EXHIBIT 10.3
GENOMICA CORPORATION
FOUNDERS AGREEMENT
THIS AGREEMENT is made as of the 22 th day of March, 1996, by and among
Genomica Corporation, a Delaware corporation, (the "Corporation"), Xxxxxx Xxxxx
("Founder") and the persons (the "Purchasers") named in Schedule I to a certain
Series A Convertible Preferred Stock Purchase Agreement of the Corporation dated
the date hereof (the "Purchase Agreement").
RECITALS
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The Corporation is engaged in the highly competitive business of
researching, developing, manufacturing and marketing computer software for the
biotechnology industry on an international basis. Founder and the Corporation
recognize and affirm that success or failure in this highly technical and highly
competitive business is dependent on the ability of the Corporation to (1)
develop and protect proprietary technology which will give the Corporation a
competitive advantage in the marketplace; (2) incorporate this technology into
products which themselves will or may become proprietary; and (3) develop and
utilize processes which may be proprietary to accomplish (1) and (2) above.
In order to achieve the above objectives, the Corporation has expended and
will continue to expend substantial time, effort and financial resources. These
activities include research, the attraction and training of key employees, and
establishing relationships with necessary resources outside the Corporation. If
information regarding the Corporation's research, processes or products were to
fall into the hands of a competitor of the Corporation, it could be used in a
manner which would cause serious and irreparable financial and business damage
to the Corporation. For this reason, all information related to the
Corporation's technology, research, products, and business strategies is
considered to be confidential information which is proprietary to the
Corporation.
In addition, the Purchasers intend to invest in the Corporation pursuant to
the Purchase Agreement based on the foregoing assumptions and such investment is
contingent upon the execution and delivery of this Agreement by the Corporation
and Founder.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above representations and
understandings, and the promises and mutual agreements set forth below, the
parties agree, effective on the date of the Agreement, to the following terms
and conditions:
1. Services. Founder agrees to serve the Corporation as reasonably
directed by its Board of Directors or its designee, consistent with the scope of
expertise and other employment obligations of Founder. Such services may
include participation in the Corporation as a director, officer, scientific
advisor, consultant, contractor and/or, with the agreement of Founder, an
employee. In all such cases, the terms and conditions of this Agreement will
continue to be binding.
2. Founder's Stock. Founder has purchased from the Corporation an
aggregate of 30,000 shares of Common Stock (the "Shares") at a per-share
purchase price of $.001 (the "Original Purchase Price") as more specifically set
forth on Schedule 1 hereto. Founder's Shares shall be subject to a number of
restrictions as set forth in this Agreement. Certain of the restrictions with
respect to Founder's Shares may terminate under various conditions pursuant
hereto in consideration for Founder's service to the Corporation as described
herein.
3. [INTENTIONALLY OMITTED]
4. Disclosure and Assignment of Technology to Corporation. Concurrently
with the execution of this Agreement, Founder is executing and delivering a
Nondisclosure Agreement substantially in the form set forth as Exhibit A hereto
(the "Nondisclosure Agreement").
5. [INTENTIONALLY OMITTED]
6. Remedies in the Event of Breach. The Corporation, the Purchasers and
Founder understand and agree that any breach or threatened breach by the
Corporation or Founder of any of the provisions hereof cannot be remedied solely
by the recovery of damages, and in the event of any such breach or threatened
breach, the Corporation or the Purchasers, as the case may be, shall be entitled
to injunctive relief, restraining Founder, and any business, firm, corporation,
individual or other entity participating in such breach or attempted breach from
engaging in any activity which would constitute a breach. The Corporation, the
Purchasers and Founder further agree that any dispute arising under the terms of
this Agreement shall be decided in accordance with the rules then in effect of
the American Arbitration Association, and any arbitration award may be entered
in a court of competent jurisdiction and enforced as a judgment thereof.
Nothing herein, however, shall be construed as (i) prohibiting the Corporation,
the Purchasers or Founder from pursuing, in conjunction with an injunction or
otherwise, any other remedies available in equity or at law for any such breach
or threatened breach, including the recovery of damages; or (ii) limiting the
Corporation's remedy against Founder as set forth in Section 13 below.
7. Transferability. The Corporation and Founder agree (i) that Unvested
Shares (as defined below) may not be sold, pledged or otherwise transferred
("Transferred") without the consent of the Board of Directors in its sole
discretion
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(except pursuant to Section 9 below); and (ii) Vested Shares (as defined below)
may be Transferred only in accordance with the provisions set forth herein and
only if the transferee of such Vested Shares agrees in writing to be bound by
the provisions of Sections 9, 10, 11, 13 and 14 hereof. Any Founder's Shares
Transferred not in accordance with the preceding sentence shall be void, ab
initio.
8. Founder's Stock. Founder's Shares shall be affected as follows:
(A) In the event (i) Founder dies; (ii) of a breach by Founder of any of
the terms of the Consulting Agreement or the Common Stock Acquisition Agreement
by which Founder purchased the Founder's Shares; or (iii) the Consulting
Agreement shall have been terminated by the Corporation for Due Cause (as such
term is defined in the Consulting Agreement) or if Xx. Xxxx voluntarily
terminates the Consulting Agreement (any such case, a "Discontinuation Event"),
certain of Founder's Shares, defined below as "Unvested Shares," shall be
repurchased and paid for in full by the Corporation at the Original Purchase
Price within 30 days of such Discontinuation Event. Unvested Shares shall be
those Founder's Shares which have not yet vested according to the schedule set
forth in Schedule 1 hereto. Notwithstanding the preceding sentence, in the
event the Corporation's Board of Directors approves a sale or merger (other than
a merger with or into a wholly-owned subsidiary of the Corporation or a merger
in which the Corporation is the surviving entity) of the Corporation or an
initial public offering of the Corporation's stock (any of which events is
defined herein as a "Triggering Transaction"), Founder will be notified of such
Board action. Any of Founder's then Unvested Shares will become Vested Shares
(as defined below) simultaneously with the consummation of the Triggering
Transaction. Upon the occurrence of a Discontinuation Event, all of Founder's
Unvested Shares shall forever remain Unvested Shares.
(B) Upon the occurrence of a Discontinuation Event, Founder's Shares which
are vested pursuant to Schedule 1 hereto ("Vested Shares") may be repurchased by
the Corporation, solely at the option of the Corporation (the "Corporation
Option"), at Fair Market Value (as defined below). The Corporation agrees to
give Founder (or his estate) notice of its intent to exercise the Corporation
Option within ninety (90) days of the date of such Discontinuation Event and to
pay for those shares for which it exercises such Corporation Option as follows:
3/24ths of the total price within 90 days of the date of the Discontinuation
Event, with the balance to be paid in equal monthly installments over the next
succeeding twenty-one months.
(C) Termination For Cause. Prior to the Corporation's initial public
offering, in the event of a Discontinuation Event with respect to Founder
occurring as a result of an event set forth in clauses (ii) or (iii) of Section
8(A) above, then with respect to any of Founder's Shares not repurchased by the
Corporation pursuant to Sections 8(A) or 8(B) above, Founder shall, in all
matters put forth to a vote of the holders of Common Stock (i) cause such
Founder's Shares to be represented at any meeting of the stockholders of
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the Corporation and (ii) vote such shares in the same proportion and in the same
manner as all other Common Stock is voted.
(D) Fair Market Value. For the purposes of Section 8(B), Fair Market Value
shall be that value as determined in good faith by the Board of Directors. Any
Founder (or his estate) may request an appraisal by written notice of objection
delivered not later than fifteen (15) days after receipt of such Fair Market
Value determination by the Board of Directors. If an appraisal is demanded, the
Corporation shall select an appraiser reasonably acceptable to Founder (or his
estate) to appraise Founder's Vested Shares, and the repurchase price payable
upon the Corporation's exercise of the Corporation Option shall be the higher of
such appraisal and such Fair Market Value determination by the Board of
Directors. If such appraisal results in a valuation more than 10% higher than
the Fair Market Value determination by the Board of Directors, then all expenses
of such appraisal shall be paid by the Corporation; otherwise, all expenses of
such appraisal shall be paid by Founder (or his estate).
9. Approved Sale of Corporation. (A) If the Corporation's Board of
Directors has adopted a resolution of the Board of Directors approving the sale
of the Corporation to any person (such person, the "Acquiring Entity"), whether
by merger, consolidation, sale of all or substantially all of the Corporation's
assets or sale of all of the outstanding capital stock (such sale, an "Approved
Sale"), Founder and each Purchaser will consent to, vote for and raise no
objections against the Approved Sale, and if the Approved Sale is structured as
a sale of stock, Founder and each Purchaser hereby agrees to sell all of their
respective Shares (and all rights thereto) on the terms and conditions approved
by the Board of Directors, provided that each holder of Common Stock receives in
the Approved Sale the same amount and type of consideration for its interest in
the Corporation as is received by the holders of the Series A Convertible
Preferred Stock, (the "Preferred Stock"), assuming such holders had converted
their respective shares of Preferred Stock into Common Stock. Founder and each
Purchaser will take all actions reasonably required to facilitate and consummate
an Approved Sale of the Corporation.
(B) The Corporation shall give written notice (a "Sale Notice") of any such
Approved Sale to Founder and Purchasers. A Sale Notice shall contain (i) the
name and address of the prospective Acquiring Entity; (ii) the purchase price
and other material terms and conditions of the Approved Sale; (iii) the date on
which the Approved Sale is intended to be consummated; (iv) the date on which
the Corporation's Board of Directors approved the Approved Sale and (v) the
Founder's and Purchaser's Shares proposed to be sold. Upon receipt of a Sale
Notice, Founder and each Purchaser shall be required to consent to such Approved
Sale and to sell its Founder's or Purchaser's Shares, as the case may be, to the
Acquiring Entity designated therein within 30 days of receipt thereof or such
later date as may be specified in the Sale Notice. No Purchaser or Founder
shall be required to make any representations and warranties other than
representations and warranties concerning its ownership of such Founder's or
Purchaser's Shares, the absence
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of any liens or encumbrances thereon and its authority to sell such Shares; and
provided further that, if the terms of such Approved Sale provide for the escrow
of any amount of proceeds resulting from an Approved Sale or to accept
indebtedness or other securities subject to indemnification or other rights of
offset, then Founder and Purchasers shall be required to escrow a pro rata
amount of its proceeds from such Approved Sale and/or to accept such
indebtedness or other securities.
(C) If the Corporation or Founder, in connection with any Approved Sale,
enters into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) promulgated by the Securities and Exchange Commission under
the Securities Act may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), Founder
will at the request of the Corporation, appoint a purchaser representative (as
such term is defined in Rule 501(h) promulgated by the Securities and Exchange
Commission under the Securities Act) reasonably acceptable to the Corporation.
If Founder appoints the purchaser representative designated by the Corporation,
the Corporation will pay the fees of such purchaser representative, but if
Founder declines to appoint the purchaser representative designated by the
Corporation, Founder will appoint another purchaser representative (reasonably
acceptable to the Corporation), and Founder will be responsible for the fees of
the purchaser representative so appointed.
10. Right of First Refusal. (A) Except pursuant to Section 9 above, if at
any time Founder desires to sell for cash all or any part of Founder's Shares
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
Founder shall submit a written offer (the "Offer") to sell Founder's Shares (the
"Offered Shares") to the Purchasers on terms and conditions, including price,
not less favorable to the Purchasers than those on which Founder proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the Offered Shares proposed to be sold,
the total number of Founder's Shares owned by Founder, the terms and conditions,
including price, of the proposed sale, that the proposed buyer has been informed
of the rights and obligations provided for in this Section 10 and Section 11
below and has agreed to purchase Offered Shares in accordance with the terms of
this Agreement, and any other material facts relating to the proposed sale. The
Offer shall further state that the Purchasers may acquire, in accordance with
the provisions of this Agreement, all but not less than all of the Offered
Shares for the price and upon the other terms and conditions, including deferred
payment (if applicable), set forth therein.
(B) Each Purchaser shall have the absolute right to purchase that number of
Offered Shares as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of Purchasers' Shares (as
defined below) then owned by such Purchaser and the denominator of which shall
be the aggregate number of Purchasers' Shares then owned by all of the
Purchasers. For purposes of this Section 10, all of the securities of the
Corporation which a Purchaser has acquired, or has
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the right to acquire from the Corporation, upon the conversion, exercise or
exchange of any of the securities of the Corporation then owned by such
Purchaser shall be deemed to be Purchasers' Shares then owned by such Purchaser.
(The amount of Offered Shares that each Purchaser is entitled to purchase under
this Section 10(B) shall be referred to as its "Pro Rata Fraction").
(C) The Purchasers shall have a right of oversubscription such that if any
Purchaser fails to accept the Offer as to its Pro Rata Fraction, the other
Purchasers shall, among them, have the right to purchase up to the balance of
the Offered Shares not so purchased. Such right of oversubscription may be
exercised by a Purchaser by accepting the Offer as to more than its Pro Rata
Fraction. If, as a result thereof, such oversubscriptions exceed the total
number of Offered Shares available in respect of such oversubscription
privilege, the oversubscribing Purchasers shall be cut back with respect to
their oversubscriptions on a pro rata basis in accordance with their respective
Pro Rata Fractions or as they may otherwise agree among themselves. In the
event that the Purchasers in the aggregate shall not have elected in the manner
set forth below to purchase all of the Offered Shares, the Purchasers shall not
have the right to purchase any of the Offered Shares and the Founder shall have
the right to sell the Offered Shares in accordance with Section 10(E) below.
(D) If the Purchasers, in the aggregate, desire to purchase all of the
Offered Shares, such Purchaser(s) shall communicate in writing their election to
purchase to Founder, which communication shall state the number of Offered
Shares each Purchaser desires to purchase (which shall in the aggregate be equal
to all the Offered Shares) and shall be given to Founder within thirty days of
the date the Offer was made. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares (subject
to the aforesaid limitations as to a Purchaser's right to purchase more than its
Pro Rata Fraction). Sales of the Offered Shares to be sold to purchasing
Purchasers pursuant to this Section 10 shall be made at the offices of the
Corporation on the 45th day following the date the Offer was made (or if such
45th day is not a business day, then on the next succeeding business day). Such
sales shall be effected by Founder's delivery to each purchasing Purchaser of a
certificate or certificates evidencing the Offered Shares to be purchased by it,
free and clear of any liens, claims or encumbrances of any kind (other than
pursuant to this Agreement), duly endorsed for transfer to such purchasing
Purchaser and with any requisite stock transfer stamps attached, against payment
to Founder of the purchase price therefor by such purchasing Purchaser.
(E) If the Purchasers do not purchase all of the Offered Shares, the
Offered Shares may be sold by Founder at any time within six months after the
date the Offer was made, subject to Section 11 below and the other provisions of
this Agreement. Any such sale shall be to the Proposed Transferee, at not less
than the price and upon other terms
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and conditions, if any, not more favorable to the Proposed Transferee than those
specified in the Offer. Any Offered Shares not sold within such six-month period
shall continue to be subject to the requirements of a prior offer pursuant to
this Section 10.
11. Co-Sale Rights. (A) If at any time a Purchaser desires to sell all or
any part of its Common Stock or Preferred Stock ("Purchaser's Shares") pursuant
to a bona fide offer from a third party (for purposes of this Section 11, also a
"Proposed Transferee"), such Purchaser shall deliver a written notice (the
"Notice") of such proposed sale of such Purchaser's Shares (for purposes of this
Section 11, also "Offered Shares") to the other Purchaser. The Notice shall
disclose the identity of the Proposed Transferee, the Offered Shares proposed to
be sold, the total number of Purchaser's Shares owned by such Purchaser, the
terms and conditions, including price, of the proposed sale, that the proposed
buyer has been informed of the rights and obligations provided for in this
Section 11 and has agreed to purchase Offered Shares in accordance with the
terms of this Agreement, and any other material facts relating to the proposed
sale.
