Exhibit 5
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of May 27, 1999 (this "Agreement")
among PERBIO SCIENCE AB, a Swedish corporation, ("Parent"), EWOK ACQUISITION
CORP., a Massachusetts corporation and a wholly owned subsidiary of Parent
("Sub") and the individuals listed on Schedule A attached hereto (each, a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Sub, and Endogen, Inc. (the "Company") propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement") providing for (i)
the making of a cash tender offer (as such offer may be amended from time to
time as permitted under the Merger Agreement, the "Offer") by Sub for all the
outstanding shares of common stock, par value $.01 per share, of the Company
("Company Common Stock") and (ii) for the merger of Sub with and into the
Company (the "Merger"), upon the terms and subject to the conditions set forth
in the Merger Agreement; and
WHEREAS, each Stockholder owns the number of shares of Company Common
Stock set forth opposite his or its name on Schedule A attached hereto (such
shares of Company Common Stock, together with any other shares of capital stock
of the Company acquired by such Stockholders after the date hereof and during
the term of this Agreement (including, without limitation, through the exercise
of any stock options, warrants or similar instruments), being collectively
referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that each Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
agree as follows (capitalized terms used herein but not defined herein have the
meanings set forth in the Merger Agreement):
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER.
Each Stockholder hereby represents and warrants, severally and not
jointly, to Parent as of the date hereof in respect of himself or itself as
follows:
(a) AUTHORITY. The Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by the
Stockholder, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary action on the part of the Stockholder.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder enforceable
against the Stockholder in accordance with its terms. Except for the
informational filings with the SEC, the
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
(i) conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, any certificate or
articles of incorporation, bylaws, certificate or articles of limited
partnership, limited partnership agreement, trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets, including the Subject
Shares, (ii) require any filing with, or permit, authorization, consent or
approval of, or notice to, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic, foreign or supranational, or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets,
including the Subject Shares. If the Stockholder is a natural person and is
married, and the Stockholder's Subject Shares constitute community property or
otherwise need spousal or other approval for this Agreement to be legal, valid
and binding, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such spouse in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy laws or creditors' rights
generally or by general principles of equity. No trust of which such Stockholder
is a trustee requires the consent of any beneficiary to the execution and
delivery of this Agreement or to the consummation of the transactions
contemplated hereby.
(b) THE SUBJECT SHARES. The Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set forth
opposite his or its name on Schedule A attached hereto, free and clear of any
Liens. The Stockholder does not own, of record or beneficially, any shares of
capital stock of the Company or any Subsidiary other than the Subject Shares set
forth opposite his or its name on Schedule A attached hereto. The Stockholder
has the sole right to vote such Subject Shares, and none of such Subject Shares
is subject to any voting trust or other agreement, arrangement or restriction
with respect to the voting of such Subject Shares, except as contemplated by
this Agreement.
(c) BROKERS. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the execution of this Agreement by such Stockholder or the performance by
such Stockholder of its obligations hereunder (it being understood that Xxxxx,
Xxxxxxxx & Xxxx, Inc. and others disclosed to Sub pursuant to the Merger
Agreement may be entitled to certain fees and expenses in connection with the
transactions contemplated by the Merger Agreement, which fees and expenses shall
be paid by the Company as set forth in the Merger Agreement).
2. PURCHASE AND SALE OF SHARES.
Each Stockholder hereby severally agrees to tender in the Offer to Sub,
and Sub hereby agrees to purchase, subject to the terms and conditions set forth
herein, all Subject Shares set forth opposite such Stockholder's name on
Schedule A hereto at a price per Share equal to the Offer Price (as the same may
be increased by Sub). Sub may direct that such Stockholder tender
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such Subject Shares and, subject to applicable Federal securities law, not
withdraw any Subject Shares so tendered.
3. CONDITIONS.
Parent's and Sub's obligations to purchase and each Stockholders'
obligations to sell the Subject Shares pursuant to Section 2 of this Agreement
shall be subject to the prior satisfaction or waiver of the following
conditions:
(a) Sub shall have accepted the Shares for payment under the terms of
the Offer;
(b) the Minimum Condition shall have been satisfied;
(c) all regulatory approvals required by any applicable law, rule, or
regulation, including any applicable local, state, federal or foreign
regulation, shall have been obtained, and each such approval shall be final; and
(d) there exist no preliminary or permanent injunction, or any other
order by any court of competent jurisdiction, restricting, preventing or
prohibiting either the purchase, or the delivery, of the Subject Shares.
