Exhibit 2.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "AGREEMENT") is made as of May 20, 2005, by
and among QUATRX PHARMACEUTICALS COMPANY, a Delaware corporation ("QUATRX"),
HORMOS MEDICAL CORPORATION, a Finnish corporation ("HORMOS"), and the
shareholders of Hormos signatories to this Agreement (the "SELLERS").
RECITALS
A. The Boards of Directors of QuatRx and Hormos have determined that it is
advisable and for the respective benefit of QuatRx and Hormos, and their
respective securityholders, and in their long-term strategic interests, for
QuatRx and Hormos to combine their businesses, by means of a share exchange, and
have approved this Agreement and authorized the transactions contemplated hereby
on the terms and subject to the conditions of this Agreement.
B. Pursuant to the terms of this Agreement, shares and promissory notes of
Hormos held by Sellers shall be exchanged for newly issued shares of stock of
QuatRx.
C. As a result of the exchange referred to in recital B (the "EXCHANGE"),
QuatRx will own 100% of all of the outstanding capital stock of Hormos and all
securities or other instruments convertible into or exercisable for capital
stock of Hormos.
D. The Exchange offer has been made to all securityholders of Hormos.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
As used in this Agreement, unless expressly otherwise stated or evident in
the context, the following terms shall have the following meanings:
"ACCREDITED SELLER" -- as defined in Section 3.2(a).
"ADDITIONAL SELLER" -- as defined in Section 2.1(b).
"AGREEMENT"-- shall mean this Exchange Agreement.
"ALTERNATIVE ACQUISITION"-- as defined in Section 7.6.
"APPLICABLE SECURITIES"-- as defined in Section 5.2.
"BUSINESS DAY"-- shall mean any day, Monday through Friday, on which U.S.
federally chartered banks are open for business in New York, New York and
Finnish banks are open for business in Finland.
"CLAIM"-- as defined in Section 11.5.
"CLOSING"-- as defined in Section 2.2(a).
"CLOSING DATE"-- shall mean the date and time as of which the Closing
actually takes place.
"CODE"-- shall mean the United States Internal Revenue Code and the
regulations promulgated thereunder.
"CONFIDENTIALITY AGREEMENT"-- shall mean the Confidentiality Agreement,
dated April 9, 2002, as amended November 3, 2004, between Hormos and QuatRx.
"CONTRACT"-- shall mean any agreement, contract, obligation, promise,
commitment or undertaking of any kind (whether written or oral and whether
express or implied), other than those that have been terminated.
"DGCL"-- shall mean the Delaware General Corporation Law, as amended.
"EARN OUT SHARES" -- as defined in Section 3.1(a).
"EARN OUT EVENT" -- as defined in Section 3.1(b).
"EMPLOYEE BENEFIT PLAN"-- shall mean any plan, policy, program, practice,
agreement, understanding or arrangement (whether written or oral) providing
compensation or other benefits (other than ordinary cash compensation) to any
current or former director, officer, employee or consultant (or to any dependent
or beneficiary thereof), of the employer, which are now, or were since inception
of the employer, maintained by the employer, or under which the employer has or
could have any obligation or liability, whether actual or contingent, including,
without limitation, all incentive, bonus, deferred compensation, vacation,
holiday, cafeteria, medical, disability, stock purchase, stock option, warrant,
stock appreciation, phantom stock, restricted stock or other stock-based
compensation plans, policies, programs, practices or arrangements.
"ENCUMBRANCE"-- shall mean any mortgage, charge, claim, community property
interest, equitable interest, lien, option, pledge, security interest, right of
first refusal or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income or exercise of any other attribute of
ownership; and the verb "Encumber" shall be construed accordingly.
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"ENVIRONMENTAL CLAIM"-- shall mean any accusation, allegation, notice of
violation, action, claim, Encumbrance, Lien, demand, abatement or other Order or
direction (conditional or otherwise) by any Governmental Authority or any Person
for personal injury (including sickness, disease or death), tangible or
intangible property damage, damage to the environment, nuisance, pollution,
contamination or other adverse effects on the environment, or for fines,
penalties or restrictions resulting from or based upon (i) the existence, or the
continuation of the existence, of a Release (including, without limitation,
sudden or non-sudden accidental or non-accidental Releases) of, or exposure to,
any Hazardous Material or other substance, clinical, material, pollutant,
contaminant, odor, audible noise, or other Release in, into or onto the
environment (including, without limitation, the air, soil, surface water or
groundwater) at, in, by, from or related to the Facilities or any activities
conducted thereon; (ii) the environmental aspects of the transportation,
storage, treatment or disposal of Hazardous Materials in connection with the
operation of the Facilities; or (iii) the violation, or alleged violation, of
any Environmental Laws, Orders or Governmental Permits of or from any
Governmental Authority relating to environmental matters connected with the
Facilities.
"ENVIRONMENTAL, HEALTH AND SAFETY LIABILITIES"-- shall mean any cost,
damage, expense, liability, obligation or other responsibility arising from or
under any Environmental Law, as well as any liability for torts and damages
according to general Finnish rules, regulations and ordinary principles,
including case law, or Occupational Safety and Health Law and consisting of or
relating to: (a) any environmental, health or safety matter or condition
(including on-site or off-site contamination, generation, handling and disposal
of Hazardous Materials, occupational safety and health, and regulation of
chemical and Hazardous Materials); (b) fines, penalties, judgments, awards,
settlements, legal or administrative proceedings, damages, losses, litigation,
including civil and criminal claims, demands and responses, investigative,
remedial, response or inspection costs and expenses arising under Environmental
Law or Occupational Safety and Health Law; (c) financial responsibility under
Environmental Law or Occupational Safety and Health Law for cleanup costs or
corrective action, including any investigation, cleanup, removal, containment or
other remediation or response actions required by applicable Environmental Law
or Occupational Safety and Health Law and for any natural resource damages; or
(d) any other compliance, corrective, investigative or remedial measures
required under Environmental Law or Occupational Safety and Health Law.
"ENVIRONMENTAL LAW"-- shall mean any Law concerning the environment, or
activities that might threaten or result in damage to the environment or human
health, or any Law that is concerned in whole or in part with the environment
and with protecting or improving the quality of the environment and human and
employee health and safety and includes, but is not limited to, the Finnish
Environmental Protection Act (86/2000), Finnish Waste Act (1072/1993) and
Finnish Water Act (264,1961), as such laws have
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been amended or supplemented, and the regulations, statutory orders, local
council waste by-laws, and other binding by-laws and guidance and practice notes
adopted under any of those laws.
"ESCROW AGENT"-- as defined in Section 3.1.
"ESCROW AGREEMENT"-- as defined in Section 3.1.
"ESCROW SHARES"-- as defined in Section 3.1.
"EXCHANGE"-- as defined in the recitals.
"EXPIRATION DATE"-- as defined in Section 11.1(b).
"FACILITIES"-- shall mean any real property, leaseholds or other interests
currently or formerly owned or operated, and any buildings, plants, structures
or equipment (including motor vehicles) currently or formerly owned or operated.
"FCA"-- shall mean the Finnish Companies Act, as amended.
"FDA"-- shall mean the U.S. Food and Drug Administration.
"GAAP"-- shall mean generally accepted accounting principles applied on a
consistent basis.
"GOVERNMENTAL AUTHORITY"-- shall mean any court, tribunal, authority,
agency, commission, bureau, department, official or other instrumentality of the
United States, the European Union, Finland, any other country or any provincial,
state, local, county, city or other political subdivision.
"GOVERNMENTAL PERMIT"-- shall mean any license, franchise, permit or other
authorization of any Governmental Authority.
"HAZARDOUS MATERIALS"-- shall mean any substance, material or waste which
is regulated by any Environmental Law, including but not limited to, petroleum
products, asbestos and polychlorinated biphenyls.
"HORMOS" -- as defined in the first paragraph of this Agreement.
"HORMOS COSTS" -- as defined in Section 12.4.
"HORMOS DISCLOSURE SCHEDULE"-- shall mean the disclosure schedule delivered
by Hormos to QuatRx concurrently with the execution and delivery of this
Agreement.
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"HORMOS FINANCIAL STATEMENTS"-- shall mean the audited balance sheet and
statement of shareholders equity of Hormos as of December 31, 2004 and statement
of cash flow for the year then ended. The Hormos Financial Statements are
included in Section 4.5 of the Hormos Disclosure Schedule.
"HORMOS INTELLECTUAL PROPERTY" -- shall mean any Intellectual Property that
is owned by, or exclusively licensed to, Hormos.
"HORMOS INTERIM FINANCIAL STATEMENTS"-- shall mean the unaudited balance
sheet and statement of shareholders equity of Hormos as of March 31, 2005, and
the related unaudited cash flow statement for the three (3) months then ended.
"HORMOS IP REGULATIONS" -- as defined in Section 4.21(k).
"HORMOS MATERIAL ADVERSE EFFECT"-- shall mean any material adverse change
in the business, operations, properties, assets, liabilities, results of
operations, condition or prospects (financial or otherwise) of Hormos having a
financial impact in excess of one hundred fifty thousand dollars ($150,000),
provided, however, that any such effect resulting from (i) any change in
economic or business conditions generally affecting the biotechnology industry
or (ii) any change in GAAP or interpretations thereof generally affecting the
biotechnology industry shall not be considered when determining if a Hormos
Material Adverse Effect has occurred.
"HORMOS MATERIAL IP"-- shall mean all Hormos Intellectual Property related
to selective androgen receptor modulators (SARMs), selective estrogen receptor
modulators (SERMs), including the chemical compounds ospemifene and fispemifene,
consisting of the patents listed in Section 4.21 of the Hormos Disclosure
Schedule under the heading "Hormos Material IP".
"HORMOS NOTES"-- shall mean all promissory notes of Hormos convertible into
Series C Shares.
"HORMOS OPTIONS" -- as defined in Section 4.3.
"HORMOS REGISTERED INTELLECTUAL PROPERTY" -- shall mean all of the
Registered Intellectual Property owned by, or filed in the name of, Hormos.
"HORMOS SECURITIES"-- shall mean the Hormos Series A Shares, Hormos Series
B Shares, Hormos Notes and Hormos Options.
"HORMOS SECURITYHOLDERS"-- shall mean the holders of Hormos Securities.
"HORMOS SERIES A SHARES" -- shall mean series A Shares of Hormos.
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"HORMOS SERIES B SHARES" -- shall mean series B Shares of Hormos.
"HORMOS SHARES" -- as defined in Section 4.3.
"INDIVIDUAL SECURITYHOLDER REPRESENTATIVE" -- as defined in Section 3.2(b).
"INDEMNIFYING SELLERS" -- as defined in Section 11.2.
"INDEMNITEE" -- shall mean either a QuatRx Indemnitee or a Hormos
Indemnitee, as the case may be.
"INDEMNITOR" - shall mean a party liable for indemnification.
"INDEMNITY SHARES" -- as defined in Section 3.1(a).
"INSTITUTIONAL SECURITYHOLDER REPRESENTATIVE" -- as defined in Section
3.2(b).
"INTELLECTUAL PROPERTY" -- shall mean any or all of the following and all
rights in, arising out of, or associated therewith: (i) all United States,
international and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights, copyrights registrations
and applications therefor, and all other rights corresponding thereto throughout
the world; (iv) all industrial designs and any registrations and applications
therefor throughout the world, (v) all trade names, logos, URLs, common law
trademarks and service marks, trademark and service xxxx registrations and
applications therefor throughout the world; (vi) all databases and data
collections and all rights therein throughout the world; (vii) all moral and
economic rights of authors and inventors, however denominated, throughout the
world, and (viii) any similar or equivalent rights to any of the foregoing
anywhere in the world.
"LAW"-- shall mean any Finnish, European Union, other non-United States,
United States, state or local (including common law) statute, code, directive,
ordinance, rule, regulation or other requirement.
"LIEN"-- shall mean any lien, pledge, hypothecation, levy, mortgage, deed
of trust, security interest, claim, lease, charge, option, right of first
refusal, easement, or other real estate declaration, covenant, condition,
restriction or servitude, transfer restriction under any shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever.
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"LOSSES"-- shall mean any claims, losses, liabilities, damages, causes of
action, costs and expenses (including reasonable attorneys', accountants',
consultants' and experts' fees and expenses) which are a direct result of a
breach of this Agreement, excluding loss of profits, any indirect or
consequential losses and any reduction of Tax losses.
"OCCUPATIONAL SAFETY AND HEALTH LAW"-- shall mean any legal or governmental
requirement or obligation relating to safe and healthful working conditions or
to occupational safety and health hazards, whether governmental or private
(including those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.
"OLD SHAREHOLDERS AGREEMENT"-- shall mean the Shareholders Agreement, dated
July 6, 2001, as amended, among certain Hormos Securityholders.
"ORDER"-- shall mean any order, consent, consent order, injunction,
judgment, decree, consent decree, ruling, writ, assessment or arbitration award.
"ORGANIZATIONAL DOCUMENTS"-- shall mean: (a) the articles or certificate of
incorporation, memorandum of association, articles of association and the
by-laws of a corporation; (b) the partnership agreement and any statement of
partnership of a general partnership; (c) the limited partnership agreement and
the certificate of limited partnership of a limited partnership; (d) the
articles or certificate of formation and operating agreement of a limited
liability company; (e) any charter, trust certificate or document or similar
document adopted or filed in connection with the creation, formation or
organization of a Person; and (f) any and all amendments to any of the
foregoing.
"OSPEMIFENE DISCONTINUANCE" -- as defined in Section 3.1(b).
"PERSON"-- shall mean any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or governmental body or Governmental Authority.
"PROCEEDING"-- shall mean any claim, action, investigation, arbitration,
litigation or other judicial, administrative or regulatory proceeding.
"QUATRX"-- as defined in the first paragraph of this Agreement.
"QUATRX COMMON STOCK"-- shall mean the Common Stock, $0.01 par value per
share, of QuatRx.
"QUATRX DISCLOSURE SCHEDULE"-- shall mean the disclosure schedule delivered
by QuatRx to Hormos concurrently with the execution and delivery of this
Agreement.
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"QUATRX FINANCIAL STATEMENTS"-- shall mean the audited balance sheet and
statement of shareholders equity of QuatRx as of December 31, 2004 and statement
of cash flow for the year then ended. The QuatRx Financial Statements are
included in Section 6.5 of the QuatRx Disclosure Schedule.
"QUATRX INDEMNITEE"-- as defined in Section 11.2.
"QUATRX MATERIAL ADVERSE EFFECT"-- shall mean any material adverse change
in the business, operations, properties, assets, liabilities, results of
operations, condition or prospects (financial or otherwise) of QuatRx and its
subsidiaries having a financial impact in excess of one hundred fifty thousand
dollars ($150,000); provided, however, that any such effect resulting from (i)
any change in economic or business conditions generally affecting the
biotechnology industry or (ii) any change in generally accepted accounting
principles or interpretations thereof generally affecting the biotechnology
industry shall not be considered when determining if a QuatRx Material Adverse
Effect has occurred.
"QUATRX MATERIAL IP"-- shall mean all QuatRx Intellectual Property related
to projects 401, 431, 101 and 411 consisting of the patents listed in Section
6.18 of the QuatRx Disclosure Schedule under the heading "QuatRx Material IP".
"QUATRX PRODUCTS"-- as defined in Section 6.20.
"QUATRX SERIES D PREFERRED SHARES"-- shall mean the Series D Preferred
Stock, $0.01 par value per share, of QuatRx having the terms set forth on
EXHIBIT 1 hereto.
"QUATRX SERIES D-1 PREFERRED SHARES"-- shall mean the Series D-1 Preferred
Stock, $0.01 par value per share, of QuatRx having the terms set forth on
EXHIBIT 1 hereto.
"QUATRX SHARES"-- as defined in Section 6.3.
"REGISTERED INTELLECTUAL PROPERTY"-- shall mean all United States,
international and foreign: (i) patents and patent applications (including
provisional applications); (ii) registered trademarks, applications to register
trademarks, intent-to-use applications, or other registrations or applications
related to trademarks; (iii) registered copyrights and applications for
copyright registration; and (iv) any other Intellectual Property that is the
subject of an application, certificate, filing, registration or other document
issued, filed with, or recorded by any state, government or other public legal
authority.
"REGULATORY DELAY"-- as defined in Section 3.1(b).
"RELATED PERSON"-- as defined in Section 4.23.
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"RELEASE"-- shall mean any release, spill, effluent, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching, or
migration into the indoor or outdoor environment of any Hazardous Material
through or in the air, soil, surface water or groundwater.
"REMEDIAL ACTION"-- shall mean all actions, including, without limitation,
any expenditures, required or voluntarily undertaken to (i) clean up, remove,
treat, or in any other way address any Hazardous Material or other substance in
the indoor or outdoor environment; (ii) prevent the Release or threat of
Release, or minimize the further Release of any Hazardous Material or other
substance so it does not migrate or endanger or threaten to endanger public
health or welfare of the indoor or outdoor environment; (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care; or
(iv) bring any Facility into compliance with all Environmental Laws and
Environmental Permits.
"REPRESENTATIVES"-- shall mean officers, directors, employees, agents,
attorneys, accountants, consultants, advisors and representatives.
"REPRESENTED SELLERS" -- as defined in Section 3.2(b).
"RETURNS"-- shall mean returns, reports and forms.
"SECURITIES ACT"-- shall mean the United States Securities Act of 1933, as
amended, or any successor law.
"SECURITYHOLDER REPRESENTATIVES"-- as defined in Section 3.2(b).
"SELLERS" -- as defined in the first paragraph of this Agreement.
"SHARE REGISTER" - as defined in Section 2.4(a).
"STOCK PURCHASE AGREEMENT" - as defined in Section 6.19.
"SUBSIDIARY"-- shall mean with respect to any Person, any corporation,
joint venture, limited liability company, partnership, association or other
business entity of which fifty percent (50%) or more of the total voting power
of stock or other equity entitled to vote generally in the election of directors
or managers or equivalent Persons thereof is owned or controlled, directly or
indirectly, by such Person.
"TAX AUTHORITY"-- shall mean the Finnish, United States, and any state,
local or foreign government or any agency or subdivision thereof with
jurisdiction over Tax matters.
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"TAXES"-- shall mean all taxes, charges, fees, customs, duties or other
assessments, however denominated, including all interest, penalties, additions
to tax or additional taxes that may become payable in respect thereof, imposed
by a Tax Authority, which shall include, without limitation, all income taxes,
payroll and employee withholding taxes, unemployment insurance, social security,
sales and use taxes, excise taxes, capital taxes, franchise taxes, gross receipt
taxes, occupation taxes, real and personal property taxes, value added taxes,
stamp taxes, transfer taxes, workers' compensation taxes, taxes relating to
benefit plans and other obligations of the same or similar nature.
"TEKES" - shall mean the National Technology Agency of Finland.
"TEKES LOANS"-- shall mean all funds provided to Hormos by TEKES, whether
provided as a grant, an R&D loan, a capital loan or otherwise.
"THRESHOLD AMOUNT" - as defined in Section 11.4(a).
"TRANSACTION DOCUMENTS"-- means the agreements, documents or instruments
executed and delivered by a party hereto as contemplated under this Agreement.
"U.S. PERSON"-- means (i) any natural person resident in the United States;
(ii) any partnership or corporation organized or incorporated under the laws of
the United States; (iii) any estate of which any executor or administrator is a
U.S. Person; (iv) any trust of which any trustee is a U.S. Person; (v) any
agency or branch of a foreign entity located in the United States; (vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S. person;
(vii) any discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States; and (viii) any partnership or
corporation if: (A) organized or incorporated under the laws of any foreign
jurisdiction; and (B) formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited investors (as defined in
Rule 501(a) under the Securities Act) who are not natural persons, estates or
trusts.
2. THE EXCHANGE; CLOSING
2.1 GENERAL
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing of the Exchange, the Sellers shall transfer and assign
all of their respective right, title and interest in and to all of the Hormos
Securities specified in TABLE A OF EXHIBIT 2.1 to QuatRx in exchange for shares
of QuatRx Common Stock, QuatRx Series D Preferred Shares, and QuatRx Series D-1
Preferred Shares as provided in TABLE A OF EXHIBIT 2.1. The QuatRx Common Stock,
QuatRx Series D-1 Preferred Shares and
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QuatRx Series D Preferred Shares shall be allocated among the Sellers as
separately agreed by each Seller as set forth in TABLE A OF EXHIBIT 2.1.
(b) TABLE B OF EXHIBIT 2.1 lists the holders of Hormos Securities,
other than the Sellers (the "ADDITIONAL SELLERS"), that are not parties to this
Agreement as of the date hereof but shall be joined to this Agreement as Sellers
by a separate joinder agreement as soon as practicable after the date hereof.
Upon the terms and subject to the conditions set forth in this Agreement, at the
Closing of the Exchange or as soon thereafter as an Additional Seller specified
on TABLE B OF EXHIBIT 2.1 has signed a joinder agreement, such Additional Seller
shall transfer all of its respective right, title and interest in and to all of
the Hormos Series A Shares held by it as specified on TABLE B OF EXHIBIT 2.1 to
QuatRx in exchange for a number of shares of QuatRx Common Stock as specified on
TABLE B OF EXHIBIT 2.1.
2.2 THE CLOSING
(a) Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
10 and subject to the satisfaction or waiver of the conditions set forth in
Sections 8 and 9, the consummation of the Exchange shall take place on or as
promptly as practicable (and in any event within two (2) Business Days) after
satisfaction or waiver of the conditions set forth in Sections 8 and 9 at the
offices of Castren & Xxxxxxxx, Xxxxxxxxxxxxx 0X, XX-00000 Xxxxxxxx, Xxxxxxx (the
"CLOSING"), unless another date, time or place is agreed to in writing by the
Sellers holding a majority in interest of the Hormos Shares and QuatRx.
(b) At the Closing, the parties shall sign a closing memorandum as set
forth in EXHIBIT 2.2.
(c) At the Closing, the Sellers shall receive the QuatRx Common Stock,
QuatRx Series D-1 Preferred Shares and QuatRx Series D Preferred Shares in
exchange to the delivery of Hormos Securities as set forth in TABLE A OF EXHIBIT
2.1.
(d) Following the Closing and without any delay, the parties hereto
shall cause the Exchange to be memorialized by making all filings or recordings
required under applicable Laws.
(e) Immediately after the Closing, the Exchange will have the effects
set forth in this Agreement, and QuatRx shall own at least ninety percent (90%)
of the Hormos Securities.
2.3 ISSUANCE OF QUATRX SECURITIES
At the Closing, QuatRx shall issue stock certificates to the Sellers
representing the aggregate number of shares of QuatRx Common Stock, QuatRx
Series
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D Preferred Shares and QuatRx Series D-1 Preferred Shares, issuable pursuant to
TABLE A OF EXHIBIT 2.1 in exchange for the issued and outstanding Hormos
Securities to be surrendered for exchange pursuant to TABLE A OF EXHIBIT 2.1. At
the Closing or as soon as practicable after each Additional Seller has executed
a joinder agreement to this Agreement, QuatRx shall issue such Additional Seller
a stock certificate representing the aggregate number of shares of QuatRx Common
Stock issuable pursuant to TABLE B OF EXHIBIT 2.1.
2.4 EXCHANGE PROCEDURES
(a) Book Entry System. At the Closing, the Sellers shall deliver to
the Finnish Central Securities Depository (the "SHARE REGISTER") such duly
completed and validly executed documentation as may be required to prove the
transfer of ownership of the Hormos Securities held by the Sellers to QuatRx for
recordation in the book-entry shareholder registry maintained by the Share
Register. In connection with the delivery of a joinder agreement to this
Agreement, each Additional Seller shall deliver to QuatRx the documentation
referred to in the preceding sentence.
(b) No Further Ownership Rights in Hormos Securities. All shares of
QuatRx stock issued upon the surrender for exchange of Hormos Securities in
accordance with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to such Hormos Securities.
(c) Restrictive Legends. Certificates evidencing shares of QuatRx
Common Stock, QuatRx Series D Preferred Shares and QuatRx Series D-1 Preferred
Shares pursuant to this Agreement shall bear the following legends:
(i) All certificates shall bear a restrictive legend consistent
with Section 7.12 hereof.
(ii) All certificates shall bear a restrictive legend indicating
that the shares evidenced thereby were not registered pursuant to the Securities
Act, including any restrictive legend required by, or useful to aid compliance
with, Regulations D and S adopted by the Commission thereunder.
3. ESCROW OF SHARES
3.1 DELIVERY OF ESCROW SHARES; EARN OUT
(a) In lieu of delivering to the Sellers certificates for the full
number of shares of QuatRx Common Stock, QuatRx Series D Preferred Shares and
QuatRx Series D-1 Preferred Shares provided for in TABLE A OF EXHIBIT 2.1 at the
Closing, QuatRx shall deliver pursuant to the escrow agreement substantially in
the form attached hereto as
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EXHIBIT 3.1 (the "ESCROW AGREEMENT") thirty percent (30%) of the shares of
QuatRx Common Stock, thirty percent (30%) of the QuatRx Series D Preferred
Shares and thirty percent (30%) of the QuatRx Series D-1 Preferred Shares issued
to the Sellers hereunder (the "ESCROW SHARES") to the party named as escrow
agent in the Escrow Agreement (the "ESCROW AGENT"). At the time of issuance of
any shares of QuatRx Common Stock to any Additional Seller, QuatRx shall
similarly deliver thirty percent (30%) of such shares to the Escrow Agent under
the Escrow Agreement and such shares shall be included in the Escrow Shares. The
Sellers acknowledge and agree that (i) one-third of the Escrow Shares (the
"INDEMNITY SHARES") shall secure the indemnification obligations set forth in
Section 11 and (ii) two-thirds of the Escrow Shares (the "EARN OUT SHARES")
shall be escrowed to serve as an "earn out" as described in Section 3.1(b)
hereof. The Indemnity Shares shall be held by the Escrow Agent for at least
twelve (12) months after the Closing (and any longer period as provided in the
Escrow Agreement) and shall be applied in accordance with the terms of the
Escrow Agreement.
(b) The Earn Out Shares shall be released to Sellers if any of the
following events shall occur, within ten (10) Business Days of the earliest to
occur of such events (each an "EARN OUT EVENT"):
(i) the closing of a Qualified Public Offering of QuatRx (as defined
in the Amended and Restated Certificate of Incorporation of
QuatRx) occurring prior to an Ospemifene Discontinuance, as
defined below,
(ii) in the absence of a Regulatory Delay, as defined below, upon the
earlier of (a) dosing of the first patient in the second Phase
III clinical trial of ospemifene conducted by QuatRx or its
licensee, (b) submission by QuatRx or its licensee and acceptance
for filing by the FDA of a New Drug Approval seeking marketing
approval of ospemifene or, (c) twelve (12) months after the
receipt by QuatRx of the final report for the first phase III
clinical study of ospemifene conducted by QuatRx or its licensee,
unless the Ospemifene Discontinuance occurs prior to such dosing
and before the end of such twelve (12) month period, and
(iii) in the event of a Regulatory Delay, upon the earlier of (a)
dosing of the first patient in the second Phase III clinical
trial of ospemifene by QuatRx or its licensee or (b) twenty-four
(24) months after the receipt by QuatRx of the final report for
the first phase III clinical study of ospemifene conducted by
QuatRx or its licensee, unless the Ospemifene Discontinuance
occurs prior to such dosing and before the end of such
twenty-four (24) month period.
13
If the Ospemifene Discontinuance occurs at any time prior to the occurrence of
an Earn Out Event, then the Earn Out Shares shall be released to QuatRx and the
shares of capital stock of QuatRx so released shall be cancelled. The term
"OSPEMIFENE DISCONTINUANCE" shall mean the termination of development of
ospemifene by QuatRx and/or its licensee, as evidenced by a resolution of the
Board of Directors of QuatRx to completely discontinue all further development
and commercialization work on ospemifene by QuatRx and/or its licensee provided
that such decision to discontinue is approved pursuant to the standards set
forth in section 5(c) of the Escrow Agreement. The term "REGULATORY DELAY" shall
mean an action by the FDA which (i) prevents QuatRx from commencing the second
Phase III clinical trial of ospemifene, and (ii) lasts beyond the twelve (12)
month anniversary of QuatRx' receipt of such final report.
3.2 SECURITYHOLDER REPRESENTATIVES
(a) Certain Sellers (hereinafter "ACCREDITED SELLERS"), namely Bio
Fund Ventures I LP and II LP, Bio Fund Ventures II Follow-on Fund LP, The
Finnish National Fund for Research and Development (Sitra), BI Biomedical
Venture III Ltd. (P/S) and H&B Capital LP shall represent themselves in
connection with the transactions contemplated by this Agreement.
(b) (i) Each institutional Seller (excluding the Accredited Sellers
referred to above in Section 3.2(a)) hereby irrevocably constitutes and
appoints, effective as of the date hereof, Xx. Xxx Xxxxx (together with his
permitted successors, the "INSTITUTIONAL SECURITYHOLDER REPRESENTATIVE"), and
(ii) each individual Seller who is a natural person hereby irrevocably
constitutes and appoints, effective as of the date hereof, Xx. Xxxxx Xxxxxxx
(together with his permitted successors, the "INDIVIDUAL SECURITYHOLDER
REPRESENTATIVE", and together with the Institutional Securityholder
Representative, the "SECURITYHOLDER REPRESENTATIVES") as the true and lawful
agent and attorney-in-fact to enter into any agreement in connection with the
transactions contemplated by this Agreement and any transactions contemplated by
the Escrow Agreement, to exercise any or all of the powers, authority and
discretion conferred on it under any such agreement, to accept delivery of and
to submit for exchange and cancellation any Hormos Securities, to waive any
terms and conditions of any such agreement, to give and receive notices on
behalf of the Sellers referred to in this Section 3.2(b) ("REPRESENTED SELLERS")
and to be their exclusive representatives with respect to any matter or
Proceeding arising with respect to any transaction contemplated by any such
agreement, including, without limitation, the defense, settlement or compromise
of any Proceeding for which any QuatRx Indemnitee may be entitled to
indemnification, and to act as the "Purchaser Representative" for any
Represented Seller who is not an "accredited investor" as that term is defined
in Rule 501 adopted by the Commission under the Securities Act in connection
with evaluating the merits and risks of investing in the QuatRx securities to be
issued in the Exchange, and the Securityholder Representatives agree to act as,
and to
14
undertake the duties and responsibilities of, such agent and attorney-in-fact.
In addition, each Represented Seller does hereby appoint the Securityholder
Representative designated by it to be its proxy agent (with full power of
substitution) and vote all of such Represented Seller's QuatRx Shares with
respect to all matters submitted to the shareholders of QuatRx for a vote from
time to time. This appointment shall continue in perpetuity, and during said
period, Securityholder Representatives shall have all of the power that such
Represented Seller would possess with respect to the voting of such Represented
Seller's QuatRx Shares. Each Represented Seller hereby waives, to the extent
permitted by applicable Law, any right to cancel this proxy at any time.
(c) QuatRx and the other QuatRx Indemnitees shall be entitled to deal
exclusively with the Accredited Sellers and Securityholder Representatives on
all matters contemplated herein and in the Escrow Agreement, including on the
matters indicated in Sections 8 and 9 and on all matters relating to Section 11,
and shall be entitled to rely exclusively (without further evidence of any kind
whatsoever) on any document executed or purported to be executed on behalf of
any Represented Seller by the Securityholder Representative designated by such
Represented Seller, and on any other action taken or purported to be taken on
behalf of any Seller by the Securityholder Representative designated by such
Represented Seller, as fully binding upon such Represented Seller.
(d) Neither Securityholder Representative shall be liable to anyone
for any action taken or not taken by it in good faith or for any mistake of fact
or law for anything that it may do or refrain from doing in connection with its
obligations under this Agreement and the Escrow Agreement (i) with the consent
of Represented Sellers who, as of the date of this Agreement, owned a majority
of the outstanding Hormos shares held by Represented Sellers that designated
such Securityholder Representative, or (ii) in the absence of its own gross
negligence or willful misconduct. Any action taken or not taken pursuant to the
advice of counsel shall be conclusive evidence of the absence of gross
negligence or willful misconduct. The applicable Represented Sellers shall,
jointly and severally, indemnify and hold the Securityholder Representative
designated by such Represented Sellers harmless from any and all liability and
expenses that may arise out of any action taken or omitted by it as
Securityholder Representative in accordance with this Agreement and the Escrow
Agreement, except such liability and expense as may result from the gross
negligence or willful misconduct of such Securityholder Representative.
(e) The Securityholder Representatives may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed to be
genuine and to have been signed or presented by the proper party or parties. The
Securityholder Representatives shall not be liable for other parties' forgeries,
fraud or false representations.
(f) The Securityholder Representatives shall have the reasonable
assistance of QuatRx's and Hormos's officers and employees for purposes of
performing their duties
15
and exercising their rights hereunder, provided that the Securityholder
Representatives shall treat confidentially and not disclose any nonpublic
information from or about QuatRx or Hormos to anyone (except on a need to know
basis to individuals who agree to treat such information confidentially).
(g) If either Securityholder Representative shall be unable or
unwilling to serve in such capacity, its successor shall be named by those
Represented Sellers holding a majority of the voting Hormos Shares held by the
Represented Sellers that designated such Securityholder Representative just
before the Closing, and such successor shall serve and exercise the powers of
such Securityholder Representative hereunder and under the Escrow Agreement. If
for any reason there is no Institutional Securityholder Representative or
Individual Securityholder Representative at any time, all references herein to
such Securityholder Representative shall be deemed to refer to Represented
Sellers who hold a majority of the shares of voting Hormos Shares held by the
Represented Sellers that designated such Securityholder Representative
outstanding just before the Closing.
(h) Each Securityholder Representative hereby represents and warrants
to the Represented Sellers that: (i) it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investment in the QuatRx securities to be issued in the Exchange
and (ii) there is no material relationship between itself and QuatRx, other than
the matters set forth in this Agreement relating to the QuatRx securities that
it will receive as a result of the transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES CONCERNING HORMOS
Except as set forth in the Hormos Disclosure Schedule by means of a
disclosure that references the specific representation and warranty which that
exception is intended to modify, Hormos hereby represents and warrants to QuatRx
as follows:
4.1 ORGANIZATION AND GOOD STANDING
(a) Section 4.1 of the Hormos Disclosure Schedule contains a complete
and accurate list of the jurisdictions in which Hormos is authorized to do
business. Hormos is a corporation duly organized, validly existing under the
laws of its jurisdiction of incorporation or formation, with full corporate
power and authority to conduct its business as it is now being conducted and to
own or use the assets and properties that it purports to own or use. Hormos does
not have any Subsidiaries.
(b) Hormos has delivered to QuatRx correct and complete copies of the
Organizational Documents of Hormos.
16
4.2 AUTHORITY; NO CONFLICT
(a) Hormos has the right, power, authority and capacity to execute and
deliver this Agreement and the Transaction Documents to which it is and will be
a party, to consummate the transactions contemplated hereby and thereby and to
perform its obligations under this Agreement and the Transaction Documents to
which it is and will become a party. This Agreement has been duly authorized and
approved, executed and delivered by Hormos and constitutes the legal, valid and
binding obligation of Hormos, enforceable against Hormos in accordance with its
terms. Upon the authorization and approval, execution and delivery by Hormos of
the Transaction Documents to which it is a party, such Transaction Documents
will constitute legal, valid and binding obligations of Hormos, enforceable
against Hormos in accordance with their respective terms.
(b) Neither the execution and delivery of this Agreement or any
Transaction Document by Hormos nor the consummation or performance by Hormos of
the Exchange or any of the other transactions contemplated hereby or thereby
will, directly or indirectly (with or without notice or lapse of time or both):
(i) contravene, conflict with or result in a violation or breach
of (A) any provision of any Organizational Document of Hormos, (B) except as set
forth in Section 4.2(b)(i) of the Hormos Disclosure Schedule, any resolution
adopted by the board of directors or the shareholders of Hormos, (C) any Law or
any Order, award, decision, settlement or process to which Hormos or any of the
assets or properties owned or used by Hormos may be subject, or (D) any
Governmental Permit that is held by Hormos;
(ii) result in a breach of or constitute a default, give rise to
a right of termination, cancellation or acceleration, create any entitlement to
any payment or benefit, or require the consent, authorization or approval of or
any notice to or filing with any Person under any material Contract to which
Hormos is a party or to which any of its or their assets or properties are
bound, or require the consent, authorization or approval of or any notice to or
filing with any Governmental Authority to which Hormos or any of its or their
assets or properties is subject, except as set forth in Section 4.2(b)(ii) of
the Hormos Disclosure Schedule; or
(iii) result in the imposition or creation of any Encumbrance or
Lien upon or with respect to any of the assets or properties owned or used by
Hormos.
4.3 CAPITALIZATION
The authorized, issued and outstanding equity securities of Hormos
consist solely of 892,464 Series A Shares, 319,485 Series B Shares and no Series
C Shares (collectively, "HORMOS SHARES"). All of the outstanding Hormos Shares
have been duly authorized and validly issued, are fully paid and nonassessable
and are owned, of record
17
and beneficially, by the Persons and in the amounts set forth in Section 4.3 of
the Hormos Disclosure Schedule. Options to purchase 117,446 Series A Shares were
issued ("HORMOS OPTIONS"). None of the Hormos Options are exercisable, and all
Hormos Options will expire effective June 30, 2005, except as set forth in
Section 4.3 of the Hormos Disclosure Schedules. Section 4.3 of the Hormos
Disclosure Schedule sets forth all outstanding securities of Hormos, including
but not limited to all debt securities, Hormos Shares, options, rights and all
other securities convertible or exercisable into or for, or exchangeable for,
capital stock. Except as set forth in Section 4.3 of the Hormos Disclosure
Schedule, there are no voting trusts or other Contracts or understandings to
which Hormos or any Hormos Securityholder is a party with respect to the
transfer, voting or registration of any Hormos Securities and there are no
Contracts relating to the issuance, sale or transfer of any equity securities or
other securities of Hormos. Hormos does not own or have any Contract to acquire
any equity securities or other securities of any Person or any, direct or
indirect, equity or ownership interest in any other business. Except as set
forth in Section 4.3 of the Hormos Disclosure Schedule, no Person has any
pre-emptive rights, nor any right of first refusal, tag-along, drag along right
or any rights similar thereto with respect to any security of Hormos. All of the
Hormos Securities have been issued in compliance with the FCA and other
applicable Laws. The Additional Sellers have signed either the Old Shareholders
Agreement or another enforceable agreement to be bound by the "drag-along"
provision set forth in Section 18.4 of the Old Shareholders Agreement.
4.4 BOOKS AND RECORDS
The books of account and other records of Hormos, which have been
furnished to QuatRx, are true, complete and correct in all material respects.
The minute books of Hormos contain true, accurate and complete records of all
meetings held of, and corporate action taken by, the stockholders and the board
of directors of Hormos. The Share Register contains a true, complete and correct
record of all issuances, transfers and repurchases of all Hormos Securities.
4.5 FINANCIAL STATEMENTS
The Hormos Financial Statements (i) have been prepared from the books
and records of Hormos in accordance with Finnish GAAP, (ii) fully reflect all
liabilities and contingent liabilities of Hormos required to be reflected
therein on such basis as at the dates thereof and (iii) fairly present the
financial position and results of operations of Hormos as of the respective
dates thereof and for the periods covered thereby.
4.6 NO UNDISCLOSED LIABILITIES
Hormos does not have any liabilities or obligations of any nature
(whether known or unknown, absolute, accrued, contingent or otherwise, and
whether due or to
18
become due), except for liabilities or obligations reflected or reserved against
in the Hormos Financial Statements and current liabilities incurred in the
ordinary course of business since December 31, 2004, consistent with past
practices, which will not, individually or in the aggregate, have a Hormos
Material Adverse Effect.