(B) (i) If a Purchaser elects not to purchase any Offered Shares pursuant
to Section 10 above; or (ii) if upon receipt of a Notice pursuant to Section
11(A) above, such Purchaser desires to sell any of such Purchaser's Shares, then
such Purchaser shall have the right, exercisable upon written notice (the "Co-
Sale Acceptance Notice") to the selling Founder or Purchaser, as applicable,
given within thirty (30) days after the Offer or Notice, as applicable has been
delivered pursuant to Section 10 or 11(A) above, to participate in the proposed
sale of Offered Shares pursuant to the terms and conditions specified in the
Offer or Notice, as applicable, and the selling Founder or Purchaser, as
applicable, shall require the Proposed Transferee designated in the Offer or
Notice, as applicable, to purchase from such Founder or Purchaser up to the
number of whole shares of Common Stock or Preferred Stock, as applicable, equal
to the product of (i) the total number of Offered Shares to be transferred in
such proposed sale as specified in the Offer or Notice, as applicable, and (ii)
a fraction, the numerator of which (a) in the case of Offered Shares which are
Common Stock, is the number of outstanding shares of Common Stock held by such
Purchaser (including any Common Stock issuable to such Purchaser upon the
conversion or exchange of any Purchaser's Shares convertible or exchangeable
into Common Stock) or (b) in the case of Offered Shares which are Preferred
Stock, is the number of outstanding shares of Preferred Stock held by such
Purchaser, and the denominator of which (c) in the case of Offered Shares which
are Common Stock, is the total number of shares of Common Stock (on a fully-
diluted basis) then outstanding or (d) in the case of Offered Shares which are
Preferred Stock, is the total number of shares of Preferred Stock (on a fully-
diluted basis) then outstanding . The Co-Sale Acceptance Notice shall state the
number of shares such Purchaser proposes to include in such proposed sale to the
Proposed Transferee (up to the number of shares as calculated pursuant to the
immediately preceding sentence). Any such sale by such Purchaser shall be at
the same price per share (including price and type of consideration) received by
the Proposed Transferee and otherwise on identical terms and conditions as
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received by the selling Founder or Purchaser, as the case may be, in its sale to
the Proposed Transferee. In the event that the Proposed Transferee does not
purchase shares of Common Stock and/or Preferred Stock from Purchasers who have
timely delivered a Co-Sale Acceptance Notice as required by this Section 11,
then the selling Founder or Purchaser, as the case may be, shall not be
permitted to, and shall not, sell any Offered Shares to the Proposed Transferee
in the proposed sale.
(C) If no Co-Sale Acceptance Notice is received by the selling Founder or
Purchaser, as the case may be, during the 30-day period referred to in Section
11(A) above, then such Founder or Purchaser, as the case may be, shall have the
right to sell the Offered Shares at any time within six months after the date
the Offer or Notice, as the case may be was delivered, subject to the other
provisions of this Agreement. Any such sale shall be to the Proposed
Transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the Proposed Transferee than those specified in the
Offer or Notice, as applicable. Any Offered Shares not sold within such six-
month period shall continue to be subject to the requirements of Section 10 and
this Section 11.
(D) Notwithstanding the foregoing, this Section 11 shall not apply to any
Transfer by any Purchaser or Founder of Shares: (i) to such Purchaser's or
Founder's affiliates, members of such Purchaser's or Founder's immediate family,
family trusts or Purchasers, (ii) constituting a gift or gifts, or (iii)
constituting less than 1% of the outstanding class of Shares to be Transferred.
12. Termination. The Corporation's right to repurchase Vested Shares
pursuant to Section 8 hereof, and the provisions of Sections 7, 9, 10, 11 and 13
hereof, shall terminate immediately upon the closing of a firm commitment,
underwritten public offering registered under the Securities Act, (other than a
registration relating solely to a transaction referred to in Rule 145 under the
Securities Act (or any successor rule) or to an employee benefit plan of the
Corporation), at a public offering price (prior to underwriters' discounts and
expenses) equal to or exceeding $2.50 per share of Common Stock (as adjusted for
any stock dividends, combinations or splits with respect to such shares) and in
which the aggregate proceeds to the Corporation and/or selling stockholders
(before deduction for underwriters' discounts and expenses relating to the
issuance, including without limitation fees of the Corporation's counsel) exceed
$5,000,000.
13. Failure to Deliver Shares. If Founder becomes obligated to sell any
Founder's Shares to a Purchaser or the Corporation under this Agreement and
fails to deliver such Founder's Shares in accordance with the terms of this
Agreement, such Purchaser or the Corporation, as the case may be, may, at its
option, in addition to all other remedies it may have, send to Founder the
purchase price for such Founder's Shares as is herein specified. Thereupon, the
Corporation upon written notice to Founder, (i) shall cancel on its books the
certificate or certificates representing the Founder's Shares to be sold and
(ii) shall issue, in lieu thereof, in the name of such
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Purchaser or the corporation, as the case may be, a new certificate or
certificates representing such Founder's Shares, and thereupon all of Founder's
rights in and to such Founder's Shares shall terminate.
14. Lock-up. If requested by the underwriters for the initial
underwritten public offering of securities of the Corporation, Founder and each
Purchaser shall agree not to sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose of all or any of such Founder's or
Purchaser's Shares, without the written consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering. This Section 14 shall
expressly survive the termination of this Agreement.
15. No Waiver. Any waiver of a breach of any of the terms of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other terms or conditions, nor shall any failure to enforce
any provision of this Agreement operate as a waiver of such provision or any
other provision.
16. Successors and Assigns. The rights, benefits and obligations of the
Corporation under this Agreement and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. Subject to the limitations set forth herein, this Agreement shall
inure to the benefit of and be binding upon the Founders' heirs, successors and
assigns. Subject to the limitations set forth herein, neither this Agreement
nor any rights or obligations hereunder shall be assigned by any Founder. The
rights of the Purchasers hereunder shall inure to the benefit of and be binding
upon the Purchasers respective successors and assigns.
17. Entire Agreement. The Agreement (with respect to the Corporation and
the Purchasers, together with the Purchase Agreement), constitutes the entire
agreement among the parties. This Founders Agreement may not be amended or
modified, except in writing, and signed by each of the Purchasers and Founder.
18. Severability. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the invalidity or unenforceability
thereof shall not affect any other provisions or applications of this Agreement
which can be given effect without the invalid or unenforceable provision or
application. To that end, the provisions of this Agreement are to be severable.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (without giving
effect to its conflicts of laws principles).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF. the Corporation has caused this Agreement to be signed
and each Founder has executed this Agreement as of the date shown below.
GENOMICA CORPORATION
Dated:__________, 1996 BY: /s/ Xxxxx X. Rathmanns
------------------------------------
TITLE:_________________________________
Dated: March 22 , 1996 FOUNDER: /s/ Xxxxxx Xxxxx
--------- -------------------------------
Xxxxxx Xxxxx
PURCHASERS:
FALCON TECHNOLOGY PARTNERS, L.P.
A Delaware limited partnership
BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
TITLE: General Partner
XXXXXX & XXXXXX GROUP, INC.
A NY corporation
BY: /s/ D.C.J.
------------------------------------
TITLE: Executive Vice President
---------------------------------
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SCHEDULE 1
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Founder Founders' Vesting Schedule
------- --------- ----------------
Shares
------
Xxxxx 30,000 15,000 shares become Vested Shares on the date
($30.00) hereof and the remaining shares become Vested
Shares on the first anniversary of the date
hereof; provided however, that notwithstanding
the above provisions, if Xxxxx leaves the employ
of CSH for any reason except to become an
employee of the Company, all shares which have
not yet become Vested Shares will always remain
Unvested Shares.
11
Exhibit A
CONFIDENTIALITY AGREEMENT
-------------------------
Name: Xxxxxx Xxxxx Employment Date: July 6, 1990
------------------------------ ------------------------
(Type or Print)
In consideration of (i) Genomica Corporation (the "Company") entering
into certain agreements and arrangements with my employer, Cold Spring Harbor
Laboratory ("Cold Spring Harbor"), whereby the Company will, among other things,
sponsor certain research activities in which I may be involved, and (ii) the
Company's issuance and sale to me of shares of its common stock pursuant to a
Common Stock Acquisition Agreement between the Company and me, and for other
good and valuable consideration, the receipt and sufficiency of which are by
acknowledged, I understand and agree to the following provisions for the
protection of the confidential information of the Company.
1. Confidentiality. I agree that without the written permission of the
Company, I will not knowingly use, publish or otherwise disclose any
Confidential Information. The term "Confidential Information" means any
Proprietary Information or any knowledge, information or materials about the
products, services, know-how, research and development, customers, or business
plans of the Company or any confidential information about financial matters,
marketing, pricing, compensation or any other confidential information of the
Company, its customers, or others from whom the Company has received information
under obligations of confidence which have been communicated to me in writing.
The term "Proprietary Information" means all intellectual and/or physical work
product, including without limitation, inventions, whether or not patentable and
whether or not tested or reduced to practice, discoveries, ideas, conceptions,
processes, developments, designs, business plans, trade secrets, mask works,
know-how and tangible expressions, whether or not copyrightable, computer
software, systems, programs or procedures, which (a) relates to the actual or
anticipated business activities of the Company, (b) results from work which is
performed for the Company or which is funded in whole or in part by the Company
or (c) results from any use of premises, equipment or property (tangible or
intangible) owned, leased, licensed or contracted for by the Company.
Notwithstanding the foregoing provisions of this paragraph 1 to the contrary,
"Confidential information" shall not include any information which (i) has been
made available to the general public of information which subsequently comes in
the public domain through no fault or omissions by me, (ii) is subsequently
disclosed by a third party which has the bona fide right to make such
disclosure, (iii) is required to be disclosed by law or a governmental agency
and (iv) is already generally known by personas in the computer software
industry or developed by
Genomica Corporation
Confidentiality Agreement
Page 2
me independent of my work with the Company or Cold Spring Harbor without use of
any Confidential Information.
2. Confidential Information of Others. I agree not to knowingly
disclose to the Company (a) any confidential information belonging to others or
(b) any prior inventions made by me which the Company is not entitled to learn
of or use.
3. Return of Materials. Upon the written request of the Company at any
time, I will deliver promptly to the Company all documents, materials and things
(if any) in my possession which belong to the Company or have been given to me
by the Company.
4. Prior Agreements. I represent that I have attached hereto a copy of
any agreement (such as a prior employment agreement) which affects my ability to
comply with the terms of this Agreement. If there is no such agreement, I have
written my initials here: SC
----
5. Enforcement. I agree that the Company would not be fairly
compensated by money damages for any breach of this Agreement by me and
therefore, in the event of a breach or threatened breach of this Agreement, the
Company shall be entitled to specific performance, an injunction and other
equitable relief in addition to money damages and other legal remedies.
Genomica Corporation
Confidentiality Agreement
Page 3
6. Miscellaneous. This Agreement shall be binding on my executors,
administrators, heirs, legal representatives or assigns, and may not be modified
except in writing with the approval of a duly authorized officer of the Company.
If any provision of this Agreement is determined to be illegal or unenforceable,
because of the duration thereof or the area or scope covered, I hereby request
any court making such determination to reduce the duration, area and/or scope so
that in its reduced form such covenant shall be enforceable and I agree that in
such event all remaining provisions shall remain in full force and effect. This
Agreement shall be governed and construed in accordance with the internal laws
of the State of New York. This document sets forth the entire agreement between
the Company and me with respect to the matters set forth herein.
WITNESS: EMPLOYEE:
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxx
----------------------------------- -----------------------------------
Xxxx Xxxxxxxx Xxxxxx Xxxxx
Date: 3-22-96 Date: 3/22/96
------------------------------ ------------------------------
Social Security No. ###-##-####
----------------
GENOMICA CORPORATION
FOUNDERS AGREEMENT
THIS AGREEMENT is made as of the 22 th day of March, 1996, by and among
Genomica Corporation, a Delaware corporation, (the "Corporation"), Xxxxxx Xxxxxx
("Founder") and the persons (the "Purchasers") named in Schedule I to a certain
Series A Convertible Preferred Stock Purchase Agreement of the Corporation dated
the date hereof (the "Purchase Agreement").
RECITALS
--------
The Corporation is engaged in the highly competitive business of
researching, developing, manufacturing and marketing computer software for the
biotechnology industry on an international basis. Founder and the Corporation
recognize and affirm that success or failure in this highly technical and highly
competitive business is dependent on the ability of the Corporation to (1)
develop and protect proprietary technology which will give the Corporation a
competitive advantage in the marketplace; (2) incorporate this technology into
products which themselves will or may become proprietary; and (3) develop and
utilize processes which may be proprietary to accomplish (1) and (2) above.
In order to achieve the above objectives, the Corporation has expended and
will continue to expend substantial time, effort and financial resources. These
activities include research, the attraction and training of key employees, and
establishing relationships with necessary resources outside the Corporation. If
information regarding the Corporation's research, processes or products were to
fall into the hands of a competitor of the Corporation, it could be used in a
manner which would cause serious and irreparable financial and business damage
to the Corporation. For this reason, all information related to the
Corporation's technology, research, products, and business strategies is
considered to be confidential information which is proprietary to the
Corporation.
In addition, the Purchasers intend to invest in the Corporation pursuant to
the Purchase Agreement based on the foregoing assumptions and such investment is
contingent upon the execution and delivery of this Agreement by the Corporation
and Founder.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above representations and
understandings, and the promises and mutual agreements set forth below, the
parties agree, effective on the date of the Agreement, to the following terms
and conditions:
1
1. Services. Founder agrees to serve the Corporation as reasonably
directed by its Board of Directors or its designee, consistent with the scope of
expertise and other employment obligations of Founder. Such services may
include participation in the Corporation as a director, officer, scientific
advisor, consultant, contractor and/or, with the agreement of Founder, an
employee. In all such cases, the terms and conditions of this Agreement will
continue to be binding.
2. Founder's Stock. Founder has purchased from the Corporation an
aggregate of 250,000 shares of Common Stock (the "Shares") at a per-share
purchase price of $.001 (the "Original Purchase Price") as more specifically set
forth on Schedule 1 hereto. Founder's Shares shall be subject to a number of
restrictions as set forth in this Agreement. Certain of the restrictions with
respect to Founder's Shares may terminate under various conditions pursuant
hereto in consideration for Founder's service to the Corporation as described
herein.
3. [INTENTIONALLY OMITTED]
4. Disclosure and Assignment of Technology to Corporation. Concurrently
with the execution of this Agreement, Founder is executing and delivering a
Nondisclosure and Developments Agreement substantially in the form set forth as
Exhibit A hereto (the "Nondisclosure and Developments Agreement").
5. [INTENTIONALLY OMITTED]
6. Remedies in the Event of Breach. The Corporation, the Purchasers and
Founder understand and agree that any breach or threatened breach by the
Corporation or Founder of any of the provisions hereof cannot be remedied solely
by the recovery of damages, and in the event of any such breach or threatened
breach, the Corporation or the Purchasers, as the case may be, shall be entitled
to injunctive relief, restraining Founder, and any business, firm, corporation,
individual or other entity participating in such breach or attempted breach from
engaging in any activity which would constitute a breach. The Corporation, the
Purchasers and Founder further agree that any dispute arising under the terms of
this Agreement shall be decided in accordance with the rules then in effect of
the American Arbitration Association, and any arbitration award may be entered
in a court of competent jurisdiction and enforced as a judgment thereof.
Nothing herein, however, shall be construed as (i) prohibiting the Corporation,
the Purchasers or Founder from pursuing, in conjunction with an injunction or
otherwise, any other remedies available in equity or at law for any such breach
or threatened breach, including the recovery of damages; or (ii) limiting the
Corporation's remedy against Founder as set forth in Section 13 below.
7. Transferability. The Corporation and Founder agree (i) that Unvested
Shares (as defined below) may not be sold, pledged or otherwise transferred
("Transferred") without the consent of the Board of Directors in its sole
discretion
2
(except pursuant to Section 9 below); and (ii) Vested Shares (as defined below)
may be Transferred only in accordance with the provisions set forth herein and
only if the transferee of such Vested Shares agrees in writing to be bound by
the provisions of Sections 9, 10, 11, 13 and 14 hereof. Any Founder's Shares
Transferred not in accordance with the preceding sentence shall be void, ab
initio.
8. Founder's Stock. Founder's Shares shall be affected as follows:
(A) In the event (i) Founder dies; (ii) of a breach by Founder of any of
the terms of the Nondisclosure and Developments Agreement or the Common Stock
Acquisition Agreement by which Founder purchased the Founder's Shares (any such
case, a "Discontinuation Event"), certain of Founder's Shares, defined below as
"Unvested Shares," shall be repurchased and paid for in full by the Corporation
at the Original Purchase Price within 30 days of such Discontinuation Event.
