SETTLEMENT AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.50
SETTLEMENT AGREEMENT AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the “Agreement”) is made and entered into as of the
15th day of October, 2007 (“Settlement Date”), by and between Martek Biosciences
Corporation (“Martek”) and Xxxxxx Xxxxxxx (“Xxxxxxx”), on his own behalf and as Stockholders’
Representative of certain former interest holders (the “Former Interest Holders”) of OmegaTech,
Inc. (“OmegaTech”).
RECITALS:
A. Pursuant to a Merger Agreement, dated March 25, 2002, by and between Martek and OmegaTech,
as amended (the “Merger Agreement”), the Former Interest Holders received certain contingent rights
to receive shares of Martek’s Common Stock, par value $0.10 per share (the “Common Stock”), upon
the occurrence of certain events described in the Merger Agreement (the “Contingent Rights”).
B. There is an action pending currently in the United States District Court for the District
of Maryland, styled Martek Biosciences Corporation v. Xxxxxx Xxxxxxx, as Stockholders’
Representative of the Former Interest Holders of OmegaTech, Inc., Civil Action No. AMD 04-3349,
which arises out of the Merger Agreement (the “Litigation”).
C. To avoid the risks and costs of continued litigation, Xxxxxxx, on his own behalf and as
Stockholders’ Representative of the Former Interest Holders, pursuant to his express authority to
act on behalf of the Former Interest Holders as granted to him in Section 7.3(a) of the Merger
Agreement, and Martek wish to compromise and settle the Litigation and certain other potential
claims.
D. This Agreement is entered into to settle and compromise all disputed claims, and no party,
by virtue of entering into this Agreement, admits liability for, or the validity of, any claims or
defenses asserted in the Litigation.
NOW, THEREFORE, it is agreed between Xxxxxxx, on his own behalf and as Stockholders’
Representative of the Former Interest Holders, and Martek, as follows:
1. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, represents and warrants:
a. that he has the full power and authority to enter into this Agreement and bind all of the
Former Interest Holders; specifically, pursuant to Section 7.3 of the Merger Agreement, Xxxxxxx has
“full power and authority to represent all of the [Former Interest Holders] and their successors
with respect to all matters arising under this Agreement and the Escrow Agreement and all actions
taken by the Stockholders’ Representative hereunder and thereunder shall be binding on all such
Former Interest Holders and their successors as if expressly confirmed and ratified in writing by
each of them;” and
b. that neither Xxxxxxx nor any of the Former Interest Holders has paid or given, directly or
indirectly, any commission or other remuneration for soliciting the exchange of the Contingent
Rights for the Settlement Shares contemplated hereby, and Xxxxxxx has no knowledge of any facts
that would lead him to the conclusion that Martek is disqualified from relying on the exemption
afforded by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”) in
connection with the exchange of the Contingent Rights for the Settlement Shares.
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2. Martek, in reliance upon Xxxxxxx’x representation and warranty set forth in Section 1
hereof, and upon fulfillment of the terms and conditions contained in this Agreement, agrees to
transfer to Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, and Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, agrees to accept, 341,061.499 shares of Martek Common Stock, par value $0.10 per share
(the “Settlement Shares”), for the benefit of the Former Interest Holders in exchange for the
Contingent Rights held by the Former Interest Holders, of which 8,000 shares of Common Stock (the
“Escrow Shares”) shall be deposited into an escrow account established for the benefit of the
Former Interest Holders pursuant to subsection (f) of this Section 2 (the “Escrow Account”), and
333,061.499 shares of Common Stock (the “Exchange Shares”) shall be distributed to the Former
Interest Holders as set forth below.
a. Attached as Schedule A hereto is a schedule of the Former Interest Holders setting
forth, for each Former Interest Holder, its respective Contingent Rights, the Settlement Shares for
which its Contingent Rights shall be exchanged, and its address. Xxxxxxx, on his own behalf and as
Stockholders’ Representative of the Former Interest Holders, hereby acknowledges that he has
reviewed the information contained on Schedule A and, to his knowledge, the information on Schedule
A is correct and complete with respect to each of the Former Interest Holders. As promptly as
reasonably practicable following the Settlement Date, Martek shall deposit with Registrar &
Transfer Company or another bank or trust company designated as the
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exchange agent by Martek (the “Exchange Agent”) certificates representing the Settlement Shares,
together with cash in an amount sufficient to permit the payment of cash in lieu of fractional
shares pursuant to subsection (j) of this Section 2.