4.7 NO MATERIAL ADVERSE EFFECT
Since December 31, 2004, there has not been any Hormos Material
Adverse Effect and no event has occurred or circumstance exists that could
reasonably be expected to result in a Hormos Material Adverse Effect.
4.8 TAXES
(a) Hormos has filed or caused to be filed with the appropriate Taxing
Authorities in a timely manner all Tax Returns required to be filed by it; (i)
the information on such Returns is complete and accurate in all material
respects; (ii) Hormos has paid in full on a timely basis all Taxes or made
adequate provision in the Hormos Financial Statements for all Taxes (whether or
not shown on any Return) required to be paid by them; (iii) there are no
Encumbrances or Liens for Taxes upon the assets or properties of Hormos other
than for Taxes not yet due and payable; (iv) no deficiencies for Taxes have been
claimed, proposed, or assessed by any Tax Authority or other Governmental
Authority with respect to Hormos, and (v) there are no pending or, to Hormos's
knowledge, threatened audits, investigations or claims for or relating to any
liability in respect of Taxes of Hormos and there are no matters under
discussion with any Governmental Authority with respect to such Taxes. No power
of attorney has been executed by or on behalf of Hormos with respect to any
matters relating to Taxes with respect to the business or operations of Hormos
that is currently in force. No extension or waiver of a statute of limitations
relating to Taxes with respect to the business or operations of Hormos is in
effect. Hormos has delivered or made available to QuatRx complete and accurate
copies of all of such Tax returns.
(b) There are no outstanding Contracts or waivers with respect to
Hormos extending the statutory period of limitation applicable to any Taxes and
Hormos has not requested any extension of time within which to file any Return,
which has not yet been filed. Hormos has properly requested, received and
retained all necessary exemption certificates and other documentation supporting
any claimed exemption or waiver of Taxes on sales or other transactions by
Hormos prior to the date hereof as to which Hormos would have been obligated to
collect or withhold Taxes.
(c) (i) Hormos has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee, or
independent contractor; (ii) all material elections with respect to Taxes made
by Hormos as of the date hereof are set forth in Section 4.8 of the Hormos
Disclosure Schedule;
19
(iii) there are no private letter rulings in respect of any Tax pending between
Hormos and any Tax Authority, if such ruling would affect Hormos; (iv) Hormos is
not liable for Taxes of any other Person, and Hormos is not currently under any
obligation to indemnify any Person with respect to Taxes, or a party to any tax
sharing agreement or any other agreement providing for payments by Hormos with
respect to Taxes; (v) Hormos is not a party to any joint venture, partnership or
other arrangement or Contract which could be treated as a partnership for Tax
purposes; and (vi) Section 4.8 of the Disclosure Schedule contains a list of all
jurisdictions to which any Tax is properly payable or in which any Return is
required to be filed by Hormos, and no written claim has ever been made by any
Tax Authority in any other jurisdiction that Hormos is subject to taxation in
such jurisdiction.
(d) Hormos has not taken any action that would jeopardize or limit its
right or ability to make use of the losses Hormos has incurred since its
inception against its future income under the Finnish Income Tax Act
(1535/1992), as amended from time to time.
(e) There are no Taxes for which Hormos or QuatRx is or may be liable
under Finnish Law as a result of the Exchange other than the share transfer
Taxes that QuatRx has agreed to pay; provided that a reduction in Hormos net
operating losses shall not be deemed to be a "Tax".
4.9 TEKES LOANS
Hormos is now, and has at all times been, in compliance with the terms
of all TEKES Loans, including reporting requirements. All TEKES Loans received
by Hormos to date have been applied to the projects designated by TEKES for such
TEKES Loans in accordance with the terms of such TEKES Loans. Hormos has not
received any communications from TEKES, whether oral or written, alleging that
Hormos is in violation of, or in default under, the terms of any TEKES Loans.
4.10 TITLE TO PROPERTIES; ENCUMBRANCES
Section 4.10 of the Hormos Disclosure Schedule contains a complete and
accurate list of all leasehold estates held by Hormos. Hormos does not own, and
has never owned, any real property. For each such leasehold, Section 4.10 of the
Hormos Disclosure Schedule sets forth the owner or lessor thereof, a brief
description thereof (including approximate square meters), when leased, the use
made of such property and the approximate annual costs, fees and taxes
associated with such property. Hormos has delivered or made available to QuatRx
true, correct and complete copies of the real property leases to which Hormos is
party or pursuant to which it uses or occupies any real property. Except as set
forth in Section 4.10 of the Hormos Disclosure Schedule, Hormos has good title
to all of the assets and properties, real and personal, tangible and intangible,
20
it owns or purports to own, or uses in its business, including those reflected
on its books and records and in the Hormos Financial Statements (except for
accounts receivable collected and inventories, materials and supplies disposed
of in the ordinary course of business consistent with past practice after the
date of the balance sheet included in the Hormos Interim Financial Statements).
Hormos has a valid leasehold, license or other interest in all of the other
tangible assets or properties, real or personal, which are used in the operation
of its business. Except as set forth in Section 4.10 of the Hormos Disclosure
Schedule, all assets and properties owned, leased or used by Hormos are free and
clear of all Encumbrances and Liens, except for (a) liens for current Taxes not
yet due, (b) workers', common carrier and other similar liens arising in the
ordinary course of business, none of which materially detracts from the value or
impairs the use of the asset or property subject thereto, or impairs the
operations of Hormos, (c) Encumbrances or Liens disclosed in the Hormos
Financial Statements, (d) Encumbrances and restrictions set forth in financial
leasing agreements listed in Section 4.10 of the Hormos Disclosure Schedule and
(e) with respect to real property, (i) minor imperfections of title, if any,
none of which is substantial in amount, materially detracts from the value or
impairs the use of the property subject thereto, or impairs the operations of
Hormos, (ii) zoning Laws and other land use restrictions that do not impair the
present or anticipated use of the property subject thereto and (iii) customary
restrictions on use and sublease of the real property set forth in the lease
agreements, which Encumbrances and restrictions do not impair the present or
anticipated use of the property subject thereto.
4.11 CONDITION AND SUFFICIENCY OF ASSETS
The Facilities and other tangible assets and property owned or used by
Hormos are structurally sound, are in good operating condition and repair
(normal wear and tear excepted), and are adequate for the uses to which they are
being put, and none of such Facilities or other property and assets owned or
used by Hormos is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that are not material in nature or cost. The Facilities
and other tangible assets and property owned or used by Hormos are sufficient
for the continued conduct of its business after the Closing in substantially the
same manner as conducted prior to the Closing.
4.12 COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORIZATIONS
(a) Hormos is in compliance in all respects with all applicable Laws,
licenses and Orders affecting any or all of the assets or properties owned or
used by Hormos or the business or operations of Hormos including, Occupational
Safety and Health Laws and Environmental Laws, except to the extent that any
such noncompliance would not have a Hormos Material Adverse Effect. Hormos has
not been charged with violating, or to the knowledge of Hormos, threatened with
a charge of violating, or under investigation with respect to a possible
violation of, any provision of any Law, Order or
21
administrative ruling or license relating to any of its or their assets or
properties or any aspect of its or their business where the violation would
reasonably be expected to have a Hormos Material Adverse Effect.
(b) Hormos possesses all Governmental Permits necessary to conduct its
business, including without limitation all those that are required by the FDA or
any other federal, state or foreign agencies or bodies engaged in the regulation
of pharmaceuticals or biohazardous materials, except where the failure to
possess such certificates, licenses, approvals, authorizations and permits or to
make such declarations and filings would not, individually or in the aggregate,
have a Hormos Material Adverse Effect; and Hormos has not received, and has no
reason to believe it will receive, any notice of proceedings relating to the
revocation, suspension or modification of any such Governmental Permits which,
if the subject of an unfavorable decision, ruling or finding, would individually
or in the aggregate have a Hormos Material Adverse Effect. Section 4.12 of the
Hormos Disclosure Schedule contains a complete and accurate list of each
Governmental Permit that Hormos is required by applicable Law to hold or that
otherwise relates to the business of, or to any of the assets or properties
owned or used by, Hormos. Each Governmental Permit listed or required to be
listed in Section 4.12 of the Disclosure Schedule is valid and in full force and
effect, has not been breached or violated by Hormos, and is not subject to any
Proceedings for suspension, modification or revocation.
(c) Hormos has not violated any applicable Laws in the conduct of its
research and development activities.
(d) Hormos represents and warrants that neither it, nor any of its
employees or agents has ever been, is currently, or is the subject of a
proceeding that could lead to that party becoming, as applicable, a Debarred
Entity or Individual, an Excluded Entity or Individual or a Convicted Entity or
Individual. For purposes of this provision, the following definitions shall
apply:
(i) "Debarred Individual" is an individual who has been debarred
by the FDA pursuant to Title 00 Xxxxxx Xxxxxx Code Section 335a (a) or (b) from
providing services in any capacity to a person that has an approved or pending
drug product application.
(ii) "DEBARRED ENTITY" is a corporation, partnership or Hormos
that has been debarred by the FDA pursuant to Title 00 Xxxxxx Xxxxxx Code
Section 335a (a) or (b) from submitting or assisting in the submission of any
abbreviated drug application, or a subsidiary or affiliate of a Debarred Entity.
(iii) An "EXCLUDED INDIVIDUAL" or "EXCLUDED ENTITY" is (A) an
individual or entity, as applicable, who has been excluded, debarred, suspended
or is otherwise ineligible to participate in federal health care programs such
as Medicare or
22
Medicaid by the Office of the Inspector General ("OIG/HHS") of the U.S.
Department of Health and Human Services, or (B) is an individual or entity, as
applicable, who has been excluded, debarred, suspended or is otherwise
ineligible to participate in federal procurement and non-procurement programs,
including those produced by the U.S. General Services Administration ("GSA").
(iv) "CONVICTED INDIVIDUAL" or "CONVICTED ENTITY" is an
individual or entity, as applicable, who has been convicted of a criminal
offense that falls within the ambit of Title 42 United States Code Section 1320a
- 7(a), but has not yet been excluded, debarred, suspended or otherwise declared
ineligible.
4.13 LEGAL PROCEEDINGS
There is no pending Proceeding:
(a) that has been commenced by or against Hormos or that otherwise
relates to the business of, or any of the assets or properties owned or used by,
Hormos; or
(b) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the transactions
contemplated hereby.
To the knowledge of Hormos, no such Proceeding has been threatened.
4.14 ABSENCE OF CERTAIN CHANGES AND EVENTS
Since December 31, 2004, Hormos has conducted its business only in the
ordinary course, consistent with past practice, and there has not been any:
(a) declaration, setting aside, making or payment of any dividend or
other distribution or repurchase or payment in respect of any shares of capital
stock of Hormos or any warrants or other rights to acquire any shares of such
stock;
(b) Encumbrance or Lien of or on any of its assets or properties;
(c) except to the extent indicated in Section 4.14 of the Hormos
Disclosure Schedule, payment or increase of any bonuses, salaries or other
compensation to any shareholder, director, officer, consultant, agent or sales
representative or (except in the ordinary course of business consistent with
past practice) employee or entry into any employment, severance or similar
Contract with any director, officer or employee;
(d) adoption of, or increase in the payments to or benefits under, any
Employee Benefit Plan for or with any employees, except in the ordinary course
of business consistent with past practice;
23
(e) damage to or destruction of any asset or property, whether or not
covered by insurance, or loss of any customer, which could reasonably be
expected to have a Hormos Material Adverse Effect;
(f) entry into, termination of, or receipt of notice of termination of
any Contract or transaction involving a total remaining commitment by or to
Hormos of at least $100,000 including the entry into (i) any document evidencing
any indebtedness; (ii) any capital or other lease; or (iii) any guaranty;
(g) sale, lease or other disposition (other than in the ordinary
course of business consistent with past practice) of any asset or property;
(h) creation, incurrence or assumption of any indebtedness for
borrowed money or guarantee of any obligation or the net worth of any Person in
an aggregate amount in excess of $100,000, except for endorsements of negotiable
instruments for collection in the ordinary course of business;
(i) loan or advance to any Person other than travel and other similar
routine advances in the ordinary course of business consistent with past
practice, or acquisition of any capital stock or other securities of or any
ownership interest in, or a significant portion of the assets of, any other
business enterprise;
(j) capital investment or capital expenditure or capital improvement,
addition or betterment in amounts which exceed $100,000 in the aggregate;
(k) institution or settlement of any Proceeding before any
Governmental Authority relating to it or its assets or properties;
(l) change in the method of accounting or the accounting principles or
practices used by Hormos in the preparation of the Hormos Financial Statements;
(m) amendment or other modification of any of the Organizational
Documents of Hormos since December 31, 2004;
(n) transfer or grant of any rights or licenses under, or entry into
any settlement regarding the infringement of, any Hormos Intellectual Property,
or entry into any licensing or similar agreements or arrangements, excluding
entry into a licensing agreement with Xxxxxx regarding Hormos' HMRlignan(TM) on
the terms set forth in the draft of such agreement provided to QuatRx; or
(o) agreement, whether oral or written, by Hormos to do any of the
foregoing.
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4.15 CONTRACTS; NO DEFAULTS
(a) Section 4.15(a) of the Hormos Disclosure Schedule contains a
complete and accurate list, and Hormos has delivered or made available to QuatRx
true, correct and complete copies, if any are in force, of:
(i) each Contract or series of related Contracts involving future
payments aggregating at least $100,000 that involves performance of services or
delivery of goods or materials by Hormos;
(ii) each Contract or series of related Contracts involving
future payments aggregating at least $100,000 that involves performance of
services or delivery of goods or materials to Hormos;
(iii) each lease and other Contract affecting any leasehold or
other interest in any real or personal property to which Hormos is a party;
(iv) each material license agreement or other Contract to which
Hormos is a party with respect to Hormos Material IP, including agreements with
current or former employees, consultants or contractors regarding the use or
disclosure of any Hormos Material IP;
(v) each collective bargaining agreement and other Contract to or
with any labor union or other employee representative of a group of employees
involving or affecting Hormos;
(vi) each joint venture, partnership and other Contract involving
a sharing of profits, losses, costs or liabilities by Hormos with any other
Person or requiring Hormos to make a capital contribution;
(vii) each Contract to which Hormos is a party containing
covenants that in any way purport to restrict the business activity of Hormos or
any of the Hormos Securityholders or limit the freedom of Hormos or any of the
Hormos Securityholders to engage in any line of business or to compete with any
Person or hire any Person;
(viii) each employment agreement between Hormos and its
employees, each other agreement between Hormos and any of its employees, and
each consulting agreement between Hormos and any consultant that has contributed
to the Hormos Material IP as part of the services provided under such agreement,
with respect to their employment or engagement, as applicable, including but not
limited to, non-disclosure and invention assignment agreements;
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(ix) each agreement between Hormos and an officer or director of
Hormos or any affiliate of any of the foregoing;
(x) each Contract for capital expenditures by Hormos in excess of
$100,000;
(xi) each agreement of Hormos under which any money has been or
may be borrowed or loaned or any note, bond, factoring agreement, indenture or
other evidence of indebtedness has been issued or assumed (other than those
under which there remain no ongoing obligations of Hormos), and each guaranty by
Hormos of any evidence of indebtedness or other obligation, or of the net worth,
of any Person (other than endorsements for the purpose of collection in the
ordinary course of business);
(xii) each stock purchase, merger or other agreement pursuant to
which Hormos acquired any material amount of assets (other than capital
expenditures), and all relevant documents and agreements delivered in connection
therewith;
(xiii) each agreement pursuant to which Hormos has issued any
securities;
(xiv) each agreement to which Hormos is a party containing a
change of control provision; and
(xv) each other agreement to which Hormos is a party that is
material to the operations or business of Hormos.
(b) Unless otherwise stated in Section 4.15(a) of the Hormos
Disclosure Schedule, each Contract identified or required to be identified in
Section 4.15(a) of the Hormos Disclosure Schedule is in full force and effect
and is valid and enforceable against Hormos and, to the knowledge of Hormos,
against the other parties thereto in accordance with its terms.
(c) Hormos is in full compliance with all applicable terms and
requirements of each Contract under which Hormos has any obligation or liability
or by which Hormos or any of the assets or properties owned or used by Hormos is
or was bound, except for such noncompliance that could not reasonably be
expected to have a Hormos Material Adverse Effect.
(d) To the knowledge of Hormos, each other Person that has or had any
obligation or liability under any Contract under which Hormos has any rights is
in full compliance with all applicable terms and requirements of such Contract.
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(e) To the knowledge of Hormos, no event has occurred and no
circumstance exists that (with or without notice or lapse of time or both) is
likely to result in a material violation or breach of any Contract.
4.16 INSURANCE
Section 4.16 of the Hormos Disclosure Schedule sets forth the premium
payments and describes all the insurance policies of Hormos. These policies are
now in full force and effect in accordance with their terms and expire on the
dates shown on Section 4.16 of the Hormos Disclosure Schedule. There has been no
default in the payment of premiums on any of such policies, and there is no
ground for cancellation or avoidance of any such policies, or any increase in
the premiums thereof, or for reduction of the coverage provided thereby. Such
policies shall continue in full force and effect up to the expiration dates
shown in Section 4.16 of the Hormos Disclosure Schedule. True, correct and
complete copies of all insurance policies listed in Section 4.16 of the Hormos
Disclosure Schedule have been previously furnished or made available to QuatRx.
4.17 ENVIRONMENTAL MATTERS
(a) Hormos is in compliance with all applicable Environmental Laws
including, but is not limited to, the possession by Hormos of all Governmental
Permits required under applicable Environmental Laws, and compliance with the
terms and conditions thereof, except to the extent that any such non-compliance
would not have a Hormos Material Adverse Effect. Hormos has not received notice
of, and neither Hormos nor any predecessor is the subject of, any Environmental
Claim or Remedial Action. There are no circumstances or conditions related to
Hormos, Hormos's operations or any Facility that are reasonably likely to
prevent or interfere with such compliance or give rise to an Environmental Claim
or Remedial Action in the future.
(b) There are no Environmental Claims that are pending or, to the
knowledge of Hormos, threatened against Hormos, any Facility or against any
Person whose liability for any Environmental Claim Hormos has retained or
assumed either contractually or by operation of Law.
(c) Neither Hormos, nor any other Person acting on behalf of Hormos
(solely with respect to any such other Person, with Hormos's knowledge) has (A)
disposed of, transported or arranged for the disposal of any Hazardous Materials
to, at or upon: (i) any location other than a site lawfully permitted to receive
such Hazardous Materials or (ii) any Facilities and (B) there has not occurred
during the period Hormos operated or possessed any Facility or is presently
occurring a Release, or threatened Release, of any Hazardous Materials on, into
or beneath the surface of, or adjacent to, any Facilities.
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(d) Section 4.17 of the Hormos Disclosure Schedule identifies (i) all
environmental audits, assessments, or occupational health studies undertaken by
Hormos or its agents on its behalf, or undertaken by any Governmental Authority,
or any Person, relating to the Facilities; (ii) the results of any groundwater,
soil, air or asbestos monitoring undertaken by Hormos or its agents on its
behalf, or, to the knowledge of Hormos, undertaken by any Governmental Authority
or any third Person, relating to any Facility; and (iii) all written
communications between Hormos and any Governmental Authority arising under or
related to Environmental Laws.
4.18 EMPLOYEES
(a) Section 4.18 of the Hormos Disclosure Schedule contains a complete
and accurate list of the following information for each employee of Hormos:
name; job title; base salary; bonus; vacation accrued; service credited for
purposes of vesting and eligibility to participate under any employee benefit
plan of any nature; and whether such employee is a party to a non-competition
agreement with Hormos.
(b) To the Knowledge of Hormos, no employee of Hormos, is a party to,
or is otherwise bound by, any agreement or arrangement, including any
non-competition or similar agreement, between such employee and any other Person
that could adversely affect (i) the performance of his or her duties as an
officer or employee of, or consultant to, Hormos, or (ii) the ability of Hormos
to conduct its business as previously conducted or presently proposed to be
conducted in the future. Since December 31, 2004, no officer or other employee
has terminated and, to the knowledge of Hormos, no other officer or employee of
Hormos intends to terminate, his or her employment or consulting relationship
with Hormos.
(c) To the Knowledge of Hormos, no employee of Hormos is bound by any
agreement with any other Person that is violated or breached by such employee
performing the services he or she is performing for Hormos in connection with
the business presently conducted or presently proposed to be conducted by Hormos
in the future.
(d) Hormos has delivered or made available to QuatRx prior to the date
hereof true and complete copies of any employment agreements and any procedures
and policies relating to the employment of employees of Hormos and the use of
temporary employees and independent contractors by Hormos (including summaries
of any procedures and policies that are unwritten).
(e) Each present employee of Hormos, and each consultant that has
contributed to the Hormos Material IP as part of services provided for
consideration, has entered into a non-disclosure and invention assignment
agreement with and in favor of Hormos.
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4.19 EMPLOYEE BENEFITS
(a) Hormos does not maintain, have an obligation to contribute to or
have any actual or contingent liability with respect to any Employee Benefit
Plan. Hormos has delivered to QuatRx prior to the date hereof true and complete
copies of (i) plan instruments and amendments thereto for all Employee Benefit
Plans (or written summaries of any Employee Benefit Plans that are unwritten)
and related trust agreements, insurance and other contracts, summary plan
descriptions, and summaries of material modifications, and material
communications distributed to the participants of each Employee Benefit Plan,
(ii) to the extent annual reports are required with respect to any Employee
Benefit Plan, the three most recent annual reports and attached schedules for
each Employee Benefit Plan as to which such report is required to be filed and
(iii) where applicable, the most recent (A) opinion, notification and
determination letters, (B) audited financial statements, and (C) actuarial
valuation reports.
(b) Each Employee Benefit Plan which provides health, disability or
death benefits is fully insured; Hormos is not obligated to directly pay any
such benefits or to reimburse any third Person payor for the payment of such
benefits.
(c) Each Employee Benefit Plan is and has been operated in material
compliance with its terms and all applicable Laws, Orders or governmental rules
and regulations currently in effect with respect thereto, and by its terms can
be amended and/or terminated at any time. As of and including the Closing,
Hormos (i) shall have performed all material obligations required to be
performed by it under, and shall not be in material default under or in material
violation of any Employee Benefit Plan and (ii) shall have made all
contributions or payments required to be made by it up to and including the
Closing with respect to each Employee Benefit Plan, or adequate accruals
therefor will have been provided for and will be reflected on the Hormos
Financial Statements. All notices, filings and disclosures required by any Law
have been timely made.
(d) Hormos has not received notice of and is not aware of any
Proceeding (other than routine claims for benefits) pending or, to the knowledge
of Hormos, threatened with respect to any Employee Benefit Plan or against any
fiduciary of any Employee Benefit Plan, and there are no facts that could give
rise to any such Proceeding. There has not occurred any circumstances by reason
of which Hormos may be liable for an act, or a failure to act, by a fiduciary
with respect to any Employee Benefit Plan.
(e) There are no Proceedings against Hormos pending or, to Hormos's
knowledge, threatened and no facts exist as a result of which Hormos could have
any liability based on, arising out of, in connection with or otherwise relating
to the classification of any individual by Hormos as an independent contractor.
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(f) Section 4.19(f) of the Hormos Disclosure Schedule sets forth a
true and complete list of each current or former employee, officer or director
of Hormos who holds (i) any warrant or option to purchase Hormos Series A
Shares, together with the number of shares of Hormos Series A Shares subject to
such warrant or option, the exercise price of such warrant or option (to the
extent determinable), and the expiration date of such warrant or option; (ii)
any Hormos securities that are restricted as a result of an agreement with
Hormos or the stock plan of Hormos; and (iii) any other right, directly or
indirectly, to receive Hormos Securities or any other compensation based in
whole or in part on the value of Hormos capital stock, together with the number
of Hormos Securities subject to such right.
(g) Section 4.19(g) of the Hormos Disclosure Schedule sets forth a
true and complete list of (i) all agreements with consultants who are
individuals obligating Hormos to make annual cash payments in an amount
exceeding $50,000; and (ii) all agreements with respect to the services of
independent contractors or leased employees who are individuals or individuals
doing business in a corporate form whether or not they participate in any of the
Employee Benefit Plans.
(h) No Employee Benefit Plan (excluding insurance companies that are
Hormos shareholders) invests in Hormos Securities; and (ii) the consummation of
the transactions contemplated by this Agreement will not, alone or together with
any other event, (A) entitle any employee or former employee of Hormos to any
payment, (B) result in an increase in the amount of compensation or benefits or
accelerate the vesting or timing of payment of any benefits or compensation
payable in respect of any employee or former employee or (C) result in any
parachute payment, whether under applicable Law or any private agreement, and
whether or not such payment is considered reasonable compensation for services
rendered. Hormos will take all actions within its control to ensure that all
actions required to be taken by a fiduciary of any Employee Benefit Plan in
order to effectuate the transaction contemplated by this Agreement shall comply
with the terms of such Employee Benefit Plan and applicable Law.
(i) No Employee Benefit Plan provides benefits, including, without
limitation, death or medical benefits (through insurance or otherwise) with
respect to any employee or former employee of Hormos beyond their retirement or
other termination of service other than (i) coverage mandated by applicable Law,
(ii) retirement or death benefits under any pension plan, (iii) disability
benefits under any welfare plan that have been fully provided for by insurance
or otherwise, (iv) deferred compensation benefits accrued as liabilities on the
Hormos Financial Statements or (v) benefits in the nature of severance pay.
(j) Hormos has not proposed, agreed to or announced any changes to any
Employee Benefit Plan that would cause an increase in benefits under any such
Employee
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Benefit Plan (or the creation of new benefits or plans) or to change any
employee coverage which would cause an increase in the expense of maintaining
any such plan.
(k) No Employee Benefit Plan provides for the payment of severance
benefits.
4.20 LABOR RELATIONS
(a) Since December 31, 2004, no employee of Hormos has terminated, and
to the knowledge of Hormos, no Hormos employee is considering terminating, his
or her employment with Hormos.
(b) To the knowledge of Hormos, no condition or state of facts or
circumstances exists which could materially adversely affect Hormos's relations
with its employees, including the consummation of the transactions contemplated
by this Agreement.
(c) Hormos is in compliance in all material respects with all
applicable Laws respecting employment and employment practices, terms and
conditions of employment, wages and hours, employee pensions and employee
inventions and Hormos is not engaged in any unfair labor practice.
(d) There are no strikes, slowdowns, work stoppages or other labor
trouble pending or, to the knowledge of Hormos, threatened with respect to the
employees of Hormos, nor has any of the above occurred or, to the knowledge of
Hormos, been threatened.
(e) There are no complaints or charges against Hormos pending before
any court, and, to the knowledge of Hormos, no complaints or charges have been
filed or threatened to be filed against Hormos with any such board or agency.
(f) To the knowledge of Hormos, no charges with respect to or relating
to the business of Hormos are pending before any agency responsible for the
prevention of unlawful employment practices.
(g) Section 4.20(h) of the Hormos Disclosure Schedule accurately sets
forth all unpaid severance which, as of the date hereof, is due or claimed, in
writing, to be due from Hormos to any Person whose employment with Hormos was
terminated.
(h) Hormos has not received notice of the intent of any Governmental
Authority responsible for the enforcement of labor or employment Laws to conduct
an investigation of Hormos, and no such investigation is in progress.
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(i) Hormos is not and, to the knowledge of Hormos, no employee of
Hormos is, in violation in any material respect of any employment agreement,
non-disclosure agreement, non-compete agreement or any other agreement regarding
an employee's employment with Hormos.
(j) Hormos has paid or accrued all wages, holiday pay and holiday
bonuses (including any related mandatory contributions) that are due and payable
to each of its employees and each of its independent contractors.
4.21 INTELLECTUAL PROPERTY
(a) No Hormos Intellectual Property or product or service of Hormos is
subject to any Proceeding or outstanding Order, agreement, or stipulation
restricting in any manner the use, transfer, or licensing thereof by Hormos, or
which may affect the validity, use or enforceability of such Hormos Intellectual
Property, except as set forth in Section 4.21 of the Hormos Disclosure Schedule.
(b) Section 4.21 of the Hormos Disclosure Schedule includes a complete
and accurate list of all Hormos Registered Intellectual Property and specifies,
where applicable, the jurisdictions in which each such item of Hormos Registered
Intellectual Property has been issued or registered or in which an application
for such issuance and registration have been filed, including the respective
registration or application numbers. The patents listed under the heading
"Hormos Material IP" under Section 4.21 of the Hormos Disclosure Schedule are
all of the patents owned by or licensed to Hormos related to SARMs and SERMS,
including the chemical compounds ospemifene and fispemifene. Each item of Hormos
Material IP is valid and subsisting, all necessary registration, maintenance and
renewal fees currently due in connection with such Hormos Material IP have been
made and all necessary documents, recordations and certificates in connection
with such Hormos Material IP have been filed with the relevant patent,
copyright, trademark or other authorities in the United States or foreign
jurisdictions, as the case may be, for the purposes of maintaining such Hormos
Material IP. Section 4.21 of the Hormos Disclosure Schedule includes a schedule
of projected registration, maintenance and renewal fees with respect to the
Hormos Material IP for 2005 and 2006.
(c) Hormos has sufficient title and ownership of, or sufficient rights
to use, all Intellectual Property necessary to operate its business as now
conducted, and it can obtain, on commercially reasonable terms, any additional
rights necessary to operate its business as contemplated to be operated. Each
item of Hormos Intellectual Property used by Hormos is free and clear of any
Lien or Encumbrance (excluding licenses, rights of first refusal, option rights
and related restrictions); and Hormos is the exclusive owner of all trademarks
used in connection with the operation or conduct of the business of Hormos,
including the sale of any products or the provision of any services by Hormos.
Hormos does not own or use any tradenames.
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(d) To the extent that any Intellectual Property has been developed or
created by any Person for Hormos, Hormos has a written agreement with such
Person with respect thereto and Hormos thereby either (i) has obtained ownership
of, and is the exclusive owner of, or (ii) has obtained a license (sufficient
for the conduct of its business as currently conducted and as proposed to be
conducted) to all such Person's Intellectual Property in such work, material or
invention by operation of law or by valid assignment, to the fullest extent it
is legally possible to do so. To the extent that any Intellectual Property has
been developed by any employee of Hormos during such employee's employment with
Hormos, Hormos has exercised its right to obtain ownership of such Intellectual
Property in accordance with applicable Laws.
(e) Except as set forth in Section 4.21 of the Hormos Disclosure
Schedule, Hormos has not transferred ownership of, or granted any exclusive
license with respect to, any Intellectual Property to any third party.
(f) Section 4.21 of the Hormos Disclosure Schedule lists all
contracts, licenses and agreements to which Hormos is a party (i) with respect
to Hormos Intellectual Property licensed or transferred to any third party
(other than end-user licenses in the ordinary course); or (ii) pursuant to which
a third party has licensed or transferred any Hormos Material IP to Hormos.
(g) All contracts, licenses and agreements relating to Hormos
Intellectual Property are in full force and effect. The consummation of the
transactions contemplated by this Agreement will neither violate nor result in
the breach, modification, cancellation, termination, or suspension of such
contracts, licenses and agreements. Hormos is in compliance with, and has not
breached any term of such contracts, licenses and agreements and, to the
knowledge of Hormos, all other parties to such contracts, licenses and
agreements are in compliance with, and have not breached any term of, such
contracts, licenses and agreements. Following the Closing, Hormos will be
permitted to exercise all Hormos rights under such contracts, licenses and
agreements to the same extent Hormos would have been able to had the
transactions contemplated by this Agreement not occurred and without the payment
of any additional amounts or consideration other than ongoing fees, royalties or
payments which Hormos would otherwise be required to pay.
(h) To the best of Hormos' knowledge, the use, development,
manufacture, sale and import of products embodying the Hormos Material IP by
Hormos or its licensees will not infringe any patent or other intellectual
property rights of any third party, other than those rights which would be
infringed in the absence of the licenses Hormos has been granted. In operating
its business and development activities since the inception of Hormos, Hormos
has not to its knowledge, infringed or misappropriated any Intellectual Property
of any third Person or engaged in unfair competition or any unlawful trade
practice.
33
(i) Hormos has not received notice or communications alleging that
Hormos or its employees has violated or infringed or, by conducting its business
as proposed, would violate or infringe any of the Intellectual Property of any
other person or entity.
(j) Except as set forth in Section 4.21 of the Hormos Disclosure
Schedule and to the knowledge of Hormos, no Person has infringed or
misappropriated or is infringing or misappropriating any Hormos Intellectual
Property.
(k) Hormos has taken reasonable steps to protect the rights of Hormos
in Hormos's confidential information and trade secrets that it wishes to protect
or any trade secrets or confidential information of third parties provided to
Hormos, and, without limiting the foregoing, Hormos has and enforces regulations
regarding employee invention assignment in the form provided or made available
to QuatRx (the "HORMOS IP REGULATIONS"), and all current employees of Hormos
have executed an agreement to be bound by the Hormos IP Regulations, to the
extent permitted by applicable Law, except as set forth in Section 4.21 of the
Hormos Disclosure Schedule.
(l) Neither this Agreement nor the transactions contemplated by this
Agreement will result in (i) Hormos granting to any third party any right to or
with respect to any Intellectual Property right owned by, or licensed to, either
of them, (ii) Hormos being bound by, or subject to, or any non-compete or other
material restriction on the operation or scope or their respective businesses,
or (iii) Hormos being obligated to pay any royalties or other amounts to any
third party in excess of those payable by Hormos, in the absence of this
Agreement or the transaction contemplated hereby.
(m) Hormos has provided QuatRx with true and complete copies of all
opinions of counsel received with respect to the Hormos Intellectual Property.
4.22 CERTAIN PAYMENTS
Neither Hormos nor any director, officer, agent or employee of Hormos,
or to the knowledge of Hormos, any other Person associated with or acting for or
on behalf of Hormos, has directly or indirectly (a) made any contribution, gift,
bribe, rebate, payoff, influence payment, kickback or other payment to any
Person, private or public, regardless of form, whether in money, property or
services: (i) to obtain favorable treatment in securing business, (ii) to pay
for favorable treatment for business secured, or (iii) to obtain special
concessions, or for special concessions already obtained, for or in respect of
Hormos or any affiliate of Hormos, or (b) established or maintained any fund or
asset of Hormos that has not been recorded in the consolidated books and records
of Hormos.
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4.23 RELATIONSHIPS WITH RELATED PERSONS
No officer or director of Hormos, or holder of more than 1% of the
Hormos Shares, nor any spouse or child of any of them or any Person associated
with any of them ("RELATED PERSON"), has any ownership interest in any assets or
properties (including, without limitation, any Intellectual Property) used in or
pertaining to the business of Hormos. Except as set forth in Section 4.23 of the
Hormos Disclosure Schedule, no Related Person, owns or owned, directly or
indirectly, and whether on an individual, joint or other basis, any equity
interest or any other financial or profit interest in any Person that (i) has or
had business dealings involving Hormos since the inception of Hormos, or (ii)
engaged in competition with Hormos, except that (A) any such person may own
stock in publicly-traded companies that may compete with Hormos and (B) any
director of Hormos may own interests, directly or indirectly through an
Affiliate, in companies that may compete with Hormos. Except as set forth in
Section 4.23 of the Hormos Disclosure Schedule, no Related Person is a party to
any Contract with, or has any claim or right against, or owes any amounts to,
Hormos. All loans, payables and other amounts due to or from Hormos and its
affiliates are listed in Section 4.23 of the Hormos Disclosure Schedule.
4.24 BROKERS OR FINDERS
Neither Hormos nor any of its agents has incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or financial advisory services or other similar payment in
connection with this Agreement or the Transaction Documents or the transactions
contemplated hereby or thereby.
4.25 RESTRICTIONS ON BUSINESS ACTIVITIES
Except as set forth in Section 4.25 of the Hormos Disclosure Schedule,
there is no Contract or Order binding upon Hormos or, to the knowledge of
Hormos, threatened that has, or could reasonably be expected to have, the effect
of prohibiting or materially impairing any business practice of Hormos (either
individually or in the aggregate), any acquisition of property by Hormos (either
individually or in the aggregate), providing of any service by Hormos or the
hiring of employees or the conduct of business by Hormos (either individually or
in the aggregate).
4.26 OUTSTANDING INDEBTEDNESS
Section 4.26 of the Hormos Disclosure Schedule sets forth as of the
date of the balance sheet included in the Hormos Interim Financial Statements
(a) the amount of all indebtedness for borrowed money of Hormos then
outstanding, including any TEKES Loans, the interest rate and maturity of that
indebtedness, and the amount of any prepayment penalty or premium applicable to
that indebtedness, (b) any Encumbrances or
35
Liens which relate to such indebtedness and (c) the name of the lender or the
other payee of each such indebtedness.
4.27 DEPOSIT ACCOUNTS
Section 4.27 of the Hormos Disclosure Schedule contains a true,
correct and complete list of (a) the name of each financial institution in which
Hormos has an account or safe deposit box, (b) the names in which each account
or box is held, (c) the type of account, and (d) the name of each Person
authorized to draw on or have access to each account or box.
4.28 CLINICAL PROCEDURES
Hormos is conducting (or is causing to be conducted), and has
conducted (or caused to be conducted) the preclinical and clinical tests and
studies of the products which Hormos is researching and/or developing (the
"HORMOS PRODUCTS") in compliance with experimental protocols, procedures and
controls pursuant to accepted professional scientific standards and applicable
Law. Hormos has provided documents describing the clinical studies and tests,
including related results and regulatory status, and they are complete and
accurate in all material respects, and Hormos, after diligent search, is not
aware of and clinical studies or tests the results of which reasonably call into
question the clinical study and test results provided by Hormos. Neither the FDA
nor other regulatory authority has issued any clinical hold orders, warning
letters notices of violation, or similar correspondence or communications with
respect to such tests, studies or Hormos Products, except as set forth in
Section 4.28 of the Hormos Disclosure Schedule.
4.29 DISCLOSURE
No representation or warranty of Hormos or any Seller in this
Agreement as modified by statements in the Hormos Disclosure Schedule is
inaccurate in any material respect or omits to state a material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading.
4.30 SIGNATORY RIGHTS
Section 4.29 of the Hormos Disclosure Schedule contains a true,
correct and complete list of the name of each Person authorized to sign and
execute documents, agreements and instruments (including bank checks) for or on
behalf of Hormos.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby, severally, represents and warrants to QuatRx as
follows:
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5.1 AUTHORITY
Such Seller has the right, power, authority and capacity to execute
and deliver this Agreement and the Transaction Documents to which it is or will
become a party, to consummate the Exchange and the other transactions
contemplated hereby and thereby and to perform its respective obligations under
this Agreement and the Transaction Documents to which it is or will become a
party. This Agreement has been duly authorized, executed and delivered by it and
is enforceable against it in accordance with the terms hereof. It has all
authorizations and consents necessary for the execution and delivery of this
Agreement, and for the performance of its obligations hereunder. If such Seller
is not a natural Person, it is and at the Closing will be duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization with corporate power and authority to own, lease and operate its
properties and to conduct its business. Upon the authorization and approval,
execution and delivery by or on behalf of such Seller of the Transaction
Documents to which it is or will become a party, such Transaction Documents will
constitute legal, valid and binding obligations of such Seller, enforceable
against such Seller in accordance with their respective terms.
5.2 OWNERSHIP
Such Seller has, and at the Closing will have, (i) good and marketable
title to all the Hormos Securities listed beside its name in Section 4.3 of the
Hormos Disclosure Schedule (as to the applicable Seller, the "APPLICABLE
SECURITIES"), free and clear of all Encumbrances and Liens, and (ii) full legal
right and power to sell, transfer and deliver the Applicable Securities to
QuatRx in accordance with this Agreement. The Applicable Securities are the only
securities of Hormos held by the Seller. Upon delivery of the Applicable
Securities to be exchanged by it to QuatRx in accordance with this Agreement,
QuatRx will receive good and marketable title to all the Applicable Securities,
free and clear of all Encumbrances and Liens.