Unvested Shares shall be those Founder's Shares which have not yet vested
according to the schedule set forth in Schedule 1 hereto. Notwithstanding the
preceding sentence, in the event the Corporation's Board of Directors approves a
sale or merger (other than a merger with or into a wholly-owned subsidiary of
the Corporation or a merger in which the Corporation is the surviving entity) of
the Corporation or an initial public offering of the Corporation's stock (any of
which events is defined herein as a "Triggering Transaction"), Founder will be
notified of such Board action. Any of Founder's then Unvested Shares will
become Vested Shares (as defined below) simultaneously with the consummation of
the Triggering Transaction. Upon the occurrence of a Discontinuation Event, all
of Founder's Unvested Shares shall forever remain Unvested Shares.
(B) Upon the occurrence of a Discontinuation Event, Founder's Shares which
are vested pursuant to Schedule 1 hereto ("Vested Shares") may be repurchased by
the Corporation, solely at the option of the Corporation (the "Corporation
Option"), at Fair Market Value (as defined below). The Corporation agrees to
give Founder (or his estate) notice of its intent to exercise the Corporation
Option within ninety (90) days of the date of such Discontinuation Event and to
pay for those shares for which it exercises such Corporation Option as follows:
3/24ths of the total price within 90 days of the date of the Discontinuation
Event, with the balance to be paid in equal monthly installments over the next
succeeding twenty-one months.
(C) Termination For Cause. Prior to the Corporation's initial public
offering, in the event of a Discontinuation Event with respect to Founder
occurring as a result of an event set forth in clause (ii) of Section 8(A)
above, then with respect to any of Founder's Shares not repurchased by the
Corporation pursuant to Sections 8(A) or 8(B) above, Founder shall, in all
matters put forth to a vote of the holders of Common Stock (i) cause such
Founder's Shares to be represented at any meeting of the stockholders of the
Corporation and (ii) vote such shares in the same proportion and in the same
manner as all other Common Stock is voted.
3
(D) Fair Market Value. For the purposes of Section 8(B), Fair Market Value
shall be that value as determined in good faith by the Board of Directors. Any
Founder (or his estate) may request an appraisal by written notice of objection
delivered not later than fifteen (15) days after receipt of such Fair Market
Value determination by the Board of Directors. If an appraisal is demanded, the
Corporation shall select an appraiser reasonably acceptable to Founder (or his
estate) to appraise Founder's Vested Shares, and the repurchase price payable
upon the Corporation's exercise of the Corporation Option shall be the higher of
such appraisal and such Fair Market Value determination by the Board of
Directors. If such appraisal results in a valuation more than 10% higher than
the Fair Market Value determination by the Board of Directors, then all expenses
of such appraisal shall be paid by the Corporation; otherwise, all expenses of
such appraisal shall be paid by Founder (or his estate).
9. Approved Sale of Corporation. (A) If the Corporation's Board of
Directors has adopted a resolution of the Board of Directors approving the sale
of the Corporation to any person (such person, the "Acquiring Entity"), whether
by merger, consolidation, sale of all or substantially all of the Corporation's
assets or sale of all of the outstanding capital stock (such sale, an "Approved
Sale"), Founder and each Purchaser will consent to, vote for and raise no
objections against the Approved Sale, and if the Approved Sale is structured as
a sale of stock, Founder and each Purchaser hereby agrees to sell all of their
respective Shares (and all rights thereto) on the terms and conditions approved
by the Board of Directors, provided that each holder of Common Stock receives in
the Approved Sale the same amount and type of consideration for its interest in
the Corporation as is received by the holders of the Series A Convertible
Preferred Stock, (the "Preferred Stock"), assuming such holders had converted
their respective shares of Preferred Stock into Common Stock. Founder and each
Purchaser will take all actions reasonably required to facilitate and consummate
an Approved Sale of the Corporation.
(B) The Corporation shall give written notice (a "Sale Notice") of any such
Approved Sale to Founder and Purchasers. A Sale Notice shall contain (i) the
name and address of the prospective Acquiring Entity; (ii) the purchase price
and other material terms and conditions of the Approved Sale; (iii) the date on
which the Approved Sale is intended to be consummated; (iv) the date on which
the Corporation's Board of Directors approved the Approved Sale and (v) the
Founder's and Purchaser's Shares proposed to be sold. Upon receipt of a Sale
Notice, Founder and each Purchaser shall be required to consent to such Approved
Sale and to sell its Founder's or Purchaser's Shares, as the case may be, to the
Acquiring Entity designated therein within 30 days of receipt thereof or such
later date as may be specified in the Sale Notice. No Purchaser or Founder
shall be required to make any representations and warranties other than
representations and warranties concerning its ownership of such Founder's or
Purchaser's Shares, the absence of any liens or encumbrances thereon and its
authority to sell such Shares; and provided further that, if the terms of such
Approved Sale provide for the escrow of any amount of proceeds resulting from an
Approved Sale or to accept indebtedness or other securities
4
subject to indemnification or other rights of offset, then Founder and
Purchasers shall be required to escrow a pro rata amount of its proceeds from
such Approved Sale and/or to accept such indebtedness or other securities.
(C) If the Corporation or Founder, in connection with any Approved Sale,
enters into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) promulgated by the Securities and Exchange Commission under
the Securities Act may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), Founder
will at the request of the Corporation, appoint a purchaser representative (as
such term is defined in Rule 501(h) promulgated by the Securities and Exchange
Commission under the Securities Act) reasonably acceptable to the Corporation.
If Founder appoints the purchaser representative designated by the Corporation,
the Corporation will pay the fees of such purchaser representative, but if
Founder declines to appoint the purchaser representative designated by the
Corporation, Founder will appoint another purchaser representative (reasonably
acceptable to the Corporation), and Founder will be responsible for the fees of
the purchaser representative so appointed.
10. Right of First Refusal. (A) Except pursuant to Section 9 above, if at
any time Founder desires to sell for cash all or any part of Founder's Shares
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
Founder shall submit a written offer (the "Offer") to sell Founder's Shares (the
"Offered Shares") to the Purchasers on terms and conditions, including price,
not less favorable to the Purchasers than those on which Founder proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the Offered Shares proposed to be sold,
the total number of Founder's Shares owned by Founder, the terms and conditions,
including price, of the proposed sale, that the proposed buyer has been informed
of the rights and obligations provided for in this Section 10 and Section 11
below and has agreed to purchase Offered Shares in accordance with the terms of
this Agreement, and any other material facts relating to the proposed sale. The
Offer shall further state that the Purchasers may acquire, in accordance with
the provisions of this Agreement, all but not less than all of the Offered
Shares for the price and upon the other terms and conditions, including deferred
payment (if applicable), set forth therein.
(B) Each Purchaser shall have the absolute right to purchase that number of
Offered Shares as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of Purchasers' Shares (as
defined below) then owned by such Purchaser and the denominator of which shall
be the aggregate number of Purchasers' Shares then owned by all of the
Purchasers. For purposes of this Section 10, all of the securities of the
Corporation which a Purchaser has acquired, or has the right to acquire from the
Corporation, upon the conversion, exercise or exchange of any of the securities
of the Corporation then owned by such Purchaser shall be deemed to be
Purchasers' Shares then owned by such Purchaser. (The amount of Offered Shares
5
that each Purchaser is entitled to purchase under this Section 10(B) shall be
referred to as its "Pro Rata Fraction").
(C) The Purchasers shall have a right of oversubscription such that if any
Purchaser fails to accept the Offer as to its Pro Rata Fraction, the other
Purchasers shall, among them, have the right to purchase up to the balance of
the Offered Shares not so purchased. Such right of oversubscription may be
exercised by a Purchaser by accepting the Offer as to more than its Pro Rata
Fraction. If, as a result thereof, such oversubscriptions exceed the total
number of Offered Shares available in respect of such oversubscription
privilege, the oversubscribing Purchasers shall be cut back with respect to
their oversubscriptions on a pro rata basis in accordance with their respective
Pro Rata Fractions or as they may otherwise agree among themselves. In the
event that the Purchasers in the aggregate shall not have elected in the manner
set forth below to purchase all of the Offered Shares, the Purchasers shall not
have the right to purchase any of the Offered Shares and the Founder shall have
the right to sell the Offered Shares in accordance with Section 10(E) below.
(D) If the Purchasers, in the aggregate, desire to purchase all of the
Offered Shares, such Purchaser(s) shall communicate in writing their election to
purchase to Founder, which communication shall state the number of Offered
Shares each Purchaser desires to purchase (which shall in the aggregate be equal
to all the Offered Shares) and shall be given to Founder within thirty days of
the date the Offer was made. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares (subject
to the aforesaid limitations as to a Purchaser's right to purchase more than its
Pro Rata Fraction). Sales of the Offered Shares to be sold to purchasing
Purchasers pursuant to this Section 10 shall be made at the offices of the
Corporation on the 45th day following the date the Offer was made (or if such
45th day is not a business day, then on the next succeeding business day). Such
sales shall be effected by Founder's delivery to each purchasing Purchaser of a
certificate or certificates evidencing the Offered Shares to be purchased by it,
free and clear of any liens, claims or encumbrances of any kind (other than
pursuant to this Agreement), duly endorsed for transfer to such purchasing
Purchaser and with any requisite stock transfer stamps attached, against payment
to Founder of the purchase price therefor by such purchasing Purchaser.
(E) If the Purchasers do not purchase all of the Offered Shares, the
Offered Shares may be sold by Founder at any time within six months after the
date the Offer was made, subject to Section 11 below and the other provisions of
this Agreement. Any such sale shall be to the Proposed Transferee, at not less
than the price and upon other terms and conditions, if any, not more favorable
to the Proposed Transferee than those specified in the Offer. Any Offered
Shares not sold within such six-month period shall continue to be subject to the
requirements of a prior offer pursuant to this Section 10.
6
11. Co-Sale Rights. (A) If at any time a Purchaser desires to sell all or
any part of its Common Stock or Preferred Stock ("Purchaser's Shares") pursuant
to a bona fide offer from a third party (for purposes of this Section 11, also a
"Proposed Transferee"), such Purchaser shall deliver a written notice (the
"Notice") of such proposed sale of such Purchaser's Shares (for purposes of this
Section 11, also "Offered Shares") to the other Purchaser. The Notice shall
disclose the identity of the Proposed Transferee, the Offered Shares proposed to
be sold, the total number of Purchaser's Shares owned by such Purchaser, the
terms and conditions, including price, of the proposed sale, that the proposed
buyer has been informed of the rights and obligations provided for in this
Section 11 and has agreed to purchase Offered Shares in accordance with the
terms of this Agreement, and any other material facts relating to the proposed
sale.
(B) (i) If a Purchaser elects not to purchase any Offered Shares pursuant
to Section 10 above; or (ii) if upon receipt of a Notice pursuant to Section
11(A) above, such Purchaser desires to sell any of such Purchaser's Shares, then
such Purchaser shall have the right, exercisable upon written notice (the "Co-
Sale Acceptance Notice") to the selling Founder or Purchaser, as applicable,
given within thirty (30) days after the Offer or Notice, as applicable has been
delivered pursuant to Section 10 or 11(A) above, to participate in the proposed
sale of Offered Shares pursuant to the terms and conditions specified in the
Offer or Notice, as applicable, and the selling Founder or Purchaser, as
applicable, shall require the Proposed Transferee designated in the Offer or
Notice, as applicable, to purchase from such Founder or Purchaser up to the
number of whole shares of Common Stock or Preferred Stock, as applicable, equal
to the product of (i) the total number of Offered Shares to be transferred in
such proposed sale as specified in the Offer or Notice, as applicable, and (ii)
a fraction, the numerator of which (a) in the case of Offered Shares which are
Common Stock, is the number of outstanding shares of Common Stock held by such
Purchaser (including any Common Stock issuable to such Purchaser upon the
conversion or exchange of any Purchaser's Shares convertible or exchangeable
into Common Stock) or (b) in the case of Offered Shares which are Preferred
Stock, is the number of outstanding shares of Preferred Stock held by such
Purchaser, and the denominator of which (c) in the case of Offered Shares which
are Common Stock, is the total number of shares of Common Stock (on a fully-
diluted basis) then outstanding or (d) in the case of Offered Shares which are
Preferred Stock, is the total number of shares of Preferred Stock (on a fully-
diluted basis) then outstanding . The Co-Sale Acceptance Notice shall state the
number of shares such Purchaser proposes to include in such proposed sale to the
Proposed Transferee (up to the number of shares as calculated pursuant to the
immediately preceding sentence). Any such sale by such Purchaser shall be at
the same price per share (including price and type of consideration) received by
the Proposed Transferee and otherwise on identical terms and conditions as
received by the selling Founder or Purchaser, as the case may be, in its sale to
the Proposed Transferee. In the event that the Proposed Transferee does not
purchase shares of Common Stock and/or Preferred Stock from Purchasers who have
timely delivered a Co-Sale Acceptance Notice as required by this Section 11,
then the selling Founder or
7
Purchaser, as the case may be, shall not be permitted to, and shall not, sell
any Offered Shares to the Proposed Transferee in the proposed sale.
(C) If no Co-Sale Acceptance Notice is received by the selling Founder or
Purchaser, as the case may be, during the 30-day period referred to in Section
11(A) above, then such Founder or Purchaser, as the case may be, shall have the
right to sell the Offered Shares at any time within six months after the date
the Offer or Notice, as the case may be was delivered, subject to the other
provisions of this Agreement. Any such sale shall be to the Proposed
Transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the Proposed Transferee than those specified in the
Offer or Notice, as applicable. Any Offered Shares not sold within such six-
month period shall continue to be subject to the requirements of Section 10 and
this Section 11.
(D) Notwithstanding the foregoing, this Section 11 shall not apply to any
Transfer by any Purchaser or Founder of Shares: (i) to such Purchaser's or
Founder's affiliates, members of such Purchaser's or Founder's immediate family,
family trusts or Purchasers, (ii) constituting a gift or gifts, or (iii)
constituting less than 1% of the outstanding class of Shares to be Transferred.
12. Termination. The Corporation's right to repurchase Vested Shares
pursuant to Section 8 hereof, and the provisions of Sections 7, 9, 10, 11 and 13
hereof, shall terminate immediately upon the closing of a firm commitment,
underwritten public offering registered under the Securities Act, (other than a
registration relating solely to a transaction referred to in Rule 145 under the
Securities Act (or any successor rule) or to an employee benefit plan of the
Corporation), at a public offering price (prior to underwriters' discounts and
expenses) equal to or exceeding $2.50 per share of Common Stock (as adjusted for
any stock dividends, combinations or splits with respect to such shares) and in
which the aggregate proceeds to the Corporation and/or selling stockholders
(before deduction for underwriters' discounts and expenses relating to the
issuance, including without limitation fees of the Corporation's counsel) exceed
$5,000,000.
13. Failure to Deliver Shares. If Founder becomes obligated to sell any
Founder's Shares to a Purchaser or the Corporation under this Agreement and
fails to deliver such Founder's Shares in accordance with the terms of this
Agreement, such Purchaser or the Corporation, as the case may be, may, at its
option, in addition to all other remedies it may have, send to Founder the
purchase price for such Founder's Shares as is herein specified. Thereupon, the
Corporation upon written notice to Founder, (i) shall cancel on its books the
certificate or certificates representing the Founder's Shares to be sold and
(ii) shall issue, in lieu thereof, in the name of such Purchaser or the
corporation, as the case may be, a new certificate or certificates representing
such Founder's Shares, and thereupon all of Founder's rights in and to such
Founder's Shares shall terminate.
8
14. Lock-up. If requested by the underwriters for the initial
underwritten public offering of securities of the Corporation, Founder and each
Purchaser shall agree not to sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose of all or any of such Founder's or
Purchaser's Shares, without the written consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering. This Section 14 shall
expressly survive the termination of this Agreement.
15. No Waiver. Any waiver of a breach of any of the terms of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other terms or conditions, nor shall any failure to enforce
any provision of this Agreement operate as a waiver of such provision or any
other provision.
16. Successors and Assigns. The rights, benefits and obligations of the
Corporation under this Agreement and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. Subject to the limitations set forth herein, this Agreement shall
inure to the benefit of and be binding upon the Founders' heirs, successors and
assigns. Subject to the limitations set forth herein, neither this Agreement
nor any rights or obligations hereunder shall be assigned by any Founder. The
rights of the Purchasers hereunder shall inure to the benefit of and be binding
upon the Purchasers respective successors and assigns.
17. Entire Agreement. The Agreement (with respect to the Corporation and
the Purchasers, together with the Purchase Agreement), constitutes the entire
agreement among the parties. This Founders Agreement may not be amended or
modified, except in writing, and signed by each of the Purchasers and Founder.