b. As soon as practicable after the Settlement Date, Martek shall use its reasonable efforts
to cause the Exchange Agent to send to each Former Interest Holder, in accordance with Schedule A,
a certificate of acknowledgment (the “Acknowledgement Certificate”) which (i) shall contain, for
those Former Interest Holders who have previously received certificates representing Contingent
Rights (“Contingent Rights Certificates”), instructions for use in effecting the surrender of the
Contingent Rights Certificates, (ii) shall request, from those Former Shareholders who have not
previously received Contingent Rights Certificates, an acknowledgment to such effect; and (iii)
shall require, for each Former Interest Holder, an acknowledgement that such Former Interest Holder
has agreed to relinquish any rights such Former Interest Holder may have in the Contingent Rights
in exchange for such Former Interest Holder’s portion of the Settlement Shares. Each Former
Interest Holder shall also acknowledge that delivery of the Acknowledgment Certificate and, if
applicable, Contingent Rights Certificates, shall be effected and risk of loss and title to any
Contingent Rights Certificates shall pass, only upon actual delivery thereof to the Exchange Agent.
Upon submission to the Exchange Agent of a duly executed Acknowledgement Certificate and, if
applicable, a Contingent Rights Certificate for cancellation, such Former Interest Holder shall be
entitled to receive in exchange therefor (A) a certificate representing the number of whole
Settlement Shares into which
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the Contingent Rights represented by the submitted Acknowledgment Certificate were converted as of
the Settlement Date, and (B) cash in lieu of any fractional Settlement Share in accordance with
subsection (j) of this Section 2, and any Contingent Rights Certificates so surrendered shall then
be canceled. Until surrendered as contemplated by this Section 2, any Contingent Rights
Certificate, from and after the Settlement Date, shall be deemed to represent only the right to
receive, upon such surrender, the number of Settlement Shares set forth with respect to such
Contingent Rights Certificate on Schedule A hereto.
c. If any certificate representing Settlement Shares or any cash is to be issued or paid to
any person other than the registered holder of the Contingent Rights surrendered in exchange
therefor, it shall be a condition to such exchange that such third party be designated on the
Acknowledgment Certificate and any surrendered Contingent Rights Certificate shall be properly
endorsed and otherwise in proper form for transfer and such person either (i) shall pay to the
Exchange Agent any transfer or other taxes required as a result of the issuance of such
certificates of Common Stock and the distribution of such cash payment to such person or (ii) shall
establish to the reasonable satisfaction of the Exchange Agent that such tax has been paid or is
not applicable. Martek or the Exchange Agent shall be entitled to deduct and withhold from the
amounts otherwise payable pursuant to this Agreement to any Former Interest Holder such amounts as
Martek or the Exchange Agent is required to deduct and withhold with respect to the making of such
payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of
state, local or foreign tax law. To
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the extent that amounts are so withheld by Martek or the Exchange Agent, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the Former Interest
Holder in respect of which such deduction and withholding was made by Martek or the Exchange Agent.
All amounts in respect of taxes received or withheld by Martek shall be disposed of by Martek in
accordance with the Code or such state, local or foreign tax law, as applicable.
d. If any previously received Contingent Rights Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Former Interest Holder claiming such
Contingent Rights Certificate to be lost, stolen or destroyed, Martek shall issue in exchange for
such lost, stolen or destroyed Contingent Rights Certificate the Settlement Shares and pay any cash
in lieu of fractional shares in respect of such Contingent Rights Certificate. The owner of such
lost, stolen or destroyed Contingent Rights Certificate shall indemnify Martek against any claim
that may be made against Martek with respect to the Contingent Rights Certificate alleged to have
been lost, stolen or destroyed.