5.3 NO CONFLICT
None of the execution, delivery or performance of this Agreement or
any of the Transaction Documents to which such Seller is or will become a party,
and the consummation of the transactions contemplated herein or therein by it
conflicts or will conflict with or results or will result in any breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien or encumbrance upon, any of
its properties or assets pursuant to (i) the terms of its Organizational
Documents; (ii) the terms of any contract or other agreement to which it is a
party or by which it is bound or to which any of its properties is subject,
which conflict, breach, violation or default would adversely affect such
Seller's ability to perform its obligations hereunder or thereunder; (iii) any
statute, rule or regulation of any Governmental Authority having jurisdiction
over it or any of its activities or properties; or
37
(iv) the terms of any Order of any arbitrator or any Governmental Authority
having such jurisdiction.
5.4 NO CONSENT
No consent, approval, authorization or order of, or any filing or
declaration with any Governmental Authority is required for the consummation by
such Seller of any of the transactions on its part contemplated under this
Agreement.
5.5 INVESTMENT
Such Seller is acquiring the QuatRx securities hereunder for its own
account and risk and not for the account or benefit of a U.S. Person, and no
other person has any interest in or participation in such securities or any
right, option, security interest, pledge or other interest in or to such
securities. Such Seller is acquiring the QuatRx securities for investment, for
its own account and not with a view to distribution. Such Seller acknowledges
that the offering and issuance of shares of QuatRx Common Stock, QuatRx Series D
Preferred Shares, and QuatRx Series D-1 Preferred Shares hereunder will not be
registered under the Securities Act and that such shares will be subject to
restrictions on transfer under the United States securities laws and the terms
of Section 7.12 hereof.
5.6 BROKERS AND FINDERS
Such Seller has not retained any investment banker, broker, or finder
in connection with any of the transactions contemplated by this Agreement.
5.7 UNREGISTERED SECURITIES
(a) Such Seller understands and acknowledges that the offering of the
QuatRx securities pursuant to this Agreement will not be registered under the
Securities Act on the grounds that the offering and sale of QuatRx securities
contemplated by this Agreement are exempt from registration pursuant to
Regulations S under the Securities Act and that QuatRx's reliance upon such
exemption is predicated upon such Seller's representations as set forth in this
Agreement. Such Seller understands, acknowledges and agrees that it must bear
the economic risk of its investment in the QuatRx securities for an indefinite
period of time.
(b) Such Seller understands that pursuant to the requirements of
Regulation S, the QuatRx securities issued pursuant to this Agreement may not be
offered, sold, disposed of, transferred or encumbered, and Seller agrees not to
offer, sell, dispose of, transfer or encumber such securities, unless in
compliance with the provisions of Regulation S, pursuant to registration under
the Securities Act, or pursuant to an available exemption from registration
under the Securities Act. Prior to any offer, sale disposition,
38
transfer or encumbrance of such QuatRx securities by such Seller, QuatRx may
require, as a condition to effecting a transfer of such securities, an opinion
of counsel, acceptable to QuatRx, as to the registration of such securities or
exemption therefrom under the Securities Act, and may refuse to register a
transfer of such securities if such requirements are not complied with.
(c) Such Seller consents to QuatRx's placing an appropriate stop
transfer order against the certificates representing the QuatRx securities and
acknowledges that such certificates will bear a legend in substantially the
following form:
THE SHARES MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (i) AS PART OF THEIR
DISTRIBUTION AT ANY TIME OR (ii) OTHERWISE UNTIL ONE YEAR AFTER THE
LATER OF THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, EXCEPT
IN EITHER CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT OF 1933 OR PURSUANT TO REGISTRATION OF THE SHARES OR AN EXEMPTION
FROM REGISTRATION. TERMS USED IN THIS LEGEND HAVE THE MEANING GIVEN TO
THEM BY REGULATION S. THE SALE OR OTHER DISPOSITION OF THE SHARES IS
RESTRICTED AND IN ANY EVENT IS PROHIBITED UNLESS THE COMPANY RECEIVES
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE OR
OTHER DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933.
5.8 EXPERIENCE
Each Accredited Seller and each Securityholder Representative
represents that: (a) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
prospective investment in the QuatRx securities; (b) it believes it has received
all the information it has requested from QuatRx and considers necessary or
appropriate for deciding whether to obtain QuatRx securities; (c) it has had the
opportunity to discuss QuatRx's business, management, and financial affairs with
QuatRx management; and (d) it has not relied upon any sales literature,
prospectus or presentation other than the Exchange Agreement.
5.9 NON-U.S. PERSON STATUS
Such Seller is not a U.S. Person. Such Seller maintains its domicile
or business at the address shown on the share register of Hormos. The QuatRx
securities to be issued in exchange for the Hormos Securities were offered to
the undersigned outside
39
of the United States and will be exchanged for Hormos Securities on the Closing
Date in Finland.
5.10 CERTAIN PAYMENTS
Neither such Seller, nor, to the knowledge of such Seller, any other
Person associated with or acting for or on behalf of such Seller, has directly
or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence
payment, kickback or other payment to any Person, private or public, regardless
of form, whether in money, property or services: (i) to obtain favorable
treatment in securing business, (ii) to pay for favorable treatment for business
secured, or (iii) to obtain special concessions, or for special concessions
already obtained, for or in respect of Hormos or any affiliate of Hormos, or (b)
established or maintained any fund or asset of Hormos that has not been recorded
in the consolidated books and records of Hormos.
5.11 DISCLOSURE
To the knowledge of such Seller, no representation of Hormos in this
Agreement as modified by statements in the Hormos Disclosure Schedule is
inaccurate in any material respect or omits to state a material fact necessary
to make the statements herein or therein, in the light of the circumstances
under which they were made, not misleading.
6. REPRESENTATIONS AND WARRANTIES OF QUATRX
Except as set forth in the QuatRx Disclosure Schedule by means of a
disclosure that references the specific representation and warranty which that
exception is intended to modify, QuatRx hereby represents and warrants to Hormos
and the Sellers as follows:
6.1 ORGANIZATION AND GOOD STANDING
(a) Section 6.1 of the QuatRx Disclosure Schedule contains a complete
and accurate list of the jurisdictions in which QuatRx is authorized to do
business. QuatRx is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. QuatRx has full corporate power and
authority to conduct its business as it is now being conducted and to own or use
the assets and properties that it purports to own or use. QuatRx is duly
qualified to do business as a foreign corporation and is in good standing under
the Laws of each state or other jurisdiction in which either the ownership or
use of the assets or properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a QuatRx
Material Adverse Effect.
40
(b) QuatRx has delivered to Hormos correct and complete copies of the
Organizational Documents of QuatRx.
6.2 AUTHORITY; NO CONFLICT
(a) QuatRx has the right, power, authority and capacity to execute and
deliver this Agreement and the Transaction Documents to which it is or will
become a party, to consummate the Exchange and the other transactions
contemplated hereby and thereby and to perform its obligations under this
Agreement and the Transaction Documents to which it is or will become a party.
This Agreement has been duly authorized and approved, executed and delivered by
QuatRx and constitutes the legal, valid and binding obligation of QuatRx,
enforceable against QuatRx in accordance with its terms. Upon the authorization
and approval, execution and delivery by QuatRx of the Transaction Documents to
which it is or will become a party, such Transaction Documents will constitute
legal, valid and binding obligations of QuatRx, enforceable against QuatRx in
accordance with its terms.
(b) Neither the execution and delivery of this Agreement or any
Transaction Document by QuatRx nor the consummation or performance by QuatRx of
the Exchange or any other transaction contemplated hereby or thereby will,
directly or indirectly (with or without notice or lapse of time or both):
(i) contravene, conflict with or result in a violation or breach
of (A) any provision of the Organizational Documents of QuatRx, (B) any
resolution adopted by the board of directors or the stockholders of QuatRx, (C)
any legal requirement or any Order, award, decision, settlement or process to
which QuatRx or any of the assets or properties owned or used by QuatRx may be
subject, or (D) any Governmental Permit that is held by QuatRx;
(ii) result in a breach of or constitute a default, give rise to
a right of termination, cancellation or acceleration, create any entitlement to
any payment or benefit, or require the consent, authorization or approval of or
any notice to or filing with any third Person under any material Contract to
which QuatRx is a party or to which its assets or properties are bound, or
require the consent, authorization or approval of or any notice to or filing
with any Governmental Authority to which QuatRx or its assets or properties is
subject; or
(iii) result in the imposition or creation of any Encumbrance or
Lien upon or with respect to any of the assets or properties owned or used by
QuatRx.
41
6.3 CAPITALIZATION
The authorized, issued and outstanding equity securities of QuatRx
consist solely of 3,976,000 shares of QuatRx Common Stock, 1,575,000 shares of
Series A Preferred Stock, par value $0.01 per share, 4,200,000 shares of Series
B Preferred Stock, par value $0.01 per share, 25,596,491 shares of Series C
Preferred Stock, par value $0.01 per share, and 29,071,429 shares of Series D
Preferred Stock, par value $0.01 per share (collectively, "QUATRX SHARES"). All
of the outstanding QuatRx Shares have been duly authorized and validly issued,
are fully paid and nonassessable and are owned, of record and beneficially, by
the Persons and in the amounts set forth in Section 6.3 of the QuatRx Disclosure
Schedule, which shall in addition include (i) capitalization table of QuatRx
immediately prior to Closing (ii) capitalization table immediately after Closing
(iii) capitalization tables after second and third tranche of investments set
forth in Section 7.15 below. Section 6.3 of the QuatRx Disclosure Schedule sets
forth the number of shares of QuatRx Common Stock underlying granted,
unexercised Options and Options reserved for future grant. All of the options to
purchase shares of QuatRx Common Stock have been duly authorized and validly
issued and are owned, of record and beneficially, by the Persons and in the
amounts set forth in Section 6.3 of the QuatRx Disclosure Schedule. Section 6.3
of the QuatRx Disclosure Schedule sets forth all outstanding securities of
QuatRx, including but not limited to all debt securities, QuatRx Shares, options
to purchase QuatRx Common Stock, rights and all other securities convertible or
exercisable into or for, or exchangeable for, capital stock. Except as set forth
in Section 6.3 of the QuatRx Disclosure Schedule, there are no voting trusts or
other Contracts or understandings to which QuatRx or any holder of QuatRx Shares
is a party with respect to the transfer, voting or registration of any QuatRx
Shares and there are no Contracts relating to the issuance, sale or transfer of
any equity securities or other securities of QuatRx. QuatRx does not own or have
any Contract to acquire any equity securities or other securities of any Person
or any, direct or indirect, equity or ownership interest in any other business.
No Person has any pre-emptive rights, nor any right of first refusal, tag-along,
drag along right or any rights similar thereto with respect to any security of
QuatRx. All of the QuatRx Shares have been issued in compliance with the
Securities Act.
6.4 BOOKS AND RECORDS
The books of account and other records of QuatRx, any of which that
have been requested by Hormos have been furnished to Hormos, are true, complete
and correct in all material respects. The minute books of QuatRx contain true,
accurate and complete records of all meetings held of, and corporate action
taken by, the stockholders, the board of directors, and committees of the board
of directors of QuatRx. The share registry of QuatRx contains a true, complete
and correct record of all issuances, transfers and repurchases of all shares of
stock of QuatRx.
42
6.5 FINANCIAL STATEMENTS
Except as set forth in Section 6.5 of the QuatRx Disclosure Schedule,
the QuatRx Financial Statements (i) have been prepared from the books and
records of QuatRx in accordance with U.S. GAAP, (ii) fully reflect all
liabilities and contingent liabilities of QuatRx required to be reflected
therein on such basis as at the dates thereof, and (iii) fairly present the
financial position of QuatRx and the share holdings of QuatRx's shareholders as
of the dates of the balance sheets included in the QuatRx Financial Statements
and the results of QuatRx's operations and cash flow for the periods indicated.
6.6 NO UNDISCLOSED LIABILITIES
QuatRx does not have any liabilities or obligations of any nature
(whether known or unknown, absolute, accrued, contingent or otherwise, and
whether due or to become due), except for liabilities or obligations reflected
or reserved against in the QuatRx Financial Statements and current liabilities
incurred in the ordinary course of business since the date of the balance sheet
included in the QuatRx Financial Statements, consistent with past practices,
which will not, individually or in the aggregate, have a QuatRx Material Adverse
Effect.
6.7 NO MATERIAL ADVERSE EFFECT
Since December 31, 2004, there has not been any QuatRx Material
Adverse Effect and no event has occurred or circumstance exists that could
reasonably be expected to result in a QuatRx Material Adverse Effect.
6.8 TAXES
(a) Except as set forth in Section 6.8 of the QuatRx Disclosure
Schedule, all federal, state, local and foreign Tax Returns required to be filed
by or with respect to QuatRx have been timely filed with the appropriate
governmental or Taxing Authority. All such Tax Returns are materially accurate,
true and complete, and QuatRx is not the beneficiary of any extension of time to
file any such Tax Return. QuatRx has delivered or made available to Hormos
complete and accurate copies of all of such Tax returns.
(b) QuatRx has timely paid or made provision for the payment of all
Taxes that have or may reasonably be expected to become due with respect to the
business or operations of QuatRx for periods (or portions thereof) ending before
the date hereof. All Taxes (including, without limitation, sales and use and
employment taxes) that QuatRx is or was required to withhold or collect with
respect to the business or operations of QuatRx prior to the date hereof have
been duly withheld or collected and, to the extent required, have been timely
paid to the proper Governmental or Taxing Authority or other
43
person. QuatRx has properly requested, received and retained all necessary
exemption certificates and other documentation supporting any claimed exemption
or waiver of Taxes on sales or other transactions by QuatRx prior to the date
hereof as to which QuatRx would have been obligated to collect or withhold
Taxes.
(c) There are no Encumbrances or Liens for Taxes (other than Taxes not
yet due and payable) upon any of QuatRx's assets.
(d) No deficiencies for Taxes that have been claimed, proposed or
assessed by any Governmental Authority against QuatRx or with respect to the
business or operations of QuatRx. There are no current, pending or, to the
knowledge of QuatRx, threatened audits, investigations or claims for or relating
to any liability in respect of Taxes with respect to the business or operations
of QuatRx, and there are no matters under discussion with any Governmental
Authority with respect to such Taxes. No power of attorney has been executed by
or on behalf of QuatRx with respect to any matters relating to Taxes with
respect to the business or operations of QuatRx that is currently in force. No
extension or waiver of a statute of limitations relating to Taxes with respect
to the business or operations of QuatRx is in effect. QuatRx has not received a
written claim within the immediately preceding three years by a governmental or
taxing authority in a jurisdiction in which QuatRx operates or in which any of
QuatRx's assets are located, where QuatRx does not file Tax Returns, that QuatRx
may be subject to taxation in that jurisdiction.
(e) (i) QuatRx has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee or
independent contractor; (ii) all material elections with respect to Taxes made
by QuatRx as of the date hereof are set forth in Section 6.8 of the QuatRx
Disclosure Schedule; (iii) there are no private letter rulings in respect of any
Tax pending between QuatRx and any Tax Authority, if such ruling would affect
QuatRx; (iv) QuatRx is not liable for Taxes of any other Person, and QuatRx is
not currently under any obligation to indemnify any Person with respect to
Taxes, or a party to any tax sharing agreement or any other agreement providing
for payments by QuatRx with respect to Taxes; (v) QuatRx is not a party to any
joint venture, partnership or other arrangement or Contract which could be
treated as a partnership for Tax purposes; and (vi) Section 6.8 of the
Disclosure Schedule contains a list of all jurisdictions to which any Tax is
properly payable or any Return is required to be filed by QuatRx, and no written
claim has ever been made by any Tax Authority in any other jurisdiction that
QuatRx is subject to taxation in such jurisdiction.
6.9 TITLE TO PROPERTIES; ENCUMBRANCES
QuatRx has good and marketable title to its properties and assets and
good title to all its leasehold estates, in each case subject to no Liens or
Encumbrances, other than, or resulting from (a) Taxes which have not yet become
delinquent and (b) Liens and
44
Encumbrances which do not materially detract from the value of the property
subject thereto or impair the operations of QuatRx. QuatRx owns no real
property.
6.10 CONDITION AND SUFFICIENCY OF ASSETS
The Facilities and other tangible assets and property owned or used by
QuatRx are structurally sound, are in good operating condition and repair
(normal wear and tear excepted), and are adequate for the uses to which they are
being put, and none of such Facilities or other property and assets owned or
used by QuatRx is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that are not material in nature or cost. The Facilities
and other tangible assets and property owned or used by QuatRx are sufficient
for the continued conduct of its business after the Closing in substantially the
same manner as conducted prior to the Closing.
6.11 COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORIZATIONS
(a) QuatRx is in compliance in all material respects with all Laws,
licenses and Orders affecting any or all of the assets or properties owned or
used by QuatRx or the business or operations of QuatRx including Occupational
Safety and Health Laws and Environmental Laws. QuatRx has not been charged with
violating, or to the knowledge of QuatRx, threatened with a charge of violating,
or under investigation with respect to a possible violation of, any provision of
any Law, Order or administrative ruling or license relating to any of its or
their assets or properties or any aspect of its or their business where the
violation would reasonably be expected to have a QuatRx Material Adverse Effect.
(b) QuatRx possesses all Governmental Permits necessary to conduct its
business, including without limitation all those that may be required by the FDA
or any other federal, state or foreign agencies or bodies engaged in the
regulation of pharmaceuticals or biohazardous materials, except where the
failure to possess such certificates, licenses, approvals, authorizations and
permits or to make such declarations and filings would not, individually or in
the aggregate, have a QuatRx Material Adverse Effect; and QuatRx has not
received, and has no reason to believe it will receive, any notice of
proceedings relating to the revocation, suspension or modification of any such
Governmental Permits which, if the subject of an unfavorable decision, ruling or
finding, would individually or in the aggregate have a QuatRx Material Adverse
Effect. Section 6.11 of the QuatRx Disclosure Schedule contains a complete and
accurate list of each Governmental Permit that QuatRx is required by applicable
laws to hold or that otherwise relates to the business of, or to any of the
assets or properties owned or used by, QuatRx. Each Governmental Permit listed
or required to be listed in Section 6.11 of the Disclosure Schedule is valid and
in full force and effect, has not been breached or violated by QuatRx, and is
not subject to any Proceedings for suspension, modification or revocation.
45
(c) QuatRx represents and warrants that neither it, nor any of its
employees or agents has ever been, is currently, or is the subject of a
proceeding that could lead to that party becoming, as applicable, a Debarred
Entity or Individual, an Excluded Entity or Individual or a Convicted Entity or
Individual. For purposes of this provision, the definitions set forth in Section
4.12(d)(i)-(iv) shall apply.
6.12 LEGAL PROCEEDINGS
There is no pending Proceeding:
(a) that has been commenced by or against QuatRx or that otherwise
relates to the business of, or any of the assets or properties owned or used by,
QuatRx; or
(b) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the transactions
contemplated hereby.
To the knowledge of QuatRx, no such Proceeding has been threatened.
6.13 CHANGES IN CONDITIONS
Except as specifically set forth in Section 6.13 of the QuatRx
Disclosure Schedule, since December 31, 2004, (a) QuatRx has not entered into
any transaction which was not in the ordinary course of business, (b) there has
been no adverse change in QuatRx's business, properties, prospects or financial
condition, (c) QuatRx has not incurred any material Tax liability, (d) there has
been no resignation or termination of employment of any officer or key employee
of QuatRx and QuatRx does not know of any impending resignation or termination
of employment of any such officer or key employee that if consummated would
constitute a QuatRx Material Adverse Effect, (e) there has been no waiver by
QuatRx of a valuable right or of a debt owing to QuatRx which would constitute a
QuatRx Material Adverse Effect, (f) there has not been any satisfaction or
discharge of any Lien or Encumbrance or any payment of any obligation by QuatRx
except in the ordinary course of business, (g) QuatRx has not taken any action
that would require the prior approval of the holders of the Series A Preferred,
the Series B Preferred or the Series C or Series D Preferred pursuant to Article
IV, Section 5 of the Restated Certificate of Incorporation of QuatRx and (h)
there has not been any sale, assignment or transfer of any Intellectual Property
of QuatRx. QuatRx has no agreement or commitment to do any of the things
described in this Section 6.13.
6.14 CONTRACTS; NO DEFAULTS
(a) Section 6.14 of the QuatRx Disclosure Schedule sets forth a
complete and accurate list of all Contracts or series of Contracts to which
QuatRx or any of its subsidiaries is a party or by which it is bound (i) that is
material to QuatRx or the conduct of its business, (ii) that involves (1)
obligations (contingent or otherwise) of, or payments
46
to, QuatRx in excess of $100,000 in the aggregate, (2) the license of any
Intellectual Property to or from QuatRx or any of its subsidiaries, (3) the
grant of rights to manufacture, produce, assemble, license, market, or sell its
products to any other person or affect QuatRx's exclusive right to develop,
manufacture, assemble, distribute, market or sell its products or (4) the
indemnification by QuatRx with respect to infringements of Intellectual Property
or any other matter, or (iii) under which QuatRx is restricted from carrying on
any business anywhere in the world. QuatRx has delivered or made available to
Hormos a true, complete and correct copy of each written Contract and a
reasonably detailed written description of each oral Contract listed on the
QuatRx Disclosure Schedule.
(b) With respect to each Contract required to be set forth in the
QuatRx Disclosure Schedule pursuant to Section 6.14(a) hereof (whether such
Contract is listed in such QuatRx Disclosure Schedule): (i) such Contract is a
legal, valid and binding obligation of QuatRx and, to the knowledge of QuatRx,
the other parties thereto; (ii) QuatRx is not in default under such Contract
and, to the knowledge of QuatRx, no other person that is a party to such
Contract is in default thereunder; and (iii) no event has occurred or no
circumstance exists that (with or without notice or lapse of time) may
contravene, conflict with, or result in a material violation or breach of, or
give QuatRx or any other person the right to declare a default or exercise any
remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, such Contract.
6.15 INSURANCE
QuatRx has in effect insurance covering risks associated with its
business in such amounts as are customary in its industry for entities of
comparable size, including, but not limited to, Directors and Officers liability
insurance. QuatRx is not aware of any pending or threatened claims against
QuatRx for personal injuries or property damage.
6.16 ENVIRONMENTAL AND SAFETY LAWS
QuatRx is not in violation of any applicable Law relating to the
environment or occupational health and safety, based on QuatRx's business as
currently conducted, no material expenditures are or will be required in order
to comply with any such existing Law.
6.17 EMPLOYEES; EMPLOYEE BENEFITS
QuatRx's employees are not represented by any labor unions, nor, to
QuatRx's knowledge, is any union organization campaign in progress or
threatened. To QuatRx's knowledge, no employee of QuatRx is in violation of any
term of any employment contract, patent disclosure agreement or any other
contract or agreement relating to the
47
right of any such employee to be employed by QuatRx because of the nature of the
business conducted by QuatRx or for any other reason, and the continued
employment by QuatRx of its present employees will not result in any such
violations. Except as set forth in Section 6.17 of the QuatRx Disclosure
Schedule, QuatRx is not party to or bound by any Employee Benefit Plans. Except
as set forth in Section 6.17 of the QuatRx Disclosure Schedule, the employment
of each officer and employee of QuatRx is terminable at the will of QuatRx
without triggering severance or other additional compensation. Each officer,
employee and consultant of QuatRx has executed a Confidentiality, Non-Disclosure
and Development Assignment Agreement, a copy of which has been made available to
Hormos and QuatRx will obtain such signed agreements from each officer, employee
and consultant in the future. No former or current employee, officer or
consultant of QuatRx has excluded works or inventions made prior to his or her
employment with QuatRx from his or her assignment of inventions pursuant to such
employee, officer or consultant's proprietary information and inventions
agreement. QuatRx is not aware that any of its officers, employees and
consultants is in violation of such Confidentiality, Non-Disclosure and
Development Assignment Agreement and will use reasonable efforts to prevent any
such violation. To QuatRx's knowledge, QuatRx has complied with all applicable
state and federal equal employment opportunity and other laws related to
employment. QuatRx does not have or otherwise contribute to or participate in
any employee benefit plan subject to the Employee Retirement Security Act of
1974, as amended.
6.18 INTELLECTUAL PROPERTY
(a) QuatRx has sufficient title and ownership of, or sufficient rights
to use, all Intellectual Property necessary to operate its business as now
conducted, and believes it can obtain, on commercially reasonable terms, any
additional rights necessary to operate its business as contemplated to be
operated, and, to QuatRx's knowledge after reasonable inquiry, the QuatRx
Material IP does not, and would not, conflict with or constitute an infringement
of the rights of others. Section 6.18(a) of the QuatRx Disclosure Schedule
contains a complete and accurate list of all trademarks, service marks, trade
names, patents, patent applications and registered copyrights of QuatRx. The
patents listed under the heading "QuatRx Material IP" under Section 6.18 of the
QuatRx Disclosure Schedule are all of the patents owned by or licensed to QuatRx
related to projects 401, 431, 101 and 411.
(b) Except as set forth in Section 6.18(b) of the QuatRx Disclosure
Schedule, there are no outstanding options, licenses, or agreements of any kind
relating to the matters listed in Section 6.18(a) of the QuatRx Disclosure
Schedule or that grant rights to any other person to manufacture, license,
produce, assemble, market or sell QuatRx's products, nor is QuatRx bound by or a
party to any options, licenses, or agreements of any kind with respect to the
Intellectual Property of any other person or
48
entity, except for "shrinkwrap" or "clickwrap" or similar licenses of
commercially-available third-party software.
(c) QuatRx has not received any communications alleging that QuatRx or
its employees has violated or infringed or, by conducting it business as
proposed, would violate or infringe any of the Intellectual Property of any
other person or entity.
(d) To QuatRx's knowledge, no employee of QuatRx is obligated under
any Contract, or subject to any Order, that would interfere with the use of such
employee's best efforts to promote the interests of QuatRx or that would
conflict with QuatRx's business as proposed to be conducted.
(e) Neither the execution nor delivery of this Agreement, nor the
carrying on of QuatRx's business by the employees of QuatRx will conflict with
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any Contract under which any of such employees is now obligated.
(f) QuatRx is in compliance with, and has not breached any term of
contracts, licenses and agreements relating to QuatRx Material IP and, to the
knowledge of QuatRx, all other parties to such contracts, licenses and
agreements are in compliance with, and have not breached any term of, such
contracts, licenses and agreements.
(g) To the best of QuatRx's knowledge, the use, development,
manufacture, sale and import of QuatRx's products embodying the QuatRx Material
IP by QuatRx and its licensees will not infringe any patent or other
intellectual property rights of any third party, other than those rights which
would be infringed in the absence of the licenses that QuatRx has been granted
by ILEX Products, Inc., Deltanoid Pharmaceuticals, Inc., and EndoChem.
(h) Except as set forth in Section 6.18(h) of the QuatRx Disclosure
Schedule, QuatRx has not transferred ownership of, or granted any exclusive
license with respect to, any Intellectual Property to any third party.
(i) Section 6.18(i) of the QuatRx Disclosure Schedule lists all
contracts, licenses and agreements to which QuatRx is a party (i) with respect
to QuatRx Material IP licensed or transferred to any third party (other than
end-user licenses in the ordinary course); or (ii) pursuant to which a third
party has licensed or transferred any Intellectual Property to QuatRx.
(j) QuatRx has not to its knowledge infringed or misappropriated any
Intellectual Property of any third Person or engaged in unfair competition or
any unlawful trade practice.
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(k) QuatRx has taken reasonable steps to protect the rights of QuatRx
in QuatRx's confidential information and trade secrets that it wishes to protect
or any trade secrets or confidential information of third parties provided to
Hormos.
(l) QuatRx has provided Sellers with true and complete copies of all
opinions of counsel received with respect to the QuatRx Material IP.
6.19 RELATIONSHIPS WITH RELATED PERSONS
Except as set forth in Section 6.19 of the QuatRx Disclosure Schedule,
except for (a) transactions relating to purchases of shares of QuatRx's Common
Stock pursuant to stock purchase agreements between QuatRx and each of its
founders, (b) regular salary payments and fringe benefits under an individual's
compensation package with QuatRx, (c) the issuance of shares of QuatRx Series D
Preferred pursuant to the terms and conditions of the Series D Preferred Stock
Purchase Agreement dated as of November 22, 2004 between QuatRx and the
purchasers named thereon (the "STOCK PURCHASE AGREEMENT"), and (d) the
Investment Documents, as defined in the Stock Purchase Agreement, or other
contracts or agreements referred to or contemplated herein or therein, no
Related Person has any agreement, understanding, proposed transaction or is
indebted to QuatRx, nor is QuatRx indebted (or committed to make loans or extend
or guarantee credit) to any of them. To the best of QuatRx's knowledge, no
Related Person has any direct or indirect ownership interest in any firm or
corporation with which QuatRx is affiliated or with which QuatRx has a business
relationship, or any firm or corporation that competes with QuatRx, except that
any such person may own stock in publicly traded companies that may compete with
QuatRx. No Related Person is directly or indirectly interested in any material
contract with QuatRx.
6.20 CLINICAL PROCEDURES
QuatRx is conducting (or is causing to be conducted), and has
conducted (or caused to be conducted) the preclinical and clinical tests and
studies of the products which QuatRx is developing (the "QUATRX PRODUCTS") in
compliance with experimental protocols, procedures and controls pursuant to
accepted professional scientific standards and applicable local, state and
federal laws, rules, regulations and guidances, including, but not limited to,
the principles of Good Clinical Practice, the Federal Food, Drug and Cosmetic
Act and implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 312, and
has made all reports, filings and notifications required thereunder, including,
but not limited to, the reports required by 21 C.F.R. Section 312.32. QuatRx has
provided documents describing the clinical studies and tests, including related
results and regulatory status, and they are complete and accurate in all
material respects, and QuatRx, after diligent search, is not aware of and
clinical studies or tests the results of which reasonably call into question the
clinical study and test results provided by QuatRx. Except as set forth in
Section 6.20 of the QuatRx Disclosure Schedule, neither the FDA nor other
regulatory
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authority has issued any clinical hold orders, warning letters notices of
violation, or similar correspondence or communications with respect to such
tests, studies or QuatRx Products.
6.21 REGISTRATION RIGHTS AND VOTING RIGHTS
Except as provided in the Investors' Rights Agreement, as defined in
the Stock Purchase Agreement, QuatRx is not under any obligation to register any
presently outstanding securities, or any securities which may hereafter be
issued, under the Securities Act of 1933. To QuatRx's knowledge, except as
contemplated by the Voting Agreement, as defined in the Stock Purchase
Agreement, no stockholders of QuatRx have entered into any agreements with
respect to the voting of capital shares of QuatRx.
6.22 VALIDITY OF SECURITIES
The QuatRx Common Stock, QuatRx Series D Preferred Shares and QuatRx
Series D-1 Preferred Shares, when issued, sold, and delivered in accordance with
the terms and for the consideration expressed in this Agreement, will be duly
and validly issued and non-assessable.
6.23 SECURITIES ACT
Subject to the accuracy of the Sellers' representations in Section 5
hereof, the offer, sale and issuance of the shares of QuatRx Common Stock,
QuatRx Series D Preferred Shares and QuatRx Series D-1 Preferred Shares pursuant
to Section 2.1 in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act.
6.24 BROKERS OR FINDERS
Neither QuatRx nor any of its agents has incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or financial advisory services or other similar payment in
connection with this Agreement or the Transaction Documents or the transactions
contemplated hereby or thereby.
6.25 DISCLOSURE
No representation or warranty of QuatRx in this Agreement as modified
by statements in the QuatRx Disclosure Schedule is inaccurate in any material
respect or omits to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made, not
misleading.
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7. COVENANTS
The parties, as applicable, hereby covenant and agree as follows:
7.1 NORMAL COURSE
(a) Hormos. From the date hereof until the Closing, Hormos shall: (i)
maintain its corporate existence; (ii) maintain the general character of its
business; (iii) maintain in effect all of its presently existing insurance
coverage (or substantially equivalent insurance coverage); (iv) preserve intact
in all material respects its business organization, preserve its goodwill and
the confidentiality of its business know how, exercise reasonable efforts to
keep available the services of its current officers and employees and preserve
its present material business relationships with its collaborators, licensors,
customers, suppliers and other Persons with which it has material business
relations; (v) comply with the terms of the TEKES Loans and use the TEKES Loans
only for the projects designated by TEKES in accordance with the terms of the
TEKES Loans, (vi) preserve and maintain its Intellectual Property, including by
paying all registration, maintenance and renewal fees in respect of its patents;
and (vii) in all respects conduct its business only in the usual and ordinary
manner consistent with past practice and perform all Contracts.
(b) QuatRx. From the date hereof until the Closing, QuatRx shall: (i)
maintain its corporate existence; (ii) maintain the general character of its
business; (iii) maintain in effect all of its presently existing insurance
coverage (or substantially equivalent insurance coverage); (iv) preserve intact
in all material respects its business organization, preserve its goodwill and
the confidentiality of its business know how, exercise reasonable efforts to
keep available the services of its current officers and employees and preserve
its present material business relationships with its collaborators, licensors,
customers, suppliers and other Persons with which it has material business
relations; (v) preserve and maintain its Intellectual Property, including by
paying all registration, maintenance and renewal fees in respect of its patents;
and (vi) in all respects conduct its business only in the usual and ordinary
manner consistent with past practice and perform all Contracts.
7.2 CONDUCT OF BUSINESS
(a) Hormos. Without limiting the provisions of Section 7.1, from the
date hereof until the Closing (or earlier if and when this Agreement is
terminated in accordance with Section 10), Hormos shall not, and the Sellers
shall cause Hormos not to, except as contemplated by this Agreement, directly or
indirectly, do, or propose to do, any of the following without the prior written
consent of QuatRx, which consent shall not be unreasonably withheld or delayed:
52
(i) amend or otherwise modify its Organizational Documents;
(ii) issue, sell, dispose of or Encumber or authorize the
issuance, sale, disposition or Encumbrance of, or grant or issue any option,
warrant or other right to acquire or make any agreement of the type referred to
in Section 4.3, with respect to, any shares of its capital stock or any other of
its securities or any security convertible or exercisable into or exchangeable
for any such shares or securities, or alter any term of any of its outstanding
securities or make any change in its outstanding shares of capital stock or its
capitalization, whether by reason of a reclassification, recapitalization, stock
split, combination, exchange or readjustment of shares, stock dividend or
otherwise;
(iii) Encumber any material assets or properties;
(iv) declare, set aside, make or pay any dividend or other
distribution to any shareholder with respect to its capital stock;
(v) redeem, purchase or otherwise acquire any of its capital
stock or other securities;
(vi) increase the compensation or other remuneration or benefits
payable or to become payable to any director or executive officer, or increase
the compensation or other remuneration or benefits payable or to become payable
to any of its other employees or agents, except, with respect to such other
employees or agents only, for increases in the ordinary course of business
consistent with past practice;
(vii) adopt or (except as otherwise required by law) amend or
make any unscheduled contribution to any employee benefit plan for or with
employees, or enter into any collective bargaining agreement;
(viii) terminate or modify a Contract requiring future payments
to or from such party, individually in excess of $50,000, or in the aggregate in
excess of $100,000, except for terminations of Contracts upon their expiration
during such period in accordance with their terms;
(ix) create, incur, assume or otherwise become liable for any
indebtedness in an aggregate amount in excess of $25,000, or accept, incur,
assume or otherwise become liable for any TEKES Loans, or guarantee or endorse
any obligation or the net worth of any Person, except for endorsements of
negotiable instruments for collection in the ordinary course of business;
(x) enter into any license or transfer agreement with respect to
any Hormos Intellectual Property, or enter into any license or transfer
agreement with respect to any intellectual property of third parties, other than
"off-the-shelf" license agreements;
53
(xi) sell, transfer, lease or otherwise dispose of any of its
assets or properties, except in the ordinary course of business consistent with
past practice and for a cash consideration equal to the fair value thereof at
the time of such sale, transfer, lease or other disposition;
(xii) cancel, compromise, release or waive any material debt,
claim or right;
(xiii) make any loan or advance to any Person other than travel
and other similar routine advances in the ordinary course of business consistent
with past practice, or acquire any capital stock or other securities or any
ownership interest in, or substantially all of the assets of, any other business
enterprise;
(xiv) make any material capital investment or expenditure or
capital improvement, addition or betterment, other than those specified in the
list of planned capital expenditures set forth on EXHIBIT 7.2(A)(XIV);
(xv) change its method of accounting or the accounting principles
or practices used in the preparation of the Hormos Financial Statements, other
than as required by GAAP;
(xvi) institute or settle any Proceeding before any Governmental
Authority relating to it or its assets or properties;
(xvii) adopt a plan of dissolution, liquidation or corporate
restructuring;
(xviii) enter into any Contract, except Contracts made in the
ordinary course of business consistent with past practice;
(xix) make any new election with respect to Taxes or any change
in current elections with respect to Taxes, or settle or compromise any federal,
state, local or foreign Tax liability or agree to an extension of a statute of
limitations;
(xx) commence any legal proceeding or settle any legal
proceeding; or
(xxi) enter into any commitment to do any of the foregoing, or
take any action that would make any of the representations or warranties of such
party contained in this Agreement untrue or incorrect in any material respect
(subject to the knowledge and materiality limitations set forth therein) or
cause any covenant, condition or agreement of such party in this Agreement not
to be complied with or satisfied in any material respect.
54
In addition, without the prior written consent of QuatRx, from the date
hereof until the Closing:
(xxii) none of the Sellers shall effect, permit or facilitate
Hormos to become a party to any Alternative Acquisition, recapitalization,
reclassification of shares, stock split, reverse stock split or similar
transaction; and
(xxiii) none of the Sellers shall permit or facilitate the taking
of any action prohibited in (i) to (xxi) above.
(b) QuatRx. Without limiting the provisions of Section 7.1, from the
date hereof until the Closing (or earlier if and when this Agreement is
terminated in accordance with Section 10), QuatRx shall not, except as
contemplated by this Agreement, directly or indirectly, do, or propose to do,
any of the following without the prior written consent of Hormos, which consent
shall not be unreasonably withheld or delayed:
(i) amend or otherwise modify its Organizational Documents;
(ii) declare, set aside, make or pay any dividend or other
distribution to any shareholder with respect to its capital stock;
(iii) redeem, purchase or otherwise acquire any of its capital
stock or other securities, except for redemptions or repurchase of securities
held by employees of QuatRx upon termination of their employment;
(iv) cancel, compromise, release or waive any material debt,
claim or right;
(v) adopt a plan of dissolution, liquidation or corporate
restructuring;
(vi) make any new election with respect to Taxes or any change in
current elections with respect to Taxes, or settle or compromise any federal,
state, local or foreign Tax liability or agree to an extension of a statute of
limitations;
(vii) enter into any commitment to do any of the foregoing, or
take any action that would make any of the representations or warranties of such
party contained in this Agreement untrue or incorrect in any material respect
(subject to the knowledge and materiality limitations set forth therein) or
cause any covenant, condition or agreement of such party in this Agreement not
to be complied with or satisfied in any material respect.
55
7.3 CERTAIN FILINGS
Hormos, Sellers and QuatRx shall cooperate with respect to all
filings, applications and notices with Governmental Authorities and other
Persons that are required to be made by Hormos, the Sellers or QuatRx, including
any filing with the Finnish Competition Authority, to carry out the transactions
contemplated by this Agreement or that may be necessary or useful to assure that
Hormos can conduct its business after the Closing as it conducted its business
before the Closing.