18. Severability. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the invalidity or unenforceability
thereof shall not affect any other provisions or applications of this Agreement
which can be given effect without the invalid or unenforceable provision or
application. To that end, the provisions of this Agreement are to be severable.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (without giving
effect to its conflicts of laws principles).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF. the Corporation has caused this Agreement to be signed
and each Founder has executed this Agreement as of the date shown below.
GENOMICA CORPORATION
Dated:__________, 1996 BY: /s/ Xxxxx X Xxxxxxxx
------------------------------------
TITLE:_________________________________
Dated: 3/15 , 1996 FOUNDER: /s/ Xxxxxx Xxxxxx
---------- -------------------------------
Xxxxxx Xxxxxx
PURCHASERS:
FALCON TECHNOLOGY PARTNERS, L.P.
A Delaware limited partnership
BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
TITLE: General Partner
XXXXXX & XXXXXX GROUP, INC.
A NY corporation
BY: /s/ D.C.J.
------------------------------------
TITLE: Executive Vice President
---------------------------------
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SCHEDULE 1
----------
Founder Founders' Vesting Schedule
------- --------- -----------------
Shares
------
Xxxxxx 250,000 62,500 shares become Vested Shares on
($250.00) September 25, 1996 and 1/36th of the remaining
shares become Vested Shares on the first day of
each calendar month commencing after such date;
provided however, that notwithstanding the above
provisions, if Xxxxxx leaves the employ of the
Corporation for any reason, all shares which have
not yet become Vested Shares will always remain
Unvested Shares.
11
EMPLOYEE CONFIDENTIALITY
AND
INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
------------------------------------------
Name: Dr. Xxxxxx Xxxxxx Employment Date: 9/25/95
----------------------------- ----------------------------
(Type or Print)
In consideration of my employment and the salary/wages paid to me by
Genomica Corporation, or any of its parent, subsidiary or affiliate companies
(all hereafter collectively called the "Company") and for other good and
valuable consideration, I understand and agree to the following provisions for
the protection of the property rights of the Company and for the protection of
the rights of others who have entrusted the Company with confidential
proprietary information:
1. Disclosure to the Company. I agree to disclose fully and promptly
to the Company all Proprietary Information which is developed, conceived,
reduced to practice or learned by me solely or jointly with others, at any time
during the term of my employment. I agree to make and maintain written records
of the aforesaid Proprietary Information and to submit promptly the same, and to
make supplemental oral disclosure, to the Company. The term "Proprietary
Information" means all intellectual property and/or physical work product,
including without limitation, inventions, whether or not patentable and whether
or not tested or reduced to practice, discoveries, ideas, conceptions,
processes, developments, designs, business plans, trade secrets, mask works,
know-how and tangible expressions, whether or not copyrightable, computer
software, systems, programs or procedures, which (a) relates in any way to the
actual or anticipated business activities of the Company, (b) results from, or
is suggested by, work which is performed for the Company or which is funded in
whole or in part by the Company or (c) results from any use of premises,
equipment or property (tangible or intangible) owned, leased, licensed or
contracted for by the Company.
2. Ownership and Assignment of Assigned Intellectual Property. I
agree to assign and hereby do assign to the Company as its exclusive property
the entire right, title and interest in and to all Proprietary Information
embraced by Paragraph 1 above, including without limitation, all patents, patent
applications and copyrights. I further agree to execute all papers, and
otherwise to provide all requested assistance, at the Company's expense, during
and subsequent to my employment, to enable the Company or its nominees to obtain
such patents, copyrights and other legal protection as it may desire in any
country. All copyrightable work ("Work") created by me in connection with my
employment is intended to be a "work made for hire" as that term is defined in
Section 101 of the Copyright Act of 1976, as amended (the "Copyright Act"), and
shall be the property of the Company, and the Company shall be the sole author
of such work within the meaning of the Copyright Act. All such Works, as well
as copies of such Works in whatever medium fixed or embodied, shall be owned
exclusively by the
12
Genomica Corporation
Employee Confidentiality and Intellectual Property Agreement
Page 2
Company and I expressly disclaim any interest in them. If the copyright to any
such Works shall not be the property of the Company by operation of law, I
hereby assign and will assign to the Company, without further consideration, all
right, title and interest in such Work and will assist the Company, at its
expense, to secure, maintain and defend for the benefit of the Company all
copyrights, registrations, extensions and renewals on any and all such Work,
including translations thereof in any and all countries, such Work to be and
remain the property of the Company whether copyrighted or not.
I hereby waive all moral rights and all inalienable rights that I may
have in any Work, including without limitation, any right to identification of
authorship, any right of approval on modifications or limitation on subsequent
modifications. To the extent that this waiver is deemed unenforceable under
applicable law, I acknowledge and agree that I will not exercise any such
inalienable right without the specific prior written consent of the Company.
In the event that the Company is unable, after reasonable effort, to
secure my signature on letters patent, copyright or other documents relating to
any Proprietary Information, whether because of my physical or mental incapacity
or for any other reason whatsoever, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and in my behalf and stead to execute and file any
such applications(s) and to take all other lawfully permitted acts to further
the prosecution and issuance of letters patent, copyright or other documents
with the same legal force and effect as if executed by me.
The assignment provisions of this Agreement shall not apply to
Proprietary Information which is exempt from assignment under the applicable
laws of the state of employment. I agree, however, that the Company shall have
a non-exclusive, fully paid license to use for all purposes any Proprietary
Information within the scope of the actual or anticipated business of the
Company but not assigned to the Company under this Agreement unless such a
license is prohibited by statute or by a court of last resort and final
jurisdiction.
I understand and agree that the Company shall determine, in its sole
and absolute discretion, whether an application for or registration of any
patent, copyright or other intellectual property right shall be filed on any
development assigned to the Company under this Agreement, and whether such an
application shall be prosecuted or abandoned prior to issuance or registration.
3. Confidentiality. I agree that without the written permission of
the Company, I will not either during or subsequent to my employment, use,
publish or otherwise disclose any Confidential Information except in the course
of my duties with and in furtherance of the business of the Company. The term
"Confidential Information"
Employee's name: Dr. Xxxxxx Xxxxxx
Employee Initial Here DF
------
13
Genomica Corporation
Employee Confidentiality and Intellectual Property Agreement
Page 3
means any Proprietary Information or any knowledge, information or materials
about the products, services, know-how, research and development, customers, or
business plans of the Company or any confidential information about financial
matters, marketing, pricing, compensation or any other confidential information
of the Company, its customers, or others from whom the Company has received
information under obligations of confidence.
4. Confidential Information of Others. I agree not to disclose to
the Company, or to use in my work at the Company (a) any confidential
information belonging to others or (b) any prior inventions made by me which the
Company is not entitled to learn of or use. I represent that the inventions
identified in the _____ pages I attach hereto constitute all of the unpatented
inventions which I have made prior to my employment at the Company, which
inventions shall be excluded from this Agreement. (It is only necessary to list
the title of such inventions and the purpose thereof.) If there are no such
unpatented inventions, I have written my initials here: DF .
------
5. Non-Solicitation. During the term of my employment and for a
period of twelve (12) months thereafter I will not solicit or attempt to induce,
directly or indirectly, any employee or consultant of the Company to work with
me or any organization with which I may be affiliated or to accept a consulting
engagement or employment with a competitor, client or customer of the Company.
6. Return of Materials. Upon the request of the Company at any time
and in the event of the termination of my employment at the Company, whether or
not such termination is voluntary, I will deliver promptly to my superior at the
Company, or to the Board of Directors of the Company, all documents which relate
to business activities of the Company, and all materials and things which belong
to the Company or have been given to me by the Company or others during the
course of my employment.
7. Prior Agreements. I represent that I have attached hereto a copy
of any agreement (such as a prior employment agreement) which affects my ability
to comply with the terms of this Agreement. If there is no such agreement, I
have written my initials here: DF
------
8. Enforcement. I agree that the Company would not be fairly
compensated by money damages for any breach of this Agreement by me and
therefore, in the event of a breach or threatened breach of this Agreement, the
Company shall be entitled to specific performance, an injunction and other
equitable relief in addition to money damages and other legal remedies. I
hereby waive any requirement that the Company post a bond or surety in
connection with its enforcement of this Agreement.
Employee's name: Dr. Xxxxxx Xxxxxx
Employee Initial Here DF
------
14
Genomica Corporation
Consultant Confidentiality and Inventions Agreement
Page 4
9. Miscellaneous. This Agreement shall be binding on my executors,
administrators, heirs, legal representatives or assigns, and may not be modified
except in writing with the approval of a duly authorized officer of the Company.
If any provision of this Agreement is determined to be illegal or unenforceable,
because of the duration thereof or the area or scope covered, I hereby request
any court making such determination to reduce the duration, area and/or scope so
that in its reduced form such covenant shall be enforceable and I agree that in
such event all remaining provisions shall remain in full force and effect. This
Agreement shall be governed and construed in accordance with the internal laws
of the State of New York. This agreement sets forth the entire agreement
between the Company and me with respect to the matters set forth herein.
WITNESS: EMPLOYEE:
/s/ Xxxxxx Xxxxxx
___________________________________ -----------------------------------
Date:______________________________ Date: 4/18/96
------------------------------
Social Security No. ###-##-####
----------------
15
GENOMICA CORPORATION
FOUNDERS AGREEMENT
THIS AGREEMENT is made as of the 22 th day of March, 1996, by and among
Genomica Corporation, a Delaware corporation, (the "Corporation"), Xx. Xxxxxx X.
Xxxx ("Founder") and the persons (the "Purchasers") named in Schedule I to a
certain Series A Convertible Preferred Stock Purchase Agreement of the
Corporation dated the date hereof (the "Purchase Agreement").
RECITALS
--------
The Corporation is engaged in the highly competitive business of
researching, developing, manufacturing and marketing computer software for the
biotechnology industry on an international basis. Founder and the Corporation
recognize and affirm that success or failure in this highly technical and highly
competitive business is dependent on the ability of the Corporation to (1)
develop and protect proprietary technology which will give the Corporation a
competitive advantage in the marketplace; (2) incorporate this technology into
products which themselves will or may become proprietary; and (3) develop and
utilize processes which may be proprietary to accomplish (1) and (2) above.
In order to achieve the above objectives, the Corporation has expended and
will continue to expend substantial time, effort and financial resources. These
activities include research, the attraction and training of key employees, and
establishing relationships with necessary resources outside the Corporation. If
information regarding the Corporation's research, processes or products were to
fall into the hands of a competitor of the Corporation, it could be used in a
manner which would cause serious and irreparable financial and business damage
to the Corporation. For this reason, all information related to the
Corporation's technology, research, products, and business strategies is
considered to be confidential information which is proprietary to the
Corporation.
In addition, the Purchasers intend to invest in the Corporation pursuant to
the Purchase Agreement based on the foregoing assumptions and such investment is
contingent upon the execution and delivery of this Agreement by the Corporation
and Founder.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above representations and
understandings, and the promises and mutual agreements set forth below, the
parties agree, effective on the date of the Agreement, to the following terms
and conditions:
1. Services. Founder agrees to serve the Corporation as reasonably
directed by its Board of Directors or its designee, consistent with the scope of
expertise and other employment obligations of Founder. Such services may
include participation in the Corporation as a director, officer, scientific
advisor, consultant, contractor and/or, with the agreement of Founder, an
employee. In all such cases, the terms and conditions of this Agreement will
continue to be binding.
2. Founder's Stock. Founder has purchased from the Corporation an
aggregate of 1,080,000 shares of Common Stock (the "Shares") at a per-share
purchase price of $.001 (the "Original Purchase Price") as more specifically set
forth on Schedule 1 hereto. Founder's Shares shall be subject to a number of
restrictions as set forth in this Agreement. Certain of the restrictions with
respect to Founder's Shares may terminate under various conditions pursuant
hereto in consideration for Founder's service to the Corporation as described
herein.
3. Founder Consulting Agreement. Concurrently with the execution of this
Agreement, Founder is executing and delivering a Consulting Agreement with the
Corporation substantially in the form set forth as Exhibit A hereto (the
"Consulting Agreement").
4. [INTENTIONALLY OMITTED]
5. [INTENTIONALLY OMITTED]
6. Remedies in the Event of Breach. The Corporation, the Purchasers and
Founder understand and agree that any breach or threatened breach by the
Corporation or Founder of any of the provisions hereof cannot be remedied solely
by the recovery of damages, and in the event of any such breach or threatened
breach, the Corporation or the Purchasers, as the case may be, shall be entitled
to injunctive relief, restraining Founder, and any business, firm, corporation,
individual or other entity participating in such breach or attempted breach from
engaging in any activity which would constitute a breach. The Corporation, the
Purchasers and Founder further agree that any dispute arising under the terms of
this Agreement shall be decided in accordance with the rules then in effect of
the American Arbitration Association, and any arbitration award may be entered
in a court of competent jurisdiction and enforced as a judgment thereof.
Nothing herein, however, shall be construed as (i) prohibiting the Corporation,
the Purchasers or Founder from pursuing, in conjunction with an injunction or
otherwise, any other remedies available in equity or at law for any such breach
or threatened breach, including the recovery of damages; or (ii) limiting the
Corporation's remedy against Founder as set forth in Section 13 below.
7. Transferability. The Corporation and Founder agree (i) that Unvested
Shares (as defined below) may not be sold, pledged or otherwise transferred
("Transferred") without the consent of the Board of Directors in its sole
discretion
2
(except pursuant to Section 9 below); and (ii) Vested Shares (as defined below)
may be Transferred only in accordance with the provisions set forth herein and
only if the transferee of such Vested Shares agrees in writing to be bound by
the provisions of Sections 9, 10, 11, 13 and 14 hereof. Any Founder's Shares
Transferred not in accordance with the preceding sentence shall be void, ab
initio.
8. Founder's Stock. Founder's Shares shall be affected as follows:
(A) In the event (i) Founder dies; (ii) of a breach by Founder of any of
the terms of the Consulting Agreement or the Common Stock Acquisition Agreement
by which Founder purchased the Founder's Shares; or (iii) the Consulting
Agreement shall have been terminated by the Corporation for Due Cause (as such
term is defined in the Consulting Agreement) or if Xx. Xxxx voluntarily
terminates the Consulting Agreement (any such case, a "Discontinuation Event"),
certain of Founder's Shares, defined below as "Unvested Shares," shall be
repurchased and paid for in full by the Corporation at the Original Purchase
Price within 30 days of such Discontinuation Event. Unvested Shares shall be
those Founder's Shares which have not yet vested according to the schedule set
forth in Schedule 1 hereto. Notwithstanding the preceding sentence, in the
event the Corporation's Board of Directors approves a sale or merger (other than
a merger with or into a wholly-owned subsidiary of the Corporation or a merger
in which the Corporation is the surviving entity) of the Corporation or an
initial public offering of the Corporation's stock (any of which events is
defined herein as a "Triggering Transaction"), Founder will be notified of such
Board action. Any of Founder's then Unvested Shares will become Vested Shares
(as defined below) simultaneously with the consummation of the Triggering
Transaction. Upon the occurrence of a Discontinuation Event, all of Founder's
Unvested Shares shall forever remain Unvested Shares.
(B) Upon the occurrence of a Discontinuation Event, Founder's Shares which
are vested pursuant to Schedule 1 hereto ("Vested Shares") may be repurchased by
the Corporation, solely at the option of the Corporation (the "Corporation
Option"), at Fair Market Value (as defined below). The Corporation agrees to
give Founder (or his estate) notice of its intent to exercise the Corporation
Option within ninety (90) days of the date of such Discontinuation Event and to
pay for those shares for which it exercises such Corporation Option as follows:
3/24ths of the total price within 90 days of the date of the Discontinuation
Event, with the balance to be paid in equal monthly installments over the next
succeeding twenty-one months.
(C) Termination For Cause. Prior to the Corporation's initial public
offering, in the event of a Discontinuation Event with respect to Founder
occurring as a result of an event set forth in clauses (ii) or (iii) of Section
8(A) above, then with respect to any of Founder's Shares not repurchased by the
Corporation pursuant to Sections 8(A) or 8(B) above, Founder shall, in all
matters put forth to a vote of the holders of Common Stock (i) cause such
Founder's Shares to be represented at any meeting of the stockholders of
3
the Corporation and (ii) vote such shares in the same proportion and in the same
manner as all other Common Stock is voted.