e. Delivery of the Settlement Shares by Martek in exchange for the Contingent Rights shall
wholly and completely discharge Martek of any liability related thereto. In particular, and
without limitation, all Contingent Rights shall, upon the Settlement Date, be cancelled and no
Former Interest Holder shall have any further rights thereunder, including any rights whatsoever to
receive Martek Common Stock on account of any milestones under the Merger Agreement, other than the
right to receive the Settlement Shares set forth on Schedule A with respect to each Former Interest
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Holder. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders of OmegaTech, represents and warrants that he will provide an exclusive mechanism for (i)
allocating the Escrow Shares; and (ii) resolving any disputes arising out of such allocation.
Disputes relating to the forgoing shall not affect the validity or finality of this Agreement.
x. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, shall be solely responsible for establishing and identifying the Escrow Account into which
Martek shall deposit the Escrow Shares. Martek’s sole responsibilities with respect to the Escrow
Shares are (i) to deposit said shares into the Escrow Account and (ii) to include the Escrow Shares
in the Registration Statement (as defined below), and Martek bears no responsibility for setting up
the Escrow Account or distributing the shares from the Escrow Account.
g. The Settlement Shares will be issued in a transaction exempt from registration under the
Securities Act of 1933, as amended (the “Securities Act”). Martek shall use its commercially
reasonable efforts to prepare, file as promptly as practicable following the Settlement Date and
cause to become effective, within 60 Business Days after the Settlement Date (or as soon as
practicable thereafter in the event the Registration Statement becomes subject to review by the
staff of the SEC), a registration statement on Form S-3 or such other form as may be appropriate to
be filed with the SEC by Martek under the Securities Act (together with any amendments or
supplements thereto, whether prior to or after the effective date thereof, a “Registration
Statement”) covering the public resale of the Settlement Shares, and Martek shall use
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its commercially reasonable efforts to keep the Registration Statement continuously effective until
the second anniversary of the Settlement Date (the “Effective Period”). Any such registration
shall be subject to the customary terms and conditions used in connection with resale prospectuses.
Martek’s obligations under this Section 2(c) are contingent upon each Former Interest Holder
providing promptly all information concerning the Former Interest Holder and its proposed plan of
distribution as Martek may reasonably request in connection with any of the foregoing. Martek may
by written notice to the Former Interest Holders immediately suspend the use of any resale
prospectus for a period not to exceed 45 consecutive days in any one instance and for a period not
to exceed 90 calendar days in any 12-month period (each, a “Suspension Period”) pursuant to a
Registration Statement at any time that (a) Martek becomes engaged in a business activity or
negotiation that is not disclosed therein under applicable law and which Martek desires to keep
confidential for business purposes or (b) Martek determines that a particular disclosure so
determined to be required to be disclosed therein be premature or would adversely affect Martek or
its business or prospects. Martek will use its commercially reasonable efforts to ensure that the
use of any such Registration Statement may be resumed as soon as practicable. Martek shall
promptly notify the Former Interest Holders upon the termination of any Suspension Period, promptly
amend or supplement the Registration Statement following the termination of such Suspension Period,
if necessary, so that it does not contain any untrue statement of material fact or amount to state
a material fact required to be stated therein in order to make the statements therein not
misleading, and furnish to the
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Former Interest Holders such numbers of copies of the prospectus therein as so amended or
supplemented on documents incorporated by reference therein as the Former Interest Holders may
reasonably request.
h. In connection with any registration of Common Stock pursuant to this Agreement, Martek will
pay all expenses incident to its performance of or compliance with this Section 2 including,
without limitation, all registration, filing and National Association of Securities Dealers fees,
fees and expenses of compliance with federal or state securities laws, printing expenses and fees
and disbursements of counsel for Martek and all independent public accountants.
i. The certificates evidencing the Settlement Shares will bear the legend set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH REGISTRATION UNDER OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933.
j. No certificates or scrip representing fractional shares of Common Stock shall be issued
upon the surrender for exchange of Contingent Rights and such a fractional share shall not entitle
the record or beneficial owner thereof to vote or to any other rights as a stockholder of Martek.