7.4 NOTIFICATION OF CERTAIN MATTERS
Each party shall promptly notify the others of (i) the occurrence or
non-occurrence of any fact or event of which such party has knowledge that would
be reasonably likely (A) to cause any representation or warranty of such party
contained in this Agreement to be untrue or incorrect in any material respect at
any time from the date hereof to the Closing or (B) to cause any covenant,
condition or agreement of such party in this Agreement not to be complied with
or satisfied in any material respect and (ii) any failure of such party to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder in any material respect; provided, however, that no
such notification shall affect any of the representations or warranties of such
party, or the right of the other party to rely thereon, or the conditions to the
obligations of the parties, or the remedies available hereunder, except as
provided in the last sentence of Section 10.6. The parties shall give prompt
notice to the other parties of any notice or other communication from any third
Person alleging that the consent of such third Person is or may be required in
connection with the transactions contemplated by this Agreement.
7.5 ACCESS TO INFORMATION; CONFIDENTIALITY
Upon reasonable written notice, Hormos and QuatRx each shall afford to
and shall cause their respective Representatives to afford, the Representatives
of the other reasonable access, during the period prior to the Closing, to all
its Facilities, properties, assets, books, Contracts and records and, during
such period, Hormos and QuatRx each shall furnish promptly to the other all
information concerning its business, Facilities, properties, assets and
personnel as such other party may reasonably request, and each shall make
available to the other and its Representatives the appropriate individuals
(including officers, employees, accountants, counsel and other professionals)
for discussion of the other's business, Facilities, properties, assets and
personnel as either QuatRx or Hormos may reasonably request. Each party shall
keep such information confidential in accordance with the terms of the
Confidentiality Agreement.
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7.6 NO SOLICITATION BY HORMOS
Hormos shall not, and shall not permit any, officer, director, Seller,
employee, investment banker or other agent or Representative of Hormos, to,
directly or indirectly, (i) solicit, engage in discussions or negotiate with any
Person (whether or not such discussions or negotiations are initiated by
Hormos), or take any other action intended or designed to facilitate the efforts
of any Person, other than QuatRx, relating to the possible acquisition of Hormos
(whether by way of merger, purchase of capital stock, purchase of assets or
otherwise) or any portion of its capital stock or assets (with any such efforts
by any such Person to make such an acquisition referred to as an "ALTERNATIVE
ACQUISITION"), (ii) provide information with respect to Hormos to any Person,
other than QuatRx and its Representatives, relating to a possible Alternative
Acquisition by any Person, other than QuatRx, (iii) enter into an agreement with
any Person, other than QuatRx, providing for a possible Alternative Acquisition
or (iv) make or authorize any statement, recommendation or solicitation in
support of any possible Alternative Acquisition by any Person, other than by
QuatRx. Hormos shall immediately notify QuatRx of any contact from any Person
regarding a possible Alternative Acquisition, including the name of such Person
and the content of any discussions or requests for information.
7.7 HORMOS OPTIONS
None of the Hormos Options are exercisable and all Hormos Options will
expire on June 30, 2005, except as set forth in Section 4.3 of the Hormos
Disclosure Schedule. Hormos shall not grant any further options or rights to
purchase Hormos Shares after the date hereof.
7.8 OLD SHAREHOLDER AGREEMENT
Hormos and Sellers shall use commercially reasonable efforts to cause
all holders of Hormos Shares parties to the Old Shareholder Agreement to
terminate such agreement effective upon the Closing of the Exchange.
7.9 HORMOS ARTICLES OF ASSOCIATION
Hormos shall amend its Articles of Association as set forth on EXHIBIT
7.9 hereto.
7.10 ACTIONS OF HORMOS SECURITYHOLDERS
Immediately after execution of this Agreement, Hormos and Sellers
shall take all reasonable action that is necessary or advisable to secure the
execution and delivery by each of the Hormos Securityholders of all approvals
and Transaction Documents necessary for Closing. From the date hereof until the
Closing, the Hormos
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Securityholders shall not sell, transfer, dispose of or Encumber any of their
Hormos Securities.
7.11 LOCK-UP
In connection with the initial public offering of QuatRx's securities
and upon request of the underwriters managing such offering of the Company's
securities, each Seller hereby agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any securities of
QuatRx (other than those included in the registration) without the prior written
consent of such underwriters for such period (not to exceed 180 days, but
subject to such extension(s) as may be required by the underwriters in order to
publish research reports while complying with Rule 2711 of the National
Association of Securities Dealers, Inc.) from the effective date of such
registration as may be requested by such managing underwriters and to execute an
agreement reflecting the foregoing as may be requested by the underwriters at
the time of QuatRx's initial public offering. In order to enforce the foregoing
covenant, QuatRx may impose stop-transfer instructions with respect to the
QuatRx securities until the end of such period.
7.12 SITRA LOANS
Hormos shall obtain written confirmation from Castren & Xxxxxxxx that
the Exchange will not affect capital loan 1391 from SITRA or require immediate
repayment of any amounts due or owing under such loan.
7.13 QUATRX BOARD OF DIRECTORS
QuatRx shall use its commercially reasonable efforts to cause the size
of the Board of Directors of QuatRx to be increased to nine (9) members so that
a designee of the Sellers can be elected to the Board of Directors of QuatRx at
such time as the Sellers designate such person.
7.14 QUATRX OPTIONS
QuatRx shall reserve for issuance under its stock option plan up to
900,000 options of which it is contemplated that (a) 450,000 options shall be
granted to continuing employees of Hormos as soon as practicable after the
Closing and (b) the remainder shall have been granted to continuing employees of
Hormos no later than the one year anniversary of the Closing Date (or otherwise
issued to Sellers as an equivalent number of shares of QuatRx Common Stock),
subject to the approval of the Board of Directors of QuatRx. The options granted
pursuant to this Section 7.14 shall have the terms described in the new stock
option plan of QuatRx to be delivered to Hormos promptly after it has been
approved by the board of directors and shareholders of QuatRx.
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7.15 INVESTMENT OPPORTUNITY
QuatRx shall use its commercially reasonable efforts to cause the
requisite holders of QuatRx Preferred Shares to agree to amend the financing
agreements with respect to the Series D Preferred Shares as set forth on EXHIBIT
7.15 hereto to permit certain Sellers (each of which commits to purchase at
least $250,000 of Series D Preferred Shares) to purchase up to $6 million Series
D Preferred Shares in the aggregate in three tranches as follows: $1.4 million
within two weeks after the Closing Date, $2.6 million upon the occurrence of the
Subsequent Closing, as defined in such financing agreements, and $2 million upon
the occurrence of the Additional Shares Closing, as defined in such financing
agreements.
7.16 EMPLOYEE MATTERS
Hormos shall use commercially reasonable efforts to cause each current
employee of Hormos to enter into an agreement regarding non-disclosure of Hormos
confidential information and the Hormos IP Regulations in the form set forth as
EXHIBIT 7.16 hereto.
7.17 SIGNATORY SHAREHOLDERS
Hormos and Sellers shall use commercially reasonable efforts to cause
all holders of Hormos Securities to sign this Agreement.
7.18 TRANSFER TAX
QuatRx shall pay the transfer tax payable upon the transfer of the
Hormos Securities contemplated hereunder within the time period required by
applicable law.
7.19 REASONABLE EFFORTS; FURTHER ACTION
(a) Upon the terms and subject to the conditions hereof, each of the
parties hereto shall use its reasonable efforts (exercised diligently and in
good faith) to take, or cause to be taken, all actions and to do, or cause to be
done, all other things reasonably necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions contemplated by
this Agreement, to obtain in a timely manner all necessary waivers, consents,
authorizations and approvals and to effect all necessary registrations and
filings, and otherwise to satisfy or cause to be satisfied all conditions
precedent to its obligations under this Agreement, and to effect the Closing by
May 15, 2005.
(b) If, at any time after the Closing, any such further action is
necessary or desirable to carry out the purposes of this Agreement, the officers
and directors of QuatRx and Hormos and/or the Sellers immediately prior to the
Closing are fully
59
authorized in the name of their respective corporations or otherwise to take,
and will take, all such lawful and necessary or desirable action.
8. CONDITIONS TO OBLIGATIONS OF QUATRX
The obligations of QuatRx under this Agreement to consummate the
Exchange and the other transactions contemplated hereby shall be subject to the
satisfaction, at or prior to the Closing, of each of the following conditions,
any one or more of which may be waived by QuatRx:
8.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of Hormos and the Sellers contained
in this Agreement and in the other Transaction Documents, the Hormos Disclosure
Schedule and each certificate delivered pursuant hereto shall be complete and
correct as of the date when made, shall be deemed repeated at and as of the
Closing as if made on the Closing and, without giving effect to any
qualification as to materiality (or any variation of such term) contained in any
representation or warranty, shall then be complete and correct in all material
respects.
8.2 PERFORMANCE OF COVENANTS
Hormos and the Sellers shall have taken all necessary corporate or
other actions to consummate the transactions contemplated hereby and shall have
performed and complied in all material respects with each covenant, agreement
and condition required by this Agreement to be performed or complied with by it
at or prior to the Closing, including those covenants set forth in Section
7.1-7.19 hereto.
8.3 LACK OF ADVERSE CHANGE
There shall not have occurred any incident or event which,
individually or in the aggregate, has had, or in the reasonable good faith
judgment of QuatRx is reasonably likely to result in, a Hormos Material Adverse
Effect.
8.4 OFFICER CERTIFICATE AND SECURITYHOLDER REPRESENTATIVE CERTIFICATE
QuatRx shall have received favorable certificates, dated the Closing,
signed by the Chief Executive Officer of Hormos as to the matters set forth in
Sections 8.1, 8.2 and 8.3.
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8.5 NO GOVERNMENTAL OR OTHER PROCEEDING; ILLEGALITY
No Order of any Governmental Authority shall be in effect that
restrains or prohibits any transaction contemplated hereby or that would limit
or affect QuatRx's ownership or operation of the business or assets of Hormos.
No Proceeding by any Governmental Authority shall be pending or threatened
against QuatRx or Hormos or any director or officer of any thereof or any Hormos
Securityholder, that challenges the validity or legality, or that restrains or
seeks to restrain the consummation, of the transactions contemplated hereby, or
that limits or otherwise affects or seeks to limit or otherwise affect QuatRx's
right to own or operate the business or assets of Hormos, or that compels or
seeks to compel QuatRx or any of its Subsidiaries to divest, abandon, license,
dispose of, hold separate or take similar action with respect to any portion of
the business, assets or properties (tangible or intangible) of QuatRx or any of
its Subsidiaries or Hormos. No Law or Order shall be enacted, entered, enforced
or deemed applicable to the Exchange or any of the other transactions
contemplated hereby which makes the consummation of the Exchange or any of the
other transactions contemplated hereby illegal.
8.6 APPROVALS AND CONSENTS
All material waivers, approvals, authorizations or Orders required to
be obtained, and all filings required to be made, by Hormos or the Sellers, for
the authorization, execution and delivery of this Agreement and the Transaction
Documents, the consummation by it of the transactions contemplated hereby and
thereby, and the continuation in full force and effect of any and all material
rights, documents, instruments and Contracts of Hormos, without restriction,
burden or payment obligation other than those that exist or would have existed
had the transactions covered by this Agreement and the Transaction Documents
never occurred, shall have been obtained and made, including all consents or
approvals of any Person that may be required under any lease for real property
to which Hormos is a party. In addition, all waiting periods applicable to the
consummation of the Exchange and the other transactions contemplated hereby
shall have expired or terminated.
8.7 OPINION OF COUNSEL
Hormos shall have delivered to QuatRx legal opinion of Roschier
Xxxxxxxx, dated the Closing Date and addressed to QuatRx, as to the matters set
forth on EXHIBIT 8.7 hereto.
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8.8 ESCROW AGREEMENT
There shall have been executed and delivered to QuatRx the Escrow
Agreement with such modifications thereto as may be agreed in accordance with
the amendment provisions set forth in the Escrow Agreement.
8.9 ARTICLES OF ASSOCIATION
The Articles of Association of Hormos shall have been amended as set
forth on EXHIBIT 7.9 hereto.
8.10 OTHER AGREEMENTS
Hormos and each of Hormos's officers, directors, securityholders and
employees, as applicable, shall have entered into the Transaction Documents to
which it is a party including those described in Section 7.8, 7.15 and 7.16.
8.11 RESIGNATION OF DIRECTORS
Each of the directors of Hormos, if any, whom QuatRx requests resign,
shall have submitted his written resignation as a director of Hormos effective
as of the Closing.
8.12 SHARE REGISTER
Hormos shall have complied with Section 2.4(a).
8.13 MERGER LEGISLATION
Finland shall not have enacted any legislation affecting the ability
of parties to merge or combine or requiring review of any proposed merger,
combination or share exchange by any Government Authority or, if enacted, the
necessary approvals have been obtained.
8.14 SHAREHOLDER SIGNATURES
Holders of at least 95% in interest of the Hormos Securities,
including all holders of Series B Shares and Hormos Notes, shall have executed
this Agreement.
8.15 HORMOS FINANCIAL STATEMENTS
The Hormos Financial Statements shall meet the requirements of
Regulation S-X under the Securities Act and the Securities Exchange Act of 1934,
as amended, and Hormos shall have delivered a customary management
representation letter
62
in connection therewith. In addition, Hormos shall have delivered the Hormos
Interim Financial Statements to QuatRx.
8.16 SITRA
QuatRx shall have received the written assurances from Castren &
Xxxxxxxx described in Section 7.12.
8.17 TEKES
QuatRx shall have received a written confirmation on TEKES letterhead
signed by an authorized representative of TEKES of the decisions taken by the
Board of Directors of TEKES on March 11, 2005 regarding the TEKES Loans, which
shall contain the same substance as the written confirmation delivered by TEKES
to Hormos on March 14, 2005.
8.18 HORMOS NOTES
The holders of the Hormos Notes shall have agreed to extend the
maturity date and conversion period of the Hormos Notes from March 15, 2005 to a
date no earlier than the Closing Date, and none of such holders shall have
converted their Hormos Notes into Hormos Series C Shares or demanded repayment
of their Hormos Notes.
9. CONDITIONS TO OBLIGATIONS OF HORMOS AND SELLERS
The obligations of Hormos and the Sellers under this Agreement to
consummate the Exchange and the other transactions contemplated hereby shall be
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, any one or more of which may be waived by Hormos.
9.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of QuatRx contained in this
Agreement, the QuatRx Disclosure Schedule and each certificate delivered
pursuant hereto shall be complete and correct as of the date when made, shall be
deemed repeated at and as of the Closing as if made on the Closing and, without
giving effect to any qualification as to materiality (or any variation of such
term) contained in any representation or warranty, shall then be complete and
correct in all material respects.
9.2 PERFORMANCE OF COVENANTS
QuatRx shall have taken all necessary corporate actions to consummate
the transactions contemplated hereby and shall have performed and complied in
all material
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respects with each covenant, agreement and condition required by this Agreement
to be performed or complied with by them at or prior to the Closing.
9.3 LACK OF ADVERSE CHANGE
There shall not have occurred any incident or event which,
individually or in the aggregate, has had a QuatRx Material Adverse Effect.
9.4 ELECTION OF DIRECTOR
[Intentionally omitted].
9.5 INVESTMENT OPPORTUNITY
The requisite shareholders of QuatRx and QuatRx shall have executed
the agreements referred to in Section 7.15 hereto.
9.6 OFFICER CERTIFICATES
Hormos shall have received favorable certificates, dated the Closing
Date, signed by the Chief Executive Officer, or the Chief Financial Officer of
QuatRx as to the matters set forth in Sections 9.1, 9.2 and 9.3.
9.7 NO GOVERNMENTAL OR OTHER PROCEEDING
No Order of any Governmental Authority shall be in effect that
restrains or prohibits any transaction contemplated hereby. No Law or Order
shall be enacted, entered, enforced or deemed applicable to the Exchange or the
other transactions contemplated hereby which makes the consummation of the
Exchange or the other transactions contemplated hereby illegal.
9.8 APPROVALS AND CONSENTS
All material waivers, approvals, authorizations or Orders required to
be obtained, and all filings required to be made, by QuatRx for the
authorization, execution and delivery of this Agreement and the Transaction
Documents, the consummation by it of the transactions contemplated hereby and
thereby, and the continuation in full force and effect of any and all material
rights, documents, instruments and Contracts of XxxxXx.
00
00. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing,
notwithstanding approval thereof by Hormos, the Sellers and QuatRx, in the
following circumstances:
10.1 MUTUAL CONSENT
By mutual written consent of QuatRx and Hormos.
10.2 TRANSACTION DATE
If the Closing shall not have occurred by June 30, 2005, then QuatRx
(on behalf of itself) or Hormos (on behalf of itself and the Sellers) may
terminate this Agreement, unless such failure shall be due to a material breach
of any representation or warranty, or the nonfulfillment in a material respect,
and failure to cure such nonfulfillment, of any covenant or agreement contained
herein on the part of the party seeking to terminate this Agreement or one or
more of the parties on whose behalf that party is acting.
10.3 FINAL ORDER OF GOVERNMENTAL AUTHORITY
By QuatRx or Hormos (on behalf of the Sellers) if a Governmental
Authority shall have issued a nonappealable final Order or taken any other
action having the effect of permanently restraining, enjoining or otherwise
prohibiting either of the Exchanges or any other transaction contemplated
hereby.
10.4 BREACH
By QuatRx if there has been a material misrepresentation by Hormos or
any of the Sellers, or a material breach on the part of Hormos or any of the
Sellers of any of their warranties, covenants or agreements set forth herein or
in any of the agreements delivered under Section 8.10, or a material failure on
the part of Hormos or any of the Sellers to comply with any of their other
obligations hereunder or in any such agreements, or if QuatRx reasonably
determines that the timely satisfaction of any condition set forth in Section 8
has become impossible (other than as a result of any failure on the part of
QuatRx to comply with or perform any covenant or obligation set forth in this
Agreement); or by Hormos (on behalf of itself and the Sellers) or by Accredited
Sellers holding a majority in interest of the Hormos Shares held by the
Accredited Sellers, if there has been a material misrepresentation by QuatRx, or
a material breach on the part of QuatRx of any of its warranties, covenants or
agreements set forth herein, or a material failure on the part of QuatRx to
comply with any of its other obligations hereunder or if Hormos reasonably
determines that the timely satisfaction of any condition set forth in Section 9
has become impossible (other than as a result of any failure on the part of
65
Hormos or any Sellers to comply with or perform any covenant or obligation set
forth in this Agreement or in any of the agreements delivered under Section
8.10); provided, however, that if such breach is curable by a party within 30
days, then for so long as such party continues to exercise its reasonable
efforts the other parties may not terminate this Agreement under this Section
10.4 unless such breach is not cured within 30 days (but no cure period shall be
required for a breach that by its nature cannot be cured).
10.5 TERMINATION PROCEDURES
If QuatRx wishes to terminate this Agreement pursuant to Section 10.2,
10.3 or Section 10.4, QuatRx shall deliver to Hormos, the Accredited Sellers and
the Securityholder Representatives a written notice stating that QuatRx is
terminating this Agreement and setting forth a brief description of the basis on
which QuatRx is terminating this Agreement. If Hormos wishes to terminate this
Agreement pursuant to Section 10.2, 10.3 or Section 10.4, Hormos shall deliver
to QuatRx a notice, in writing, stating that Hormos is terminating this
Agreement and setting forth a brief description of the basis on which it is
terminating this Agreement.
10.6 EFFECT OF TERMINATION
In the event of the termination of this Agreement pursuant to Section
10.1, 10.2, 10.3 or 10.4, this Agreement shall forthwith become void, except
that (i) the Confidentiality Agreement and Sections 11, 12.2, 12.4, 12.6, 12.7,
12.8, 12.9, 12.10, 12.11, 12.12, 12.13 and 12.14 of this Agreement shall survive
such termination, and (ii) nothing herein shall relieve any party from liability
for any misrepresentation, breach of or failure to comply with this Agreement.
11. INDEMNIFICATION
11.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
(a) Except as otherwise provided in this Section 11, the
representations, warranties, covenants and agreements of each party under this
Agreement and the agreements delivered under Section 8.10 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any other party hereto, any affiliate of such party or any of their
officers, directors or Representatives, whether prior to or after the execution
of this Agreement.
(b) The parties' representations and warranties in this Agreement and
in any document or instrument delivered pursuant to this Agreement shall survive
the Closing and continue until 5:00 p.m., New York time, on the date that is
twelve months after the Closing Date (the "EXPIRATION DATE"). Notwithstanding
the preceding sentence, (i) the
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Tax representations and warranties set forth at Section 4.8 and 6.8, the
ownership representations and warranties set forth at Section 5.2, and the
analogous ownership representations and warranties set forth in the agreements
delivered under Section 8.10 shall survive for the applicable statutes of
limitation; and (ii) any representation or warranty in respect of which
indemnity may be sought under Section 11.2 or 11.3 shall survive the time at
which it would otherwise terminate pursuant to the preceding sentence, if the
notice of the inaccuracy or breach thereof shall have been given to the party
against whom such indemnity may be sought prior to such time.
11.2 OBLIGATION OF HORMOS AND THE SELLERS
Subject to Sections 11.4 and 11.5 Hormos and each Seller (each such
Seller, an "INDEMNIFYING SELLER") shall indemnify, reimburse, defend and hold
harmless QuatRx and each of its successors and permitted assigns and each of its
respective directors, officers, employees, affiliates, Subsidiaries,
Representatives and their respective successors and permitted assigns (each a
"QUATRX INDEMNITEE") severally (i) from and against all Losses resulting from,
imposed upon, incurred or suffered by any of them, based upon, arising out of or
otherwise in respect of any inaccuracy in or any breach of any representation or
warranty in Section 5, covenant or agreement of Hormos or any Seller in this
Agreement or in any of the agreements delivered under Section 8.10, (ii) from
and against all Losses resulting from, imposed upon, incurred or suffered by any
of them, based upon, arising out of or otherwise in respect of any inaccuracy in
or any breach of any representation or warranty in Section 4, or any covenant or
agreement of Hormos, (iii) from and against all Environmental, Health, and
Safety Liabilities arising out of, or attributable or relating to, the
operations of Hormos prior to the Closing and the Facilities, (iv) from and
against all Losses arising out of third party claims relating to the research or
development of any compounds or products by Hormos or its licensees or
subcontractors prior to the Closing, and (v) from and against all Losses arising
out of any exercise by a holder of Hormos Shares of its redemption rights under
applicable Law or the Hormos Articles of Association. In addition, each
Accredited Seller shall indemnify, reimburse, defend and hold harmless the
QuatRx Indemnitees severally from and against any Losses resulting from, imposed
upon, incurred or suffered by any of them, based upon, arising out of or
otherwise in respect of the calculation of the allocation to the Hormos Sellers
of shares of QuatRx stock set forth in Exhibit 2.1. Notwithstanding the
foregoing, after the Closing takes place, Hormos shall have no indemnification
obligations to any QuatRx Indemnitee or any implied or other obligation to
indemnify or reimburse any Seller for or with respect to any amounts for which
any Seller indemnifies any QuatRx Indemnitee or relinquishes rights in the
Indemnity Shares. The Sellers severally agree that the Indemnity Shares shall be
available to the extent provided in this Section 11 and in the Escrow Agreement
to compensate the QuatRx Indemnitees for the forgoing Losses.
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11.3 OBLIGATION OF QUATRX
Subject to Sections 11.4 and 11.5, QuatRx shall indemnify, reimburse,
defend and hold harmless (i) Hormos (prior to Closing) and its directors,
officers, employees, affiliates, Representatives and their respective successors
and permitted assigns and (ii) Sellers and each of their successors and
permitted assigns and each of their respective directors, officers, employees,
affiliates, Subsidiaries, Representatives and their respective successors and
permitted assigns (each in sections (i) and (ii) referred to as a "HORMOS
INDEMNITEE") from and against Losses resulting from, imposed upon, incurred or
suffered by any of them, based upon, arising out of or otherwise in respect of
any inaccuracy in or any breach of any representation and warranty of QuatRx
under Section 6, or any breach of any covenant or agreement of QuatRx contained
in this Agreement.
11.4 LIMITS ON INDEMNIFICATION, REIMBURSEMENT, ETC.
(a) No QuatRx Indemnitee shall have any right to seek indemnification,
reimbursement or defense under this Agreement or the Escrow Agreement unless and
until the total amount of all Losses that would otherwise be indemnifiable
hereunder and have been incurred by the QuatRx Indemnitees as a group exceed
$150,000 (determined on the basis of the exchange rate or rates published in The
Wall Street Journal on the date or dates that is or are 15 days after QuatRx
gives the Accredited Sellers and the Securityholder Representatives written
notice of the claim with which the Losses and Environmental, Health, and Safety
Liabilities are associated, the "THRESHOLD AMOUNT"), in which case, subject to
Section 11.4(c), all Losses and Environmental, Health, and Safety Liabilities
(not just those in excess of the Threshold Amount) shall be fully indemnifiable.
Subject to Section 11.4(c), QuatRx acknowledges that the QuatRx Indemnitees'
sole right and remedy for indemnification pursuant to this Agreement after the
Closing shall be limited with respect to each Seller to the consideration
received by such Seller in connection with this transaction, provided, however,
that QuatRx shall recover first from the Indemnity Shares before seeking
recovery from the individual Sellers. For purposes of the foregoing, the number
of Indemnity Shares to be forfeited and returned to QuatRx shall be as set forth
in the Escrow Agreement.
(b) No Hormos Indemnitee shall have any right to seek indemnification,
reimbursement or defense under this Agreement unless and until the total amount
of all Losses that would otherwise be indemnifiable hereunder and have been
incurred by the Hormos Indemnitees as a group exceed the Threshold Amount, in
which case all Losses (not just those in excess of the Threshold Amount) shall
be fully indemnifiable. The Hormos Indemnitees acknowledges that the Hormos
Indemnitees' sole right and remedy for indemnification pursuant to this
Agreement after the Closing shall be limited to a dollar amount equal to the
consideration received by the Sellers in connection with this transaction at the
Closing.
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(c) Notwithstanding the foregoing, no aspect of Section 11.4(a) shall
apply to any Losses or Environmental, Health, and Safety Liabilities based upon,
arising out of or otherwise in respect of any fraudulent breach of any
representation or warranty of Hormos or any Hormos Securityholder set forth in
this Agreement or any of the agreements delivered under Section 8.10.
11.5 INDEMNIFICATION PROCEDURES
(a) Notice. Whenever any third Person claim shall arise for which
indemnification may be sought hereunder (a "CLAIM"), any Indemnitee wishing to
seek indemnification shall promptly give notice to the Indemnitor with respect
to the Claim, after the receipt by the Indemnitee of reliable information as to
the facts constituting the basis for the Claim; but the failure to timely give
such notice shall not relieve the Indemnitor from any obligation under this
Agreement, except to the extent, if any, that the Indemnitor is materially
prejudiced thereby.
(b) Defense. After delivery of notice from the Indemnitee of a Claim,
the Indemnitee may elect to assume the defense of the Claim. If the Indemnitee
notifies the Indemnitor that the Indemnitee is not assuming the defense of the
Claim, the Indemnitor shall defend the Claim. Irrespective of whether the
Indemnitee or the Indemnitor defends the Claim, in the case of a Claim against a
QuatRx Indemnitee the cost and the expense of that defense shall be paid from
the escrow fund established under the Escrow Agreement until that fund is
exhausted. If the Indemnitee elects to assume the defense of the Claim, the
Indemnitor shall cooperate in all reasonable respects, at the Indemnitor's sole
cost, risk and expense, with the Indemnitee and its counsel in the
investigation, trial, defense and any appeal arising from the matter from which
the Claim arose. If the Indemnitor defends the Claim, the Indemnitee shall
cooperate in all reasonable respects with the Indemnitor and its counsel in the
investigation, trial, defense and any appeal arising from the matter from which
the Claim arose and shall deliver to the Indemnitor or its counsel copies of all
pleadings and other information within the Indemnitee's knowledge or possession
reasonably requested by the Indemnitor or its counsel that are relevant to the
defense of the subject of any such Claim. If the Indemnitor defends the Claims,
the Indemnitor shall have the right to elect to settle any claim for monetary
damages without the Indemnitee's consent only if the settlement includes a
complete release of the Indemnitee. Any other settlement will be subject to the
consent of the Indemnitee. The Indemnitor may not admit any liability of the
Indemnitee or waive any of the Indemnitee's rights without the Indemnitee's
prior consent. The Indemnitor shall not be liable for any settlement effected
without its prior consent, such consent not to be unreasonably withheld. If any
Claim results in a judgment or settlement consistent with the terms of this
Section 11.5(b), then, subject to the rules set forth in this Section 11 that
could result in indemnification "beyond" the Indemnity Shares held in escrow
(see
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Sections 11.1(b) and 11.4(c)), such judgment or settlement shall be paid out of
any remaining Indemnity Shares.
12. GENERAL PROVISIONS
12.1 FURTHER ASSURANCES
Each party hereto shall execute and cause to be delivered to each
other party hereto such instruments and other documents, and shall take such
other actions, as such other party may reasonably request (prior to, at or after
the Closing) for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
12.2 CONFIDENTIALITY
The parties acknowledge that QuatRx and Hormos have entered into the
Confidentiality Agreement, and that such agreement will survive the termination
of this Agreement or the consummation of the Exchange. Without limiting the
generality of anything contained in Section 12.6 (Public Announcements), on and
at all times after the Closing Date, each Seller shall keep confidential, and
shall not use or disclose to any other Person, any non-public document or other
non-public information in such Seller's possession that relates to the business
of QuatRx or Hormos.
12.3 SEVERABILITY
In the event that any provision of this Agreement, or the application
of any such provision to any Person or set of circumstances, shall be determined
to be invalid, unlawful, void or unenforceable to any extent, the remainder of
this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
12.4 EXPENSES
QuatRx will bear its fees, costs and expenses incurred in connection
with the preparation, execution, delivery and performance of this Agreement,
including all fees, costs and expenses of its agents, representatives, counsel
and accountants. Hormos will bear its fees, costs and expenses incurred in
connection with the preparation, execution, and delivery of this Agreement,
including all fees, costs and expenses of its agents, representatives, counsel
and accountants ("HORMOS COSTS"), up to EUR 125,000. Sellers will bear any
Hormos Costs in excess of EUR 125,000. Notwithstanding the foregoing and in
addition to all other remedies available at law or equity, if the Agreement is
terminated pursuant to Section 10.2 or 10.4, then QuatRx (if QuatRx's
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breach gave rise to that termination) or Hormos and the Sellers (if Hormos's or
a Seller's breach gave rise to that termination) shall pay the other party or
parties by cashier's check or wire transfer within 10 Business Days after
submission of invoices in reasonable detail all of the non-breaching party's or
parties' out-of-pocket expenses incurred in connection with the transactions
contemplated by this Agreement.
12.5 CONVEYANCE DOCUMENTS AND TAXES
The parties shall cooperate in the preparation, execution and filing
of all returns, questionnaires, applications, or other documents regarding any
real or personal property transfer or any gains, sales, use, transfer, value
added, stock transfer and stamp Taxes, any transfer, recording, registration and
other fees, and any similar Taxes which become payable in connection with the
transactions contemplated hereby that are required or permitted to be filed,
whether before, on or after the Closing, and QuatRx shall be responsible for the
payment of all such Taxes and fees.
12.6 PUBLIC ANNOUNCEMENTS
Unless required by Law, any public announcement or similar publicity
with respect to this Agreement, the Closing, the Exchange or the other
transactions contemplated hereby will be issued, if at all, at such time and in
such manner as QuatRx determines with the concurrence of Hormos, which
concurrence shall not be unreasonably withheld or delayed by Hormos. Unless
disclosure is consented to by QuatRx in advance or required by Law or disclosure
has otherwise already been made, Hormos shall keep this Agreement and the
transactions contemplated hereby strictly confidential and may not make any
disclosure of this Agreement or such transactions to any Person other than its
Representatives or employees who need to know such information to enable Hormos
and the Sellers to comply with this Agreement, provided that each such
Representative or employee shall agree, for the benefit of QuatRx, to maintain
the confidentiality of such information as provided in this Section 12.6. Hormos
and QuatRx will consult with each other concerning the means by which Hormos's
employees, customers and suppliers and other Persons having dealings with Hormos
will be informed of this Agreement, the Closing, the Exchange and the other
transactions contemplated hereby, and representatives of QuatRx may at its
option be present for any such communication.
12.7 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by fax (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when delivered to the address, if sent by
an internationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses or
71
fax numbers set forth below (or to such other address, Person's attention or fax
number as a party may designate by notice to the other parties given in
accordance with this Section 12.7):
(a) If to QuatRx:
QuatRx Pharmaceuticals Company
000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
Attention: Chief Executive Officer
With a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) If to any Accredited Seller:
BI Biomedical Venture III Ltd.(P/S)
XX Xxx 0000
XX-0000 Xxxxxxxxxx, Xxxxxxx
Telephone No.: 00 0000 0000
Telecopier No.: 45 3348 9188
H & B Capital LP
Kleinwort Xxxxxx House, PO Box 76
Wests Centre, St Helier, Jersey
JE4 8PQ, Channel Islands
Telephone No.: 00.0.000.000.00
Telecopier No.: 46.8.545.680.70
Finnish National Fund for Research and Development (Sitra)
XX Xxx 000
XXX-00000 Xxxxxxxx, Xxxxxxx
72
Telephone No.: x000 0 000 000
Telecopier No.: x000 0 000 000
Bio Fund Ventures I LP and Bio Fund Ventures II LP
x/x Xxx Xxxx Xxxxxxxxxx Xx
XX Xxx 000
XXX-00000 Xxxxxxxx, Xxxxxxx
Telephone No.: x000 0 0000 000
Telecopier No.: x000 0 0000 0000
Bio Fund Ventures II Follow-on Fund LP
x/x Xxx Xxxx Xxxxxxxxxx Xx
XX Xxx 000
XXX-00000 Xxxxxxxx, Xxxxxxx
Telephone No.: x000 0 0000 000
Telecopier No.: x000 0 0000 0000
If to any Seller other than the Accredited Sellers:
Xx. Xxx Xxxxx
Xxxxxxxxxxxxxx 00-00 X 00
XX-00000 Xxxxxxxx, Xxxxxxx
Telephone No.: x000 0 0000 0000
Telecopier No.: x000 0 0000 0000
Xx. Xxxxx Xxxxxxx
Xxxxxxxx 00 X 0
XX-00000 Xxxxx, Xxxxxxx
Telephone No.: x000 0 000 0000
Telecopier No.: x000 0 000 0000
With a copy to:
Roschier Xxxxxxxx Attorneys Ltd
Xxxxxxxxxx 0X
XXX-00000 Xxxxxxxx
Xxxxxxx
Telephone No.: x000-00-000-0000
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Telecopier No.: x000 00-000-0000
Attention: Petri Myllyneva
12.8 ARBITRATION
(a) Any dispute, controversy or claim arising out of this Agreement,
the Escrow Agreement or any other Transaction Document, including the
termination of any of those agreements or any alleged breach of any of those
agreements, shall be finally settled by binding arbitration as set forth in this
Section 12.8. Arbitration of any dispute, controversy or claim shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association by three independent, neutral arbitrators appointed in
accordance with those rules. The arbitration shall be held in New York, New
York, U.S.A. The arbitrators shall determine what discovery shall be permitted
by QuatRx, the Accredited Sellers and the Securityholder Representatives,
consistent with the goal of limiting the cost and time which the parties must
expend for discovery, provided that the arbitrators shall permit such discovery
as they deem necessary or useful to permit an equitable and informed resolution
of the dispute. Any written evidence originally in a language other than English
shall be submitted in English translation accompanied by the original or a true
copy thereof.
(b) The decision or award rendered by the arbitrator shall be written
(specifically stating the arbitrator's findings of facts, as well as the reasons
upon which the arbitrator's decision is based), final and nonappealable (except
for an alleged act of corruption or fraud on the part of the arbitrator) and may
be entered in any court of competent jurisdiction for a judicial recognition of
the decision and an order of enforcement. The parties agree that, any provision
of applicable law notwithstanding, they will not request, and the arbitrator
shall have no authority to award, punitive or exemplary damages against any
party. Except as otherwise expressly provided in this Agreement, the costs of
the arbitration, including administrative and arbitrator's fees, shall be borne
50 percent by QuatRx and: (i) if this Agreement is terminated, 50 percent by
Hormos and the Sellers (jointly and severally) and (ii) if the Closing occurs,
50 percent by the Sellers (jointly and severally). Each party shall bear its own
costs and attorneys' and witness' fees incurred in connection with the
arbitration.
(c) A disputed performance or suspended performance pending the
resolution of the arbitration must be completed within a reasonable time
following the final decision of the arbitrators. The arbitrators shall be
directed that any arbitration subject to this Section 12.8 shall be completed
within one year from the filing of notice of a request for such arbitration. The
arbitration proceedings and the decision shall not be made public without the
joint consent of the parties. Each party shall maintain the confidentiality of
such proceedings and decision, unless otherwise permitted by QuatRx and the
Securityholder Representatives. However, if advised by counsel that disclosure
is necessary or appropriate under applicable law, QuatRx shall be entitled to
disclose the
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proceedings and decision without the consent of any other party after giving
notice to the Accredited Sellers and Securityholder Representatives. Likewise,
if advised by counsel that disclosure is necessary or appropriate under
applicable law, the Accredited Sellers or Securityholder Representatives shall
be entitled to disclose the proceedings and decision without the consent of any
other party after giving notice to QuatRx.
(d) Except as provided in the Escrow Agreement, any decision that
requires a monetary payment shall require such payment to be made in United
States dollars, free of any Tax or other deduction. The parties agree that the
decision shall be the sole, exclusive and binding remedy between and among them
regarding any and all disputes, controversies, claims and counterclaims
presented to the arbitrators. The interpretation and enforcement of this Section
12.8 shall be governed by the U.S. Federal Arbitration Act. Pending the
establishment of the arbitral tribunal or pending the arbitral tribunal's
determination of the merits of the controversy, either party may seek from a
court of competent jurisdiction any interim or provisional relief that may be
necessary to protect the rights or property of that party.
12.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE; SPECIFIC
PERFORMANCE
No failure or delay on the part of any party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a waiver of,
or acquiescence in, any breach of any representation, warranty, covenant or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available. The parties to this Agreement agree
that, in the event of any breach or threatened breach by any party to this
Agreement of any covenant, obligation or other provision set forth in this
Agreement for the benefit of any other party to this Agreement, subject to
Section 12.8, such other party shall be entitled (in addition to any other
remedy that may be available to it) to (a) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant, obligation or other provision, and (b) an injunction restraining such
breach or threatened breach.
12.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
No party may assign any of its rights under this Agreement without the
prior written consent of the other parties except (i) that QuatRx may assign any
of its rights, but not its obligations, under this Agreement to any direct
wholly-owned Subsidiary of QuatRx and (ii) Accredited Sellers and any other
Seller, which is a institutional investor, may assign its rights under this
Agreement to a investment fund which is under common control with such Seller or
in which Seller has significant ownership. Subject to the
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preceding sentence, this Agreement will apply to, be binding in all respects
upon, and inure to the benefit of the successors and permitted assigns of the
parties and their respective heirs and personal representatives. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement and the QuatRx Indemnities any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement.