4. REPRESENTATION AND WARRANTY OF PARENT AND SUB.
(a) AUTHORITY. Parent and Sub have all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by Parent and
Sub, and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary action on the part of the Parent and Sub. This
Agreement has been duly executed and delivered by the Parent and Sub and
constitutes a valid and binding obligation of the Parent and Sub enforceable
against the Parent and Sub in accordance with its terms. Except for
informational filings with the SEC, the execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, (i) conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both) under
any provision of, any certificate or articles of incorporation, bylaws,
certificate or articles of limited partnership, limited partnership agreement,
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Parent or Sub or to the Parent's or Sub's property or assets,
(ii) require any filing with, or permit, authorization, consent or approval of,
or notice to, any federal, state or local government or any court, tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency, domestic, foreign or supranational, or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Parent or Sub or any of the Parent's or Sub's properties or assets.
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(b) BROKERS. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission for which any
Stockholder will be liable in connection with the execution of this Agreement by
Parent and Sub or the performance by Parent and Sub of their obligations
hereunder.
(c) FINANCING. Parent has sufficient funds available, directly or
through finance commitments, to purchase, or to cause Sub to purchase, all the
Subject Shares pursuant to this Agreement and to pay all fees and expenses
payable by Parent or Sub related to the transactions contemplated by this
Agreement.
5. COVENANTS OF EACH STOCKHOLDER.
Until the termination of this Agreement in accordance with Section 10,
each Stockholder, severally and not jointly, agrees as follows:
(a) In connection with the closing of the purchase and sale
contemplated under Section 2 of this Agreement (other than pursuant to the
Offer), each Stockholder agrees to deliver, either to Sub or as directed by
Parent, all certificates evidencing the Subject Shares held by such Stockholder,
duly endorsed in blank for transfer, or accompanied by stock powers and such
other documents as may be necessary in Parent's judgment to transfer record
ownership of the Subject Shares to Sub or as directed by Parent.
(b) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of
the Merger, the adoption by the Company of the Merger Agreement and the approval
of the terms thereof and each of the other transactions contemplated by the
Merger Agreement.
(c) At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote, consent
or other approval is sought, the Stockholder shall vote (or cause to be voted)
the Subject Shares (and each class thereof) against (i) any Alternative
Transaction as such term is defined in Section 6.2 of the Merger Agreement, (ii)
any amendment of the Company's articles of organization or by-laws or other
proposal or transaction involving the Company, which amendment or other proposal
or transaction would be reasonably likely to impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting rights
of any class of Company Common Stock, or (iii) any action that would cause the
Company to breach any representation, warranty or covenant contained in the
Merger Agreement. Subject to Section 12, the Stockholder further agrees not to
enter into any agreement or take any action inconsistent with the foregoing.
(d) The Stockholder shall not, prior to the earliest of (i) the
Effective Time and (ii) the termination of the Merger Agreement in accordance
with its terms, (A) sell, transfer, give, pledge, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or consent to
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any Transfer of, any or all of such Subject Shares or any interest therein or
enter into any contract, option or other arrangement (including any profit
sharing arrangement) with respect to the Transfer of, the Subject Shares to any
person other than pursuant to the terms of the Offer or the Merger or (B) enter
into any voting arrangement, directly or indirectly, whether by proxy, voting
agreement or otherwise, in respect of the Subject Shares, and the Stockholder
agrees not to commit or agree to take any of the foregoing actions.
(e) Such Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate in any way the transactions contemplated by this Agreement. Each such
beneficiary hereby acknowledges and agrees to be bound by the terms of this
Agreement applicable to it.
6. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) Each Stockholder hereby irrevocably grants to, and appoints, Sub
and Xxxx Xxxxxxxx, President of Sub, in his capacity as an officer of Sub, and
any individual who shall hereafter succeed to any such office of Sub, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject Shares
against (i) any Alternative Transaction as such term is defined in Section 6.2
of the Merger Agreement, (ii) any amendment of the Company's articles of
organization or by-laws or other proposal or transaction involving the Company,
which amendment or other proposal or transaction would be reasonably likely to
impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of Company Common Stock, or (iii) any
action that would cause the Company to breach any representation, warranty or
covenant contained in the Merger Agreement. The proxy granted pursuant to this
Section shall terminate upon the termination of this Agreement pursuant to
Section 10.
(b) Such Stockholder represents that there are no proxies heretofore
given in respect of such Stockholder's Subject Shares.
(c) Such Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 6 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Stockholder under this Agreement. Such Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Such Stockholder hereby ratifies and confirms
all that the holder of such irrevocable proxy may lawfully do or cause to be
done by virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 41 of the Massachusetts
Business Corporation Law (the "MBCL").
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7. FURTHER ASSURANCES.