In lieu of receiving any such fractional share, each Former Interest Holder who would otherwise
have been entitled thereto upon the surrender of Contingent Rights for exchange will receive cash
(without interest) in an
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amount rounded to the nearest whole cent, determined by multiplying such fractional share by
the Current Average Price. “Current Average Price” shall mean the average closing price of a share
of Common Stock as reported on the Nasdaq National Market for the 45 most recent days that Common
Stock has traded ending on the business day prior to the Settlement Date.
3. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, their respective trusts, trustees, heirs, heirs-at-law, executors, administrators,
beneficiaries, successors, assigns, agents, representatives, attorneys and insurers, does hereby,
separately and severally, fully, completely, and absolutely RELEASE AND FOREVER DISCHARGE Martek
and its respective predecessors, successors, parents, subsidiaries, affiliates, divisions, assigns,
principals, stockholders, officers, directors, employees, agents, independent contractors,
representatives, attorneys, insurers, trusts, and trustees, separately and severally, from any and
every claim, demand, agreement, understanding and cause of action, both known and unknown, which
Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest Holders, had
at any time in the past, now have or may have in the future, against Martek. Specifically, without
limitation, Xxxxxxx, on his own behalf himself and as Stockholders’ Representative of the Former
Interest Holders, releases and discharges Martek from (i) any and all claims that were asserted or
could have been asserted in the Litigation, (ii) any and all claims that any Former Interest Holder
may have against Martek arising under the Merger Agreement and the Contingent Rights, including,
without limitation, any claims based upon the achievement or
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purported achievement of any Milestone, as such term is defined in the Merger Agreement, and
(iii) any claims based upon the allocation of the Settlement Shares among the Former Interest
Holders. It is the intent of Xxxxxxx, on his own behalf and as Stockholders’ Representative of the
Former Interest Holders, to grant an absolute, full, complete and unconditional release of Martek
from anything and everything, except acts or omissions of Martek occurring subsequent to the date
of this release.
4. Martek, its respective predecessors, successors, parents, subsidiaries, affiliates,
divisions, assigns, principals, stockholders, officers, directors, employees, agents, independent
contractors, representatives, attorneys, insurers, trusts, and trustees, does hereby, separately
and severally, fully, completely, and absolutely RELEASE AND FOREVER DISCHARGE Xxxxxxx, on his own
behalf and as Stockholders’ Representative of the Former Interest Holders, their respective trusts,
trustees, heirs, heirs-at-law, executors, administrators, beneficiaries, successors, assigns,
agents, representatives, attorneys and insurers, separately and severally, from any and every
claim, demand, agreement, understanding and cause of action, both known and unknown, which Martek
had at any time in the past, now have or may have in the future, against Martek. Specifically,
without limitation, Martek releases and discharges Xxxxxxx, on his own behalf and as Stockholders’
Representative of the Former Interest Holders, from any and all claims that were asserted or could
have been asserted in the Litigation and any and all claims that Martek may have against Xxxxxxx,
on his own behalf and as Stockholders’ Representative of the Former Interest Holders, arising under
the Merger Agreement and the Contingent Rights, including, without
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limitation, any claims based upon the achievement or purported achievement of any Milestone,
as such term is defined in the Merger Agreement. It is the intent of Martek to grant an absolute,
full, complete and unconditional release of Martek from anything and everything, except acts or
omissions of Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, occurring subsequent to the date of this release.
5. The releases contained in this Agreement include, but are not limited to, any and every
claim, demand and cause of action, known or unknown, at law or equity, whether in contract, tort,
statutory or otherwise, against Martek relating in any way to any provision of the Merger
Agreement.