12.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. In this
Agreement (i) words denoting the singular include the plural and vice versa,
(ii) "IT" or "ITS" or words denoting any gender include all genders, (iii) the
word "INCLUDING" shall mean "INCLUDING WITHOUT LIMITATION," whether or not
expressed, (iv) any reference to a statute shall mean the statute and any
regulations thereunder in force as of the date of this Agreement or the Closing,
as applicable, unless otherwise expressly provided, (v) any reference herein to
a Section, Schedule or Exhibit refers to a Section of or a Schedule or Exhibit
to this Agreement, unless otherwise stated, (vi) any reference to "$"or
"DOLLARS" shall mean U.S. dollars and (vii) when calculating the period of time
within or following which any act is to be done or steps taken, the date which
is the reference day in calculating such period shall be excluded and if the
last day of such period is not a Business Day, then the period shall end on the
next day that is a Business Day. Each party acknowledges that he, she or it has
been advised and represented by counsel in the negotiation, execution and
delivery of this Agreement and accordingly agrees that if an ambiguity exists
with respect to any provision of this Agreement, such provision shall not be
construed against any party because such party or its representatives drafted
such provision. The English language version of this Agreement shall control
interpretation of this Agreement.
12.12 GOVERNING LAW
Except as provided in Section 12.8, this Agreement will be governed by
the internal laws of the State of New York and without regard to principles of
conflict of laws.
12.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
76
12.14 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements (other than the
Confidentiality Agreement), whether written or oral, between or among the
parties with respect to its subject matter and constitutes (along with the
documents referred to in this Agreement) the entire agreement among the parties
with respect to its subject matter. This Agreement may not be amended except by
a written agreement executed by QuatRx, Hormos and either (i) Hormos
Securityholders holding a majority of the voting Hormos Shares just before the
Closing or (ii) the Accredited Sellers and the Securityholder Representatives.
77
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
QUATRX PHARMACEUTICALS COMPANY.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: CEO
HORMOS MEDICAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: CEO
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
INDIVIDUAL SECURITYHOLDER
REPRESENTATIVE
Name: Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Finnish National Fund for Research
and Development, Sitra
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director of Finance and Corp.
Fin.
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: P/S BI Biomedical Venture III
By: /s/ Xxxxxx Xxxxxxx /s/ Boarne Xxxxxx
-------------------- ------------------
Name: Xxxxxx Xxxxxxx Boarne Xxxxxx
Title: Managing Director Group CIO
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Bio Fund Ventures II
Jatkoslioitusrahasto Ky
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: General Partner, Chairman & CEO
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Bio Fund Ventures II Ky
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: General Partner, Chairman & CEO
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Bio Fund Ventures I Ky
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: General Partner, Chairman & CEO
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Aboa Venture II
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Designated Securityholder
Representative:
Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: H&B Capital LP
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: General Partner
Designated Securityholder
Representative:
----------------------------------------
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Pharmavir Oy
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: CEO and President
Designated Securityholder
Representative:
Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Apteekkien Elakekassa
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Besodos Oy
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Elakevakuutusyhtio Veritas
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Henkivakuutusosakeyhtio Veritas
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Innoventure Oy
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Keskinainen Elakevaktuutusyhtio
Ilmarinen
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Keskinainen Elakevaktuutusyhtio
Tapiola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Keskinainen Henkivaktuutusyhtio
Suomi
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Keskinainen Henkivaktuutusyhtio
Tapiola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Keskinainen Vakuutusyhtio Tapiola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Oy Fausto Ab
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Kustaa Poutiainen
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Sampo Oyj
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Santasalo Securities Oy
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Terila Oy
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxxx-Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Vahinkovakuutusosakeyhtio Pohjola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Vakuutusosakeyhtio Henki-Sampo
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Yritysten Henkivaktuutus Oy
Tapiola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxx Xxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Annukka Aaltonen
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxx-Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx-Xxxxx Haapaniemi
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Minttu Halonen
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Kaisa Huhtinen
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx-Xxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Arja Kalapudas
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxyS
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Janne Komi
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxx-Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Riikka Kytomaa
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx-Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Veli-Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Leena Mertsola
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx-Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Anssi Poussu
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Eila Rautakoski
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Hannele Tunnela
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Susanna Toumaala
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Mikko Tatila
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Mikko Unkila
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxx Xxxxxxxxx-Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxx-Xxxxx Vesa
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Mervi Ylamaki
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
COUNTERPART SIGNATURE PAGE TO
EXCHANGE AGREEMENT
In accordance with Section 12.13 of that certain Exchange Agreement, dated
as of May 20, 2005 (the "AGREEMENT"), by and among QuatRx Pharmaceuticals
Company, a Delaware corporation, Hormos Medical Corporation, a Finnish
corporation, and the persons and entities listed on the counterpart signature
pages thereto, the undersigned hereby executes and delivers this counterpart
signature page to the Agreement, and in connection therewith, hereby agrees to
be bound by all of the terms and conditions set forth in the Agreement,
effective as of the date of the Agreement.
SELLER:
Name: Xxx-Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx by proxy
Designated Securityholder
Representative:
Xx. Xxxxx Xxxxxxx
[counterpart signature page to Exchange Agreement]
EXHIBIT 1
SUMMARY OF TERMS
QUATRX PHARMACEUTICALS COMPANY
SERIES D CONVERTIBLE PREFERRED STOCK
AND SERIES D-1 CONVERTIBLE PREFERRED STOCK
Set forth below is a summary of certain material terms of the Series D
Convertible Preferred Stock ("Series D Preferred") and the proposed Series D-1
Convertible Preferred Stock ("Series D-1 Preferred"). The summary is not a
complete description of all of the terms of either series of preferred stock.
The Certificate of Incorporation of QuatRx will be amended to increase the
authorized shares of Series D Preferred and add the Series D-1 Preferred with
the general terms described below. The complete amended Certificate of
Incorporation should be reviewed carefully by all potential recipients of Series
D Preferred and Series D-1 Preferred.
SERIES D PREFERRED SERIES D-1 PREFERRED
------------------ --------------------
12.15 SECURITIES The Series D Preferred The Series D-1 Preferred
has rights equal to all has rights equal to all
other preferred equity other Pari Pasu Preferred
securities (the "Pari of the Company, except as
Passu Preferred") of described below.
QuatRx Pharmaceuticals
Company (the "Company")
except as described
below.
12.16 DIVIDENDS The Series D Preferred is The Series D-1 Preferred
entitled to a is entitled to a
preferential dividend, preferential dividend,
pro rata with the Series pro rata with the Series
D-1 Preferred and in D Preferred and in
preference to the other preference to the other
series of Pari Passu series of Pari Passu
Preferred, of the greater Preferred, of the greater
of 8% per annum on the of 8% per annum on the
original purchase price original issue price of
of $1.40 per share (the $1.40 per share (the
"Series D Original "Series D-1 Original
Purchase Price") and any
dividend paid on the Purchase Price") and any
Common Stock. The Board dividend paid on the
has the option not to pay Common Stock. The Board
the dividend, in which has the option not to
case it is paid upon any pay the dividend, in
actual or deemed which case it is paid
liquidation. upon any actual or
deemed liquidation.
12.17 LIQUIDATION The Series D Preferred is The Series D-1 Preferred
PREFERENCE entitled to a is entitled to a
preferential distribution preferential distribution
upon liquidation, pari upon liquidation, pari
passu with all other passu with all other
series of Pari Passu series of Pari Passu
Preferred, equal to the Preferred, equal to the
Series D Original Series D-1 Original
Purchase Price plus Purchase Price plus
dividends at the rate of dividends at the rate of
8% per annum from the 8% per annum from the
date of issuance to the date of issuance to the
date of payment. After date of payment. After
the Series D Preferred the Series D-1 Preferred
and the Pari Passu and the Pari Passu
Preferred have been paid Preferred have been paid
their respective their respective
liquidation preferences liquidation preferences
in full, any additional in full, any additional
amounts will be amounts will be
distributed ratably to distributed ratably to
the holders of the Series the holders of the Series
D Preferred, the Pari D-1 Preferred, the Pari
Passu Preferred and the Passu Preferred and the
Common Stock until the Common Stock until the
Series D Preferred and Series D-1 Preferred and
the Pari Passu Preferred the Pari Passu Preferred
have received an amount have received an amount
per share equal to three per share equal to three
times their respective times their respective
Original Purchase Prices. Original Purchase Prices.
Thereafter the remaining Thereafter the remaining
assets of the Company assets of the Company
will be distributed
ratably to the holders of will be distributed
Common Stock. ratably to the holders
of Common Stock.
At the election of the
holders of (i) 65% of At the election of the
the Series D Preferred holders of (i) 65% of
shares and (ii) a the Series D Preferred
majority of the Series C shares and (ii) a
Preferred shares, majority of the Series C
certain change of Preferred shares,
control transactions, certain change of
and a sale of all or control transactions,
substantially all of the and a sale of all or
assets of the Company, substantially all of the
can be treated as a assets of the Company,
liquidation event. can be treated as a
liquidation event.
Upon an initial public
offering of the Company Upon a Qualified Public
that results in net Offering of the Company,
proceeds to the Company the Series D-1 Preferred
of at least $50 million and the Pari Passu
at a public offering Preferred are required
price of not less than to convert to Common
$4 per share as a result Stock and the
of which the Common liquidation preferences
Stock is listed for described above do not
trading on either the apply.
New York Stock Exchange
or the Nasdaq National
Market (a "Qualified
Public Offering"), the
Series D Preferred and
the Pari Passu Preferred
are required to convert
to Common Stock and the
liquidation preferences
described above do not
apply.
12.18 GENERAL VOTING RIGHTS The Series D Preferred The Series D-1 Preferred
has one vote for each has one vote for each
share of Common Stock share of Common Stock
into which it is into which it is
convertible and votes convertible and votes
together as a class with together as a class with
all other Pari Passu all other Pari Passu
Preferred and Common Preferred and Common
Stock. Stock.
12.19 BOARD OF DIRECTORS The former shareholders The former shareholders
of Hormos will have the of Hormos will have the
right to designate one right to designate one
member of the Board of member of the Board of
Directors of the Directors of the
Company. Company.
12.20 CONVERSION Holders of the Series D Holders of the Series
Preferred have the right D-1 Preferred have the
to convert the shares of right to convert the
Series D Preferred at shares of Series D-1
any time into shares of Preferred at any time
Common Stock. The into shares of Common
initial conversion rate Stock. The initial
will be one-to-one conversion rate will be
(1:1), will be adjusted one-to-one (1:1), will
for stock splits, stock be adjusted for stock
dividends, splits, stock dividends,
recapitalizations and recapitalizations and
similar corporate similar corporate
transactions and will be transactions and will be
entitled to weighted entitled to weighted
average anti-dilution average anti-dilution
protection in the case protection in the case
of issuances of equity of issuances of equity
securities at a price securities at a price
below the Series D below the Series D-1
Original Issue Price, Original Issue Price,
subject to customary subject to customary
exceptions. exceptions
12.21 AUTOMATIC CONVERSION All shares of Series D All shares of Series D-1
Preferred will Preferred will
automatically convert automatically convert
into shares of Common into shares of Common
Stock at the then- Stock at the then-
applicable conversion applicable conversion
rate (a) at the election rate (a) at the election
of the holders of 65% of of the holders of a
the Series D Preferred, majority of the Series
or (b) upon a Qualified D-1 Preferred, or (b)
Public Offering. upon a Qualified Public
Offering
12.22 PROTECTIVE PROVISIONS (CLASS Without the consent of Without the consent of the
VOTING RIGHTS) the holders of 65% of the holders of a majority of
Series D Preferred, the Series D-1 Preferred,
voting as a separate voting as a separate
class, the Company will class, the Company will
not: (i) make any not amend the Certificate
changes to the rights, of Incorporation of the
preferences or privileges Company to alter or change
of the Series D the powers, preferences or
Preferred, (ii) create special rights of the
any new class of shares Series D-1 Preferred so as
having preference over or to affect the Series D-1
on parity with the Series Preferred adversely but
D Preferred, or (iii) not so affect the entire
amend the Certificate of class of Preferred Stock.
Incorporation or take
other actions materially
affecting the rights of
the Series D Preferred.
Without the consent of
the holders of (a) 65% of
the Series D Preferred
and (b) 75% of the Series
C Preferred, voting as a
separate class, the
Company will not take
certain actions
enumerated in Section IV
D. 5(d) of the
Certificate of
Incorporation.
12.23 REDEMPTION Upon a written Upon a written
redemption demand made redemption demand made
by the holders of (a) by the holders of (a)
65% of the Series D 65% if the Series D
Preferred and (b) 75% of Preferred and (b) 75% of
the Series C Preferred, the Series C Preferred,
voting as a separate voting as a separate
class at any time after class at any time after
December 31, 2008, the December 31, 2008, the
Company will redeem all Company will redeem all
shares of the Series D shares of the Series D-1
Preferred and the Pari Preferred and the Pari
Passu Preferred for an Passu Preferred for an
amount equal to their amount equal to their
respective liquidation respective liquidation
preferences. preferences.
12.24 OTHER RIGHTS The Series D Preferred The Series D-1 Preferred
has substantially the has substantially the
same registration same registration
rights, information rights, information
rights, rights on rights, rights on
transfers of securities transfers of securities
etc. as the other series etc. as the other series
of Pari Passu Preferred. of Pari Passu Preferred.
***
EXHIBIT 2.1
TABLE A
SERIES HORMOS SECURITIES CONVERTIBLE QUATRX STOCK SERIES
NAME OF HORMOS SHAREHOLDER A SHARES SERIES B SHARES NOTES* COMMON STOCK SERIES D PREF D1 PREF
-------------------------------------- --------- ----------------- ----------- ------------ ------------- ---------
Aboa Venture II 16,393 5,875 302,693 31,517 125,314
Aaltonen Annukka 50 487 51 201
Ali-Xxxxxxx Xxxx 1,000 10,374 1,081 4,294
Xxxxxxx Xxxxxx 100 973 101 403
Apteekkien Elakekassa 5,500 653 69,622 7,250 28,823
Besodos Oy 3,000 36,051 3,754 14,925
Bio Fund Ventures I Ky 198,158 565,273 58,857 234,021
Bio Fund Ventures II
Jatkosijoitusrahasto Ky 61,179 249,611 25,994 103,338
Bio Fund Ventures II Ky 29,921 550,382 57,307 227,856
Biomedical Venture III Ltd. (P/S) 146,872 2,744,038 285,718 1,136,024
Xxxx Xxxx 50 551 57 228
Xxxxxxxx Xxxx 50 551 57 228
Xxxxxxxx Xxxxx 160 1,686 176 698
Elakevakuutusosakeyhtio Veritas 5,511 1,453 784 96,601 10,058 39,992
Xxxxxxxx Xxxxx 50 551 57 228
H&B Capital LP 86,395 1,614,134 168,069 668,247
Xxxxxxxxxx Xxxxx-Xxxxx 100 1,038 108 429
Xxxxxxx Xxxxx 10,100 60,866 93 373
Xxxxxxx Xxxxxxxx 280 3,365 350 1,393
Halonen Minttu 100 973 101 403
Xxxxxxx Xxxxx 400 3,893 405 1,611
Xxxxxxxx Xxxxxx 50 551 57 228
Hellevuo Tia 50 551 57 228
Henkivakuutusosakeyhtio Veritas 2,755 726 392 48,286 5,028 19,990
Xxxxxxx Xxxxx 50 551 57 228
Huhtinen Kaisa 500 4,866 507 2,014
Xxxxxxxx Xxxxxx 28,000 167,514 132 527
Innoventure Oy 27,323 328,339 34,187 135,931
Xxxxxxxxx Xxxx 50 551 57 228
Xxxxxx Xxxxxx 50 487 51 201
Xxxxxxxxx Xxxx-Xxxxx 100 973 101 000
Xxxxxxxxx Xxxx 150 1,524 158 631
Xxxxxx Xxxxx 78,500 471,901 607 2,414
Xxxxxxxxxx Xxxxx 50 487 51 201
Xxxxxxxx Xxxxx 83 914 95 379
Xxxxxxxxxx Xxxxxx 500 5,508 574 2,280
Keskinainen Elakevakuutusyhtio
Ilmarinen 11,000 3,400 193,356 20,132 80,049
Keskinainen Elakevakuutusyhtio Tapiola 16,534 2,906 2,096 262,292 27,311 108,588
Keskinainen Henkivakuutusyhtio Suomi 22,000 4,000 336,338 35,020 139,244
Keskinainen Henkivakuutusyhtio Tapiola 8,267 1,743 1,079 134,589 14,014 55,719
Keskinainen Vakuutusyhtio Tapiola 11,023 2,906 1,502 190,575 19,843 78,897
Xxxxxxxxx Xxxxx 50 551 57 228
Xxxxxxxx Xxxx 500 4,866 507 2,014
Komi Janne 500 5,508 574 2,280
Kouki-Xxxxxxx Xxxxx 150 1,460 152 604
Xxxxxxx Xxxxx 10,000 59785 43 171
Kytomaa Riikka 84 925 96 383
Xxxxxx Xxxx 400 3,893 405 1,611
Xxxxxxxx Xxx 000 00 3,945 410 1,633
Xxxxxxxx Xxxxx-Xxxxx 50 487 51 201
Xxxxxxxxxxxx Xxxxx 78,500 471,901 607 2,414
Xxxxxxx Xxxx-Xxxxx 100 973 101 403
Xxxxx Xxxx 550 5,545 577 2,295
Xxxxxxxxx Xxxxx 450 4,893 510 2,025
Mertsola Leena 500 4,866 507 2,014
Xxxxxx Xxxx 250 2,497 260 1,034
Xxxxx Xxxxx 50 487 51 201
Xxxxx Xxxx 000 4,957 516 2,052
Oy Fausto Ab 1,640 19,708 2,052 8,159
Xxxxxx Xxxx 1,000 11,016 1,147 4,561
Xxxxxxxx Xxxxx-Xxxxx 50 487 51 201
Xxxxxx Xxxxx 110 1,135 118 470
Pharmavir Oy 1,078 5823 606 2411
Poussu Anssi 83 914 95 379
Poutiainen Kustaa 1,400 346 23,049 2,400 9,542
Rautakoski Eila 50 551 57 228
Xxxxxxx Xxxxx 50 487 51 201
Sampo Oyj 27,558 331,163 34,481 137,100
Santasalo Securities Oy 3,000 700 48,645 5,065 20,139
Xxxxxx Xxxxx 28,000 167,514 132 527
Suomen Itsenaisyyden Juhlarahasto 202,958 30,080 61,179 1,405,413 146,337 581,836
Sodervall Marja 10,100 60,866 93 373
Terila Oy 1,400 16,824 1,752 6,965
Xxxxxxxx Xxxxxx 50 551 57 228
Xxxxxxxx Xxxxx 2,750 33,047 3,441 13,681
Toivanen-Xxxxxxxx Xxxxxx 2,750 33,047 3,441 13,681
Tunnela Hannele 50 487 51 201
Xxxxxxxx Xxxxxxx 175 1,928 201 798
Tatila Mikko 500 5,122 533 2,121
Unkila Mikko 150 1,524 158 631
Xxxxxxxx Xxxxx 250 2,754 287 1,140
Vahinkovakuutusosakeyhtio Pohjola 5,500 1,000 84,084 8,755 34,810
Xxxxxxxxx-Xxxxxxxxx Kira 100 1,038 108 429
Vakuutusosakeyhtio Henki-Sampo 27,558 331,163 34,481 137,100
Vesa Xxxxx-Xxxxx 100 1,038 108 429
Xxxxxxx Xxx 100 973 101 403
Vaananen Kalervo 28,000 167,514 132 527
Ylamaki Mervi 50 551 57 228
Yritysten Henkivakuutus Oy Tapiola 5,511 1,162 719 95,242 9,917 39,430
Xxxxx Xxx-Xxxxx 500 5,122 533 2,121
------- ------- ------- ---------- --------- ---------
TOTALS 892,464 319,485 130,713 11,900,185 1,071,422 4,260,022
======= ======= ======= ========== ========= =========
* Represents number of Series C Shares into which Notes are convertible
EXHIBIT 2.1
TABLE B
[INTENTIONALLY LEFT BLANK]
EXECUTION COPY
EXHIBIT 2.2
CLOSING MEMORANDUM
CLOSING MEMORANDUM
23-25 MAY 2005
RELATING TO THE EXCHANGE OF SHARES BETWEEN
QUATRX PHARMACEUTICALS COMPANY AND THE SHAREHOLDERS OF HORMOS
OF THE SHARES IN
QUATRX PHARMACEUTICALS COMPANY
AND
HORMOS MEDICAL CORPORATION
This Memorandum sets forth the actions taken in connection with the Exchange
Closing ("Closing") held on the date hereof between Quatrx Pharmaceuticals
Company and the Shareholders of Hormos signatories to the Exchange Agreement
("Sellers") pursuant to the Exchange Agreement by and between Quatrx
Pharmaceuticals Company, Hormos Medical Corporation and the Sellers, dated 20
May 2005 (the "Agreement").
All capitalized terms used and not defined herein have the meanings given to
them in the Agreement, as applicable.
The Closing was held at the offices of Castren & Xxxxxxxx Attorneys Ltd. X.X.
Xxx 000 (Xxxxxxxxxxxxx 0 X), XX-00000 Xxxxxxxx, Xxxxxxx.
I. ACTIONS TAKEN AND DOCUMENTS PRESENTED PRIOR TO THE CLOSING
A. CORPORATE DECISIONS AND AUTHORIZATIONS
1. QUATRX
- Power of Attorney approving and authorising the exchange of the Shares
and other actions according to the Agreement.
2. HORMOS
- Extract of the minutes of the Board Meeting approving and authorizing
the exchange of the Shares and other actions according to the
Agreement.
B. AGREEMENTS EXECUTED
- Hormos and each Hormos' officers, directors, securityholders and
employees, as applicable, shall have entered into the Transaction
Documents to which it is a party;
- Parties to the Old Shareholders Agreement shall have terminated
such agreement effective upon the Closing of the Exchange.
- The requisite holders of QuatRx Preferred Shares shall have
agreed to amend the financing agreements with respect to the
Series D Preferred Shares as set forth in Exhibit 7.15 to the
Agreement to permit certain Sellers to purchase up to USD 6
million Series D Preferred Shares in three tranches as follows:
USD 1.4 million on the Closing Date, USD 2.6 million upon the
occurrence of the Additional Shares Closing and USD 2 Million in
a third tranche on a date to be agreed upon in such financial
agreements.
- Each current employee of Hormos shall have entered into an
agreement regarding non-disclosure of Hormos confidential
information and the Hormos IP Regulations in the form set forth
in Exhibit 7.16.
- Holders of at least 95% in interest of the Hormos Securities,
including all holders of Series B Shares and Hormos Notes, shall
have executed the Agreement.
C. OTHER ACTION TAKEN AND DOCUMENTS PRESENTED
- Certificates dated at the Closing, signed by the Chief Executive
Officer of Hormos, as to the matters set forth in Sections 8.1
(Representations and Warranties), 8.2 (Performance of Covenants) and
8.3 (Lack of Adverse Change) of the Agreement.
- Certificates dated at the Closing, signed by the Chief Executive
Officer of QuatRx, as to the matters set forth in Sections 9.1
(Representations and Warranties), 9.2 (Performance of Covenants) and
9.3 (Lack of Adverse Change) of the Agreement.
- Legal Opinion of Roachier Xxxxxxx, dated on the Closing Date and
addressed to QuatRx as to matters set forth in Exhibit 8.7 to the
Agreement.
- Escrow Agreement executed and delivered to QuatRx.
- Amendment of the Articles of Association of Hormos as set forth in
Exhibit 8.9 to the Agreement.
- Written confirmation dated April 26, 2005 from TEKES to QuatRx on the
decisions taken by the Board of Directors of TEKES on March 11, 2005.
- Written confirmation that maturity date and conversion period of the
Hormos Notes have been extended from March 15, 2005 to a date no
earlier than the Closing Date or confirmation that new Hormos notes
have been issued and subscribed
for, and confirmation that none of such holders shall have converted
their Hormos Notes into Hormos Series C Shares or demanded repayment
of their Hormos Notes.
II. ACTIONS TAKEN AT THE CLOSING
A. AGREEMENTS EXECUTED
- Share Transfer Deed for the exchange of the shares in Hormos to the
shares in QuatRx between the Sellers and QuatRx.
B. OTHER
- Duly completed and validly executed documentation by the Sellers to
the Finnish Central Securities Depository for recordation of QuatRx in
the book-entry shareholder registry.
- Evidence by QuatRx on a restriction on QuatRx's right to dispose the
Hormos Securities recorded in the QuatRx's book entry account.
- Issue by QuatRx of stock certificates representing the aggregate
number of shares of QuatRx Common Stock, QuatRx Series D Preferred
Shares and QuatRx Series D-l Preferred Shares pursuant to Table A to
the Sellers.
- Receipt by the Sellers evidencing receipt of the issued stock
certificates to the Sellers representing the aggregate number of
shares of QuatRx Common Stock, QuatRx Series D Preferred Shares and
QuatRx Series D-l Preferred Shares pursuant to Table A in exchange
for the issued and outstanding Hormos Securities to be surrendered for
exchange pursuant to Table A.
- Removal by the Sellers of the restriction on QuatRx's right to dispose
the Hormos Securities recorded in the QuatRx's book entry account
after the full reception of QuatRx Common Stock, QuatRx Series D
Preferred Shares and QuatRx Series D-1 Preferred Shares pursuant to
Table A.
- Issue by QuatRx of stock certificates representiag the aggregate
number of shares of QuatRx Common Stock, QuatRx Series D Preferred
Shares and QuatRx Series D-l Preferred Shares pursuant to Table A to
the holders of Hormos Notes.
- Transfer of Hormos Notes by the holders of the Hormos Notes to QuatRx.
- Receipt by QuatRx evidencing the receipt of the Hormos Notes.
- Resignation letters of the Board members of Hormos, if any, whom
QuatRx requests resign effective as of the Closing.
III. ACTIONS TO BE TAKEN AT OR FOLLOWING THE CLOSING
- Payment by QuatRx of the transfer Taxes due with respect to the
transfer of Hormos Securities to QuatRx pursuant to the Exchange.
On 25 May 2005
QUATRX PHARMACEU-
TICALS COMPANY HORMOS MEDICAL CORPORATION SELLERS
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxxxxx /s/ Xxxxx Xxxxxxxxxxxx
--------------------- -------------------------- ---------------------------
Xxxxx Xxxxxx by proxy Xxxxx Xxxxxxxxxxxx Xxxxx Xxxxxxxxxxxx
CEO by proxy
EXHIBIT 7.2(A)(XIV)
List of planned capital expenditures: None
2
EXHIBIT 7.9
AMENDED ARTICLES OF ASSOCIATION OF HORMOS
3
EXHIBIT 7.9
1(4)
HORMOS MEDICAL OY LTD - ARTICLES OF ASSOCIATION
1 Name and Domicile
The name of the Company is Hormos Medical Oyj, Hormos Medical
Corporation in English, and the Company shall have its registered
office in Turku.
2 Object of the Company
The object of the Company is research and development of medical base
products, pharmaceutical products, diagnostic products for health care
and know-how relating to it, manufacturing and marketing of aforesaid
products and consultancy of the field.
3 Share Capital
The minimum share capital of the Company is 100,000 euros and the
maximum share capital 400,000 euros and it may be increased or
decreased within above mentioned limits without amending the Articles
of Association.
4 Shares, Classes of Shares and Rights Attached thereto
4.1 Shares
The Company has at least 588,236 shares and at most 2,352,941 shares.
The shares do not have a nominal value.
4.2 Class of Shares
The Company has three classes of shares; class A shares, class B
shares and class C shares.
There is class A shares at most 2,352,941, class B shares at most
1,500,000 and class C shares at most 1,500,000.
Every shareholder of class B shares has the right to claim, at any
time, conversion of class B shares to class A shares so that one class
B share corresponds to one class A share. Respectively every
shareholder of class C shares has a right to claim, at any time,
conversion of the class C shares to class A shares so that one class C
share corresponds to one class A share. A shareholder of class B
shares and correspondingly class C shares may use his/her/its
aforesaid right of conversion by notifying the Board of Directors in
writing. All class B shares and correspondingly class C shares of the
Company shall automatically be converted into class A shares in
proportion one to one, when the shares of the Company are admitted to
public trading on the list of a stock exchange or in an automatic
trading system.
4.3 Rights Attached to the Shares
(i) General
Each share entitles to one (1) vote in the Shareholders' Meeting and
grants all other equal rights in accordance with the Finnish Companies
Act, however, taking into account the limitations stated in the
Section (ii) below.
(ii) Priority over the Distributed Assets of the Company
EXHIBIT 7.9
2(4)
When distributing to the shareholders assets or net assets of the
Company in liquidation or bankruptcy proceedings, or distributing
consideration in merger or acquisition proceedings, in which the
majority of the shares or the whole business operations or its
essential parts is sold, to class C shares shall primarily be
distributed an amount corresponding to the double subscription price
of class C shares. Hereafter the assets of the Company shall be
distributed to all shareholders in accordance with the proportion of
their share of ownership.
5 The Board of Directors
The Board of Directors is responsible for the administration and
organisation of the Company and consists of at least three (3) and at
most seven (7) members.
At least one (1) and at most seven (7) deputy member(s) may be elected
into the Board of Directors.
The term of the Board of Directors ends when the Ordinary General
Meeting following election is closed.
The Board of Directors elects a Chairman from among them for the term.
The Board of Directors has a quorum when more then half of the members
are present.
In case of even votes during voting, the vote of the Chairman shall be
decisive.
6 Managing Director
The Company has a Managing Director who is elected by the Board of
Directors.
7 Signatory Rights
The company name shall be signed by the Chairman of the Board of
Directors or the Managing Director, each on their own, and by two
ordinary members of the Board of Directors together.
8 Procuration
The Board of Directors resolves on granting the right of procuration.
9 Auditors
The Company has at least one (1) or at most two (2) Auditors who must
be authorised auditors or public accountant companies by the Central
Chamber of Commerce.
The Auditor or Auditors are elected for the time being.
10 Summons to the Shareholders' Meeting
The notice convening the General Meetings shall be sent to the
Shareholders, by publishing it in at least one national newspaper
decided by the Board of Directors or sending it to the Shareholders,
addressed in accordance with the Company's Share
EXHIBIT 7.9
3(4)
Register, by registered mail not earlier than two (2) months and not
later than fourteen (14) days before the Meeting.
The Shareholder must, in order to be eligible to participate in the
General Meeting, report to the Company by the date assigned in the
notice, which may not be earlier then five (5) days before the
Meeting.
11 The Ordinary Shareholders' Meeting
The Ordinary General Meeting shall be held annually on a date set by
the Board of Directors within six (6) months from the end of each
financial period.
At the meeting the following:
shall be presented
1. the annual accounts consisting of income statement, balance
sheet, annual report;
2. the auditors' report;
resolution shall be passed concerning
3. the adoption of the income statement and balance sheet;
4. the disposition of the profit and loss shown by the adopted
balance sheet;
5. the release of the members of the Board of Directors and the
Managing Director from liability for their actions;
6. the remuneration for the members of the Board of Directors;
7. the number of members of the Board of Directors;
the following shall be elected
8. the members of the Board of Directors;
9. the auditors, if necessary;
shall be considered
10. other matters mentioned in the notice to convene the Meeting
12 The Financial Period
The Financial Period of the Company is the calendar year.
13 Arbitration
Disputes between the Company, on the one hand, and on the other hand,
the Board of Directors, a member of the Board of Directors, the
Managing Director, an auditor or a shareholder shall be settled in
arbitration, in accordance with provisions of the Finnish Companies
Act and the Arbitration Act (23.10.1992/967)
14 The Book-entry system
The shares of the Company are incorporated in the book-entry system
from the registration date set by the Board of Directors. The right
to obtain funds distributed by the Company as well as the right of
subscription in a raise of the share capital shall, after the
registration date, belong only to a person:
EXHIBIT 7.9
4(4)
1. who is entered in the Shareholder Register as a shareholder on
the record date;
2. who's right to performance is, on the record date, registered in
the book-entry account of a shareholder registered in the
Shareholder Register as well as entered in the Shareholder
Register;
3. in whose book-entry account the share is registered on the record
date in case the share is registered in the name of a nominee,
and the custodian of whose shares is, on the record date, entered
in the Shareholder Register as custodian of the shares.
EXECUTION COPY
EXHIBIT 7.15
AMENDED QUATRX SERIES D FINANCING DOCUMENTS
QUATRX PHARMACEUTICALS COMPANY
AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE AGREEMENT
This Amended and Restated Series D Preferred Stock Purchase Agreement (the
"AGREEMENT") is entered into as of May 24, 2005, by and among Quatrx
Pharmaceuticals Company, a Delaware corporation (the "COMPANY"), and each of
those persons and entities, severally and not jointly, whose names are set forth
on the Schedule of Purchasers attached hereto as TABLE A-1 to EXHIBIT A (which
persons and entities are hereinafter collectively referred to as "PURCHASERS"
and each individually as a "PURCHASER"). Upon its execution of a counterpart
signature page hereto, each Additional Purchaser (as defined below) shall be
deemed to be a "Purchaser" under this Agreement, with all of the rights and
obligations of a "Purchaser" hereunder.
RECITALS
WHEREAS, the Company and certain of the Purchasers set forth on the
Schedule of Purchasers attached hereto as TABLE A-1 to EXHIBIT A (the "PRIOR
PURCHASERS") have entered into that certain Series D Preferred Stock Purchase
Agreement, dated as of November 22, 2004 (the "PRIOR PURCHASE AGREEMENT"),
pursuant to which the Prior Purchasers purchased shares of the Company's Series
D Preferred Stock, $0.01 par value per share (the "SERIES D PREFERRED").
Capitalized terms used herein without definition shall have the meanings given
to such terms in the Prior Purchase Agreement;
WHEREAS, the Prior Purchase Agreement allows the Company to sell an
aggregate of up to 29,071,429 shares of the Series D Preferred (the "PRIOR
SHARES") to the Prior Purchasers, at a purchase price of $1.40 per share (the
"PURCHASE PRICE"), for the aggregate purchase price of up to $40,700,000;
WHEREAS, the Company and the Prior Purchasers desire to amend and restate
the Prior Purchase Agreement as set forth in this Agreement in order to
authorize for issuance pursuant to this Agreement up to an additional 4,285,714
shares of Series D Preferred
(the "HORMOS SHARES" and, together with the Prior Shares, the "SHARES"), at the
Purchase Price, for the aggregate purchase price of up to $6,000,000;
WHEREAS, certain of the Purchasers set forth on the Schedule of Purchasers
attached hereto as TABLE A-3 to EXHIBIT A (referred to hereinafter collectively
as the "ADDITIONAL PURCHASERS" and each individually as an "ADDITIONAL
PURCHASER") desire to purchase the Hormos Shares on the terms and conditions set
forth herein, and the Company desires to issue and sell the Hormos Shares to the
Additional Purchasers on the terms and conditions set forth herein;
WHEREAS, in contemplation of the purchase and sale of the Hormos Shares to
the Additional Purchasers, the Company and the Prior Purchasers desire to
increase the authorized size of the Company's Board of Directors to nine (9)
members;
WHEREAS, Section 8.6 of the Prior Purchase Agreement provides that the
Prior Purchase Agreement may be amended and the obligations of the Company and
the rights of the Prior Purchasers may be waived only with the written consent
of the Company and the holders of at least a majority of the then outstanding
shares of Series D Preferred (including any Conversion Shares) (the "REQUISITE
MAJORITY"); and
WHEREAS, the Prior Purchasers executing this Agreement hold the Requisite
Majority as of the date hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 Authorization of Shares. ON OR PRIOR TO THE RELEVANT CLOSING (AS
DEFINED IN SECTION 2.2 BELOW), THE COMPANY SHALL HAVE AUTHORIZED (I) THE SALE
AND ISSUANCE TO EACH PURCHASER OF THE SHARES AND (II) THE ISSUANCE OF SUCH
SHARES OF COMMON STOCK TO BE ISSUED UPON CONVERSION OF THE SHARES (THE
"Conversion Shares") WHICH ARE TO BE PURCHASED DURING THE RELEVANT CLOSING. THE
SHARES AND THE CONVERSION SHARES SHALL HAVE THE RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS SET FORTH IN THE EIGHTH AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF THE COMPANY, IN THE FORM ATTACHED HERETO AS Exhibit B (THE
"Restated Certificate").
1.2 Sale and Purchase. AT THE INITIAL CLOSING, THE COMPANY ISSUED AND SOLD
TO EACH PURCHASER LISTED ON Table A-1 TO Exhibit A (EACH SUCH PURCHASER, AN
"Initial Purchaser"), SEVERALLY AND NOT JOINTLY, AND EACH INITIAL PURCHASER,
SEVERALLY AND NOT JOINTLY, PURCHASED FROM THE COMPANY AT THE INITIAL CLOSING THE
NUMBER OF SHARES SET FORTH OPPOSITE SUCH INITIAL PURCHASER'S NAME ON Table A-1
TO Exhibit A, AT
2
A PURCHASE PRICE OF $1.40 PER SHARE (THE "Purchase Price") FREE AND CLEAR OF ALL
LIENS AND OTHER ENCUMBRANCES.
1.3 Subsequent Sale of Shares.
(a) Subject to the conditions hereof, there shall also be a
Subsequent Closing (as defined in Section 2.1). At the Subsequent Closing,
(i) each Prior Purchaser (or its designated affiliate) will purchase at the
Purchase Price (subject to proportionate adjustment for any stock
dividends, combinations, splits, recapitalizations and the like) the number
of Shares equal to the aggregate number of Shares such Purchaser purchased
in the Initial Closing and (ii) each Additional Purchaser (or its
designated affiliate) will purchase at the Purchase Price (subject to
proportionate adjustment for any stock dividends, combinations, splits,
recapitalizations and the like) the number of Shares set forth opposite the
name of such Additional Purchaser on TABLE A-3 to EXHIBIT A under the
heading "SHARES ACQUIRED AT SUBSEQUENT CLOSING". Any shares of Series D
Preferred sold pursuant to this Section 1.3 shall be deemed to be Shares
for all purposes under this Agreement. The Company may amend, without the
consent of the Purchasers, TABLE A-2 to EXHIBIT A and TABLE A-3 to EXHIBIT
A to reflect the purchases made pursuant to the Subsequent Closing.
(b) In the event that any Prior Purchaser (a "NON-PERFORMING
PURCHASER") fails at the time of the Subsequent Closing to complete the
purchase of Shares required to be purchased by it at that closing (the
"UNPURCHASED SUBSEQUENT CLOSING SHARES"), the Shares acquired by the
Non-Performing Purchaser at the Initial Closing will be forfeited to the
Company without payment to the Non-Performing Purchaser of any compensation
by the Company, the other Prior Purchasers or the other shareholders of the
Company and shall be cancelled and retired, and the number of authorized
shares of Series D Preferred will be reduced by the number of such shares.
The Non-Performing Purchaser will thereupon cease to be a holder of Series
D Preferred for all purposes under this Agreement, the other Investment
Documents and the Certificate. The forfeiture of such shares shall
constitute the sole and exclusive liquidated damages available for recovery
by the Company in connection with a Non-Performing Purchaser's failure.
(c) Each Prior Purchaser who has elected to acquire Shares at the
Subsequent Closing and has completed the acquisition of such Shares will
have an additional right to purchase its Pro Rata Share (as defined in
Section 1.4) of the Unpurchased Subsequent Closing Shares. As soon as
reasonably practical after it becomes aware that there are or will be such
Shares, the Company will deliver
3
written notice to each such Prior Purchaser advising that such Prior
Purchaser has the right to purchase its Pro Rata Share of the Unpurchased
Subsequent Closing Shares, the number of Unpurchased Subsequent Closing
Shares which such Prior Purchaser may purchase and the aggregate Purchase
Price of such Unpurchased Subsequent Closing Shares. A Prior Purchaser may
exercise its right to acquire Unpurchased Subsequent Closing Shares by
delivery of a Notice of Exercise to the Company within 10 days following
delivery of the Company's notice. In the event that no Prior Purchaser
elects to purchase the Unpurchased Subsequent Closing Shares, the
Unpurchased Subsequent Closing Shares shall be cancelled and retired, and
the number of authorized shares of Series D Preferred will be reduced by
the number of such shares.