(D) Fair Market Value. For the purposes of Section 8(B), Fair Market Value
shall be that value as determined in good faith by the Board of Directors. Any
Founder (or his estate) may request an appraisal by written notice of objection
delivered not later than fifteen (15) days after receipt of such Fair Market
Value determination by the Board of Directors. If an appraisal is demanded, the
Corporation shall select an appraiser reasonably acceptable to Founder (or his
estate) to appraise Founder's Vested Shares, and the repurchase price payable
upon the Corporation's exercise of the Corporation Option shall be the higher of
such appraisal and such Fair Market Value determination by the Board of
Directors. If such appraisal results in a valuation more than 10% higher than
the Fair Market Value determination by the Board of Directors, then all expenses
of such appraisal shall be paid by the Corporation; otherwise, all expenses of
such appraisal shall be paid by Founder (or his estate).
9. Approved Sale of Corporation. (A) If the Corporation's Board of
Directors has adopted a resolution of the Board of Directors approving the sale
of the Corporation to any person (such person, the "Acquiring Entity"), whether
by merger, consolidation, sale of all or substantially all of the Corporation's
assets or sale of all of the outstanding capital stock (such sale, an "Approved
Sale"), Founder and each Purchaser will consent to, vote for and raise no
objections against the Approved Sale, and if the Approved Sale is structured as
a sale of stock, Founder and each Purchaser hereby agrees to sell all of their
respective Shares (and all rights thereto) on the terms and conditions approved
by the Board of Directors, provided that each holder of Common Stock receives in
the Approved Sale the same amount and type of consideration for its interest in
the Corporation as is received by the holders of the Series A Convertible
Preferred Stock, (the "Preferred Stock"), assuming such holders had converted
their respective shares of Preferred Stock into Common Stock. Founder and each
Purchaser will take all actions reasonably required to facilitate and consummate
an Approved Sale of the Corporation.
(B) The Corporation shall give written notice (a "Sale Notice") of any such
Approved Sale to Founder and Purchasers. A Sale Notice shall contain (i) the
name and address of the prospective Acquiring Entity; (ii) the purchase price
and other material terms and conditions of the Approved Sale; (iii) the date on
which the Approved Sale is intended to be consummated; (iv) the date on which
the Corporation's Board of Directors approved the Approved Sale and (v) the
Founder's and Purchaser's Shares proposed to be sold. Upon receipt of a Sale
Notice, Founder and each Purchaser shall be required to consent to such Approved
Sale and to sell its Founder's or Purchaser's Shares, as the case may be, to the
Acquiring Entity designated therein within 30 days of receipt thereof or such
later date as may be specified in the Sale Notice. No Purchaser or Founder
shall be required to make any representations and warranties other than
4
representations and warranties concerning its ownership of such Founder's or
Purchaser's Shares, the absence of any liens or encumbrances thereon and its
authority to sell such Shares; and provided further that, if the terms of such
Approved Sale provide for the escrow of any amount of proceeds resulting from an
Approved Sale or to accept indebtedness or other securities subject to
indemnification or other rights of offset, then Founder and Purchasers shall be
required to escrow a pro rata amount of its proceeds from such Approved Sale
and/or to accept such indebtedness or other securities.
(C) If the Corporation or Founder, in connection with any Approved Sale,
enters into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) promulgated by the Securities and Exchange Commission under
the Securities Act may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), Founder
will at the request of the Corporation, appoint a purchaser representative (as
such term is defined in Rule 501(h) promulgated by the Securities and Exchange
Commission under the Securities Act) reasonably acceptable to the Corporation.
If Founder appoints the purchaser representative designated by the Corporation,
the Corporation will pay the fees of such purchaser representative, but if
Founder declines to appoint the purchaser representative designated by the
Corporation, Founder will appoint another purchaser representative (reasonably
acceptable to the Corporation), and Founder will be responsible for the fees of
the purchaser representative so appointed.
10. Right of First Refusal. (A) Except pursuant to Section 9 above, if at
any time Founder desires to sell for cash all or any part of Founder's Shares
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
Founder shall submit a written offer (the "Offer") to sell Founder's Shares (the
"Offered Shares") to the Purchasers on terms and conditions, including price,
not less favorable to the Purchasers than those on which Founder proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the Offered Shares proposed to be sold,
the total number of Founder's Shares owned by Founder, the terms and conditions,
including price, of the proposed sale, that the proposed buyer has been informed
of the rights and obligations provided for in this Section 10 and Section 11
below and has agreed to purchase Offered Shares in accordance with the terms of
this Agreement, and any other material facts relating to the proposed sale. The
Offer shall further state that the Purchasers may acquire, in accordance with
the provisions of this Agreement, all but not less than all of the Offered
Shares for the price and upon the other terms and conditions, including deferred
payment (if applicable), set forth therein.
(B) Each Purchaser shall have the absolute right to purchase that number of
Offered Shares as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of Purchasers' Shares (as
defined below) then owned by such Purchaser and the denominator of which shall
be the aggregate
5
number of Purchasers' Shares then owned by all of the Purchasers. For purposes
of this Section 10, all of the securities of the Corporation which a Purchaser
has acquired, or has the right to acquire from the Corporation, upon the
conversion, exercise or exchange of any of the securities of the Corporation
then owned by such Purchaser shall be deemed to be Purchasers' Shares then owned
by such Purchaser. (The amount of Offered Shares that each Purchaser is entitled
to purchase under this Section 10(B) shall be referred to as its "Pro Rata
Fraction").
(C) The Purchasers shall have a right of oversubscription such that if any
Purchaser fails to accept the Offer as to its Pro Rata Fraction, the other
Purchasers shall, among them, have the right to purchase up to the balance of
the Offered Shares not so purchased. Such right of oversubscription may be
exercised by a Purchaser by accepting the Offer as to more than its Pro Rata
Fraction. If, as a result thereof, such oversubscriptions exceed the total
number of Offered Shares available in respect of such oversubscription
privilege, the oversubscribing Purchasers shall be cut back with respect to
their oversubscriptions on a pro rata basis in accordance with their respective
Pro Rata Fractions or as they may otherwise agree among themselves. In the
event that the Purchasers in the aggregate shall not have elected in the manner
set forth below to purchase all of the Offered Shares, the Purchasers shall not
have the right to purchase any of the Offered Shares and the Founder shall have
the right to sell the Offered Shares in accordance with Section 10(E) below.
(D) If the Purchasers, in the aggregate, desire to purchase all of the
Offered Shares, such Purchaser(s) shall communicate in writing their election to
purchase to Founder, which communication shall state the number of Offered
Shares each Purchaser desires to purchase (which shall in the aggregate be equal
to all the Offered Shares) and shall be given to Founder within thirty days of
the date the Offer was made. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares (subject
to the aforesaid limitations as to a Purchaser's right to purchase more than its
Pro Rata Fraction). Sales of the Offered Shares to be sold to purchasing
Purchasers pursuant to this Section 10 shall be made at the offices of the
Corporation on the 45th day following the date the Offer was made (or if such
45th day is not a business day, then on the next succeeding business day). Such
sales shall be effected by Founder's delivery to each purchasing Purchaser of a
certificate or certificates evidencing the Offered Shares to be purchased by it,
free and clear of any liens, claims or encumbrances of any kind (other than
pursuant to this Agreement), duly endorsed for transfer to such purchasing
Purchaser and with any requisite stock transfer stamps attached, against payment
to Founder of the purchase price therefor by such purchasing Purchaser.
(E) If the Purchasers do not purchase all of the Offered Shares, the
Offered Shares may be sold by Founder at any time within six months after the
date the Offer was
6
made, subject to Section 11 below and the other provisions of this Agreement.
Any such sale shall be to the Proposed Transferee, at not less than the price
and upon other terms and conditions, if any, not more favorable to the Proposed
Transferee than those specified in the Offer. Any Offered Shares not sold within
such six-month period shall continue to be subject to the requirements of a
prior offer pursuant to this Section 10.
11. Co-Sale Rights. (A) If at any time a Purchaser desires to sell all or
any part of its Common Stock or Preferred Stock ("Purchaser's Shares") pursuant
to a bona fide offer from a third party (for purposes of this Section 11, also a
"Proposed Transferee"), such Purchaser shall deliver a written notice (the
"Notice") of such proposed sale of such Purchaser's Shares (for purposes of this
Section 11, also "Offered Shares") to the other Purchaser. The Notice shall
disclose the identity of the Proposed Transferee, the Offered Shares proposed to
be sold, the total number of Purchaser's Shares owned by such Purchaser, the
terms and conditions, including price, of the proposed sale, that the proposed
buyer has been informed of the rights and obligations provided for in this
Section 11 and has agreed to purchase Offered Shares in accordance with the
terms of this Agreement, and any other material facts relating to the proposed
sale.
(B) (i) If a Purchaser elects not to purchase any Offered Shares pursuant
to Section 10 above; or (ii) if upon receipt of a Notice pursuant to Section
11(A) above, such Purchaser desires to sell any of such Purchaser's Shares, then
such Purchaser shall have the right, exercisable upon written notice (the "Co-
Sale Acceptance Notice") to the selling Founder or Purchaser, as applicable,
given within thirty (30) days after the Offer or Notice, as applicable has been
delivered pursuant to Section 10 or 11(A) above, to participate in the proposed
sale of Offered Shares pursuant to the terms and conditions specified in the
Offer or Notice, as applicable, and the selling Founder or Purchaser, as
applicable, shall require the Proposed Transferee designated in the Offer or
Notice, as applicable, to purchase from such Founder or Purchaser up to the
number of whole shares of Common Stock or Preferred Stock, as applicable, equal
to the product of (i) the total number of Offered Shares to be transferred in
such proposed sale as specified in the Offer or Notice, as applicable, and (ii)
a fraction, the numerator of which (a) in the case of Offered Shares which are
Common Stock, is the number of outstanding shares of Common Stock held by such
Purchaser (including any Common Stock issuable to such Purchaser upon the
conversion or exchange of any Purchaser's Shares convertible or exchangeable
into Common Stock) or (b) in the case of Offered Shares which are Preferred
Stock, is the number of outstanding shares of Preferred Stock held by such
Purchaser, and the denominator of which (c) in the case of Offered Shares which
are Common Stock, is the total number of shares of Common Stock (on a fully-
diluted basis) then outstanding or (d) in the case of Offered Shares which are
Preferred Stock, is the total number of shares of Preferred Stock (on a fully-
diluted basis) then outstanding. The Co-Sale Acceptance Notice shall state the
number of shares such Purchaser proposes to include in such proposed sale to the
Proposed Transferee (up to the number of shares as calculated pursuant to the
immediately preceding sentence). Any such sale by such
7
Purchaser shall be at the same price per share (including price and type of
consideration) received by the Proposed Transferee and otherwise on identical
terms and conditions as received by the selling Founder or Purchaser, as the
case may be, in its sale to the Proposed Transferee. In the event that the
Proposed Transferee does not purchase shares of Common Stock and/or Preferred
Stock from Purchasers who have timely delivered a Co-Sale Acceptance Notice as
required by this Section 11, then the selling Founder or Purchaser, as the case
may be, shall not be permitted to, and shall not, sell any Offered Shares to the
Proposed Transferee in the proposed sale.
(C) If no Co-Sale Acceptance Notice is received by the selling Founder or
Purchaser, as the case may be, during the 30-day period referred to in Section
11(A) above, then such Founder or Purchaser, as the case may be, shall have the
right to sell the Offered Shares at any time within six months after the date
the Offer or Notice, as the case may be was delivered, subject to the other
provisions of this Agreement. Any such sale shall be to the Proposed
Transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the Proposed Transferee than those specified in the
Offer or Notice, as applicable. Any Offered Shares not sold within such six-
month period shall continue to be subject to the requirements of Section 10 and
this Section 11.
(D) Notwithstanding the foregoing, this Section 11 shall not apply to any
Transfer by any Purchaser or Founder of Shares: (i) to such Purchaser's or
Founder's affiliates, members of such Purchaser's or Founder's immediate family,
family trusts or Purchasers, (ii) constituting a gift or gifts, or (iii)
constituting less than 1% of the outstanding class of Shares to be Transferred.
12. Termination. The Corporation's right to repurchase Vested Shares
pursuant to Section 8 hereof, and the provisions of Sections 7, 9, 10, 11 and 13
hereof, shall terminate immediately upon the closing of a firm commitment,
underwritten public offering registered under the Securities Act, (other than a
registration relating solely to a transaction referred to in Rule 145 under the
Securities Act (or any successor rule) or to an employee benefit plan of the
Corporation), at a public offering price (prior to underwriters' discounts and
expenses) equal to or exceeding $2.50 per share of Common Stock (as adjusted for
any stock dividends, combinations or splits with respect to such shares) and in
which the aggregate proceeds to the Corporation and/or selling stockholders
(before deduction for underwriters' discounts and expenses relating to the
issuance, including without limitation fees of the Corporation's counsel) exceed
$5,000,000.
13. Failure to Deliver Shares. If Founder becomes obligated to sell any
Founder's Shares to a Purchaser or the Corporation under this Agreement and
fails to deliver such Founder's Shares in accordance with the terms of this
Agreement, such Purchaser or the Corporation, as the case may be, may, at its
option, in addition to all other remedies it may have, send to Founder the
purchase price for such Founder's
8
Shares as is herein specified. Thereupon, the Corporation upon written notice to
Founder, (i) shall cancel on its books the certificate or certificates
representing the Founder's Shares to be sold and (ii) shall issue, in lieu
thereof, in the name of such Purchaser or the corporation, as the case may be, a
new certificate or certificates representing such Founder's Shares, and
thereupon all of Founder's rights in and to such Founder's Shares shall
terminate.
14. Lock-up. If requested by the underwriters for the initial
underwritten public offering of securities of the Corporation, Founder and each
Purchaser shall agree not to sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose of all or any of such Founder's or
Purchaser's Shares, without the written consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering. This Section 14 shall
expressly survive the termination of this Agreement.
15. No Waiver. Any waiver of a breach of any of the terms of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other terms or conditions, nor shall any failure to enforce
any provision of this Agreement operate as a waiver of such provision or any
other provision.
16. Successors and Assigns. The rights, benefits and obligations of the
Corporation under this Agreement and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. Subject to the limitations set forth herein, this Agreement shall
inure to the benefit of and be binding upon the Founders' heirs, successors and
assigns. Subject to the limitations set forth herein, neither this Agreement
nor any rights or obligations hereunder shall be assigned by any Founder. The
rights of the Purchasers hereunder shall inure to the benefit of and be binding
upon the Purchasers respective successors and assigns.
17. Entire Agreement. The Agreement (with respect to the Corporation and
the Purchasers, together with the Purchase Agreement), constitutes the entire
agreement among the parties. This Founders Agreement may not be amended or
modified, except in writing, and signed by each of the Purchasers and Founder.
18. Severability. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the invalidity or unenforceability
thereof shall not affect any other provisions or applications of this Agreement
which can be given effect without the invalid or unenforceable provision or
application. To that end, the provisions of this Agreement are to be severable.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (without giving
effect to its conflicts of laws principles).
9
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF. the Corporation has caused this Agreement to be signed
and each Founder has executed this Agreement as of the date shown below.
GENOMICA CORPORATION
Dated:__________, 1996 BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
TITLE:_________________________________
Dated:__________, 1996 FOUNDER: /s/ Xx. Xxxxxx X. Xxxx
-------------------------------
Xx. Xxxxxx X. Xxxx
PURCHASERS:
FALCON TECHNOLOGY PARTNERS, L.P.
A Delaware limited partnership
BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
TITLE: General Partner
XXXXXX & XXXXXX GROUP, INC.
A Delaware corporation
BY: /s/ D.C.J.
------------------------------------
TITLE: Executive Vice President
---------------------------------
11
SCHEDULE 1
----------
Founder Founders' Vesting Schedule
------- --------- ----------------
Shares
------
Xxxx 1,080,000 540,000 shares are Vested Shares immediately;
($1080.00) 9,000 shares become Vested Shares on the first day
of each calendar month commencing after the date
hereof.
12
Exhibit A
CONSULTING AGREEMENT
--------------------
(Xx. Xxxxxx Xxxx)
AGREEMENT made as of March 22, 1996 by and between Genomica Corporation, a
Delaware corporation (the "Company''), and Xx. Xxxxxx Xxxx ("Xx. Xxxx").
Xx. Xxxx is a Senior Scientist at Cold Spring Harbor Laboratory ("Cold
Spring Harbor"), a director of the Company, the key inventor of a software
system entitled "Genome Topographer" which the Company has been organized to
exploit, and a party to a Common Stock Acquisition Agreement dated the date
hereof with the Company (the "Xxxx Stock Acquisition Agreement") which provides
for the acquisition by Xx. Xxxx of shares of common stock of the Company.