6. Within 15 days of the entry of the filing of a Stipulation of Dismissal with Prejudice in
the form attached hereto, Xxxxxxx shall return to Martek all documents and other materials produced
by Martek in response to discovery requests made in the Litigation or any confidential portions of
any depositions taken in the Litigation (“Martek Materials”). As an alternative to returning such
materials, Xxxxxxx may elect to destroy Martek Materials, subject to the certification requirements
set forth below. Xxxxxxx shall, at that time, certify that he has handled Martek Materials
consistent with the Protective Order entered in the Litigation, that he has retrieved all such
Martek Materials from any person to whom they have made such materials available pursuant to the
Protective Order, and that they have either returned or destroyed all such Martek Materials. The
parties agree that it would be extremely difficult and impracticable under the presently known and
anticipated facts and circumstances to ascertain and fix the
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actual damages Martek would incur should Xxxxxxx fail to comply with the provisions of this
Section 6.
7. Each of the parties to this Agreement acknowledge that they are responsible for their own
costs, fees, expenses and attorneys fees incurred in the Litigation.
8. This Settlement Agreement and the covenants, obligations, undertakings, rights and benefits
shall be binding and shall inure to the benefit of the parties hereto and their respective
representatives, successors, assigns, heirs, executors, trustees, beneficiaries, administrators,
respective predecessors, successors, parents, subsidiaries, affiliates, divisions, assigns,
principals, stockholders, officers, directors, employees, agents, independent contractors,
representatives, attorneys, insurers, trusts, and trustees.
9. This Agreement contains the entire agreement between the parties hereto and supersedes all
prior agreements, negotiations, discussions, representations, commitments, or understandings.
There have been no other representations, promises, agreements, or inducements not herein
expressed, and this Agreement contains the entire and only agreement between Xxxxxxx, on his own
behalf and as Stockholders’ Representative of the Former Interest Holders, and Martek. The parties
understand, agree and expressly assume the risk that any fact not recited, contained or embodied in
this Agreement may turn out hereinafter to be other than, different from, or contrary to the facts
now known to them or believed by them to be true, and further agree that this Agreement shall be
effective in all respects notwithstanding and shall not be subject to
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termination, modification or rescission by reason of any such difference in facts. This Agreement
cannot be amended or modified except by a writing signed by all parties hereto.
10. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, agrees that the language of this Agreement shall not be construed, by any rule of law or
presumption of law or otherwise, against the drafter. He further agrees that he and his attorney
have had full opportunity to read and review this Agreement and to contribute or alter language or
contents thereof.
11. The parties agree that this Agreement shall be governed by the laws of the State of
Maryland as applied to contracts made and fully performed in such state.
12. Exclusive jurisdiction to resolve any disputes between the parties about the meaning or
interpretation of this Agreement shall lie with the United States District Court for the District
of Maryland.
13. Any notices required under this Agreement to be given to a party hereto shall be sent by
certified mail to the party’s address as set forth below:
If to Martek:
with a copy to:
Xxxx X. Xxxxxx, Esquire
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
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If to Xxxxxxx:
Xxxxxx Xxxxxxx
1405 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
1405 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to:
J. Xxxxxxxx Xxxxxx, III, Esquire
Xxxxxx Xxxxxx, Esquire
Bracewell & Xxxxxxxx LLP
Pennzoil Place — South Tower
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Xxxxxx Xxxxxx, Esquire
Bracewell & Xxxxxxxx LLP
Pennzoil Place — South Tower
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
or to such other address or person as any party may have specified in a notice duly given to the
other party as provided herein.
14. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, and this Agreement and any counterpart so executed shall be deemed to be one and the
same instrument.
15. Xxxxxxx, on his own behalf and as Stockholders’ Representative of the Former Interest
Holders, acknowledges and declares that he has read and fully understands this Agreement and has
had fully opportunity to discuss its contents with his counsel.
SIGNED AND AGREED to, this 15th day of October, 2007.
| /s/ MARTEK BIOSCIENCES CORPORATION | ||||
| MARTEK BIOSCIENCES CORPORATION | ||||
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Senior VP and General Counsel | |||
| /s/ Xxxxxx Xxxxxxx | ||||
| XXXXXX XXXXXXX, ON HIS OWN BEHALF | ||||
| AND AS STOCKHOLDERS’ REPRESENTATIVE OF THE FORMER INTEREST HOLDERS OF OMEGATECH, INC. | ||||
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