1.4 Sale of Additional Shares
(a) DEFINITIONS. For purposes of this Section 1.4:
(i) "ADDITIONAL SHARES" means up to 8,571,428 shares of Series D
Preferred (subject to proportionate adjustment for any stock dividends,
combinations, splits, recapitalizations and the like). The Additional Shares is
comprised of (i) 7,142,857 shares of Series D Preferred (subject to
proportionate adjustment for any stock dividends, combinations, splits,
recapitalizations and the like) available for purchase by the Prior Purchasers
(the "QUATRX ADDITIONAL SHARES") and 1,428,571 shares of Series D Preferred
(subject to proportionate adjustment for any stock dividends, combinations,
splits, recapitalizations and the like) available for purchase by the Additional
Purchasers (the "HORMOS ADDITIONAL SHARES").
(ii) "ADDITIONAL SHARES CLOSING" is defined in Section 2.1.
(iii) "NOTICE OF EXERCISE" means a written notice dated and signed by
a Prior Purchaser addressed to the Company stating that such Prior Purchaser
elects to exercise its right to purchase its Pro Rata Share of QuatRx Additional
Shares or Unpurchased Shares pursuant to this Section 1.4.
(iv) A Prior Purchaser's "PRO RATA SHARE" equals the ratio of the
number of Series D Preferred Shares owned by such Prior Purchaser immediately
after the Subsequent Closing of Series D over the number of Series D Preferred
Shares owned by all of the Prior Purchasers immediately after the Subsequent
Closing of Series D Preferred Shares.
(v) "REQUEST FOR PURCHASE" means a written notice delivered to the
Company requesting that the Company sell to the Prior Purchasers a specified
number
4
of QuatRx Additional Shares at the Purchase Price (subject to proportionate
adjustment for any stock dividends, combinations, splits, recapitalizations and
the like).
(vi) "REQUEST PERIOD" means the period beginning on the date of the
Subsequent Closing and ending on the earlier of:
(A) THE TIME THE COMPANY, WITH THE AUTHORIZATION OF THE HOLDERS
OF SIXTY-FIVE PERCENT (65%) OF THE THEN OUTSTANDING SHARES, FILES AN S-1 WITH
THE SEC THE PURPOSE OF CONDUCTING A QUALIFIED PUBLIC OFFERING, AS DEFINED IN THE
COMPANY'S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, PROVIDED, THAT THE
REQUEST PERIOD WILL BE REINSTATED IF SUCH REGISTRATION STATEMENT HAS NOT BECOME
EFFECTIVE WITHIN 90 DAYS THEREAFTER; AND
(B) THE TIME THE COMPANY SIGNS A TERM SHEET, WITH THE
AUTHORIZATION OF THE HOLDERS OF SIXTY-FIVE PERCENT (65%) OF THE THEN OUTSTANDING
SHARES, WITH RESPECT TO A TRANSACTION THAT WOULD RESULT IN (A) THE SALE OF ALL
OR SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS OR (B) THE MERGER OF THE COMPANY OR
THE SALE OR ISSUANCE OF ITS SECURITIES IF STOCKHOLDERS OWNING A MAJORITY OF THE
VOTING POWER OF THE COMPANY IMMEDIATELY BEFORE CONSUMMATION OF SUCH TRANSACTION
WOULD OWN LESS THAN A MAJORITY OF THE VOTING POWER OF THE COMPANY OR THE
SURVIVING CORPORATION FOLLOWING CONSUMMATION; PROVIDED, THAT THE REQUEST PERIOD
WILL BE REINSTATED IF SUCH TRANSACTION HAS NOT BEEN CONSUMMATED WITHIN NINETY
(90) DAYS THEREAFTER.
(vii) "UNPURCHASED SHARES" means QuatRx Additional Shares which any
Prior Purchaser has a right to acquire but has elected not to acquire or has
failed to acquire at the Additional Shares Closing.
(b) INITIATED BY PURCHASERS. At any time during the Request Period,
the Prior Purchasers may deliver to the Company a Request for Purchase,
dated and signed by holders of not less than sixty percent (60%) of the
number of Shares and Conversion Shares held by the Prior Purchasers then
outstanding if at the time of the delivery the difference of (a) the
Company's available cash and cash equivalents balance and (b) its then
outstanding indebtedness (determined in accordance with GAAP) is less than
1-year of operating cash requirements as measured by the most recent annual
financial projection approved by the Board. Upon receipt of a properly
delivered Request for Purchase, the Company shall promptly deliver written
notice to (i) each Prior Purchaser advising that such Prior Purchaser has
the right to purchase its Pro Rata Share of the QuatRx Additional Shares,
the number of QuatRx Additional Shares which such Purchaser may purchase
and the aggregate Purchase Price of such QuatRx Additional Shares and (ii)
to each Additional Purchaser advising such Additional Purchaser that it has
5
the right to purchase the number of Hormos Additional Shares set forth
opposite its name on TABLE A-3 of EXHIBIT A under the heading "SHARES
ACQUIRED AT SUBSEQUENT CLOSING". A Prior Purchaser may exercise its right
to purchase QuatRx Additional Shares by delivery of a Notice of Exercise to
the Company within ten (10) days following delivery of the Company's
notice.
(c) PURCHASE OF UNPURCHASED SHARES. Each Prior Purchaser who has
elected to acquire QuatRx Additional Shares and has completed the
acquisition of such Prior Purchaser's entire Pro Rata Share will have an
additional right to purchase its Pro Rata Share of all Unpurchased Shares.
As soon as reasonably practical after it becomes aware that there are or
will be Unpurchased Shares, the Company shall promptly deliver written
notice to each such Prior Purchaser advising that such Prior Purchaser has
the right to purchase its Pro Rata Share of the Unpurchased Shares, the
number of Unpurchased Shares which such Prior Purchaser may purchase and
the aggregate Purchase Price of such Unpurchased Shares. A Prior Purchaser
may exercise its right to acquire Unpurchased Shares by delivery of a
Notice of Exercise to the Company within ten (10) days following delivery
of the Company's notice.
(d) CLOSING. The closing of the purchase and sale of Additional Shares
(including Unpurchased Shares) under this Section 1.4 will be held as
described in Section 2.
(e) INCREASE IN OPTION POOL. In the event that Additional Shares are
sold and purchased pursuant to this Section 1.4, the unallocated option
pool available to be awarded under the Company's 2000 Equity Incentive Plan
or any new, substitute or replacement plan, will be increased
proportionally to adjust for the dilution of management arising from the
issuance of Additional Shares.
1.5 SALE OF SHARES IN CONNECTION WITH HORMOS COMBINATION. Subject to the
conditions hereof, the Additional Purchasers listed on TABLE A-3 to EXHIBIT A
(or its designated affiliate) will purchase at the Purchase Price (subject to
proportionate adjustment for any stock dividends, combinations, splits,
recapitalizations and the like) the number of Shares set forth opposite such
Additional Purchaser's name on TABLE A-3 to EXHIBIT A under the heading "SHARES
ACQUIRED UPON EXCHANGE". Any shares of Series D Preferred sold pursuant to this
Section 1.5 shall be deemed to be Shares for all purposes under this Agreement.
The Company may amend, without the consent of the Additional Purchasers, TABLE
A-3 to EXHIBIT A solely to reflect the purchases made pursuant to the Hormos
Closing.
6
2. CLOSING, DELIVERY AND PAYMENT.
2.1 THE FIRST CLOSING OF THE SALE AND PURCHASE OF THE SHARES UNDER THIS
AGREEMENT (THE "Initial Closing") OCCURRED ON NOVEMBER 22, 2004 (THE DATE OF
SUCH INITIAL CLOSING IS HEREINAFTER REFERRED TO AS THE "Initial Closing Date").
THE CLOSING OF THE SALE AND PURCHASE OF THE SHARES PURSUANT TO SECTION 1.5 (THE
"Hormos Closing") SHALL TAKE PLACE WITHIN TWO (2) WEEKS (THE "Hormos Closing
Date") AFTER THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THAT CERTAIN
EXCHANGE AGREEMENT, MADE AS OF MAY 20, 2005, BY AND AMONG THE COMPANY, HORMOS
MEDICAL CORPORATION ("Hormos"), AND THE SHAREHOLDERS OF HORMOS SIGNATORIES
THERETO (THE "Exchange Agreement"). THE FINAL CLOSING OF THE SALE AND PURCHASE
OF SHARES (THE "Subsequent Closing") SHALL TAKE PLACE NO LATER THAN OCTOBER 31,
2005 IF THE CONDITIONS THERETO SET FORTH IN THIS AGREEMENT ARE SATISFIED AS OF
THAT TIME, OR AT AN EARLIER DATE UPON THE VOTE OF PURCHASERS HOLDING AT LEAST
SIXTY-FIVE PERCENT (65%) OF THE OUTSTANDING SERIES D PREFERRED STOCK. IF THE
CONDITIONS AS SET FORTH ARE NOT MET BY SEPTEMBER 30, 2005, THEN THE SUBSEQUENT
CLOSING SHALL BE DELAYED UNTIL SUCH TIME AS THE CONDITIONS ARE MET, AS JUDGED BY
THE HOLDERS OF SIXTY-FIVE PERCENT (65%) OF THE THEN OUTSTANDING SHARES. SUBJECT
TO THE FOREGOING, THE SPECIFIC TIMES AND PLACES OF THE SUBSEQUENT CLOSING DATE
SHALL BE THOSE ON WHICH THE COMPANY AND THE PURCHASERS MUTUALLY AGREE (THE DATE
OF SUCH SUBSEQUENT CLOSING IS HEREINAFTER REFERRED TO AS THE "Subsequent Closing
Date"). THE SALE OF AND PURCHASE OF ADDITIONAL SHARES (THE "Additional Shares
Closing") WILL BE HELD AS SOON AS REASONABLY PRACTICAL, BUT NOT LESS THAN 20
DAYS, FOLLOWING EXPIRATION OF THE PERIOD DURING WHICH THE PRIOR PURCHASERS MAY
DELIVER A NOTICE OF EXERCISE UNDER SECTION 1.4(B). THE CLOSING OF THE SALE OF
UNPURCHASED SHARES ARISING FROM THE FAILURE OF ANY PRIOR PURCHASER TO COMPLETE A
PURCHASE OF QUATRX ADDITIONAL SHARES AT THE ADDITIONAL SHARES CLOSING AFTER
HAVING DELIVERED A NOTICE OF EXERCISE (THE "Unpurchased Shares Closing") WILL
OCCUR AS SOON A REASONABLY PRACTICAL, BUT NOT LESS THAN 20 DAYS, FOLLOWING
EXPIRATION OF THE PERIOD DURING WHICH THE PRIOR PURCHASERS MAY DELIVER A NOTICE
OF EXERCISE UNDER SECTION 1.4(C).
2.2 Delivery. AT THE INITIAL CLOSING, THE HORMOS CLOSING, THE SUBSEQUENT
CLOSING, THE ADDITIONAL SHARES CLOSING OR THE UNPURCHASED SHARES CLOSING (EACH,
A "Closing"), AS THE CASE MAY BE, SUBJECT TO THE TERMS AND CONDITIONS HEREOF AND
IN ADDITION TO OTHER ITEMS TO BE DELIVERED PURSUANT TO THIS AGREEMENT, THE
COMPANY WILL DELIVER TO THE PURCHASERS CERTIFICATES REPRESENTING THE NUMBER OF
SHARES TO BE PURCHASED AT SUCH CLOSING BY EACH PURCHASER, AGAINST PAYMENT OF THE
PURCHASE PRICE THEREFOR BY CHECK OR WIRE TRANSFER MADE PAYABLE TO THE ORDER OF
THE COMPANY.
7
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As of the Initial Closing Date, the Company represented and warranted to
the Prior Purchasers that, except as set forth on the Schedule of Exceptions
attached as EXHIBIT C to the Prior Purchase Agreement (the "SCHEDULE OF
EXCEPTIONS"), the representations and warranties set forth in this Section 3
were true and correct in all material respects as of such date. Except as
specifically indicated and as set forth in the Schedule of Exceptions revised
pursuant to Section 5.2(a), at the Subsequent Closing, the Additional Shares
Closing and the Unpurchased Shares Closing, the Company shall represent and
warrant to each Purchaser as of the date of each of the Subsequent Closing, the
Additional Shares Closing and the Unpurchased Shares Closing, as follows:
3.1 Organization and Standing. THE COMPANY IS A CORPORATION DULY ORGANIZED
AND VALIDLY EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD
STANDING UNDER SUCH LAWS. THE COMPANY HAS THE REQUISITE CORPORATE POWER TO OWN
AND OPERATE ITS PROPERTIES AND ASSETS, AND TO CARRY ON ITS BUSINESS AS PRESENTLY
CONDUCTED AND AS PRESENTLY PROPOSED TO BE CONDUCTED. THE COMPANY IS QUALIFIED TO
DO BUSINESS AS A FOREIGN CORPORATION IN EVERY JURISDICTION WHERE THE FAILURE TO
SO QUALIFY WOULD HAVE A MATERIAL ADVERSE IMPACT ON THE COMPANY'S BUSINESS. TRUE
AND ACCURATE COPIES OF THE COMPANY'S CERTIFICATE OF INCORPORATION AND BYLAWS,
EACH AS AMENDED AND IN EFFECT AT THE INITIAL CLOSING, HAVE BEEN MADE AVAILABLE
TO THE INVESTORS.
3.2 Corporate Power. THE COMPANY HAS ALL REQUISITE LEGAL AND CORPORATE
POWER TO (A) EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT,
THAT CERTAIN FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT OF EVEN DATE
HEREWITH IN THE FORM ATTACHED HERETO AS Exhibit D TO THE PRIOR PURCHASE
AGREEMENT (THE "Rights Agreement"), THAT CERTAIN THIRD AMENDED AND RESTATED
STOCK RESTRICTION AGREEMENT OF EVEN DATE HEREWITH IN THE FORM ATTACHED AS
Exhibit E TO THE PRIOR PURCHASE AGREEMENT (THE "Stock Restriction Agreement"),
THAT CERTAIN THIRD AMENDED AND RESTATED VOTING AGREEMENT OF EVEN DATE HEREWITH
IN THE FORM ATTACHED AS Exhibit F TO THE PRIOR PURCHASE AGREEMENT (THE "Voting
Agreement") AND ALL OTHER AGREEMENTS TO WHICH THE COMPANY IS A PARTY OF EVEN
DATE AND DELIVERED SIMULTANEOUSLY HEREWITH (TOGETHER WITH THIS AGREEMENT, THE
RIGHTS AGREEMENT, THE STOCK RESTRICTION AGREEMENT AND THE VOTING AGREEMENT THE
"Investment Documents"), (B) SELL THE SHARES, (C) CARRY OUT AND PERFORM ITS
OBLIGATIONS UNDER THE TERMS OF THIS AGREEMENT AND THE INVESTMENT DOCUMENTS AND
(D) CARRY OUT ITS BUSINESS AS PRESENTLY CONDUCTED OR AS PROPOSED TO BE
CONDUCTED.
3.3 Subsidiaries. THE COMPANY DOES NOT DIRECTLY OR INDIRECTLY, CONTROL OR
HAVE AN INTEREST IN, ANY OTHER CORPORATION, ASSOCIATION OR ENTITY. THE COMPANY
IS NOT A PARTICIPANT IN ANY JOINT VENTURE, PARTNERSHIP OR SIMILAR ARRANGEMENT.
8
3.4 Capitalization. AS OF IMMEDIATELY PRIOR TO THE INITIAL CLOSING, THE
AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF 72,502,056 SHARES OF COMMON
STOCK AND 60,442,920 SHARES OF PREFERRED STOCK, 1,575,000 OF WHICH ARE
DESIGNATED SERIES A PREFERRED STOCK (THE "Series A Preferred"), 4,200,000 OF
WHICH ARE DESIGNATED SERIES B PREFERRED STOCK (THE "Series B Preferred"),
25,596,491 OF WHICH ARE DESIGNATED SERIES C PREFERRED (THE "Series C Preferred")
AND 29,071,429 OF WHICH ARE DESIGNATED SERIES D PREFERRED. THE SERIES A
PREFERRED, THE SERIES B PREFERRED, THE SERIES C PREFERRED AND THE SERIES D
PREFERRED HAVE THE RESPECTIVE RIGHTS, PREFERENCES AND PRIVILEGES SET FORTH IN
THE RESTATED CERTIFICATE. IMMEDIATELY PRIOR TO THE INITIAL CLOSING, THERE ARE
3,976,000 SHARES OF COMMON STOCK ISSUED AND OUTSTANDING, 1,575,000 SHARES OF
SERIES A PREFERRED ISSUED AND OUTSTANDING, 4,200,000 SHARES OF SERIES B
PREFERRED ISSUED AND OUTSTANDING, 25,596,491 SHARES OF SERIES C PREFERRED ISSUED
AND OUTSTANDING AND NO SHARES OF SERIES D PREFERRED ISSUED AND OUTSTANDING. ALL
SUCH ISSUED AND OUTSTANDING SHARES HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED,
ARE FULLY PAID AND NONASSESSABLE AND WERE ISSUED IN COMPLIANCE WITH ALL
APPLICABLE STATE AND FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
IMMEDIATELY PRIOR TO THE INITIAL CLOSING DATE, EACH OUTSTANDING SHARE OF SERIES
A PREFERRED STOCK AND SERIES C PREFERRED STOCK WAS CONVERTIBLE INTO COMMON STOCK
ON A ONE-FOR-ONE BASIS, AND EACH OUTSTANDING SHARE OF SERIES B STOCK WAS
CONVERTIBLE INTO COMMON STOCK ON THE BASIS OF 1.19 COMMON SHARES FOR EACH SHARE
OF SERIES B PREFERRED. THERE ARE NO OUTSTANDING PREEMPTIVE OR OTHER RIGHTS,
PLANS, OPTIONS, WARRANTS, CONVERSION RIGHTS OR AGREEMENTS FOR THE PURCHASE OR
ACQUISITION FROM THE COMPANY OF ANY SHARES OF ITS CAPITAL STOCK, EXCEPT THAT (I)
7,275,259 SHARES OF COMMON STOCK ARE RESERVED FOR ISSUANCE TO EMPLOYEES,
CONSULTANTS, DIRECTORS AND OFFICERS OF THE COMPANY PURSUANT TO THE COMPANY'S
2000 EQUITY INCENTIVE PLAN, OF WHICH 2,308,280 SHARES ARE CURRENTLY SUBJECT TO
OUTSTANDING OPTIONS, 378,631 SHARES ARE RESERVED FOR AWARDS PURSUANT TO EXISTING
PROGRAMS AND 4,588,348 SHARES ARE UNALLOCATED; (II) 1,575,000 SHARES OF COMMON
STOCK HAVE BEEN RESERVED FOR ISSUANCE UPON CONVERSION OF THE SERIES A PREFERRED;
(III) 4,200,000 SHARES OF COMMON STOCK HAVE BEEN RESERVED FOR ISSUANCE UPON
CONVERSION OF THE SERIES B PREFERRED AND (IV) 25,596,491 SHARES OF COMMON STOCK
HAVE BEEN RESERVED FOR ISSUANCE UPON CONVERSION OF THE SERIES C PREFERRED. THERE
ARE NO STOCK APPRECIATION RIGHTS, PHANTOM STOCK OR OTHER RIGHTS TO PARTICIPATE
IN THE PROFITS OF THE COMPANY. THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OR
COMMITMENTS REGARDING EQUITY INCENTIVES TO ANY OFFICER, EMPLOYEE, DIRECTOR OR
CONSULTANT THAT ARE INCONSISTENT WITH THE SHARE AMOUNTS AND TERMS SET FORTH ON
THE SCHEDULE OF EXCEPTIONS. THE CAPITALIZATION OF THE COMPANY IMMEDIATELY PRIOR
TO THE INITIAL CLOSING, AND ON A PRO FORMA BASIS AS IT WILL BE IMMEDIATELY
FOLLOWING EACH OF THE INITIAL CLOSING AND THE SUBSEQUENT CLOSING, ARE SET FORTH
ON Exhibit G TO THE PRIOR PURCHASE AGREEMENT. COMPANY HAS FURNISHED PURCHASERS
COMPLETE AND ACCURATE COPIES OF ALL PLAN DOCUMENTS AND AGREEMENTS TO ISSUE STOCK
AND OPTIONS
9
UNDER THE COMPANY'S 2000 EQUITY INCENTIVE PLAN. AS OF IMMEDIATELY BEFORE THE
INITIAL CLOSING, THE CONVERSION PRICE FOR THE SERIES A PREFERRED SHALL BE $1.00,
THE CONVERSION PRICE FOR THE SERIES B PREFERRED SHALL BE $1.26, THE CONVERSION
PRICE FOR THE SERIES C PREFERRED SHALL BE $1.14 AND THE CONVERSION PRICE FOR THE
SERIES D PREFERRED SHALL BE $1.40, AND SHALL REMAIN UNCHANGED IMMEDIATELY AFTER
THE INITIAL CLOSING.
3.5 Authorization.
(a) All corporate action on the part of the Company, its officers,
directors and shareholders necessary for (i) the sale and issuance of the
Shares pursuant hereto, (ii) the issuance of the Conversion Shares and
(iii) the execution, performance and delivery by the Company of this
Agreement and the Investment Documents has been taken or will be taken
prior to the Initial Closing hereunder. The Agreement and the Investment
Documents are valid and binding obligations of the Company enforceable
against it in accordance with their respective terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application relating to or affecting enforcement of creditor's
rights and rules or laws concerning equitable remedies.
(b) The Shares and the Conversion Shares, when issued in compliance
with the provisions of this Agreement and the Restated Certificate, will be
validly issued (including, without limitation, issued in compliance with
applicable federal and state securities laws), fully paid and
nonassessable, and will be free of any liens or encumbrances; provided,
however, that the Shares and the Conversion Shares may be subject to
restrictions on transfer under state and/or federal securities laws as set
forth herein or otherwise required by such laws at the time a transfer is
proposed.
(c) Except as set forth in this Agreement and the Investors' Rights
Agreement, no stockholder of the Company has any right of first refusal or
any preemptive rights in connection with the issuance and sale of the
Shares or the issuance of the Conversion Shares. All shareholders holding
such right have waived such right with respect to the issuance and sale of
the Shares.
(d) Except as set forth in this Agreement and the Investors' Rights
Agreement, there is no agreement between the Company and any holders of its
securities or, to the Company's knowledge, among any holders of its
securities, relating to the sale or transfer (including without limitation
agreements related to rights of first refusal, co-sale rights or "drag
along" rights) of the capital shares of the Company.
10
3.6 Title to Properties and Assets; Liens, etc. THE COMPANY HAS GOOD AND
MARKETABLE TITLE TO ITS PROPERTIES AND ASSETS AND GOOD TITLE TO ALL ITS
LEASEHOLD ESTATES, IN EACH CASE SUBJECT TO NO MORTGAGE, PLEDGE, LIEN,
ENCUMBRANCE OR CHARGE, OTHER THAN, OR RESULTING FROM (A) TAXES WHICH HAVE NOT
YET BECOME DELINQUENT AND (B) LIENS AND ENCUMBRANCES WHICH DO NOT MATERIALLY
DETRACT FROM THE VALUE OF THE PROPERTY SUBJECT THERETO OR IMPAIR THE OPERATIONS
OF THE COMPANY. THE COMPANY OWNS NO REAL PROPERTY.
3.7 Financial Statements. THE COMPANY HAS FURNISHED TO PURCHASERS TRUE AND
CORRECT COPIES OF THE AUDITED BALANCE SHEET OF THE COMPANY AS OF DECEMBER 31,
2003 AND THE RELATED STATEMENTS OF OPERATIONS, SHAREHOLDERS' EQUITY AND CASH
FLOWS, TOGETHER WITH ALL RELATED NOTES AND SCHEDULES THERETO AND AN UNAUDITED
BALANCE SHEET AS OF JUNE 30, 2004 AND THE RELATED STATEMENT OF OPERATIONS (THE
"Financial Statements"), AND THE BUDGET PROVIDED BY THE COMPANY TO THE
PURCHASERS WAS PREPARED IN GOOD FAITH AND BASED ON REASONABLE ASSUMPTIONS. ALL
THE BOOKS, RECORDS AND ACCOUNTS OF THE COMPANY ARE ACCURATE AND COMPLETE, HAVE
BEEN MAINTAINED IN ACCORDANCE WITH GOOD BUSINESS PRACTICE AND ALL LAWS,
REGULATIONS AND RULES APPLICABLE TO THE COMPANY, AND ACCURATELY PRESENT AND
REFLECT ALL OF THE TRANSACTIONS DESCRIBED THEREIN.
3.8 No Undisclosed Liabilities. THE COMPANY HAS NO LIABILITIES OR
OBLIGATIONS OF ANY NATURE (WHETHER KNOWN OR UNKNOWN AND WHETHER ABSOLUTE,
ACCRUED, CONTINGENT, XXXXXX, INCHOATE OR OTHERWISE) EXCEPT FOR LIABILITIES OR
OBLIGATIONS REFLECTED OR RESERVED AGAINST IN THE FINANCIAL STATEMENTS AND
CURRENT LIABILITIES INCURRED SINCE JUNE 30, 2004 IN THE ORDINARY COURSE OF
BUSINESS AND CONSISTENT WITH PAST PRACTICE THAT IN THE AGGREGATE WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE BUSINESS, PROPERTIES, PROSPECTS, OR FINANCIAL
CONDITION OF THE COMPANY.
3.9 Employees. THE COMPANY'S EMPLOYEES ARE NOT REPRESENTED BY ANY LABOR
UNIONS, NOR, TO THE COMPANY'S KNOWLEDGE, IS ANY UNION ORGANIZATION CAMPAIGN IN
PROGRESS OR THREATENED. TO THE COMPANY'S KNOWLEDGE, NO EMPLOYEE OF THE COMPANY
IS IN VIOLATION OF ANY TERM OF ANY EMPLOYMENT CONTRACT, PATENT DISCLOSURE
AGREEMENT OR ANY OTHER CONTRACT OR AGREEMENT RELATING TO THE RIGHT OF ANY SUCH
EMPLOYEE TO BE EMPLOYED BY THE COMPANY BECAUSE OF THE NATURE OF THE BUSINESS
CONDUCTED BY THE COMPANY OR FOR ANY OTHER REASON, AND THE CONTINUED EMPLOYMENT
BY THE COMPANY OF ITS PRESENT EMPLOYEES WILL NOT RESULT IN ANY SUCH VIOLATIONS.
THE COMPANY IS NOT PARTY TO OR BOUND BY DEFERRED COMPENSATION AGREEMENTS, BONUS
PLANS, INCENTIVE PLANS, PROFIT SHARING PLANS, RETIREMENT AGREEMENTS, SEVERANCE
AGREEMENTS OR ANY OTHER SIMILAR EMPLOYEE BENEFIT PLAN OR OBLIGATION COVERING ANY
OF ITS OFFICERS OR EMPLOYEES, INCLUDING WITHOUT LIMITATION, ANY AGREEMENT TO
INCREASE THE COMPENSATION OF ANY OFFICER OR EMPLOYEE UPON OR PURSUANT TO A
CHANGE OF CONTROL OF THE COMPANY. THE EMPLOYMENT OF EACH OFFICER AND EMPLOYEE OF
THE COMPANY IS
11
TERMINABLE AT THE WILL OF THE COMPANY WITHOUT TRIGGERING SEVERANCE OR OTHER
ADDITIONAL COMPENSATION. EACH OFFICER, EMPLOYEE AND CONSULTANT OF THE COMPANY
HAS EXECUTED A CONFIDENTIALITY, NON-DISCLOSURE AND DEVELOPMENT ASSIGNMENT
AGREEMENT, A COPY OF WHICH HAS BEEN MADE AVAILABLE TO THE PURCHASERS AND THE
COMPANY WILL OBTAIN SUCH SIGNED AGREEMENTS FROM EACH OFFICER, EMPLOYEE AND
CONSULTANT IN THE FUTURE. NO FORMER OR CURRENT EMPLOYEE, OFFICER OR CONSULTANT
OF THE COMPANY HAS EXCLUDED WORKS OR INVENTIONS MADE PRIOR TO HIS OR HER
EMPLOYMENT WITH THE COMPANY FROM HIS OR HER ASSIGNMENT OF INVENTIONS PURSUANT TO
SUCH EMPLOYEE, OFFICER OR CONSULTANT'S PROPRIETARY INFORMATION AND INVENTIONS
AGREEMENT. THE COMPANY IS NOT AWARE THAT ANY OF ITS OFFICERS, EMPLOYEES AND
CONSULTANTS IS IN VIOLATION OF SUCH CONFIDENTIALITY, NON-DISCLOSURE AND
DEVELOPMENT ASSIGNMENT AGREEMENT AND WILL USE REASONABLE EFFORTS TO PREVENT ANY
SUCH VIOLATION. TO THE COMPANY'S KNOWLEDGE, THE COMPANY HAS COMPLIED WITH ALL
APPLICABLE STATE AND FEDERAL EQUAL EMPLOYMENT OPPORTUNITY AND OTHER LAWS RELATED
TO EMPLOYMENT. THE COMPANY DOES NOT HAVE OR OTHERWISE CONTRIBUTE TO OR
PARTICIPATE IN ANY EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED.
3.10 Changes in Conditions. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, SINCE JUNE 30, 2004, (A) THE COMPANY HAS NOT ENTERED INTO ANY
TRANSACTION WHICH WAS NOT IN THE ORDINARY COURSE OF BUSINESS, (B) THERE HAS BEEN
NO ADVERSE CHANGE IN THE COMPANY'S BUSINESS, PROPERTIES, PROSPECTS OR FINANCIAL
CONDITION, (C) THE COMPANY HAS NOT INCURRED ANY MATERIAL TAX LIABILITY, (D)
THERE HAS BEEN NO RESIGNATION OR TERMINATION OF EMPLOYMENT OF ANY OFFICER OR KEY
EMPLOYEE OF THE COMPANY AND THE COMPANY DOES NOT KNOW OF ANY IMPENDING
RESIGNATION OR TERMINATION OF EMPLOYMENT OF ANY SUCH OFFICER OR KEY EMPLOYEE
THAT IF CONSUMMATED WOULD CONSTITUTE AN ADVERSE CHANGE IN THE COMPANY'S
BUSINESS, PROPERTIES, PROSPECTS OR FINANCIAL CONDITION, (E) THERE HAS BEEN NO
WAIVER BY THE COMPANY OF A VALUABLE RIGHT OR OF A DEBT OWING TO THE COMPANY
WHICH WOULD CONSTITUTE AN ADVERSE CHANGE IN THE COMPANY'S BUSINESS, PROPERTIES,
PROSPECTS OR FINANCIAL CONDITION, (F) THERE HAS NOT BEEN ANY SATISFACTION OR
DISCHARGE OF ANY LIEN, CLAIM OR ENCUMBRANCE OR ANY PAYMENT OF ANY OBLIGATION BY
THE COMPANY EXCEPT IN THE ORDINARY COURSE OF BUSINESS, (G) THE COMPANY HAS NOT
TAKEN ANY ACTION THAT WOULD REQUIRE THE PRIOR APPROVAL OF THE HOLDERS OF THE
SERIES A PREFERRED, THE SERIES B PREFERRED OR THE SERIES C PREFERRED PURSUANT TO
ARTICLE IV, SECTION 5 OF THE RESTATED CERTIFICATE, AND (H) THERE HAS NOT BEEN
ANY SALE, ASSIGNMENT OR TRANSFER OF ANY PATENTS, TRADEMARKS, COPYRIGHTS, TRADE
SECRETS OR OTHER INTANGIBLE ASSETS. THE COMPANY HAS NO AGREEMENT OR COMMITMENT
TO DO ANY OF THE THINGS DESCRIBED IN THIS SECTION 3.10.
3.11 Transactions with Affiliates. EXCEPT FOR (A) TRANSACTIONS RELATING TO
PURCHASES OF SHARES OF THE COMPANY'S COMMON STOCK PURSUANT TO STOCK PURCHASE
AGREEMENTS BETWEEN THE COMPANY AND EACH OF THE FOUNDERS, (B) REGULAR SALARY
12
PAYMENTS AND FRINGE BENEFITS UNDER AN INDIVIDUAL'S COMPENSATION PACKAGE WITH THE
COMPANY, (C) THE ISSUANCE OF THE SHARES PURSUANT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, AND (D) THE INVESTMENT DOCUMENTS OR OTHER CONTRACTS OR
AGREEMENTS REFERRED TO OR CONTEMPLATED HEREIN OR THEREIN, NO OFFICER, DIRECTOR,
1% STOCKHOLDER, OR SPOUSE, PARENT, SIBLING, CHILD OR AFFILIATE OF ANY SUCH
PERSON, OR ANY OTHER EMPLOYEE HAS ANY AGREEMENT, UNDERSTANDING, PROPOSED
TRANSACTION OR IS INDEBTED TO THE COMPANY, NOR IS THE COMPANY INDEBTED (OR
COMMITTED TO MAKE LOANS OR EXTEND OR GUARANTEE CREDIT) TO ANY OF THEM. TO THE
BEST OF THE COMPANY'S KNOWLEDGE, NO OFFICER, DIRECTOR, 1% STOCKHOLDER OR SPOUSE,
PARENT SIBLING, CHILD OR AFFILIATE OF ANY SUCH PERSON HAS ANY DIRECT OR INDIRECT
OWNERSHIP INTEREST IN ANY FIRM OR CORPORATION WITH WHICH THE COMPANY IS
AFFILIATED OR WITH WHICH THE COMPANY HAS A BUSINESS RELATIONSHIP, OR ANY FIRM OR
CORPORATION THAT COMPETES WITH THE COMPANY, EXCEPT THAT ANY SUCH PERSON MAY OWN
STOCK IN PUBLICLY TRADED COMPANIES THAT MAY COMPETE WITH THE COMPANY. NO SPOUSE,
PARENT, SIBLING, CHILD OR AFFILIATE OF ANY OFFICER, DIRECTOR OR 1% SHAREHOLDER
OF THE COMPANY IS DIRECTLY OR INDIRECTLY INTERESTED IN ANY MATERIAL CONTRACT
WITH THE COMPANY.
3.12 Litigation, etc. THERE ARE NO ACTIONS, SUITS, PROCEEDINGS,
ARBITRATIONS OR INVESTIGATIONS PENDING OR, TO THE COMPANY'S KNOWLEDGE,
THREATENED AGAINST THE COMPANY, NOR, TO THE COMPANY'S KNOWLEDGE, IS THERE ANY
BASIS THEREFOR, WHICH, EITHER IN ANY CASE OR IN THE AGGREGATE, WOULD RESULT IN
ANY ADVERSE CHANGE IN THE BUSINESS, AFFAIRS OR OPERATIONS OF THE COMPANY OR IN
ANY OF ITS PROPERTIES OR ASSETS, OR IN ANY IMPAIRMENT OF THE RIGHT OR ABILITY OF
THE COMPANY TO CARRY ON ITS BUSINESS AS NOW CONDUCTED, OR IN ANY LIABILITY ON
THE PART OF THE COMPANY, AND NONE WHICH QUESTIONS THE VALIDITY OF THIS AGREEMENT
OR THE INVESTMENT DOCUMENTS OR ANY ACTION TAKEN OR TO BE TAKEN IN CONNECTION
HEREWITH OR THEREWITH. THE COMPANY IS NOT A PARTY OR SUBJECT TO ANY WRIT, ORDER,
INJUNCTION, DECREE OR JUDGMENT AND THERE IS NO ACTION, SUIT, PROCEEDING OR
INVESTIGATION BY THE COMPANY CURRENTLY PENDING.
3.13 Registration Rights and Voting Rights. EXCEPT AS PROVIDED IN THE
INVESTORS' RIGHTS AGREEMENT, THE COMPANY IS NOT UNDER ANY OBLIGATION TO REGISTER
ANY PRESENTLY OUTSTANDING SECURITIES, OR ANY SECURITIES WHICH MAY HEREAFTER BE
ISSUED, UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "Securities Act"). TO
THE COMPANY'S KNOWLEDGE, EXCEPT AS CONTEMPLATED BY THE VOTING AGREEMENT, NO
STOCKHOLDERS OF THE COMPANY HAVE ENTERED INTO ANY AGREEMENTS WITH RESPECT TO THE
VOTING OF CAPITAL SHARES OF THE COMPANY.
3.14 Governmental and Third Party Consent, etc. NO CONSENT, APPROVAL OR
AUTHORIZATION OF, OR DESIGNATION, DECLARATION OR FILING WITH ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER THIRD PARTY ON THE PART OF THE COMPANY IS REQUIRED IN
CONNECTION WITH THE VALID EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
OR THE INVESTMENT DOCUMENTS, OR THE OFFER, SALE OR ISSUANCE OF THE SHARES OR THE
13
CONVERSION SHARES OR THE CONSUMMATION OF ANY OTHER TRANSACTION CONTEMPLATED
HEREBY OR THEREBY, EXCEPT THE FILING OF THE RESTATED CERTIFICATE WITH THE
DELAWARE SECRETARY OF STATE AND, IF REQUIRED, QUALIFICATIONS OR FILINGS UNDER
THE SECURITIES ACT, THE DELAWARE GENERAL CORPORATION LAW (THE "Delaware Law")
AND OTHER APPLICABLE STATE SECURITIES LAWS WHICH QUALIFICATIONS OR FILINGS, IF
REQUIRED, WILL BE OBTAINED OR MADE AND WILL BE EFFECTIVE WITHIN THE TIME PERIODS
REQUIRED BY LAW.
3.15 Securities Act. SUBJECT TO THE ACCURACY OF THE PURCHASERS'
REPRESENTATIONS IN SECTION 4 HEREOF, THE OFFER, SALE AND ISSUANCE OF THE SHARES
IN CONFORMITY WITH THE TERMS OF THIS AGREEMENT AND THE ISSUANCE OF THE SHARES
CONSTITUTE TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SECTION 5
OF THE SECURITIES ACT.
3.16 Agreements; Action.
(a) There are no agreements, understandings, instruments or
contracts (whether written or oral) (each a "CONTRACT") to which the
Company or any of its subsidiaries is a party or by which it is bound (i)
that is material to the Company or the conduct of its business, (ii) that
involves (1) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $25,000 in the aggregate, (2) the license of any
patent, copyright, trade secret or other proprietary right to or from the
Company or any of its subsidiaries, (3) the grant of rights to manufacture,
produce, assemble, license, market, or sell its products to any other
person or affect the Company's exclusive right to develop, manufacture,
assemble, distribute, market or sell its products or (4) the
indemnification by the Company with respect to infringements of
Intellectual Property (as defined herein) or any other matter, or (iii)
under which the Company is restricted from carrying on any business
anywhere in the world. The Company has delivered or made available to the
Purchasers a true, complete and correct copy of each written Contract and a
reasonably detailed written description of each oral Contract listed on the
Schedule of Exceptions.
(b) With respect to each Contract required to be set forth in the
Schedule of Exceptions pursuant to Section 3.16(a) hereof (whether such
Contract is listed in such Schedule of Exceptions): (i) such Contract is a
legal, valid and binding obligation of the Company and, to the knowledge of
the Company, the other parties thereto; (ii) the Company is not in default
under such Contract and, to the knowledge of the Company, no other person
that is a party to such Contract is in default thereunder; and (iii) no
event has occurred or no circumstance exists that (with or without notice
or lapse of time) may contravene, conflict with, or result in a violation
or breach of, or give the Company or any other person the
14
right to declare a default or exercise any remedy under, or to accelerate
the maturity or performance of, or to cancel, terminate, or modify, such
Contract.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or
series of its capital stock, (ii) incurred any indebtedness for money
borrowed or incurred any other liabilities individually in excess of
$10,000 or in excess of $50,000 in the aggregate, (iii) made any loans or
advances to any person, other than ordinary advances for travel expenses,
or (iv) sold, exchanged or otherwise disposed of, or created any lien on or
other encumbrance with respect to, any assets or rights of the Company,
other than the sale of its inventory in the ordinary course of business.