Pursuant to a License Agreement dated the date hereof, Cold Spring Harbor
has granted the Company an exclusive license to intellectual property rights
pertaining to Genome Topographer.
The Company, Xxxxxx & Xxxxxx Group, Inc., a New York corporation (the
"Corporate Investor"), and Falcon Technology Partners, L.P., (the "LP Investor"
and together with the Corporate Investor, the "Investors"), are parties to a
Series A Convertible Preferred Stock Purchase Agreement (the "Stock Purchase
Agreement") which provides for the purchase by the Investors of authorized but
unissued shares of the Company's Series A Preferred Stock (the "Investors Stock
Purchase").
The Stock Purchase Agreement provides, among other things, that it is a
condition to the Investors' respective obligations to consummate the Investors
Stock Purchase that Xx. Xxxx enter into a Consulting Agreement with the Company
substantially in the form of this Agreement.
The parties to the Stock Purchase Agreement and Xx. Xxxx desire that such
condition be satisfied, and Xx. Xxxx is willing to provide his services to the
Company on the terms set forth herein.
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1
Section 1. Term; Consulting Fees; Independent Contractor.
(a) The Company hereby agrees to retain the services of Xx. Xxxx as
a consultant to the Company, and Xx. Xxxx hereby agrees to render such services
to the Company, upon the terms set forth in this Agreement, for the period
commencing on the date hereof and ending on the fifth anniversary of such date,
unless extended in accordance with the provisions of this Section 1 or earlier
terminated in accordance with the provisions of Section 6 (as so extended or
terminated, the "Term"). On each day after the third anniversary of the date
hereof, the Term shall be automatically extended for an additional day from the
then current expiration date of the Term, so that at any time the remaining Term
will consist of two years. During the, Term, the Company will pay to Xx. Xxxx a
base consulting fee for his services at the annual rate of $75,000, payable in
arrears in equal monthly installments.
(b) The Company and Xx. Xxxx hereby acknowledge and agree that Xx.
Xxxx shall perform the services provided for herein as an independent contractor
and not as an employee of the Company. Xx. Xxxx agrees that he will file his
own tax returns on the basis of his status as an independent contractor for the
reporting of all income, social security, employment and other taxes due and
owing on the consideration received by him under this Agreement and that he is
responsible for the payment of such taxes. Similarly, Xx. Xxxx shall not be
entitled to benefits specifically associated with employment status, such as
medical, dental and life insurance, stock (except as provided in the Xxxx Stock
Acquisition Agreement), and shall not be entitled to participate in any other
Company-sponsored employee benefit programs.
Section 2. Duties. During the Term, Xx. Xxxx shall provide such
consulting and advisory services to the Company in the areas set forth on
Schedule I hereto as the Company may reasonably request (the "Consulting
Services").
Section 3. Expenses. During the Term, Xx. Xxxx shall be entitled to
reimbursement for expenses incurred by him in connection with the performance of
his duties hereunder upon receipt of vouchers therefor in accordance with such
procedures as the Company has heretofore or may hereafter establish, or as may
be required by the Internal Revenue Service with respect to deduction of
business expenses by the Company.
Section 4. Termination of Service. Notwithstanding any other
provision of this Agreement, this Agreement (and thus the Term) may be
terminated as follows:
(a) Due Cause. By the Company, at any time, for Due Cause. As
used herein, the term "Due Cause" shall mean:
(i) actions or omissions of Xx. Xxxx constituting willful
and material misconduct intended to enrich Xx. Xxxx at the expense of the
Company;
2
(ii) the willful and continued failure by Xx. Xxxx
substantially to perform his duties hereunder (other than as a result of
disability), which continues for a period of at least thirty (30) days
after a demand for substantial performance is delivered to Xx. Xxxx by the
Company's Board of Directors (the "Board") which specifically identifies
the manner in which the Board believes that Xx. Xxxx has not substantially
performed such duties; or
(iii) the conviction of Xx. Xxxx of a felonious crime,
but not a misdemeanor, involving moral turpitude.
(b) Illness or Disability. By the Company, at any time, if
Xx. Xxxx should be prevented by illness, accident or other disability (mental or
physical) from discharging his duties hereunder for a period of sixty (60)
consecutive days or a cumulative period of one hundred twenty (120) days in any
period of two hundred forty (240) consecutive days.
(c) Voluntary by Xx. Xxxx For Convenience. By Xx. Xxxx for
convenience, upon written notice to the Company given at least ninety (90) days
prior to the effective termination date.
(d) Voluntary by Xx. Xxxx Upon Termination of License
Agreement. By Xx. Xxxx, if the License Agreement dated the date hereof between
Cold Spring Harbor and the Company has been terminated in accordance with its
terms, upon written notice to the Company given at least ten (10) days prior to
the effective termination date.
(e) Material Breach by the Company. By Xx. Xxxx, at any time
by written notice to the Company, upon any material breach by the Company of the
terms hereof which continues uncured for a period of at least thirty (30) days
after a demand for substantial performance is delivered to the Board by Xx. Xxxx
which specifically identifies the manner in which Xx. Xxxx believes the Company
has materially breached this Agreement.
(f) Death. Automatically, in the event of Xx. Xxxx'x death.
(g) By The Company Without Due Cause. By the Company, for
convenience upon written notice to Xx. Xxxx given at least ninety (90) days
prior to the effective termination date.
In the event that this Agreement (and thus the Term) is terminated
pursuant to any of Sections 4(a), 4(b), 4(c) or 4(f) above, the Company's
obligation to pay further compensation to Xx. Xxxx hereunder shall cease
forthwith, except that Xx. Xxxx (or his executor in the case of his death) shall
be entitled to receive his base consulting fee through the last day of the month
in which such termination occurs (or the effective date
3
of termination in the case of termination pursuant to Section 4(a) or 4(c)). In
the event that this Agreement (and thus the Term) is terminated pursuant to
Section 4(d), 4(e) or 4(g) above, the Company shall continue to pay Xx. Xxxx his
base consulting fee for the remainder of the then current Term (as in effect
prior to such termination) at the same times as if such termination had not
occurred, provided that without limitation of its other rights or remedies, the
Company shall have the right to discontinue such consulting fee payments if (i)
Xx. Xxxx'x representations and warranties contained in Section 6(a) prove to
have been untrue in any material respect or (ii) Xx. Xxxx breaches or has
breached in any material respect the Nondisclosure and Developments Agreement
(as defined herein) or the provisions of Section 6(b) or 7 hereof.
Section 5. Proprietary Information. Xx. Xxxx has executed and delivered
to the Company a Consultant Nondisclosure and Inventions Agreement in the form
of Exhibit A hereto (the "Non-Disclosure and Developments Agreement") which is
hereby incorporated into and made a part hereof.
Section 6. Other Obligations.
(a) Xx. Xxxx hereby represents and warrants to, and agrees with,
the Company that (i) his performance of the Consulting Services will not (A)
result in a violation by him of any material term of any employment agreement,
non-disclosure agreement, noncompete agreement or other similar agreement with
any current or previous employer of his or (B) result in a breach of any
obligation binding on him which would prohibit the use of information obtained
from him which the Company has used or may use in the future, (ii) he is
currently employed only by Cold Spring Harbor and is not a consultant or
scientific advisor to any person or entity other than Sequana Therapeutics, Inc.
("Sequana") and (iii) on or prior to the date hereof, Xx. Xxxx has delivered to
the Company true and correct copies of all agreements and other documents which
set forth the terms of Xx. Xxxx'x relationship with Sequana, and such terms will
not be altered or amended in any material respect without the prior written
consent of the Company.
(b) Xx. Xxxx undertakes that, in the performance of the Consulting
Services, Xx. Xxxx will not use any materials, information, technology, know-how
or documents of a former or current employer which are not generally available
to the public, unless Xx. Xxxx or the Company has obtained written authorization
from the current or former employer for their possession and use.
Section 7. Non-Solicitation. During the Term (which, if this
Agreement is terminated other than pursuant to any of Sections 4(d), 4(e) or
4(g), shall, for purposes of this Section 7, mean the Term as in effect
immediately prior to such termination), Xx. Xxxx will not, directly or
indirectly, without the prior written consent of the Company, solicit or induce
any employee of the Company or any affiliate of the Company to leave the employ
of the Company or such affiliate or hire for any purpose any employee of the
4
Company or any affiliate of the Company or any employee who has left the
employment of the Company or any such affiliate within one year of the
termination of said employee's employment with the Company.
Section 8. Agreement Not to Compete. During the term (which, if this
Agreement is terminated other than pursuant to any of Sections 4(d), 4(e) or
4(g), shall, for purposes of this Section 8, mean the Term as in effect
immediately prior to such termination), Xx. Xxxx will not, directly or
indirectly, engage or become interested (whether as an owner, stockholder,
partner, lender, investor, director, officer, employee, consultant or otherwise)
in any business or enterprise that is competitive with any significant part of
the business conducted by the Company or any affiliate of the Company (which for
purposes of this Section a shall be deemed to be competitive if it involves
similar research or development activities as those of the Company or any such
affiliate or similar types of products or services or proposed or anticipated
products or services as those of the Company or any such affiliate), provided
that (i) the continuation of Xx. Xxxx'x current relationship with Sequana
(without expansion of the scope thereof or Xx. Xxxx'x responsibilities) until
such time as the Company's business or research or development activities are
competitive with those of Sequana and (ii) ownership by Xx. Xxxx of not more
than 1% of the outstanding securities of any class of any corporation that are
listed on a national securities exchange or traded in the over-the-counter
market, all not be considered a breach of this Section 8.
Section 9. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when hand delivered
(including by reputable overnight courier), five business days after being
mailed by first-class, registered or certified mail, postage prepaid, or when
transmitted by facsimile (with "answer-back" confirmation) as follows: (a) if to
Xx. Xxxx, to him at Cold Spring Harbor Laboratory, Xxx Xxxxxxxx Xxxx, Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000 (Facsimile No.: 516-367-8461); and (b) if to the
Company, c/o Falcon Technology Partners, L.P., 000 Xxxxxx Xxxx, Xxxxx, XX 00000
Attention: President (Facsimile No.: ((000) 000 0000), with a copy to Xxxxxx &
Xxxxxx Group, Inc., One Rockefeller Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxxx X. Xxxxxxx, Xx. (Facsimile No.: ((000) 000-0000);
or to such other person(s) or address(ed) as either party shall have previously
furnished to the other party in accordance with this Section 9.
Section 10. Successors; Assignability; Entire Agreement. This Agreement
shall be binding upon, and shall inure to the benefit of and be enforceable by,
the respective successors and permitted assigns of the parties hereto, provided
that this Agreement shall not be assignable (in whole or in part) by Xx. Xxxx.
This Agreement and the agreements referred to herein constitute the entire
agreement between the Company and Xx. Xxxx with respect to the matters set forth
herein and therein.
5
Section 11. Amendments; Waivers. This Agreement may not be amended, nor
shall any waiver, change, modification, consent or discharge be effected, except
by an instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or discharge is sought.
Any failure to enforce any provision hereof shall not operate as a waiver of
such provision or of any other provision hereof.
Section 12. Enforcement. Xx. Xxxx agrees that the Company would not be
fairly compensated by money damages for any breach of this Agreement by him and
therefore, in the event of a breach or threatened breach of this Agreement, the
Company shall be entitled to specific performance, an injunction and other
equitable relief in addition to money damages and other legal remedies. Xx. Xxxx
hereby waives any requirement that the Company post a bond or surety in
connection with its attempts to enforce this Agreement.
Section 13. Severability. In case any one or more of the provisions of
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. Without limiting the
generality of the foregoing, if any provision of this Agreement is determined to
be illegal or unenforceable because of the duration thereof or the area or scope
covered, the parties hereby request any court making such determination to
reduce the duration, area and/or scope so that in its reduced form such covenant
shall be enforceable, and the parties agree that in such event all remaining
provisions shall remain in full force and effect.
Section 14. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
Section 15. Section Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws (other than the laws
governing conflict of law questions) of the State of New York.
6
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Agreement as of the date first above written.
GENOMICA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
/s/ Xx. Xxxxxx Xxxx
-----------------------------------------
Xx. Xxxxxx Xxxx
7
Schedule I
----------
Areas Covered By Exclusive Consulting Relationship
--------------------------------------------------
1. Genome Topographer product development
2. Genetic Disease Analysis tools
3. Locus interaction and gene expression
4. Gene discovery
5. Bioinformatic applications in the healthcare industry.
8
CONSULTANT NONDISCLOSURE
AND
INVENTIONS AGREEMENT
--------------------
Name: /s/ Xxxxxx Xxxx Engagement Date: March 22, 1996
------------------------------ -------------------------
(Type or Print)
In consideration of my engagement as a consultant to and the
consulting fees paid to me by Genomica Corporation, or any of its parent,
subsidiary or affiliate companies (all hereafter collectively called the
"Company") during the term of such engagement, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
having read and understood, I hereby agree to, the following provisions for the
protection of the property rights of the Company and for the protection of the
rights of others who have entrusted the Company with confidential proprietary
information:
1. Disclosure to the Company. Subject to Section 4, I agree to
disclose fully and promptly to the Company all Proprietary Information which is
developed, conceived, reduced to practice or learned by me solely or jointly
with others, at any time during the term of my engagement as a consultant to the
Company (my "Engagement"). I agree to make and maintain written records of the
aforesaid Proprietary Information and to submit promptly the same, and to make
supplemental oral disclosure, to the Company. The term "Proprietary
Information" means all intellectual property and/or physical work product,
including without limitation, inventions, whether or not patentable and whether
or not tested or reduced to practice, discoveries, ideas, conceptions,
processes, developments, designs, business plans, trade secrets, mask works,
know-how and tangible expressions, whether or not copyrightable, computer
software, systems, programs or procedures, which (a) relates in any way to the
actual or anticipated business activities of the Company, (b) results from, or
is suggested by, work which is performed for the Company or which is funded in
whole or in part by the Company or (c) results from any use of premises,
equipment or property (tangible or intangible) owned, leased, licensed or
contracted for by the Company.
2. Ownership and Assignment of Assigned Intellectual Property. I
agree to assign and hereby do assign to the Company as its exclusive property
the entire right, title and interest in and to all Proprietary Information
embraced by Paragraph 1 above which is developed, conceived, reduced to practice
or learned by me solely or jointly with others in the course of my performing
services for the Company pursuant to my Engagement, including without
limitation, all patents, patent applications and copyrights with respect thereto
(the "Assigned Intellectual Property"). I further agree to execute all papers,
and otherwise to provide all requested assistance, at the Company's expense,
during and subsequent to my Engagement, to enable the Company or its nominees to
obtain such patents, copyrights and other legal protection as it may desire in
1.
Genomica Corporation
Consultant Confidentiality and Inventions Agreement
Page 2
any country. All copyrightable work ("Work") created by me in the course of my
performing services for the Company pursuant to my Engagement is intended to be
a "work made for hire" as that term is defined in Section 101 of the Copyright
Act of 1976, as amended (the "Copyright Act"), and shall be the property of the
Company, and the Company shall be the sole author of such work within the
meaning of the Copyright Act. All such Works, as well as copies of such Works
in whatever medium fixed or embodied, shall be owned exclusively by the Company
and I expressly disclaim any interest in them. If the copyright to any such
Works shall not be the property of the Company by operation of law, I hereby
assign and will assign to the Company, without further consideration, all right,
title and interest in such Work and will assist the Company, at its expense, to
secure, maintain and defend for the benefit of the Company all copyrights,
registrations, extensions and renewals on any and all such Work, including
translations thereof in any and all countries, such Work to be and remain the
property of the Company whether copyrighted or not.
I hereby waive all moral rights and all inalienable rights that I may
have in any Work, including without limitation, any right to identification of
authorship, any right of approval on modifications or limitation on subsequent
modifications. To the extent that this waiver is deemed unenforceable under
applicable law, I acknowledge and agree that I will not exercise any such
inalienable right without the specific prior written consent of the Company.
In the event that the Company is unable, after reasonable effort, to
secure my signature on letters patent, copyright or other documents relating to
any Assigned Intellectual Property, whether because of my physical or mental
incapacity or for any other reason whatsoever, I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as my agent
and attorney-in-fact, to act for and in my behalf and stead to execute and file
any such applications(s) and to take all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
documents with the same legal force and effect as if executed by me.
