equivalent independent postal service or courier) and
addressed to the party at the address last shown on the books of the Company for
such purpose or to such other address as may be designated by a party by ten
(10) days' advance notice to the Company.
Section 6.7 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
DERMION, INC., a Delaware corporation CIBA-GEIGY CORPORATION, a New
York corporation, acting through its
Pharmaceuticals Division
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Secretary Title:
IOMED, INC., a Utah corporation
By: /s/ Xxx X. Xxxxxxxxxxx
Name: Xxx X. Xxxxxxxxxxx
Title: President & CEO