3.17 Tax Returns and Payments.
(a) All federal, state, local and foreign tax returns required to
be filed by or with respect to the Company have been timely filed with the
appropriate governmental or taxing authority. All such tax returns are
materially accurate, true and complete, and the Company is not the
beneficiary of any extension of time to file any such tax return. The
Company has delivered or made available to the Purchasers complete and
accurate copies of all of such tax returns.
(b) The Company has timely paid or made provision for the payment
of all federal, state, local and foreign taxes, assessments, fees, and
other governmental charges upon the Company, or upon any of its properties,
income, or franchises ("TAXES") that have or may reasonably be expected to
become due with respect to the business or operations of the Company for
periods (or portions thereof) ending before the date hereof. All Taxes
(including, without limitation, sales and use and employment taxes) that
the Company is or was required to withhold or collect with respect to the
business or operations of the Company prior to the date hereof have been
duly withheld or collected and, to the extent required, have been timely
paid to the proper governmental or taxing authority or other person. The
Company has properly requested, received and retained all necessary
exemption certificates and other documentation supporting any claimed
exemption or waiver of Taxes on sales or other transactions by the Company
prior to the date hereof as to which the Company would have been obligated
to collect or withhold Taxes.
(c) There are no liens for Taxes (other than Taxes not yet due
and payable) upon any of the Company's assets.
15
(d) There are currently no deficiencies for Taxes that have been
claimed, proposed or assessed by any governmental or taxing authority
against the Company or with respect to the business or operations of the
Company. There are no current, pending or, to the knowledge of the
Company's founders, threatened audits, investigations or claims for or
relating to any liability in respect of Taxes with respect to the business
or operations of the Company, and there are no matters under discussion
with any governmental or taxing authority with respect to such Taxes. No
power of attorney has been executed by or on behalf of the Company with
respect to any matters relating to Taxes with respect to the business or
operations of the Company that is currently in force. No extension or
waiver of a statute of limitations relating to Taxes with respect to the
business or operations of the Company is in effect. The Company has not
received a written claim within the immediately preceding three years by a
governmental or taxing authority in a jurisdiction in which the Company
operates or in which any of the Company's assets are located, where the
Company does not file tax returns, that the Company may be subject to
taxation in that jurisdiction.
3.18 Permits. THE COMPANY POSSESSES ALL CERTIFICATES, LICENSES, APPROVALS,
AUTHORIZATIONS AND PERMITS ISSUED BY, AND HAVE MADE ALL DECLARATIONS AND FILINGS
WITH, THE APPROPRIATE FEDERAL, STATE OR FOREIGN REGULATORY AUTHORITIES NECESSARY
TO CONDUCT ITS BUSINESS, INCLUDING WITHOUT LIMITATION ALL THOSE THAT MAY BE
REQUIRED BY THE FDA OR ANY OTHER FEDERAL, STATE OR FOREIGN AGENCIES OR BODIES
ENGAGED IN THE REGULATION OF PHARMACEUTICALS OR BIOHAZARDOUS MATERIALS, EXCEPT
WHERE THE FAILURE TO POSSESS SUCH CERTIFICATES, LICENSES, APPROVALS,
AUTHORIZATIONS AND PERMITS OR TO MAKE SUCH DECLARATIONS AND FILINGS WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE CHANGE IN THE
CONDITION, FINANCIAL OR OTHERWISE, OR IN THE EARNINGS, BUSINESS OR OPERATIONS OF
THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE; AND THE COMPANY HAS NOT
RECEIVED, AND HAS NO REASON TO BELIEVE IT WILL RECEIVE, ANY NOTICE OF
PROCEEDINGS RELATING TO THE REVOCATION, SUSPENSION OR MODIFICATION OF ANY SUCH
CERTIFICATE, LICENSE, APPROVAL, AUTHORIZATION OR PERMIT WHICH, IF THE SUBJECT OF
AN UNFAVORABLE DECISION, RULING OR FINDING, WOULD INDIVIDUALLY OR IN THE
AGGREGATE HAVE A MATERIAL ADVERSE CHANGE IN THE CONDITION, FINANCIAL OR
OTHERWISE, OR IN THE EARNINGS, BUSINESS OR OPERATIONS OF THE COMPANY AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE.
3.19 Corporate Documents. THE RESTATED CERTIFICATE AND BYLAWS OF THE
COMPANY ARE IN THE FORM PROVIDED TO THE PURCHASERS. THE COPY OF THE MINUTE BOOKS
OF THE COMPANY PROVIDED TO THE PURCHASERS CONTAIN MINUTES OF ALL MEETINGS OF
DIRECTORS AND SHAREHOLDERS AND ALL ACTIONS BY WRITTEN CONSENT WITHOUT A MEETING
BY THE DIRECTORS AND SHAREHOLDERS SINCE THE DATE OF INCORPORATION AND REFLECTS
ALL ACTIONS
16
BY THE DIRECTORS (AND ANY COMMITTEE OF DIRECTORS) AND SHAREHOLDERS WITH RESPECT
TO ALL TRANSACTIONS REFERRED TO IN SUCH MINUTES ACCURATELY IN ALL MATERIAL
RESPECTS.
3.20 Environmental and Safety Laws. THE COMPANY IS NOT IN VIOLATION OF ANY
APPLICABLE STATUTE, LAW OR REGULATION RELATING TO THE ENVIRONMENT OR
OCCUPATIONAL HEALTH AND SAFETY, BASED ON THE COMPANY'S BUSINESS AS CURRENTLY
CONDUCTED, NO MATERIAL EXPENDITURES ARE OR WILL BE REQUIRED IN ORDER TO COMPLY
WITH ANY SUCH EXISTING STATUTE, LAW OR REGULATION.
3.21 Intellectual Property.
(a) The Company has sufficient title and ownership of, or
sufficient rights to use, all patents, patent applications, trademarks,
service marks, trade names, copyrights, trade secrets, know-how,
information, and other intellectual property rights (collectively, the
"INTELLECTUAL PROPERTY") necessary to operate its business as now
conducted, and believes it can obtain, on commercially reasonable terms,
any additional rights necessary to operate its business as contemplated to
be operated, and, to the Company's knowledge after reasonable inquiry, the
Company's Intellectual Property does not, and would not, conflict with or
constitute an infringement of the rights of others. Schedule 3.21(a)
contains a complete and accurate list of all trademarks, service marks,
trade names, patents, patent applications and registered copyrights of the
Company.
(b) There are no outstanding options, licenses, or agreements of
any kind relating to the matters listed in Section 3.21(a) or that grant
rights to any other person to manufacture, license, produce, assemble,
market or sell the Company's products, nor is the Company bound by or a
party to any options, licenses, or agreements of any kind with respect to
the Intellectual Property of any other person or entity, except for
"shrinkwrap" or "clickwrap" or similar licenses of commercially-available
third-party software.
(c) The Company has not received any communications alleging that
the Company or its employees has violated or infringed or, by conducting it
business as proposed, would violate or infringe any of the Intellectual
Property of any other person or entity.
(d) To the Company's knowledge, no employee of the Company is
obligated under any contract (including licenses, covenants or commitments
of any nature) or other agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with the
use of such employee's best efforts to promote the interests of the Company
or that would conflict with the Company's business as proposed to be
conducted.
17
(e) Neither the execution nor delivery of this Agreement or the
Investment Documents, nor the carrying on of the Company's business by the
employees of the Company will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any
contract, covenant or instrument under which any of such employees is now
obligated.
(f) To the best of the Company's knowledge, the use, development,
manufacture, sale and import of the Company's products QRX-101, QRX-401 and
QRX-411 by the Company and its licensees will not infringe any patent or
other intellectual property rights of any third party, other than those
rights which would be infringed in the absence of the licenses that the
Company has been granted by the Wisconsin Alumni Research Foundation, ILEX
Products, Inc., Deltanoid Pharmaceuticals, Inc., and Temple University.
3.22 Compliance With Law, Other Instruments, Etc. THE COMPANY IS NOT IN
VIOLATION OR DEFAULT OF ANY PROVISION OF ITS RESTATED CERTIFICATE OR BYLAWS, OR
ANY INSTRUMENT, JUDGMENT, ORDER, INJUNCTION, WRIT, DECREE, CONTRACT, OBLIGATION
OR COMMITMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND, OR ANY PROVISION
OF ANY FEDERAL, STATE, LOCAL OR FOREIGN STATUTE, RULE OR REGULATION APPLICABLE
TO THE COMPANY. THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND
THE INVESTMENT DOCUMENTS, AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY WILL NOT RESULT IN ANY SUCH VIOLATION OR BE IN CONFLICT WITH
OR CONSTITUTE, WITH OR WITHOUT THE PASSAGE OF TIME AND GIVING OF NOTICE, EITHER
A DEFAULT UNDER ANY SUCH PROVISION, INSTRUMENT, JUDGMENT, ORDER, WRIT, DECREE OR
CONTRACT OR AN EVENT THAT RESULTS IN THE CREATION OF ANY LIEN, CHARGE OR
ENCUMBRANCE UPON ANY ASSETS OF THE COMPANY OR THE SUSPENSION, REVOCATION,
IMPAIRMENT, FORFEITURE, OR NONRENEWAL OF ANY PERMIT, LICENSE, AUTHORIZATION, OR
APPROVAL APPLICABLE TO THE COMPANY, ITS BUSINESS OR OPERATIONS OR ANY OF ITS
ASSETS OR PROPERTIES.
3.23 Real Property Holding Company. THE COMPANY IS NOT CURRENTLY, AND HAS
NOT BEEN DURING THE PRIOR FIVE YEARS, A UNITED STATES REAL PROPERTY HOLDING
CORPORATION WITHIN THE MEANING OF SECTION 897 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "Code") AND THE COMPANY HAS FILED WITH THE INTERNAL
REVENUE SERVICE ALL STATEMENTS, IF ANY, WITH ITS UNITED STATES INCOME TAX
RETURNS WHICH ARE REQUIRED UNDER SECTION 1.897-2(H) OF THE TREASURY REGULATIONS.
3.24 Disclosure. THIS AGREEMENT, THE INVESTMENT DOCUMENTS AND ALL OTHER
DOCUMENTS DELIVERED BY THE COMPANY TO THE PURCHASERS OR THEIR ATTORNEYS OR
AGENTS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, DO
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT ANY MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN IN VIEW OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE NOT MISLEADING. THE COMPANY HAS
PROVIDED EACH
18
PURCHASER WITH ALL INFORMATION THAT SUCH PURCHASER HAS REQUESTED FOR DECIDING
WHETHER TO PURCHASE THE SHARES. THE COMPANY IS NOT AWARE OF ANY FACT WHICH HAS
NOT BEEN DISCLOSED TO THE PURCHASERS WHICH COULD MATERIALLY AND ADVERSELY AFFECT
THE COMPANY'S BUSINESS, PROPERTIES, PROSPECTS OR FINANCIAL CONDITION, PROVIDED
THAT THERE SHALL BE EXCLUDED FROM THIS SENTENCE THE EFFECT OF GENERAL ECONOMIC
CONDITIONS OR CONDITIONS GENERALLY APPLICABLE TO THE INDUSTRY IN WHICH THE
COMPANY OPERATES.
3.25 Insurance. THE COMPANY HAS IN EFFECT INSURANCE COVERING RISKS
ASSOCIATED WITH ITS BUSINESS IN SUCH AMOUNTS AS ARE CUSTOMARY IN ITS INDUSTRY
FOR ENTITIES OF COMPARABLE SIZE, INCLUDING, BUT NOT LIMITED TO, DIRECTORS AND
OFFICERS LIABILITY INSURANCE. THE COMPANY IS NOT AWARE OF ANY PENDING OR
THREATENED CLAIMS AGAINST THE COMPANY FOR PERSONAL INJURIES OR PROPERTY DAMAGE.
3.26 Qualified Small Business Stock. AS OF AND IMMEDIATELY FOLLOWING EACH
CLOSING, THE SHARES WILL MEET EACH OF THE REQUIREMENTS FOR QUALIFICATION AS
"QUALIFIED SMALL BUSINESS STOCK" SET FORTH IN SECTIONS 1202(C)(1) AND (3)(B) OF
THE CODE, INCLUDING WITHOUT LIMITATION THE FOLLOWING: (I) THE COMPANY WILL BE A
DOMESTIC C CORPORATION, (II) THE COMPANY WILL NOT HAVE MADE ANY PURCHASES OF ITS
OWN STOCK DESCRIBED IN CODE SECTION 1202(C)(3)(B) DURING THE ONE-YEAR PERIOD
PROCEEDING THE CLOSING AND (III) THE COMPANY'S (AND ANY PREDECESSOR'S) AGGREGATE
GROSS ASSETS, AS DEFINED BY CODE SECTION 1202(D)(2), AT NO TIME FROM THE DATE OF
INCORPORATION AND THROUGH THE CLOSING HAVE EXCEEDED OR WILL EXCEED $50 MILLION,
TAKING INTO ACCOUNT THE ASSETS OF ANY CORPORATIONS REQUIRED TO BE AGGREGATED
WITH THE COMPANY IN ACCORDANCE WITH CODE SECTION 1202(D)(3). AS OF EACH CLOSING,
AT LEAST 80% (BY VALUE) OF THE ASSETS OF THE COMPANY ARE USED BY IT IN THE
ACTIVE CONDUCT OF ONE OR MORE QUALIFIED TRADES OR BUSINESSES, AS DEFINED BY CODE
SECTION 1202(E)(3), AND THE COMPANY IS AN ELIGIBLE CORPORATION, AS DEFINED BY
CODE SECTION 1202(E)(4).
3.27 Clinical Procedures. THE COMPANY IS CONDUCTING (OR IS CAUSING TO BE
CONDUCTED), AND HAS CONDUCTED (OR CAUSED TO BE CONDUCTED) THE PRECLINICAL AND
CLINICAL TESTS AND STUDIES OF THE PRODUCTS WHICH THE COMPANY IS DEVELOPING (THE
"Products") IN COMPLIANCE WITH EXPERIMENTAL PROTOCOLS, PROCEDURES AND CONTROLS
PURSUANT TO ACCEPTED PROFESSIONAL SCIENTIFIC STANDARDS AND APPLICABLE LOCAL,
STATE AND FEDERAL LAWS, RULES, REGULATIONS AND GUIDANCES, INCLUDING, BUT NOT
LIMITED TO, THE PRINCIPLES OF GOOD CLINICAL PRACTICE, THE FEDERAL FOOD, DRUG AND
COSMETIC ACT AND IMPLEMENTING REGULATIONS AT 21 C.F.R. PARTS 50, 54, 56, 58 AND
312, AND HAS MADE ALL REPORTS, FILINGS AND NOTIFICATIONS REQUIRED THEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE REPORTS REQUIRED BY 21 C.F.R. Section
312.32.. THE COMPANY HAS PROVIDED DOCUMENTS DESCRIBING THE CLINICAL STUDIES AND
TESTS, INCLUDING RELATED RESULTS AND REGULATORY STATUS, AND THEY ARE COMPLETE
AND ACCURATE IN ALL MATERIAL RESPECTS, AND THE COMPANY, AFTER DILIGENT SEARCH,
IS NOT AWARE OF AND CLINICAL STUDIES OR TESTS THE RESULTS OF WHICH REASONABLY
CALL INTO QUESTION THE CLINICAL STUDY AND TEST RESULTS
19
PROVIDED BY THE COMPANY. NEITHER THE FDA NOR OTHER REGULATORY AUTHORITY HAS
ISSUED ANY CLINICAL HOLD ORDERS, WARNING LETTERS NOTICES OF VIOLATION, OR
SIMILAR CORRESPONDENCE OR COMMUNICATIONS WITH RESPECT TO SUCH TESTS, STUDIES OR
PRODUCTS..
3.28 No Debarment. THE COMPANY (NOR ANY OF ITS OFFICERS) HAS NOT BEEN
DEBARRED AND IS NOT SUBJECT TO DEBARMENT, AND HAS NOT BEEN CONVICTED OF A CRIME
WHICH COULD LEAD TO DEBARMENT, UNDER SECTION 306 OF THE UNITED STATES FEDERAL
FOOD, DRUG, AND COSMETIC ACT, 21 U.S.C. SECTION 335A. THE COMPANY HAS NOT
INVOLVED AND WILL NOT INVOLVE IN THE DEVELOPMENT OF ANY PRODUCT ANY INDIVIDUAL
OR ENTITY THAT HAS BEEN DEBARRED, OR IS THE SUBJECT OF A CONVICTION WHICH COULD
LEAD TO DEBARMENT, UNDER SECTION 306 OF THE UNITED STATES FEDERAL FOOD, DRUG,
AND COSMETIC ACT, 21 U.S.C. SECTION 335A.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser solely on its own behalf, severally and not jointly, hereby
represents and warrants to the Company as follows (such representations and
warranties do not lessen or obviate the representations and warranties of the
Company set forth in this Agreement):
4.1 Requisite Power and Authority. EACH PURCHASER HAS ALL NECESSARY POWER
AND AUTHORITY UNDER ALL APPLICABLE PROVISIONS OF LAW TO EXECUTE AND DELIVER THIS
AGREEMENT AND THE INVESTMENT DOCUMENTS TO WHICH IT IS A PARTY AND TO CARRY OUT
THE PROVISIONS CONTAINED THEREIN. ALL ACTIONS ON EACH PURCHASER'S PART REQUIRED
FOR THE LAWFUL EXECUTION AND DELIVERY OF THIS AGREEMENT HAVE BEEN OR WILL BE
EFFECTIVELY TAKEN PRIOR TO THE INITIAL CLOSING. UPON ITS EXECUTION AND DELIVERY,
THIS AGREEMENT WILL BE A VALID AND BINDING OBLIGATION OF EACH PURCHASER,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS LIMITED BY (I) APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF GENERAL
APPLICATION AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS, AND (II) GENERAL
PRINCIPLES OF EQUITY THAT RESTRICT THE AVAILABILITY OF EQUITABLE REMEDIES.
4.2 Investment Representations. EACH PURCHASER UNDERSTANDS THAT NEITHER THE
SHARES NOR THE CONVERSION SHARES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT.
EACH PURCHASER ALSO UNDERSTANDS THAT THE SHARES ARE BEING OFFERED AND SOLD
PURSUANT TO AN EXEMPTION FROM REGISTRATION CONTAINED IN THE SECURITIES ACT BASED
IN PART UPON EACH PURCHASER'S REPRESENTATIONS CONTAINED IN THE AGREEMENT. EACH
PURCHASER HEREBY REPRESENTS AND WARRANTS AS FOLLOWS:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating
20
the merits and risks of its investment in the Company and has the capacity
to protect its own interests. Purchaser must bear the economic risk of this
investment indefinitely unless the Shares (or the Conversion Shares) are
registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that the Company has no
present intention of registering the Shares, the Conversion Shares or any
shares of its Common Stock. Purchaser also understands that there is no
assurance that any exemption from registration under the Securities Act
will be available and that, even if available, such exemption may not allow
Purchaser to transfer all or any portion of the Shares or the Conversion
Shares under the circumstances, in the amounts or at the times each
Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Each Purchaser is acquiring the
Shares and the Conversion Shares for Purchaser's own account for investment
only, and not with a view towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Each Purchaser represents
that by reason of its, or of its management's, business or financial
experience, such Purchaser has the capacity to protect its own interests in
connection with the transactions contemplated in this Agreement.
(d) COMPANY INFORMATION. Each Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs with
directors, officers and management of the Company and has had the
opportunity to review the Company's operations and facilities. Each
Purchaser has also had the opportunity to ask questions of and receive
answers from, the Company and its management regarding the terms and
conditions of this investment.
(e) RULE 144. Each Purchaser acknowledges and agrees that the
Shares, and, if issued, the Conversion Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an
exemption from such registration is available. Each Purchaser has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current public
information about the Company, the resale occurring not less than one year
after a party has purchased and paid for the security to be sold, the sale
being through an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934, as amended) and the number of shares being sold
during any three-month period not exceeding specified limitations.
21
(f) RESIDENCE. If the Purchaser is an individual, then, as of
each Closing, the Purchaser resides in the state or province identified in
the address of the Purchaser set forth on the signature page of this
Agreement; if the Purchaser is a partnership, corporation, limited
liability company or other entity, then, as of each Closing, the office or
offices of the Purchaser in which its investment decision was made is
located at the address or addresses of the Purchaser set forth on the
signature page of this Agreement.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Purchasers' Obligations at the Initial Closing. EACH
PURCHASER'S OBLIGATION TO PURCHASE SHARES AT THE INITIAL CLOSING WAS SUBJECT TO
THE SATISFACTION, AT OR PRIOR TO THE INITIAL CLOSING, OF THE FOLLOWING
CONDITIONS, ALL OF WHICH WERE SATISFIED AS OF THE INITIAL CLOSING:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects (except
for such representations and warranties that are qualified as to
materiality, material adverse effect or material adverse change which shall
be true and correct in all respects) as of the Initial Closing Date with
the same force and effect as if they had been made as of the Initial
Closing Date, and the Company shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to
the Initial Closing Date.
(b) LEGAL INVESTMENT. On the Initial Closing Date, the sale and
issuance of the Shares and the proposed issuance of the Conversion Shares
shall be legally permitted by all laws and regulations to which Purchasers
and the Company are subject.
(c) AUTHORIZATIONS. The Company shall have obtained any and all
consents, approvals, qualifications, orders or authorizations of, filings
with, or notices to the Board of Directors, the stockholders of the Company
and any governmental authority or any other third party, including without
limitation the qualification of the Shares and the Conversion Shares, or
the satisfaction of registration exemptions, under applicable state
securities or "Blue Sky" laws, required in connection with the Company's
valid execution, delivery or performance of (a) this Agreement and the
Investment Documents, (b) the offer, sale and issuance of the Shares and
the Conversion Shares, and (c) the consummation of any other transaction
contemplated on the part of the Company in connection with the Agreement
and the Investment Documents.
22
(d) FILING OF RESTATED CERTIFICATE. The Restated Certificate shall
have been filed with the Secretary of State of the State of Delaware and
shall be in full force and effect on the Initial Closing Date.
(e) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the
Company as Purchasers shall reasonably request.
(f) AGREEMENTS EFFECTIVE. This Agreement and the Investment Documents
will have been duly executed by the Company and parties other than the
Purchasers required to execute such documents and delivered and will be in
full force and effect on the Initial Closing Date.
(g) RESERVATION OF CONVERSION SHARES. On or before the Initial Closing
Date, the Conversion Shares issuable upon conversion of the Shares issued
in the Initial Closing shall have been duly authorized and reserved for
issuance upon such conversion.
(h) COMPLIANCE CERTIFICATE; SECRETARY'S CERTIFICATE. The Company shall
have delivered to Purchasers a Compliance Certificate, executed by the
President of the Company, dated the Initial Closing Date, to the effect
that the conditions specified in subsections (a), (c), (d), (e) and (g) of
this Section 5.1 have been satisfied. The Company shall have delivered to
the Purchasers copies of each of the following, in each case certified by
the Secretary of the Company to be in full force and effect on the Initial
Closing Date:
(i) the Restated Certificate, certified by the Delaware Secretary
of State as of a date not more than five (5) days prior to the Initial
Closing Date;
(ii) a good standing certificate with respect to the Company,
certified by the Delaware Secretary of State as of a date not more
than five (5) days prior to the Initial Closing Date and a
confirmation that the Company is in good standing as of the Initial
Closing Date;
(iii) a good standing certificate with respect to the Company
certified by the Secretary of State or other appropriate governmental
authority of each of the states in which the conduct of its business
or the ownership or leasing of assets requires it to be qualified or
licensed to do business in such state, in each case as of a date not
more than five (5) days prior to the Initial Closing Date and
23
a confirmation that the Company is in good standing as of the Initial
Closing Date;
(iv) the Bylaws, as amended through the Initial Closing Date,
acceptable in form and substance to the Purchasers; and
(v) resolutions of the Company's Board of Directors and, as
necessary, the stockholders of the Company, the form and substance of
which are satisfactory to the Purchasers, authorizing the adoption,
execution and filing of the Restated Certificate, and authorizing the
execution, delivery and performance of this Agreement and the
Investment Documents, and the transactions contemplated hereby and
thereby, including the issuance and sale of the Shares.
(i) OPINION OF COMPANY COUNSEL. The Purchasers shall have received
from Butzel Long, P.C. an opinion dated as of the Initial Closing Date in
substantially the form attached as EXHIBIT H to the Prior Purchase
Agreement.
(j) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Initial Closing hereby
and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchasers, and the
Purchasers shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request.
(k) NO MATERIAL ADVERSE CHANGE. As of the Initial Closing Date, there
shall have been no material adverse change in the Company's assets,
business, condition (financial or otherwise) or prospects since the date of
this Agreement.
(l) SATISFACTION WITH DUE DILIGENCE. The Purchasers shall be satisfied
with the results of their legal, financial, business, regulatory, and
intellectual property due diligence investigation of the Company.
(m) MANAGEMENT RIGHTS LETTER. The Company shall have delivered to
Xxxxxx Xxxxxx Healthcare Venture Partners LLC a duly executed copy of a
management rights letter in the form attached as EXHIBIT I to the Prior
Purchase Agreement.
5.2 Conditions to Purchasers' Obligations at the Other Closings. THE
ADDITIONAL PURCHASERS HEREBY ACKNOWLEDGED THAT, WITH RESPECT TO THE HORMOS
CLOSING, (I) THEY
24
WILL RELY ON THE REPRESENTATIONS AND WARRANTIES OF QUATRX CONTAINED IN THE
EXCHANGE AGREEMENT AND (II) THE ADDITIONAL PURCHASER'S OBLIGATION TO PURCHASE
THE SHARES AT THE HORMOS CLOSING IS SUBJECT TO THE SATISFACTION, AT OR PRIOR TO
SUCH CLOSING, OF THE CONDITIONS TO THE CLOSING OF THE TRANSACTIONS CONTEMPLATED
BY THE EXCHANGE AGREEMENT, INCLUDING THE EXECUTION OF AMENDMENTS TO THE
INVESTMENT DOCUMENTS CONTEMPLATED THEREIN. EACH PURCHASER'S OBLIGATION TO
PURCHASE THE SHARES AT THE SUBSEQUENT CLOSING, THE ADDITIONAL SHARES CLOSING OR
THE UNPURCHASED SHARES CLOSING IS SUBJECT TO THE SATISFACTION, AT OR PRIOR TO
SUCH CLOSING, AS DETERMINED BY HOLDERS OF SIXTY-FIVE PERCENT (65%) OF THE THEN
OUTSTANDING SHARES, OF THE FOLLOWING CONDITIONS:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF OBLIGATIONS.
The representations and warranties made by the Company in Section 3 hereof
(excluding any which by their terms are made only as of the Initial Closing
Date), as supplemented by any revisions to the Schedule of Exceptions
delivered by the Company as of the applicable Closing Date (provided that
such revisions are reasonably acceptable to the Purchasers), shall be true
and correct in all material respects (except for such representations and
warranties that are qualified as to materiality, material adverse effect or
material adverse change which shall be true and correct in all respects) as
of such Closing Date with the same force and effect as if they had been
made as of such Closing Date, and the Company shall have performed all
obligations and conditions herein required to be performed or observed by
it on or prior to such Closing Date.
(b) LEGAL INVESTMENT. On the applicable Closing Date, the sale and
issuance of the Shares and the proposed issuance of the Conversion Shares
shall be legally permitted by all laws and regulations to which Purchasers
and the Company are subject.
(c) AUTHORIZATIONS. The Company shall have obtained any and all
consents, approvals, qualifications, orders or authorizations of, filings
with, or notices to the Board of Directors, the stockholders of the Company
and any governmental authority or any other third party, including without
limitation the qualification of the Shares and the Conversion Shares, or
the satisfaction of registration exemptions, under applicable state
securities or "Blue Sky" laws, required in connection with the Company's
valid execution, delivery or performance of (a) this Agreement and the
Investment Documents, (b) the offer, sale and issuance of the Shares and
the Conversion Shares, and (c) the consummation of any other transaction
contemplated on the part of the Company in connection with the Agreement
and the Investment Documents.
25
(d) RESTATED CERTIFICATE. The Restated Certificate shall continue to
be in full force and effect on the applicable Closing Date and shall not
have been amended in any manner that would prevent the consummation of the
sale of the Shares or impair any of the rights of the Purchasers hereunder
or thereunder.
(e) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the
Company as Purchasers shall reasonably request.
(f) AGREEMENTS EFFECTIVE. This Agreement and the Investment Documents
will remain in full force and effect on the applicable Closing Date,
subject to the amendments contemplated by the Exchange Agreement.
(g) RESERVATION OF CONVERSION SHARES. The Conversion Shares issuable
upon conversion of the Shares issued in the applicable Closing shall have
been duly authorized and reserved for issuance upon such conversion.
(h) COMPLIANCE CERTIFICATE; SECRETARY'S CERTIFICATE. The Company shall
have delivered to Purchasers a Compliance Certificate, executed by the
President of the Company, dated the date of the applicable Closing, to the
effect that the conditions specified in subsections (a), (c), (d), (e) and
(g) of this Section 5.2 have been satisfied. The Company shall have
delivered to the Purchasers copies of each of the following, in each case
certified by the Secretary of the Company to be in full force and effect on
the applicable Closing Date:
(i) the Restated Certificate, certified by the Delaware Secretary
of State as of a date not more than five business (5) days prior to
the applicable Closing Date and a confirmation that the Company is in
good standing as of the applicable Closing Date;
(ii) a good standing certificate with respect to the Company,
certified by the Delaware Secretary of State as of a date not more
than five (5) days prior to the applicable Closing Date and a
confirmation that the Company is in good standing as of the applicable
Closing Date;
(iii) a good standing certificate with respect to the Company
certified by the Secretary of State or other appropriate governmental
authority of each of the states in which the conduct of its business
or the ownership or leasing of assets requires it to be qualified or
licensed to do business in such state, in each case as of a date not
more than five (5) days prior to the applicable Closing Date;
26
(iv) the Bylaws, as amended through the applicable Closing Date,
acceptable in form and substance to the Purchasers, or a certification
from the Secretary that the Bylaws delivered at the Initial Closing
hereunder remain the Bylaws of the Company on the applicable Closing
Date and have not been amended or repealed; and
(v) resolutions of the Company's Board of Directors and, as
necessary, the stockholders of the Company, the form and substance of
which are satisfactory to the Purchasers, authorizing the adoption,
execution and filing of the Restated Certificate, and authorizing the
execution, delivery and performance of this Agreement and the
Investment Documents, and the transactions contemplated hereby and
thereby, including the issuance and sale of the Shares, or a
certification from the Secretary that the form of resolutions of the
Board of Directors and stockholders delivered at the Initial Closing
hereunder remain in full force and effect on the applicable Closing
Date and have not been amended or repealed.
(i) OPINION OF COMPANY COUNSEL. The Purchasers shall have received
from Xxxxxx Xxxxxx White & XxXxxxxxx LLP an opinion dated as of the
applicable Closing Date in substantially the form attached as EXHIBIT H to
the Prior Purchase Agreement.
(j) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the applicable Closing
hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the Purchasers,
and the Purchasers shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably request.
(k) SPECIFIC CONDITION FOR SUBSEQUENT CLOSING. With respect to the
Subsequent Closing only (but not the Additional Shares Closing or the
Unpurchased Shares Closing), the Company shall have entered into a clinical
trial designed to generate clinical proof of concept on a compound other
than QRX-101, QRX-401 and QRX411. A clinical proof of concept trial is
defined as a study designed to generate data, if positive, to warrant
continued development in a pivotal trial, as judged by the holders of
sixty-five percent (65%) of the then outstanding Shares.
5.3 Conditions to Obligations of the Company. THE COMPANY'S OBLIGATION TO
ISSUE AND SELL THE SHARES AT THE INITIAL CLOSING DATE, THE HORMOS CLOSING DATE,
THE SUBSEQUENT CLOSING DATE, THE ADDITIONAL SHARES CLOSING DATE AND THE
UNPURCHASED
27
SHARES CLOSING DATE, IS SUBJECT TO THE SATISFACTION, ON OR PRIOR TO
THE APPLICABLE CLOSING DATE, OF THE FOLLOWING CONDITIONS:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by each Purchaser in Section 4 hereof shall be true and
correct in all material respects at the applicable Closing Date, with the
same force and effect as if they had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Each Purchaser shall have performed
and complied with all agreements and conditions herein required to be
performed or complied with by that Purchaser on or before the applicable
Closing Date.
(c) FILING OF RESTATED CERTIFICATE. The Restated Certificate shall
have been filed with the Secretary of State of the State of Delaware and
shall be in full force and effect on the applicable Closing Date.
(d) AGREEMENTS EFFECTIVE. This Agreement and the Investment Documents
will have been executed by the Purchasers and will be in full force and
effect on the applicable Closing Date.
6. POST-CLOSING COVENANTS.
6.1 Board of Directors
(a) BOARD OBSERVATION RIGHTS. Notwithstanding anything herein to the
contrary, each of Xxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx,
and one representative designated by TL Ventures V, L.P. will be observers
entitled to Board Observation Rights. "BOARD OBSERVATION RIGHTS" means the
right to receive notice of, to attend and to observe the meetings of the
Board of Directors, and to receive any and all written materials
distributed to members of the Board of Directors relating to such meetings
or a proposed action by the Board of Directors by written consent in lieu
of a meeting, but does not include any right to actively participate in
such meetings, to vote on matters brought before the Board of Directors, or
otherwise to exercise any of the powers of a duly-elected member of the
Board of Directors.
(b) COMMITTEES. The Board will maintain a compensation committee
composed of one of the representatives designated by MPM BioVentures III,
L.P. and the representatives designated by Xxxxxxx Healthcare III, L.P. and
TL Ventures V, L.P. The Compensation Committee will set the executive
salaries and bonus plan for the Company.
28
(c) INSURANCE AND REIMBURSEMENT. The Company will maintain an
appropriate level of Directors and Officers (D&O) liability insurance and
will reimburse directors and observers for all reasonable out-of-pocket
expenses of attending board meetings.
(d) AUDIT. The financial statements of the Company for the year ending
December 31, 2004 shall be audited by an accounting firm approved by the
Company's Board of Directors.
6.2 Legal Expenses of Purchasers' Counsel. AT THE INITIAL CLOSING AND THE
SUBSEQUENT CLOSING AND UPON RECEIPT OF INVOICES THEREFOR, THE COMPANY WILL
REIMBURSE TWHVP FOR THEIR REASONABLE LEGAL FEES AND EXPENSES (FOR XXXXXX &
XXXXXXX AND XXXXXXXX & XXXXXXXXX) IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE INVESTMENT DOCUMENTS, UP TO AN AGGREGATE
MAXIMUM OF $50,000. IN THE EVENT THAT, FOR ANY REASON WHATSOEVER AND WITHOUT
REGARD TO THE CAUSE THEREOF, THE INITIAL CLOSING DOES NOT OCCUR, EACH OF THE
COMPANY AND THE PURCHASERS SHALL BEAR ITS OWN LEGAL FEES AND EXPENSES.
6.3 Use of Proceeds. THE COMPANY WILL USE THE PROCEEDS FROM THE SALE OF THE
SHARES SOLELY FOR THE PURPOSES DESCRIBED ON THE SCHEDULE OF EXCEPTIONS.
7. INDEMNIFICATION
7.1 Survival. THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT SHALL SURVIVE EACH CLOSING UNDER THIS AGREEMENT AND
ANY INVESTIGATION MADE BY THE PURCHASERS. ALL STATEMENTS AS TO FACTUAL MATTERS
CONTAINED IN ANY CERTIFICATE OR OTHER INSTRUMENT DELIVERED BY OR ON BEHALF OF
THE COMPANY PURSUANT HERETO IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE DEEMED TO BE REPRESENTATIONS AND WARRANTIES BY THE COMPANY
HEREUNDER.
7.2 Indemnification.
(a) From and after each Closing hereunder, the Company shall
indemnify, save and hold harmless the Purchasers and their respective
equity holders, officers, directors, employees, agents, successors and
assigns from and against any and all Damages arising out of, resulting from
or incident to:
(i) the material breach of any representation or warranty made by the
Company in this Agreement (or, as to any representation or warranty qualified by
materiality, any breach thereof); or
29
(ii) the material breach of any covenant or agreement by the Company
contained in this Agreement or any Investment Documents (or, as to any covenant
or agreement qualified by materiality, any breach thereof).
(iii) any failure by the Company to (A) obtain shareholder consent of
the Company's 2000 Equity Incentive Plan (the "EIP"), in each case in compliance
with applicable law and the terms of the EIP, upon its initial adoption by the
Company or, to the extent required by the terms of the EIP, of any amendments
thereto; (B) operate or administer the EIP in accordance with its terms, the
terms of any award agreement granting an equity award under the EIP, and/or with
applicable law as it relates to such operation or administration; or (C) make or
administer any equity-based award to individuals other than pursuant to the EIP,
in each case in accordance with its terms.
(b) From and after each Closing hereunder, each Purchaser, severally
and not jointly, shall indemnify, save and hold harmless the Company from
and against and all Damages arising directly out of or resulting directly
from or incident to:
(i) the material breach of any representation or warranty made by such
Purchaser in this Agreement; or
(ii) the material breach of any covenant or agreement by such
Purchaser contained in this Agreement or any Investment Document which is to be
performed after the Closing (or, as to the obligation to pay the Purchase Price
or as to any covenant or agreement qualified by materiality, any breach
thereof).
(c) Any Party seeking indemnification under this Section 7.2 (an
"INDEMNIFIED PARTY") shall give the Party from whom indemnification is
being sought (an "INDEMNIFYING PARTY") notice of any matter which such
Indemnified Party has determined has given or could give rise to a right of
indemnification under this Agreement as soon as practicable after the Party
entitled to indemnification becomes aware of any fact, condition or event
which may give rise to Damages for which indemnification may be sought
under this Section 7.2. The liability of an Indemnifying Party under this
Section 7.2 with respect to Damages arising from claims of any third party
which are subject to the indemnification provided for in this Section 7.2
("THIRD PARTY CLAIMS") shall be governed by and contingent upon the
following additional terms and conditions: if an Indemnified Party shall
receive notice of any Third Party Claim, the Indemnified Party shall give
the Indemnifying Party notice of such Third Party Claim within thirty (30)
days of the receipt by the Indemnified Party of such notice; provided,
however, that the failure to provide such notice shall not release the
Indemnifying Party from any of its obligations under this Section 7.2
except to
30
the extent the Indemnifying Party is materially prejudiced by such failure.
The Indemnifying Party shall be entitled to assume and control the defense
of such Third Party Claim at its expense and through counsel of its choice
if it gives notice of its intention to do so to the Indemnified Party
within thirty (30) days of the receipt of such notice from the Indemnified
Party; provided, however, that if there exists a material conflict of
interest (other than one that is of a monetary nature) that would make it
inappropriate for the same counsel to represent both the Indemnified Party
and the Indemnifying Party, then the Indemnified Party shall be entitled to
retain its own counsel, at the expense of the Indemnifying Party, provided
that the Indemnifying Party shall not be obligated to pay the reasonable
fees and expenses of more than one separate counsel for all Indemnified
Parties, taken together. In the event the Indemnifying Party exercises the
right to undertake any such defense against any such Third Party Claim as
provided above, the Indemnified Party shall cooperate with the Indemnifying
Party in such defense and make available to the Indemnifying Party, all
witnesses, pertinent records, materials and information in the Indemnified
Party's possession or under the Indemnified Party's control relating
thereto as is reasonably required by the Indemnifying Party. Similarly, in
the event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to
the Indemnified Party, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under the
Indemnifying Party's control relating thereto as is reasonably required by
the Indemnified Party. The Indemnifying Party shall not, without the
written consent of the Indemnified Party, (i) settle or compromise any
Third Party Claim or consent to the entry of any judgment which does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the Indemnified Party of a written release from all liability
in respect of such Third Party Claim or (ii) settle or compromise any Third
Party Claim if the settlement imposes equitable remedies or material
obligations on the Indemnified Party other than financial obligations for
which such Indemnified Party will be indemnified hereunder. No Third Party
Claim that is being defended in good faith by the Indemnifying Party in
accordance with the terms of this Agreement shall be settled or compromised
by the Indemnified Party without the written consent of the Indemnifying
Party.