The assignment provisions of this Agreement shall not apply to
Assigned Intellectual Property which is exempt from assignment under the
applicable laws of the state governing the terms of the Consulting Agreement
between me and the Company dated as of even date herewith, to which the form of
this Agreement is attached as Exhibit A. I agree, however, that the Company
shall have a non-exclusive, fully paid license to use for all purposes anywhere
in the world any Assigned Intellectual Property within the scope of the actual
or anticipated business of the Company but not assigned to
Consultant's name: Xx. Xxxxxx Xxxx
Consultant Initial Here ________
Genomica Corporation
Consultant Confidentiality and Inventions Agreement
Page 3
the Company under this Agreement unless such a license is prohibited by statute
or by a court of last resort and final jurisdiction.
I understand and agree that the Company shall determine, in its sole
and absolute discretion, whether an application for or registration of any
patent, copyright or other intellectual property right shall be filed on any
development assigned to the Company under this Agreement, and whether such an
application shall be prosecuted or abandoned prior to issuance or registration.
3. Confidentiality. I agree that without the written permission of
the Company, I will not either during or subsequent to my Engagement, use,
publish or otherwise disclose any Confidential Information except in the course
of my duties with and in furtherance of the business of the Company and, with
respect to Confidential Information which does not constitute Assigned
Intellectual Property, except as required by my employment relationship with
Cold Spring Harbor Laboratory. The term "Confidential Information" means any
Proprietary Information or any knowledge, information or materials about the
products, services, know-how, research and development, customers, or business
plans of the Company or any confidential information about financial matters,
marketing, pricing, compensation or any other confidential information of the
Company, its customers, or others from whom the Company has received information
under obligations of confidence. The foregoing restrictions of this Section 3
shall not apply if (a) the proprietary or confidential information becomes
available to the public through no fault of the recipient of such disclosure,
(b) the proprietary or confidential information was known to the recipient prior
to the disclosure, and such prior knowledge is ascertainable from written
records or documents of the recipient, and the recipient is under no such
obligation of confidentiality with respect to such prior knowledge or (c) the
proprietary or confidential information is subsequently received in good faith
from a third party without breaching any obligation of confidentiality of the
third party and without breaching any such obligation imposed by the third
party.
4. Confidential Information of Others. I agree not to disclose to
the Company, or to use in my work at the Company (a) any confidential
information belonging to Cold Spring Harbor Laboratory ("CSHL") or others or (b)
any prior inventions made by me which the Company is not entitled to learn of or
use. I represent that the inventions identified in the _____ pages I attach
hereto constitute all of the unpatented inventions which I have made prior to my
Engagement, which inventions shall be excluded from this Agreement. (It is only
necessary to list the title of such
Consultant's name: Xx. Xxxxxx Xxxx
Consultant Initial Here ________
Genomica Corporation
Consultant Confidentiality and Inventions Agreement
Page 4
inventions and the purpose thereof.) If there are no such unpatented inventions,
I have written my initials here: _____.
5. Return of Materials. Upon the request of the Company at any time
and in the event of the termination of my Engagement, whether or not such
termination is voluntary, I will deliver promptly to my supervisor at the
Company, or to the Board of Directors of the Company, all documents which relate
to business activities of the Company, and all materials and things which belong
to the Company or have been given to me by the Company or others during the
course of my engagement as a consultant thereto.
6. Prior Agreements; Consultant Obligations Subject to CSHL
Inventions Agreement. I represent that I have attached hereto a copy of the
Inventions Agreement between CSHL and me, as currently in effect (the "CSHL
Inventions Agreement"), and any other agreement (such as a prior employment
agreement) which affects my ability to comply with the terms of this Agreement.
It is expressly understood and agreed that my obligations hereunder shall be
subject to the provisions of the CSHL Inventions Agreement.
7. Enforcement. I agree that the Company would not be fairly
compensated by money damages for any breach of this Agreement by me and
therefore, in the event of a breach or threatened breach of this Agreement, the
Company shall be entitled to specific performance, an injunction and other
equitable relief in addition to money damages and other legal remedies. I
hereby waive any requirement that the Company post a bond or surety in
connection with its enforcement of this Agreement.
Consultant's name: Xx. Xxxxxx Xxxx
Consultant Initial Here ________
Genomica Corporation
Consultant Confidentiality and Inventions Agreement
Page 5
8. Miscellaneous. This Agreement shall be binding on my executors,
administrators, heirs, legal representatives or assigns, and may not be modified
except in writing with the approval of a duly authorized officer of the Company.
If any provision of this Agreement is determined to be illegal or unenforceable,
because of the duration thereof or the area or scope covered, I hereby request
any court making such determination to reduce the duration, area and/or scope so
that in its reduced form such covenant shall be enforceable and I agree that in
such event all remaining provisions shall remain in full force and effect. This
Agreement shall be governed and construed in accordance with the internal laws
(other than the laws governing conflict of law questions) of the State of New
York. This agreement and the Consulting Agreement referred to herein set the
entire agreement between the Company and me with respect to the matters set
forth herein and therein.
WITNESS: CONSULTANT:
/s/ Xxxxxx Xxxx
___________________________________ -----------------------------------
Date:______________________________ Date: 3/19/96
------------------------------
Social Security No. ###-##-####
----------------
WITNESS: GENOMICA CORPORATION (for
purposes of section 6 only)
By: /s/ Xxxxx X. Xxxxxxxx
___________________________________ --------------------------------
Name: Xxxxx X. Xxxxxxxx
Date:______________________________ Title: President
Date: 3/25/96
------------------------------
GENOMICA CORPORATION
FOUNDERS AGREEMENT
THIS AGREEMENT is made as of the 22 th day of March, 1996, by and among
Genomica Corporation, a Delaware corporation, (the "Corporation"), Xxxxxxxxxx
Xxxxx ("Founder") and the persons (the "Purchasers") named in Schedule I to a
certain Series A Convertible Preferred Stock Purchase Agreement of the
Corporation dated the date hereof (the "Purchase Agreement").
RECITALS
--------
The Corporation is engaged in the highly competitive business of
researching, developing, manufacturing and marketing computer software for the
biotechnology industry on an international basis. Founder and the Corporation
recognize and affirm that success or failure in this highly technical and highly
competitive business is dependent on the ability of the Corporation to (1)
develop and protect proprietary technology which will give the Corporation a
competitive advantage in the marketplace; (2) incorporate this technology into
products which themselves will or may become proprietary; and (3) develop and
utilize processes which may be proprietary to accomplish (1) and (2) above.
In order to achieve the above objectives, the Corporation has expended and
will continue to expend substantial time, effort and financial resources. These
activities include research, the attraction and training of key employees, and
establishing relationships with necessary resources outside the Corporation. If
information regarding the Corporation's research, processes or products were to
fall into the hands of a competitor of the Corporation, it could be used in a
manner which would cause serious and irreparable financial and business damage
to the Corporation. For this reason, all information related to the
Corporation's technology, research, products, and business strategies is
considered to be confidential information which is proprietary to the
Corporation.
In addition, the Purchasers intend to invest in the Corporation pursuant to
the Purchase Agreement based on the foregoing assumptions and such investment is
contingent upon the execution and delivery of this Agreement by the Corporation
and Founder.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above representations and
understandings, and the promises and mutual agreements set forth below, the
parties agree, effective on the date of the Agreement, to the following terms
and conditions:
1. Services. Founder agrees to serve the Corporation as reasonably
directed by its Board of Directors or its designee, consistent with the scope of
expertise and other employment obligations of Founder. Such services may
include participation in the Corporation as a director, officer, scientific
advisor, consultant, contractor and/or, with the agreement of Founder, an
employee. In all such cases, the terms and conditions of this Agreement will
continue to be binding.
2. Founder's Stock. Founder has purchased from the Corporation an
aggregate of 30,000 shares of Common Stock (the "Shares") at a per-share
purchase price of $.001 (the "Original Purchase Price") as more specifically set
forth on Schedule 1 hereto. Founder's Shares shall be subject to a number of
restrictions as set forth in this Agreement. Certain of the restrictions with
respect to Founder's Shares may terminate under various conditions pursuant
hereto in consideration for Founder's service to the Corporation as described
herein.
3. [INTENTIONALLY OMITTED]
4. Disclosure and Assignment of Technology to Corporation. Concurrently
with the execution of this Agreement, Founder is executing and delivering a
Nondisclosure Agreement substantially in the form set forth as Exhibit A hereto
(the "Nondisclosure Agreement").
5. [INTENTIONALLY OMITTED]
6. Remedies in the Event of Breach. The Corporation, the Purchasers and
Founder understand and agree that any breach or threatened breach by the
Corporation or Founder of any of the provisions hereof cannot be remedied solely
by the recovery of damages, and in the event of any such breach or threatened
breach, the Corporation or the Purchasers, as the case may be, shall be entitled
to injunctive relief, restraining Founder, and any business, firm, corporation,
individual or other entity participating in such breach or attempted breach from
engaging in any activity which would constitute a breach. The Corporation, the
Purchasers and Founder further agree that any dispute arising under the terms of
this Agreement shall be decided in accordance with the rules then in effect of
the American Arbitration Association, and any arbitration award may be entered
in a court of competent jurisdiction and enforced as a judgment thereof.
Nothing herein, however, shall be construed as (i) prohibiting the Corporation,
the Purchasers or Founder from pursuing, in conjunction with an injunction or
otherwise, any other remedies available in equity or at law for any such breach
or threatened breach, including the recovery of damages; or (ii) limiting the
Corporation's remedy against Founder as set forth in Section 13 below.
7. Transferability. The Corporation and Founder agree (i) that Unvested
Shares (as defined below) may not be sold, pledged or otherwise transferred
("Transferred") without the consent of the Board of Directors in its sole
discretion
2
(except pursuant to Section 9 below); and (ii) Vested Shares (as defined below)
may be Transferred only in accordance with the provisions set forth herein and
only if the transferee of such Vested Shares agrees in writing to be bound by
the provisions of Sections 9, 10, 11, 13 and 14 hereof. Any Founder's Shares
Transferred not in accordance with the preceding sentence shall be void, ab
initio.
8. Founder's Stock. Founder's Shares shall be affected as follows:
(A) In the event (i) Founder dies; (ii) of a breach by Founder of any of
the terms of the Consulting Agreement or the Common Stock Acquisition Agreement
by which Founder purchased the Founder's Shares (any such case, a
"Discontinuation Event"), certain of Founder's Shares, defined below as
"Unvested Shares," shall be repurchased and paid for in full by the Corporation
at the Original Purchase Price within 30 days of such Discontinuation Event.
Unvested Shares shall be those Founder's Shares which have not yet vested
according to the schedule set forth in Schedule 1 hereto. Notwithstanding the
preceding sentence, in the event the Corporation's Board of Directors approves a
sale or merger (other than a merger with or into a wholly-owned subsidiary of
the Corporation or a merger in which the Corporation is the surviving entity) of
the Corporation or an initial public offering of the Corporation's stock (any of
which events is defined herein as a "Triggering Transaction"), Founder will be
notified of such Board action. Any of Founder's then Unvested Shares will
become Vested Shares (as defined below) simultaneously with the consummation of
the Triggering Transaction. Upon the occurrence of a Discontinuation Event, all
of Founder's Unvested Shares shall forever remain Unvested Shares.
(B) Upon the occurrence of a Discontinuation Event, Founder's Shares which
are vested pursuant to Schedule 1 hereto ("Vested Shares") may be repurchased by
the Corporation, solely at the option of the Corporation (the "Corporation
Option"), at Fair Market Value (as defined below). The Corporation agrees to
give Founder (or his estate) notice of its intent to exercise the Corporation
Option within ninety (90) days of the date of such Discontinuation Event and to
pay for those shares for which it exercises such Corporation Option as follows:
3/24ths of the total price within 90 days of the date of the Discontinuation
Event, with the balance to be paid in equal monthly installments over the next
succeeding twenty-one months.
(C) Termination For Cause. Prior to the Corporation's initial public
offering, in the event of a Discontinuation Event with respect to Founder
occurring as a result of an event set forth in clause (ii) of Section 8(A)
above, then with respect to any of Founder's Shares not repurchased by the
Corporation pursuant to Sections 8(A) or 8(B) above, Founder shall, in all
matters put forth to a vote of the holders of Common Stock (i) cause such
Founder's Shares to be represented at any meeting of the stockholders of the
Corporation and (ii) vote such shares in the same proportion and in the same
manner as all other Common Stock is voted.
3
(D) Fair Market Value. For the purposes of Section 8(B), Fair Market Value
shall be that value as determined in good faith by the Board of Directors. Any
Founder (or her estate) may request an appraisal by written notice of objection
delivered not later than fifteen (15) days after receipt of such Fair Market
Value determination by the Board of Directors. If an appraisal is demanded, the
Corporation shall select an appraiser reasonably acceptable to Founder (or her
estate) to appraise Founder's Vested Shares, and the repurchase price payable
upon the Corporation's exercise of the Corporation Option shall be the higher of
such appraisal and such Fair Market Value determination by the Board of
Directors. If such appraisal results in a valuation more than 10% higher than
the Fair Market Value determination by the Board of Directors, then all expenses
of such appraisal shall be paid by the Corporation; otherwise, all expenses of
such appraisal shall be paid by Founder (or her estate).
9. Approved Sale of Corporation. (A) If the Corporation's Board of
Directors has adopted a resolution of the Board of Directors approving the sale
of the Corporation to any person (such person, the "Acquiring Entity"), whether
by merger, consolidation, sale of all or substantially all of the Corporation's
assets or sale of all of the outstanding capital stock (such sale, an "Approved
Sale"), Founder and each Purchaser will consent to, vote for and raise no
objections against the Approved Sale, and if the Approved Sale is structured as
a sale of stock, Founder and each Purchaser hereby agrees to sell all of their
respective Shares (and all rights thereto) on the terms and conditions approved
by the Board of Directors, provided that each holder of Common Stock receives in
the Approved Sale the same amount and type of consideration for its interest in
the Corporation as is received by the holders of the Series A Convertible
Preferred Stock, (the "Preferred Stock"), assuming such holders had converted
their respective shares of Preferred Stock into Common Stock. Founder and each
Purchaser will take all actions reasonably required to facilitate and consummate
an Approved Sale of the Corporation.
(B) The Corporation shall give written notice (a "Sale Notice") of any such
Approved Sale to Founder and Purchasers. A Sale Notice shall contain (i) the
name and address of the prospective Acquiring Entity; (ii) the purchase price
and other material terms and conditions of the Approved Sale; (iii) the date on
which the Approved Sale is intended to be consummated; (iv) the date on which
the Corporation's Board of Directors approved the Approved Sale and (v) the
Founder's and Purchaser's Shares proposed to be sold. Upon receipt of a Sale
Notice, Founder and each Purchaser shall be required to consent to such Approved
Sale and to sell its Founder's or Purchaser's Shares, as the case may be, to the
Acquiring Entity designated therein within 30 days of receipt thereof or such
later date as may be specified in the Sale Notice. No Purchaser or Founder
shall be required to make any representations and warranties other than
representations and warranties concerning its ownership of such Founder's or
Purchaser's Shares, the absence of any liens or encumbrances thereon and its
authority to sell such Shares; and provided further that, if the terms of such
---------------------
Approved Sale provide for the escrow of any amount of proceeds resulting from an
Approved Sale or to accept indebtedness or other securities
4
subject to indemnification or other rights of offset, then Founder and
Purchasers shall be required to escrow a pro rata amount of its proceeds from
such Approved Sale and/or to accept such indebtedness or other securities.
(C) If the Corporation or Founder, in connection with any Approved Sale,
enters into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) promulgated by the Securities and Exchange Commission under
the Securities Act may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), Founder
will at the request of the Corporation, appoint a purchaser representative (as
such term is defined in Rule 501(h) promulgated by the Securities and Exchange
Commission under the Securities Act) reasonably acceptable to the Corporation.
If Founder appoints the purchaser representative designated by the Corporation,
the Corporation will pay the fees of such purchaser representative, but if
Founder declines to appoint the purchaser representative designated by the
Corporation, Founder will appoint another purchaser representative (reasonably
acceptable to the Corporation), and Founder will be responsible for the fees of
the purchaser representative so appointed.