Each Stockholder will, at Parent's expense, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
8. CERTAIN EVENTS.
(a) Each Stockholder agrees that this Agreement and the obligations
hereunder shall attach to such Stockholder's Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares of
Company Common Stock or other voting securities of the Company by any
Stockholder, the number of Subject Shares listed in Schedule A beside the name
of such Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
Stock or other voting securities of the Company issued to or acquired by such
Stockholder.
(b) Each Stockholder agrees that such Stockholder will tender to the
Company, immediately after the execution hereof (or, in the event Subject Shares
are acquired subsequent to the date hereof, immediately after such acquisition),
any and all certificates representing such Stockholder's Subject Shares in order
that the Company may inscribe upon such certificates the legend in accordance
with Section 7.9 of the Merger Agreement.
9. ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties without the prior written
consent of the other parties, except that (i) Sub may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
subsidiary of Parent that may be substituted for Sub as contemplated by Section
10.8 of the Merger Agreement, and (ii) Parent may assign, in its sole
discretion, any and all of its rights, interests and obligations hereunder to
any direct or indirect wholly owned subsidiary of Parent, provided that Parent
will continue to remain primarily liable for its obligations hereunder in the
event of any assignment pursuant to this clause (ii). Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns.
10. TERMINATION.
This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the date upon which the Merger Agreement is
terminated in accordance with its terms.
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11. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered by facsimile (with confirmation
of delivery) or personally or sent by overnight courier (providing proof of
delivery) to Parent in accordance with Section 10.2 of the Merger Agreement and
to the Stockholders at their respective addresses and facsimile numbers set
forth on Schedule A attached hereto (or at such other address and facsimile
number for a party as shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement to an
Article or a Section, such reference shall be deemed made to an Article or a
Section of this Agreement, unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Unless the context otherwise
requires, words importing the singular shall include the plural, and vice versa.
Wherever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Massachusetts regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(g) EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
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12. STOCKHOLDER CAPACITY.
No person executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Each Stockholder signs
solely in his capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein (including, without limitation,
the provisions of Section 5(e)) shall limit or affect any actions taken by a
Stockholder in his capacity as an officer or director of the Company.
13. ENFORCEMENT.
The parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the United States located in the Commonwealth
of Massachusetts or in a Massachusetts state court, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the Commonwealth of Massachusetts
or any Massachusetts state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that such party will
not bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a Federal court sitting in the Commonwealth of
Massachusetts or a Massachusetts state court and (iv) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
14. PUBLIC ANNOUNCEMENTS.
No Stockholder shall issue any press release or make any public
statement without the prior written consent of Parent, except as may be required
by applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
PERBIO SCIENCE AB
By:
/s/ XXXXXX XXXXXXXXX
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director, PerBio Science AB
Chief Financial Officer, Perstorp AB
By:
/s/ MATS FISCHIER
-------------------------------------------------------
Name: Mats Fischier
Title: Director, PerBio Science AB
Chief Executive Officer, Perstorp Life Science
EWOK ACQUISITION CORP.
By:
/s/ XXXX XXXXXXXX
-------------------------
Name: Xxxx Xxxxxxxx
Title: President
STOCKHOLDERS:
/s/ XXXXXXX X. XXXXX
-------------------------
Name: Xxxxxxx X. Xxxxx
/s/ XXXXXXXXX X. XXXXX
-------------------------
Name: Xxxxxxxxx X. Xxxxx
/s/ XXXXX X. XXXXXX
-------------------------
Name: Xxxxx X. Xxxxxx
/s/ XXXX X. XXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxx
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/s/ XXXXXXX X. XXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
/s/ XXXXXXXX XXXXXXXXXX
-------------------------
Name: Xxxxxxxx Xxxxxxxxxx
G & G DIAGNOSTICS LIMITED PARTNERSHIP I
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner
XXXXXX X. XXXXXX LIVING TRUST DTD 3/6/98
By: /s/ XXXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxxx Living Trust Dated 3/6/98
Title: Trustee
/s/ XXXXXX X. XXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxx
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SCHEDULE A
Name and Address of Stockholder Number of Shares of Company Common
Stock Owned
Xxxxxxx X. Xxxxx -1,000-
c/o Monument Partners, Inc.
0000-0 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxx -0-
0 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx -1,000-
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxxx -255,100-
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx -160,000-
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx -12,000-
00 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
G&G Diagnostics Limited -95,000-
Partnership I
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx -3,500-
c/o Enterprise Management
000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxx Living Trust Dated 3/6/98 -2,000-
c/o Enterprise Management
000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
Xxxxxxxx Xxxxxxxxxx -40,000-
x/x Xxxxxxxxx XxxX
Xxxxxxxxxxxx 0
X-0000 Xxxxxx
XXXXXXX