10. Right of First Refusal. (A) Except pursuant to Section 9 above, if at
any time Founder desires to sell for cash all or any part of Founder's Shares
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
Founder shall submit a written offer (the "Offer") to sell Founder's Shares (the
"Offered Shares") to the Purchasers on terms and conditions, including price,
not less favorable to the Purchasers than those on which Founder proposes to
sell such Offered Shares to the Proposed Transferee. The Offer shall disclose
the identity of the Proposed Transferee, the Offered Shares proposed to be sold,
the total number of Founder's Shares owned by Founder, the terms and conditions,
including price, of the proposed sale, that the proposed buyer has been informed
of the rights and obligations provided for in this Section 10 and Section 11
below and has agreed to purchase Offered Shares in accordance with the terms of
this Agreement, and any other material facts relating to the proposed sale. The
Offer shall further state that the Purchasers may acquire, in accordance with
the provisions of this Agreement, all but not less than all of the Offered
Shares for the price and upon the other terms and conditions, including deferred
payment (if applicable), set forth therein.
(B) Each Purchaser shall have the absolute right to purchase that number of
Offered Shares as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of Purchasers' Shares (as
defined below) then owned by such Purchaser and the denominator of which shall
be the aggregate number of Purchasers' Shares then owned by all of the
Purchasers. For purposes of this Section 10, all of the securities of the
Corporation which a Purchaser has acquired, or has the right to acquire from the
Corporation, upon the conversion, exercise or exchange of any of the securities
of the Corporation then owned by such Purchaser shall be deemed to be
Purchasers' Shares then owned by such Purchaser. (The amount of Offered Shares
5
that each Purchaser is entitled to purchase under this Section 10(B) shall be
referred to as its "Pro Rata Fraction").
(C) The Purchasers shall have a right of oversubscription such that if any
Purchaser fails to accept the Offer as to its Pro Rata Fraction, the other
Purchasers shall, among them, have the right to purchase up to the balance of
the Offered Shares not so purchased. Such right of oversubscription may be
exercised by a Purchaser by accepting the Offer as to more than its Pro Rata
Fraction. If, as a result thereof, such oversubscriptions exceed the total
number of Offered Shares available in respect of such oversubscription
privilege, the oversubscribing Purchasers shall be cut back with respect to
their oversubscriptions on a pro rata basis in accordance with their respective
Pro Rata Fractions or as they may otherwise agree among themselves. In the
event that the Purchasers in the aggregate shall not have elected in the manner
set forth below to purchase all of the Offered Shares, the Purchasers shall not
have the right to purchase any of the Offered Shares and the Founder shall have
the right to sell the Offered Shares in accordance with Section 10(E) below.
(D) If the Purchasers, in the aggregate, desire to purchase all of the
Offered Shares, such Purchaser(s) shall communicate in writing their election to
purchase to Founder, which communication shall state the number of Offered
Shares each Purchaser desires to purchase (which shall in the aggregate be equal
to all the Offered Shares) and shall be given to Founder within thirty days of
the date the Offer was made. Such communication shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares (subject
to the aforesaid limitations as to a Purchaser's right to purchase more than its
Pro Rata Fraction). Sales of the Offered Shares to be sold to purchasing
Purchasers pursuant to this Section 10 shall be made at the offices of the
Corporation on the 45th day following the date the Offer was made (or if such
45th day is not a business day, then on the next succeeding business day). Such
sales shall be effected by Founder's delivery to each purchasing Purchaser of a
certificate or certificates evidencing the Offered Shares to be purchased by it,
free and clear of any liens, claims or encumbrances of any kind (other than
pursuant to this Agreement), duly endorsed for transfer to such purchasing
Purchaser and with any requisite stock transfer stamps attached, against payment
to Founder of the purchase price therefor by such purchasing Purchaser.
(E) If the Purchasers do not purchase all of the Offered Shares, the
Offered Shares may be sold by Founder at any time within six months after the
date the Offer was made, subject to Section 11 below and the other provisions of
this Agreement. Any such sale shall be to the Proposed Transferee, at not less
than the price and upon other terms and conditions, if any, not more favorable
to the Proposed Transferee than those specified in the Offer. Any Offered
Shares not sold within such six-month period shall continue to be subject to the
requirements of a prior offer pursuant to this Section 10.
6
11. Co-Sale Rights. (A) If at any time a Purchaser desires to sell all or
any part of its Common Stock or Preferred Stock ("Purchaser's Shares") pursuant
to a bona fide offer from a third party (for purposes of this Section 11, also a
"Proposed Transferee"), such Purchaser shall deliver a written notice (the
"Notice") of such proposed sale of such Purchaser's Shares (for purposes of this
Section 11, also "Offered Shares") to the other Purchaser. The Notice shall
disclose the identity of the Proposed Transferee, the Offered Shares proposed to
be sold, the total number of Purchaser's Shares owned by such Purchaser, the
terms and conditions, including price, of the proposed sale, that the proposed
buyer has been informed of the rights and obligations provided for in this
Section 11 and has agreed to purchase Offered Shares in accordance with the
terms of this Agreement, and any other material facts relating to the proposed
sale.
(B) (i) If a Purchaser elects not to purchase any Offered Shares pursuant
to Section 10 above; or (ii) if upon receipt of a Notice pursuant to Section
11(A) above, such Purchaser desires to sell any of such Purchaser's Shares, then
such Purchaser shall have the right, exercisable upon written notice (the "Co-
Sale Acceptance Notice") to the selling Founder or Purchaser, as applicable,
given within thirty (30) days after the Offer or Notice, as applicable has been
delivered pursuant to Section 10 or 11(A) above, to participate in the proposed
sale of Offered Shares pursuant to the terms and conditions specified in the
Offer or Notice, as applicable, and the selling Founder or Purchaser, as
applicable, shall require the Proposed Transferee designated in the Offer or
Notice, as applicable, to purchase from such Founder or Purchaser up to the
number of whole shares of Common Stock or Preferred Stock, as applicable, equal
to the product of (i) the total number of Offered Shares to be transferred in
such proposed sale as specified in the Offer or Notice, as applicable, and (ii)
a fraction, the numerator of which (a) in the case of Offered Shares which are
Common Stock, is the number of outstanding shares of Common Stock held by such
Purchaser (including any Common Stock issuable to such Purchaser upon the
conversion or exchange of any Purchaser's Shares convertible or exchangeable
into Common Stock) or (b) in the case of Offered Shares which are Preferred
Stock, is the number of outstanding shares of Preferred Stock held by such
Purchaser, and the denominator of which (c) in the case of Offered Shares which
are Common Stock, is the total number of shares of Common Stock (on a fully-
diluted basis) then outstanding or (d) in the case of Offered Shares which are
Preferred Stock, is the total number of shares of Preferred Stock (on a fully-
diluted basis) then outstanding . The Co-Sale Acceptance Notice shall state the
number of shares such Purchaser proposes to include in such proposed sale to the
Proposed Transferee (up to the number of shares as calculated pursuant to the
immediately preceding sentence). Any such sale by such Purchaser shall be at
the same price per share (including price and type of consideration) received by
the Proposed Transferee and otherwise on identical terms and conditions as
received by the selling Founder or Purchaser, as the case may be, in its sale to
the Proposed Transferee. In the event that the Proposed Transferee does not
purchase shares of Common Stock and/or Preferred Stock from Purchasers who have
timely delivered a Co-Sale Acceptance Notice as required by this Section 11,
then the selling Founder or
7
Purchaser, as the case may be, shall not be permitted to, and shall not, sell
any Offered Shares to the Proposed Transferee in the proposed sale.
(C) If no Co-Sale Acceptance Notice is received by the selling Founder or
Purchaser, as the case may be, during the 30-day period referred to in Section
11(A) above, then such Founder or Purchaser, as the case may be, shall have the
right to sell the Offered Shares at any time within six months after the date
the Offer or Notice, as the case may be was delivered, subject to the other
provisions of this Agreement. Any such sale shall be to the Proposed
Transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the Proposed Transferee than those specified in the
Offer or Notice, as applicable. Any Offered Shares not sold within such six-
month period shall continue to be subject to the requirements of Section 10 and
this Section 11.
(D) Notwithstanding the foregoing, this Section 11 shall not apply to any
Transfer by any Purchaser or Founder of Shares: (i) to such Purchaser's or
Founder's affiliates, members of such Purchaser's or Founder's immediate family,
family trusts or Purchasers, (ii) constituting a gift or gifts, or (iii)
constituting less than 1% of the outstanding class of Shares to be Transferred.
12. Termination. The Corporation's right to repurchase Vested Shares
pursuant to Section 8 hereof, and the provisions of Sections 7, 9, 10, 11 and 13
hereof, shall terminate immediately upon the closing of a firm commitment,
underwritten public offering registered under the Securities Act, (other than a
registration relating solely to a transaction referred to in Rule 145 under the
Securities Act (or any successor rule) or to an employee benefit plan of the
Corporation), at a public offering price (prior to underwriters' discounts and
expenses) equal to or exceeding $2.50 per share of Common Stock (as adjusted for
any stock dividends, combinations or splits with respect to such shares) and in
which the aggregate proceeds to the Corporation and/or selling stockholders
(before deduction for underwriters' discounts and expenses relating to the
issuance, including without limitation fees of the Corporation's counsel) exceed
$5,000,000.
13. Failure to Deliver Shares. If Founder becomes obligated to sell any
Founder's Shares to a Purchaser or the Corporation under this Agreement and
fails to deliver such Founder's Shares in accordance with the terms of this
Agreement, such Purchaser or the Corporation, as the case may be, may, at its
option, in addition to all other remedies it may have, send to Founder the
purchase price for such Founder's Shares as is herein specified. Thereupon, the
Corporation upon written notice to Founder, (i) shall cancel on its books the
certificate or certificates representing the Founder's Shares to be sold and
(ii) shall issue, in lieu thereof, in the name of such Purchaser or the
corporation, as the case may be, a new certificate or certificates representing
such Founder's Shares, and thereupon all of Founder's rights in and to such
Founder's Shares shall terminate.
8
14. Lock-up. If requested by the underwriters for the initial
underwritten public offering of securities of the Corporation, Founder and each
Purchaser shall agree not to sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose of all or any of such Founder's or
Purchaser's Shares, without the written consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering. This Section 14 shall
expressly survive the termination of this Agreement.
15. No Waiver. Any waiver of a breach of any of the terms of this
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other terms or conditions, nor shall any failure to enforce
any provision of this Agreement operate as a waiver of such provision or any
other provision.
16. Successors and Assigns. The rights, benefits and obligations of the
Corporation under this Agreement and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. Subject to the limitations set forth herein, this Agreement shall
inure to the benefit of and be binding upon the Founders' heirs, successors and
assigns. Subject to the limitations set forth herein, neither this Agreement
nor any rights or obligations hereunder shall be assigned by any Founder. The
rights of the Purchasers hereunder shall inure to the benefit of and be binding
upon the Purchasers respective successors and assigns.
17. Entire Agreement. The Agreement (with respect to the Corporation and
the Purchasers, together with the Purchase Agreement), constitutes the entire
agreement among the parties. This Founders Agreement may not be amended or
modified, except in writing, and signed by each of the Purchasers and Founder.
18. Severability. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the invalidity or unenforceability
thereof shall not affect any other provisions or applications of this Agreement
which can be given effect without the invalid or unenforceable provision or
application. To that end, the provisions of this Agreement are to be severable.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (without giving
effect to its conflicts of laws principles).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF. the Corporation has caused this Agreement to be signed
and each Founder has executed this Agreement as of the date shown below.
GENOMICA CORPORATION
Dated: ???, 22 , 1996 BY: /s/ Xxxxx X. Xxxxxxxx
---------- ------------------------------------
TITLE:_________________________________
Dated: 3/21/96 , 1996 FOUNDER: /s/ Xxxxxxxxxx Xxxxx
--------- -------------------------------
Xxxxxxxxxx Xxxxx
PURCHASERS:
FALCON TECHNOLOGY PARTNERS, L.P.
A Delaware limited partnership
BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
TITLE: General Partner
XXXXXX & XXXXXX GROUP, INC.
A NY corporation
BY: /s/ D.C.J.
------------------------------------
TITLE: Executive Vice President
---------------------------------
10
SCHEDULE 1
----------
Founder Founders' Vesting Schedule
------- --------- ----------------
Shares
------
Xxxxx 30,000 15,000 shares become Vested Shares on the date
($30.00) hereof and the remaining shares become Vested
Shares on the first anniversary of the date
hereof; provided however, that notwithstanding
the above provisions, if Xxxxx leaves the employ
of Cold Spring Harbor for any reason except to
become an employee of the Company, all shares
which have not yet become Vested Shares will
always remain Unvested Shares.
11
Exhibit A
CONFIDENTIALITY AGREEMENT
-------------------------
Name: Xxxxxxxxxx Xxxxx Employment Date: 9/9/91
------------------------------ ------------------------
(Type or Print)
In consideration of (i) Genomica Corporation (the "Company") entering
into certain agreements and arrangements with my employer, Cold Spring Harbor
Laboratory ("Cold Spring Harbor"), whereby the Company will, among other things,
sponsor certain research activities in which I may be involved, and (ii) the
Company's issuance and sale to me of shares of its common stock pursuant to a
Common Stock Acquisition Agreement between the Company and me, and for other
good and valuable consideration, the receipt and sufficiency of which are by
acknowledged, I understand and agree to the following provisions for the
protection of the confidential information of the Company.
1. Confidentiality. I agree that without the written
permission of the Company, I will not knowingly use, publish or otherwise
disclose any Confidential Information. The term "Confidential Information"
means any Proprietary Information or any knowledge, information or materials
about the products, services, know-how, research and development, customers, or
business plans of the Company or any confidential information about financial
matters, marketing, pricing, compensation or any other confidential information
of the Company, its customers, or others from whom the Company has received
information under obligations of confidence which have been communicated to me
in writing. The term "Proprietary Information" means all intellectual and/or
physical work product, including without limitation, inventions, whether or not
patentable and whether or not tested or reduced to practice, discoveries, ideas,
conceptions, processes, developments, designs, business plans, trade secrets,
mask works, know-how and tangible expressions, whether or not copyrightable,
computer software, systems, programs or procedures, which (a) relates to the
actual or anticipated business activities of the Company, (b) results from work
which is performed for the Company or which is funded in whole or in part by the
Company or (c) results from any use of premises, equipment or property (tangible
or intangible) owned, leased, licensed or contracted for by the Company.
Notwithstanding the foregoing provisions of this paragraph 1 to the contrary,
"Confidential information" shall not include any information which (i) has been
made available to the general public of information which subsequently comes in
the public domain through no fault or omissions by me, (ii) is subsequently
disclosed by a third party which has the bona fide right to make such
disclosure, (iii) is required to be disclosed by law or a governmental agency
and (iv) is already generally known by personas in the computer software
industry or developed by
Genomica Corporation
Confidentiality Agreement
Page 2
me independent of my work with the Company or Cold Spring Harbor without use of
any Confidential Information.
2. Confidential Information of Others. I agree not to knowingly
disclose to the Company (a) any confidential information belonging to others or
(b) any prior inventions made by me which the Company is not entitled to learn
of or use.
3. Return of Materials. Upon the written request of the Company at
any time, I will deliver promptly to the Company all documents, materials and
things (if any) in my possession which belong to the Company or have been given
to me by the Company.
4. Prior Agreements. I represent that I have attached hereto a copy
of any agreement (such as a prior employment agreement) which affects my ability
to comply with the terms of this Agreement. If there is no such agreement, I
have written my initials here: JS
------
5. Enforcement. I agree that the Company would not be fairly
compensated by money damages for any breach of this Agreement by me and
therefore, in the event of a breach or threatened breach of this Agreement, the
Company shall be entitled to specific performance, an injunction and other
equitable relief in addition to money damages and other legal remedies.
6. Miscellaneous. This Agreement shall be binding on my executors,
administrators, heirs, legal representatives or assigns, and may not be modified
except in writing with the approval of a duly authorized officer of the Company.
If any provision of this Agreement is determined to be illegal or unenforceable,
because of the duration thereof or the area or scope covered, I hereby request
any court making such determination to reduce the duration, area and/or scope so
that in its reduced form such covenant shall be enforceable and I agree that in
such event all remaining provisions shall remain in full force and effect. This
Agreement shall be governed and construed in accordance with the internal laws
of the State of New York. This document sets forth the entire agreement between
the Company and me with respect to the matters set forth herein.
WITNESS:
/s/ Xxxxxx Xxxxx /s/ Xxxxxxxxxx Xxxxx
----------------------------------- -----------------------------------
Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx
Date: 3/21/96 Date: 3/21/96
------------------------------ ------------------------------
Social Security No. ###-##-####
----------------