(d) With respect to each Purchaser, for any event giving rise to
Damages, the amount of Damages shall be determined by multiplying the
amount of such Damages by a percentage determined by dividing the aggregate
number of Shares and Conversion Shares held by such Purchaser by the
aggregate number of Shares and Conversion Shares of the Company deemed
outstanding at the time of payment of Damages.
31
(e) The term "DAMAGES" shall mean any and all reasonable costs or
losses resulting directly from any Taxes, liabilities, obligations,
lawsuits, deficiencies, claims, demands, and expenses (whether or not
arising out of Third Party Claims), reasonable attorneys' fees, and all
amounts paid in investigation, defense or settlement of any of the
foregoing. The term "Damages" as used in this Section 7.2 is not limited to
matters asserted by third parties against the Company or Purchasers, but
includes Damages incurred or sustained by the Company or Purchasers in the
absence of Third Party Claims. Notwithstanding the foregoing, Damages shall
not include any consequential, indirect, exemplary, special or incidental
damages, including any lost profits.
8. MISCELLANEOUS.
8.1 Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE INVESTMENT
DOCUMENTS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF DELAWARE
AS SUCH LAWS ARE APPLIED TO AGREEMENTS BETWEEN DELAWARE RESIDENTS ENTERED INTO
AND PERFORMED ENTIRELY IN DELAWARE. THE PURCHASERS AND THE COMPANY HEREBY
EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHT, POWER, OR REMEDY UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE INVESTMENT DOCUMENTS OR UNDER OR IN CONNECTION WITH ANY
AMENDMENT, INSTRUMENT, DOCUMENT, OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY INVESTMENT
DOCUMENT, AND AGREE THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. THE TERMS AND PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
8.2 Remedies. EACH OF THE PARTIES TO THIS AGREEMENT WILL BE ENTITLED TO
ENFORCE ITS RIGHTS UNDER THIS AGREEMENT SPECIFICALLY, TO RECOVER DAMAGES BY
REASON OF ANY BREACH OF ANY PROVISION OF THIS AGREEMENT AND TO EXERCISE ALL
OTHER RIGHTS EXISTING IN ITS FAVOR. THE PARTIES HERETO AGREE AND ACKNOWLEDGE
THAT MONEY DAMAGES MAY NOT BE AN ADEQUATE REMEDY FOR ANY BREACH OF THE
PROVISIONS OF THIS AGREEMENT AND THAT ANY PARTY SHALL BE ENTITLED TO IMMEDIATE
INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE WITHOUT BOND OR THE NECESSITY OF
SHOWING ACTUAL MONETARY DAMAGES IN ORDER TO ENFORCE OR PREVENT ANY VIOLATIONS OF
THE PROVISIONS OF THIS AGREEMENT.
8.3 Successors and Assigns. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
THE PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE BINDING UPON, THE
SUCCESSORS, ASSIGNS, HEIRS, EXECUTORS AND ADMINISTRATORS OF THE PARTIES HERETO
AND SHALL INURE TO
32
THE BENEFIT OF AND BE ENFORCEABLE BY EACH PERSON WHO SHALL BE
A HOLDER OF THE SHARES FROM TIME TO TIME.
8.4 Entire Agreement. THIS AGREEMENT AND THE INVESTMENT DOCUMENTS, TOGETHER
WITH ANY EXHIBITS AND SCHEDULES, CONSTITUTE THE FULL AND ENTIRE UNDERSTANDING
AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECTS HEREOF AND NO
PARTY SHALL BE LIABLE OR BOUND TO ANY OTHER IN ANY MANNER BY ANY
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS EXCEPT AS SPECIFICALLY SET
FORTH HEREIN AND THEREIN.
8.5 Severability. IN CASE ANY PROVISION OF THE AGREEMENT SHALL BE INVALID,
ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE
REMAINING PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY.
8.6 Amendment and Waiver. THIS AGREEMENT MAY BE AMENDED AFTER THE DATE
HEREOF BY THE WRITTEN CONSENT OF COMPANY AND THE HOLDERS OF A MAJORITY OF THE
SHARES (INCLUDING ANY CONVERSION SHARES). ANY SUCH AMENDMENT WILL BE BINDING ON
COMPANY, EACH OF THE PURCHASERS AND THE TRANSFEREES OBTAINING SUCH SHARES. THE
OBLIGATIONS OF THE COMPANY AND THE RIGHTS OF THE PURCHASERS UNDER THE AGREEMENT
MAY BE WAIVED ONLY WITH THE WRITTEN CONSENT OF COMPANY AND THE HOLDERS OF A
MAJORITY OF THE SHARES (INCLUDING ANY SHARES OF COMMON STOCK ISSUED ON
CONVERSION THEREOF).
8.7 Delays or Omissions. IT IS AGREED THAT NO DELAY OR OMISSION TO EXERCISE
ANY RIGHT, POWER OR REMEDY ACCRUING TO ANY PARTY, UPON ANY BREACH, DEFAULT OR
NONCOMPLIANCE BY ANOTHER PARTY UNDER THIS AGREEMENT OR THE RESTATED CERTIFICATE
SHALL IMPAIR ANY SUCH RIGHT, POWER OR REMEDY, NOR SHALL IT BE CONSTRUED TO BE A
WAIVER OF ANY SUCH BREACH, DEFAULT OR NONCOMPLIANCE, OR ANY ACQUIESCENCE
THEREIN, OR OF OR IN ANY SIMILAR BREACH, DEFAULT OR NONCOMPLIANCE THEREAFTER
OCCURRING. IT IS FURTHER AGREED THAT ANY WAIVER, PERMIT, CONSENT OR APPROVAL OF
ANY KIND OR CHARACTER ON ANY PURCHASER'S PART OF ANY BREACH, DEFAULT OR
NONCOMPLIANCE UNDER THIS AGREEMENT OR UNDER THE RESTATED CERTIFICATE OR ANY
WAIVER ON SUCH PARTY'S PART OF ANY PROVISIONS OR CONDITIONS OF THE AGREEMENT OR
THE RESTATED CERTIFICATE MUST BE IN WRITING AND SHALL BE EFFECTIVE ONLY TO THE
EXTENT SPECIFICALLY SET FORTH IN SUCH WRITING. ALL REMEDIES, EITHER UNDER THIS
AGREEMENT, THE RESTATED CERTIFICATE, BY LAW, OR OTHERWISE AFFORDED TO ANY PARTY,
SHALL BE CUMULATIVE AND NOT ALTERNATIVE.
8.8 Notices. ALL NOTICES REQUIRED OR PERMITTED HEREUNDER SHALL BE IN
WRITING AND SHALL BE DEEMED EFFECTIVELY GIVEN: (I) UPON PERSONAL DELIVERY TO THE
PARTY TO BE NOTIFIED; (II) WHEN SENT BY CONFIRMED TELEX OR FACSIMILE IF SENT
DURING NORMAL BUSINESS HOURS OF THE RECIPIENT, IF NOT, THEN ON THE NEXT BUSINESS
DAY; (III) FIVE (5) DAYS AFTER HAVING BEEN SENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED,
33
POSTAGE PREPAID; OR (IV) ONE (1) DAY AFTER DEPOSIT WITH A NATIONALLY RECOGNIZED
OVERNIGHT COURIER, SPECIFYING NEXT DAY DELIVERY, WITH WRITTEN VERIFICATION OF
RECEIPT. ALL COMMUNICATIONS SHALL BE SENT TO THE COMPANY AT THE ADDRESS AS SET
FORTH ON THE SIGNATURE PAGE HEREOF AND TO PURCHASER AT THE ADDRESS SET FORTH
ABOVE OR AT SUCH OTHER ADDRESS AS THE COMPANY OR THE PURCHASERS MAY DESIGNATE BY
TEN (10) DAYS ADVANCE WRITTEN NOTICE TO THE OTHER PARTIES HERETO.
8.9 Expenses. THE COMPANY WILL BEAR ALL OF ITS OWN EXPENSES, IN CONNECTION
WITH THE PREPARATION, EXECUTION AND NEGOTIATION OF THIS AGREEMENT, THE
INVESTMENT DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND
WILL PAY, AND HOLD THE PURCHASERS AND ALL HOLDERS OF SHARES AND ANY CONVERSION
SHARES HARMLESS AGAINST LIABILITY FOR THE PAYMENT OF, (I) THE FEES AND EXPENSES
OF THE PURCHASERS' SPECIAL COUNSEL TO THE EXTENT DESCRIBED IN SECTION 6.2 AND
(II) STAMP AND OTHER TAXES WHICH MAY BE PAYABLE IN RESPECT OF THE EXECUTION AND
DELIVERY OF THIS AGREEMENT OR THE ISSUANCE, DELIVERY OR ACQUISITION OF THE
SHARES OR ANY CONVERSION SHARES.
8.10 Attorneys' Fees. IN THE EVENT THAT ANY DISPUTE AMONG THE PARTIES TO
THIS AGREEMENT SHOULD RESULT IN LITIGATION, THE PREVAILING PARTY IN SUCH DISPUTE
SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ALL FEES, COSTS AND EXPENSES
OF ENFORCING ANY RIGHT OF SUCH PREVAILING PARTY UNDER OR WITH RESPECT TO THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, SUCH REASONABLE FEES AND EXPENSES OF
ATTORNEYS AND ACCOUNTANTS, WHICH SHALL INCLUDE, WITHOUT LIMITATION, ALL FEES,
COSTS AND EXPENSES OF APPEALS.
8.11 Titles and Subtitles. THE TITLES OF THE SECTIONS AND SUBSECTIONS OF
THE AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND ARE NOT TO BE CONSIDERED
IN CONSTRUING THIS AGREEMENT.
8.12 Counterparts. THIS AGREEMENT AND THE INVESTMENT DOCUMENTS MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL, BUT
ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
8.13 Broker's Fees. EACH PARTY HERETO REPRESENTS AND WARRANTS THAT NO
AGENT, BROKER, INVESTMENT BANKER, PERSON OR FIRM ACTING ON BEHALF OF OR UNDER
THE AUTHORITY OF SUCH PARTY HERETO IS OR WILL BE ENTITLED TO ANY BROKER'S OR
FINDER'S FEE OR ANY OTHER COMMISSION DIRECTLY OR INDIRECTLY IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY HERETO FURTHER AGREES TO
INDEMNIFY EACH OTHER PARTY FOR ANY CLAIMS, LOSSES OR EXPENSES INCURRED BY SUCH
OTHER PARTY AS A RESULT OF THE REPRESENTATION IN THIS SECTION 8.13 BEING UNTRUE.
34
8.14 Exculpation Among Purchasers. EACH PURCHASER ACKNOWLEDGES THAT IT IS
NOT RELYING UPON ANY PERSON, FIRM, OR CORPORATION, OTHER THAN THE COMPANY AND
ITS OFFICERS AND DIRECTORS, IN MAKING ITS INVESTMENT OR DECISION TO INVEST IN
THE COMPANY. EACH PURCHASER AGREES THAT NO PURCHASER NOR THE RESPECTIVE
CONTROLLING PERSONS, OFFICERS, DIRECTORS, PARTNERS, AGENTS, OR EMPLOYEES OF ANY
PURCHASER SHALL BE LIABLE FOR ANY ACTION HERETOFORE OR HEREAFTER TAKEN OR
OMITTED TO BE TAKEN BY ANY OF THEM IN CONNECTION WITH THE SHARES AND CONVERSION
SHARES.
8.15 Pronouns. ALL PRONOUNS CONTAINED HEREIN, AND ANY VARIATIONS THEREOF,
SHALL BE DEEMED TO REFER TO THE MASCULINE, FEMININE OR NEUTER, SINGULAR OR
PLURAL, AS TO THE IDENTITY OF THE PARTIES HERETO MAY REQUIRE.
8.16 Restrictive Legends and Stop-Transfer Orders.
(a) LEGENDS. Purchaser understands and agrees that the Company will
cause the legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership of the
Shares, together with any other legends that may be required by state or
federal securities laws, or by the Bylaws of the Company, or by any other
agreement between Purchaser and the Company or between Purchaser and any
third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) STOP-TRANSFER INSTRUCTIONS. Purchaser agrees that, in order to
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
35
(c) REFUSAL TO TRANSFER. The Company will not be required (i) to
transfer on its books any Shares that have been sold or otherwise
transferred in violation of any of the provisions of this Agreement or (ii)
to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares have
been so transferred.
(d) REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. Any legend endorsed
on a certificate pursuant to subsection 8.16(a) and the stop transfer
instructions with respect to such Shares or Conversion Shares shall be
removed and the Company shall issue a certificate without such legend to
the holder thereof if such Shares or Conversion Shares are registered under
the Securities Act and a prospectus meeting the requirements of Section 10
of the Securities Act is available, if such legend may be properly removed
under the terms of Rule 144 promulgated under the Securities Act or if such
holder provides the Company with an opinion of counsel for such holder,
reasonably satisfactory to legal counsel for the Company, to the effect
that a sale, transfer or assignment of such Shares or Conversion Shares may
be made without registration.
8.17 Exchange of Series D Preferred. UPON SURRENDER BY ANY HOLDER OF SHARES
TO THE COMPANY OF ANY CERTIFICATE EVIDENCING SUCH SHARES, THE COMPANY AT ITS
EXPENSE WILL ISSUE IN EXCHANGE THEREFOR, AND DELIVER TO SUCH HOLDER, SHARES OF
SERIES D PREFERRED, IN SUCH DENOMINATION OR DENOMINATIONS AS MAY BE REQUESTED BY
SUCH HOLDER. UPON RECEIPT OF EVIDENCE SATISFACTORY TO THE COMPANY OF THE LOSS,
THEFT, DESTRUCTION OR MUTILATION OF ANY CERTIFICATE EVIDENCING SHARES OF SERIES
D PREFERRED, AND IN CASE OF ANY SUCH LOSS, THEFT OR DESTRUCTION, UPON DELIVERY
OF AN INDEMNITY AGREEMENT SATISFACTORY TO THE COMPANY (PROVIDED THAT IN THE CASE
OF THE PURCHASERS OR AN INSTITUTIONAL INVESTOR, ITS OWN AGREEMENT SHALL BE
DEEMED SATISFACTORY TO THE COMPANY), OR IN CASE OF ANY SUCH MUTILATION, UPON
SURRENDER AND CANCELLATION OF SUCH CERTIFICATE EVIDENCING SHARES OF SERIES D
PREFERRED, THE COMPANY AT ITS EXPENSE WILL ISSUE AND DELIVER TO ANY SUCH HOLDER
A NEW CERTIFICATE EVIDENCING SUCH SHARES OF SERIES D PREFERRED OF LIKE TENOR, IN
LIEU OF SUCH LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATE(S) EVIDENCING
SHARES OF SERIES D PREFERRED.
8.18 Reproduction of Documents. THIS AGREEMENT AND ALL DOCUMENTS RELATING
HERETO, INCLUDING, BUT NOT LIMITED TO, (I) CONSENTS, WAIVERS, AMENDMENTS AND
MODIFICATIONS WHICH MAY HEREAFTER BE EXECUTED AND (II) CERTIFICATES AND OTHER
INFORMATION PREVIOUSLY OR HEREAFTER FURNISHED, MAY BE REPRODUCED BY ANY
PHOTOGRAPHIC, PHOTOSTATIC, MICROFILM, OPTICAL DISK, MICRO-CARD, MINIATURE
PHOTOGRAPHIC OR OTHER SIMILAR PROCESS. THE PARTIES AGREE THAT ANY SUCH
REPRODUCTION SHALL BE ADMISSIBLE IN EVIDENCE AS THE ORIGINAL ITSELF IN ANY
JUDICIAL OR ADMINISTRATIVE PROCEEDING, WHETHER OR NOT THE ORIGINAL IS IN
EXISTENCE AND WHETHER
36
OR NOT SUCH REPRODUCTION WAS MADE BY A PARTY IN THE REGULAR COURSE OF BUSINESS,
AND THAT ANY ENLARGEMENT, FACSIMILE OR FURTHER REPRODUCTION OF SUCH REPRODUCTION
SHALL LIKEWISE BE ADMISSIBLE IN EVIDENCE.
8.19 Trustee Exculpation. THE EXECUTION OF THIS AGREEMENT BY A TRUSTEE ON
BEHALF OF A TRUST SHALL NOT CREATE ANY LIABILITY OF, OR REQUIRE PERFORMANCE OF
ANY COVENANT OR AGREEMENT BY THE TRUSTEE INDIVIDUALLY, SUCH LIABILITY BEING
LIMITED TO THE ASSETS OF THE TRUST ON BEHALF OF WHICH THIS AGREEMENT IS BEING
EXECUTED BY A TRUSTEE.
[The Remainder of This Page is Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SERIES D PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in
the first paragraph hereof.
COMPANY: QUATRX PHARMACEUTICALS COMPANY
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: Suite 300
0000 Xxxx Xxxxx
Xxx Xxxxx, XX 00000
PRIOR PURCHASERS:
XXXXXX XXXXXX HEALTHCARE VENTURE
PARTNERS, L.P.
By: Xxxxxx Xxxxxx Healthcare Venture
Partners LLC, its General Partner
By: Xxxxxx Xxxxxx Capital Management
LLC, its Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE
AGREEMENT]
MPM BIOVENTURES III, L.P.
By: MPM BioVentures III GP, L.P., its
General Partner
By: MPM BioVentures III LLC, its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
MPM BIOVENTURES III-QP, L.P
By: MPM BioVentures III GP, L.P., its
General Partner
By: MPM BioVentures III LLC, its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
MPM BIOVENTURES III PARALLEL FUND, L.P.
By: MPM BioVentures III GP, L.P., its
General Partner
By: MPM BioVentures III LLC, its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
MPM BIOVENTURES III GMBH & CO.
BETEILIGUNGS KG
By: MPM BioVentures III GP, L.P., in its
capacity as the Managing Limited
Partner
By: MPM BioVentures III LLC, its General
Partner
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE
AGREEMENT]
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS 2003
BVIII LLC
By:
------------------------------------
Name:
----------------------------------
Title: Manager
MPM BIOVENTURES STRATEGIC FUND, L.P.
By: MPM BioVentures III GP, L.P., its
General Partner
By: MPM BioVentures III LLC, its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
Address for each of the above:
000 Xxxxxxxxxx Xxx., 00xx xxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE
AGREEMENT]
XXXXXXX HEALTHCARE III, L.P.
By: FHM III, L.L.C.
Its: General Partner
By:
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Member
XXXXXXX AFFILIATES III, L.P.
By: FHM III, L.L.C.
Its: General Partner
By:
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Member
Address for each of the above:
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE
AGREEMENT]
TL VENTURES V L.P.
By: TL Ventures V Management L.P.
Its: General Partner
By: TL Ventures V LLC
Its: Manager
By:
------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
TL VENTURES V INTERFUND L.P.
By: TL Ventures V LLC
Its: Manager
By:
------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
Address for each of the above:
700 Building, 000 Xxxxx Xxxx Xx.
Xxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED STOCK PURCHASE
AGREEMENT]
INTERWEST PARTNERS VIII, L.P.
By: InterWest Management
Partners VIII, LLC
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INTERWEST INVESTORS VIII, L.P.
By: InterWest Management
Partners VIII, LLC
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INTERWEST INVESTORS Q VIII, L.P.
By: InterWest Management
Partners VIII, LLC
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for each of the above:
0000 Xxxx Xxxx Xxxx
Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED
STOCK PURCHASE AGREEMENT]
XXXXXXXXX FUND L.P.
By: Xxxxxxxxx Managers, LLC
Its: General Manager
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED
STOCK PURCHASE AGREEMENT]
TWILIGHT VENTURE PARTNERS, LLC
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Investment Officer
Address: Xxx Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SERIES D PREFERRED
STOCK PURCHASE AGREEMENT]
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
SERIES D PREFERRED STOCK PURCHASE AGREEMENT OF QUATRX
PHARMACEUTICALS COMPANY
In accordance with Section 8.12 of that certain Amended and Restated Series
D Preferred Stock Purchase Agreement, dated as of May 24, 2005 (the
"AGREEMENT"), by and among QuatRx Pharmaceuticals Company, a Delaware
corporation, and the persons and entities listed on the signature pages thereto,
the undersigned hereby executes and delivers this counterpart signature page to
the Agreement, and in connection therewith, hereby agrees to be bound by all of
the terms and conditions set forth in the Agreement, effective as of June ____,
2005.
ADDITIONAL PURCHASER:
----------------------------------------
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
EXHIBIT A
TABLE A-1
SCHEDULE OF INITIAL PURCHASERS (INITIAL CLOSING)
SHARES ACQUIRED AT PURCHASE PRICE AT
NAME INITIAL CLOSING INITIAL CLOSING
---- ------------------ -----------------
Xxxxxxx Healthcare III L.P. 708,954.16 $ 992,535.83
Xxxxxxx Affiliates III, L.P. 5,331.55 $ 7,464.17
TL Ventures V L.P. 1,228,747.45 $ 1,720,246.43
TL Ventures V Interfund, L.P. 21,252.55 $ 29,753.57
MPM BioVentures III, LP 189,898.00 $ 265,857.20
MPM BioVentures III-QP, LP 2,824,293.00 $ 3,954,010.20
MPM BioVentures III Parallel Fund, LP 85,296.00 $ 119,414.40
MPM BioVentures III GmbH & Co. Beteiligungs KG 238,687.00 $ 334,161.80
MPM Asset Management Investors 2003 BVIII LLC 54,683.00 $ 76,556.20
MPM Bioventures Strategic Fund, L.P. 535,714.00 $ 749,999.60
InterWest Partners VIII, L.P. 2,067,214.29 $ 2,894,100.00
InterWest Investors VIII, L.P. 16,500.00 $ 23,100.00
InterWest Investors Q VIII, L.P. 59,142.86 $ 82,800.00
Xxxxxxxxx Fund L.P. 285,714.29 $ 400,000.00
Twilight Venture Partners, LLC 142,857.14 $ 200,000.00
Xxxxxx Xxxxxx Healthcare Venture Partners LLC 2,500,000.00 $ 3,500,000.00
TOTAL: 10,964,285.29 $15,349,999.40
TABLE A-2
SCHEDULE OF PURCHASERS
SHARES
ACQUIRED PURCHASE
SHARES PURCHASE AT INITIAL PRICE AT
ACQUIRED PRICE AT AND INITIAL AND
AT INITIAL INITIAL SUBSEQUENT SUBSEQUENT
NAME CLOSING CLOSING CLOSINGS CLOSINGS
---- ------------- -------------- ------------- --------------
Xxxxxxx Healthcare III L.P. 708,954.16 $ 992,535.83 1,417,908.32 $ 1,985,071.65
Xxxxxxx Affiliates III, L.P. 5,331.55 $ 7,464.17 10,663.11 $ 14,928.35
TL Ventures V L.P. 1,228,747.45 $ 1,720,246.43 2,457,494.90 $ 3,440,492.86
TL Ventures V Interfund, L.P. 21,252.55 $ 29,753.57 42,505.10 $ 59,507.14
MPM BioVentures III, LP 189,898.00 $ 265,857.20 379,796.00 $ 531,714.40
MPM BioVentures III-QP, LP 2,824,293.00 $ 3,954,010.20 5,648,586.00 $ 7,908,020.40
MPM BioVentures III Parallel Fund, LP 85,296.00 $ 119,414.40 170,592.00 $ 238,828.80
MPM BioVentures III GmbH & Co. Beteiligungs KG 238,687.00 $ 334,161.80 477,374.00 $ 668,323.60
MPM Asset Management Investors 2003 BVIII LLC 54,683.00 $ 76,556.20 109,366.00 $ 153,112.40
MPM Bioventures Strategic Fund, L.P. 535,714.00 $ 749,999.60 1,071,428.00 $ 1,499,999.20
InterWest Partners VIII, L.P. 2,067,214.29 $ 2,894,100.00 4,134,428.57 $ 5,788,200.00
InterWest Investors VIII, L.P. 16,500.00 $ 23,100.00 33,000.00 $ 46,200.00
InterWest Investors Q VIII, L.P. 59,142.86 $ 82,800.00 118,285.71 $ 165,600.00
Xxxxxxxxx Fund L.P. 285,714.29 $ 400,000.00 571,428.57 $ 800,000.00
Twilight Venture Partners, LLC 142,857.14 $ 200,000.00 285,714.29 $ 400,000.00
Xxxxxx Xxxxxx Healthcare Venture Partners LLC 2,500,000.00 $ 3,500,000.00 5,000,000.00 $ 7,000,000.00
TOTAL: 10,964,285.29 $15,349,999.40 21,928,570.57 $30,699,998.80
TABLE A-2
SCHEDULE OF PURCHASERS
SHARES
ACQUIRED PURCHASE
SHARES PURCHASE AT INITIAL PRICE AT
ACQUIRED PRICE AT AND INITIAL AND
AT INITIAL INITIAL SUBSEQUENT SUBSEQUENT
NAME CLOSING CLOSING CLOSINGS CLOSINGS
---- ------------- -------------- ------------- --------------
TABLE A-3
SCHEDULE OF ADDITIONAL PURCHASERS
SHARES SHARES PURCHASE SHARES PURCHASE
ACQUIRED PURCHASE ACQUIRED PRICE ACQUIRED PRICE
AT PRICE AT AT AT AT AT
HORMOS HORMOS SUBSEQUENT SUBSEQUENT ADDITIONAL ADDITIONAL
NAME CLOSING CLOSING CLOSING CLOSING CLOSING CLOSING
---- --------- ---------- ---------- ---------- ---------- ----------
Bio Fund Ventures I Ky 157,500 $220,500
Bio Fund Ventures II
Jatkosijoitusrahasto Ky 67,500 $94,500
Bio Fund Ventures II Ky 150,000 $210,000
Biomedical Venture III Ltd. 375,000 $525,000
H&B Capital LP 250,000 $350,000
TOTAL: 1,000,000 $1,400,000 1,857,142 $2,600,000 1,428,571 $2,000,000
0
EXECUTION COPY
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
EXHIBIT B
RESTATED CERTIFICATE
QUATRX PHARMACEUTICALS COMPANY
AMENDMENT TO THIRD AMENDED AND
RESTATED VOTING AGREEMENT
THIS AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT (the
"AMENDMENT") is made and entered into as of this ___ day of May, 2005, by and
among QUATRX PHARMACEUTICALS COMPANY, a Delaware corporation (the "COMPANY"),
those certain holders of the Company's Common Stock listed on EXHIBIT A hereto
(the "KEY HOLDERS") and the persons and entities whose names are set forth on
EXHIBIT B attached hereto (referred to hereinafter collectively as the
"INVESTORS" and each individually as an "INVESTOR").
RECITALS
WHEREAS, the Company, the Key Holders and certain of the Investors (the
"PRIOR INVESTORS") have entered into that certain Third Amended and Restated
Voting Agreement, dated as of November 22, 2004 (the "VOTING AGREEMENT"),
pursuant to which the Company, the Key Holders and the Prior Investors made
certain agreements regarding the voting of shares of Company stock. Capitalized
terms used herein but not otherwise defined shall have the meaning given such
terms in the Voting Agreement;
WHEREAS, the Company proposes to issue up to 5,357,141 additional shares of
its Series D Preferred and up to 4,260,035 Shares of its Series D-1 Convertible
Preferred Stock, par value $0.01 per share ("SERIES D-1 PREFERRED") to
additional Investors (the "ADDITIONAL INVESTORS");
WHEREAS, Section 3.5 of the Voting Agreement provides that the Voting
Agreement may be amended only with the written consent of (i) the Company, (ii)
the holders of at least 60% of the outstanding shares of the Company's Series A
Preferred and Series B Preferred considered together as a single class (the
"REQUISITE SERIES A AND B MAJORITY"), (iii) the holders of at least 60% of the
outstanding shares of Series C Preferred as a separate class (the "REQUISITE
SERIES C MAJORITY"), (iv) the holders of at least 60% of the outstanding shares
of Series D Preferred as a separate class (the "REQUISITE SERIES D MAJORITY")
(including for each purpose any shares of Common Stock issued on conversion
thereof), and (v) the holders of a majority of the shares held by the Key
Holders (the "REQUISITE KEY HOLDER MAJORITY"). Collectively, the Requisite Key
Holder Majority, the Requisite Series A and B Majority, the Requisite Series C
Majority and the Requisite Series D Majority are referred to herein as the
"REQUISITE MAJORITIES";
WHEREAS, the Company, the Key Holders, the Prior Investors and the
Additional Investors desire to amend the Voting Agreement as provided herein;
and
2
WHEREAS, the Investors executing this Amendment hold the Requisite
Majorities as of the date hereof.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Amendment hereby agree as follows:
AMENDMENT
1. Pursuant to Section 3.8 of the Voting Agreement, upon its execution of a
counterpart signature page to the Voting Agreement, each of the Additional
Investors shall be deemed an "Investor" under, and a party to, the Voting
Agreement.
2. SECTION 1.1 of the Voting Agreement (Voting; Key Holder Shares; Investor
Shares) is hereby amended as follows:
(A) The phrase ", or the Company's Series D-1 Convertible Preferred
Stock, par value $0.01 per share (the "SERIES D-1 PREFERRED")" is added after
"or the Series D Preferred" in Section 1.1(b).
(B) The first sentence of Section 1.1(c) is amended and restated in
its entirety to read, "The Company's Board of Directors shall have nine (9)
members."
(C) The following is added as Section 1.1(c)(vi):
"(VI) At each election of directors in which the holders of the
Series D-1 Preferred, voting as a separate class, are entitled to elect a
director of the Company, the Key Holders and Investors shall vote all of their
respective Investor Shares and Key Holder Shares so as to elect a director
nominated by the holders of the Series D-1 Preferred (the "HORMOS SELLERS").
With respect to the first director nominated after the date hereof by the Hormos
Sellers, the Key Holders and Investors shall vote all of their respective
Investor Shares and Key Holder Shares as soon as practicable, and in any event
within two (2) weeks, after the nomination of such director, so as to elect such
director nominated by the Hormos Sellers. Any vote taken to remove any director
elected pursuant to this Section 1.1(c)(vi), or to fill any vacancy created by
the resignation, removal or death of a director elected pursuant to this Section
1.1(c)(vi), shall also be subject to the provisions of this Section 1.1(c)(vi)
and shall require the approval of the Hormos Sellers."
3. SECTION 1.4 of the Voting Agreement (Other Rights) is hereby amended by
adding the phrase ", or the Series D-1 Preferred" after the phrase "the Series D
Preferred" and before ", each Key Holder".
4. SECTION 3.5 of the Voting Agreement (Amendment or Waiver) is hereby
amended by deleting the phrase "60% of the outstanding shares of Series D
Preferred as a separate class" and replacing it with "65% of the outstanding
shares of Series D Preferred as a separate class".
3
In addition, the following sentence shall be added to the end of Section 3.5:
"Notwithstanding the foregoing, the Company may amend EXHIBIT B hereto without
the consent of any other party hereto to add additional shares of Series D
Preferred purchased under the Amended and Restated Series D Preferred Stock
Purchase Agreement."
5. Exhibit B to the Voting Agreement is hereby amended and restated in its
entirety by EXHIBIT B attached hereto.
6. This Amendment may be executed in counterparts, each of which will be
deemed an original, but all of which together shall constitute one and the same
instrument.
7. This Amendment shall become effective immediately upon execution by the
Company, the Key Holders and the Requisite Majorities.
8. Other than as set forth in this Amendment, all of the terms and
conditions of the Voting Agreement shall continue in full force and effect.
9. This Amendment shall be governed by and construed exclusively in
accordance with the substantive laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware excluding the body of law relating to conflict of laws and
choice of law.
[SIGNATURE PAGE FOLLOWS]
4
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT TO THIRD
AMENDED AND RESTATED VOTING AGREEMENT to be executed and delivered by their
respective officers hereunto duly authorized on the date first above written.
COMPANY:
QUATRX PHARMACEUTICALS COMPANY
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
KEY HOLDERS:
XXXX X. XXXXX TRUST DATED DECEMBER XXXX X. XXXXX TRUST DATED DECEMBER
21, 2000 21, 2000
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx and Xxxxx X. Name: Xxxxxx X. Xxxxx and Xxxxx X.
Xxxxx, Trustees Xxxxx, Trustees
XXXXX X. XXXXX TRUST DATED DECEMBER XXXXX XXXXXXX XXXXXX TRUST DATED
21, 2000 DECEMBER 22, 2000
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx and Xxxxx X. Name: Stuart Xxxxxx Xxxxxx and Xxxxxxx
Xxxxx, Trustees Xxxx Xxxxxx, Trustees
XXXXXXXX XXXX XXXXXX TRUST DATED 2000 IRREVOCABLE TRUST AGREEMENT OF
DECEMBER 22, 2000 XXXXXXXXXXX X. XXXXXXXX, SETTLER F/B/O
XXXXXXX X. XXXXXXXX DATED DECEMBER 15,
2000
By: By:
--------------------------------- ------------------------------------
Name: Stuart Xxxxxx Xxxxxx and Name: Xxxx Xxxx, Trustee
Xxxxxxx Xxxx Xxxxxx, Trustees
2000 IRREVOCABLE TRUST AGREEMENT OF 2000 IRREVOCABLE TRUST AGREEMENT OF
XXXXXXXXXXX X. XXXXXXXX, SETTLER XXXXXXXXXXX X. XXXXXXXX, SETTLER F/B/O
F/B/O XXXXXX X. XXXXXXXX DATED XXXXXXX X. XXXXXXXX DATED DECEMBER 15,
DECEMBER 15, 2000 2000
By: By:
--------------------------------- ------------------------------------
Name: Xxxx Xxxx, Trustee Name: Xxxx Xxxx, Trustee
[SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
By:
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx and
Xxxxxxxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX LIVING TRUST XXXXXXXXX X. XXXXXXXXXX TRUST U/A/D
SEPTEMBER 10, 1996
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx and Xxxx X. Name: Xxxxxxxxx X. Xxxxxxxxxx, Trustee
Xxxxxxxx, Trustees
PRIOR INVESTORS:
MPM BIO VENTURES III, L.P. MPM BIOVENTURES III-QP, L.P.
By: MPM Bio Ventures III GP, L.P., By: MPM Bio Ventures III GP, L.P., its
its General Partner General Partner
By: MPM Bio Ventures III LLC, its By: MPM Bio Ventures III LLC, its
General Partner General Partner
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Series A Member Title: Series A Member
MPM BIOVENTURES III PARALLEL FUND, MPM BIOVENTURES III GMBH & CO.
L.P. BETEILINGUNGS KG
By: MPM Bio Ventures III GP, L.P., By: MPM Bio Ventures III GP, L.P., in
its General Partner its capacity as the Managing Limited
Partner
By: MPM Bio Ventures III LLC, its By: MPM Bio Ventures III LLC, its
General Partner General Partner
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Series A Member Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS 2003 MPM BIOVENTURES STRATEGIC FUND, L.P.
BVIII LLC
By: By: MPM Bio Ventures III GP, L.P., its
--------------------------------- General Partner
Name: By: MPM Bio Ventures III LLC, its
------------------------------- General Partner
Title: Manager
By:
------------------------------------
Name:
----------------------------------
Title: Series A Member
[SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
XXXXXX XXXXXX HEALTHCARE VENTURE
PARTNERS, L.P.
By: Xxxxxx Xxxxxx Healthcare Venture
Partners LLC, its General Partner
By: Xxxxxx Xxxxxx Capital Management
LLC, its Managing Member
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX HEALTHCARE III, X.X. XXXXXXX AFFILIATES III, L.P.
By: FHM III, L.L.C. By: FHM III, L.L.C.
Its: General Partner Its: General Partner
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Member Title: Member
TL VENTURES V L.P. TL VENTURES V INTERFUND L.P.
By: TL Ventures V Management L.P. By: TL Ventures V LLC
Its: General Partner Its: Manager
By: TL Ventures V LLC By:
Its: Manager ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
INTERWEST PARTNERS VIII, L.P. INTERWEST INVESTORS VIII, L.P.
By: InterWest Management Partners By: InterWest Management Partners VIII,
VIII, LLC LLC
Its: General Partner Its: General Partner
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
INTERWEST INVESTORS Q VIII, L.P.
By: InterWest Management Partners
VIII, LLC
Its: General Partner
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
XXXXXXXXX FUND, L.P. TWILIGHT VENTURE PARTNERS, LLC
By: Xxxxxxxxx Managers, LLC, its By:
general partner ------------------------------------
Name:
----------------------------------
By: Title
--------------------------------- ----------------------------------
Name:
-------------------------------
Title:
------------------------------
WS INVESTMENT COMPANY, LLC WS INVESTMENT COMPANY 2000 B
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
XXXXXX & XXXXXXX XXXXX CLUB TRUST
By: By:
--------------------------------- ------------------------------------
Name: Name: Xxxx X. Xxxxxxxxxxx, not
------------------------------- individually, but solely as
Title: trustee of the Xxxxx Club Trust
------------------------------
[SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
COUNTERPART SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED VOTING AGREEMENT
OF QUATRX PHARMACEUTICALS COMPANY
In accordance with Section 3.8 of that certain Third Amended and Restated
Voting Agreement, dated as of November 22, 2004, as amended (the "AGREEMENT"),
by and among QuatRx Pharmaceuticals Company, a Delaware corporation, and the
persons and entities listed on the signature pages thereto, the undersigned
hereby executes and delivers this counterpart signature page to the Agreement,
and in connection therewith, hereby agrees to be bound by all of the terms and
conditions set forth in the Agreement, effective as of [_________], 2005.
INVESTOR:
-------------------------------------
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
EXHIBIT A
LIST OF KEY HOLDERS
KEY HOLDER NAMES NUMBER OF SHARES
---------------- ----------------
Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx, Trustees of the Xxxx X. Xxxxx 318,333-1/3
Trust dated December 21, 2000
Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx, Trustees of the Xxxx X. Xxxxx 318,333-1/3
Trust dated December 21, 2000
Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx, Trustees of the Sarah C. 318,333-1/3
Zerbe Trust date December 31, 2000
Robert L. Zerbe 40,000
Stuart Lionel Dombey and Heather Jane Dombey, trustees of the 462,500
Henry Richard Dombey Trust dated December 22, 2000
Stuart Lionel Dombey and Heather Jane Dombey, trustees of the 462,500
Benjamin Hugo Dombey Trust dated December 22, 2000
Stuart Lionel Dombey, Trustee of the Stuart Lionel Dombey Trust 40,000
u/a/d December 22, 2000
John Ewin, trustee of the 2000 Irrevocable Trust Agreement of 150,000
Christopher I. Nicholas, Settlor F/B/O Timothy R. Nicholas dated
December 15, 2000
John Ewin, trustee of the 2000 Irrevocable Trust Agreement of 150,000
Christopher I. Nicholas, Settlor F/B/O Claire S. Nicholas dated
December 15, 2000
John Ewin, trustee of the 2000 Irrevocable Trust Agreement of 150,000
Christopher I. Nicholas, Settlor F/B/O Frances L. Nicholas dated
December 15, 2000
Christopher I. Nicholas and Christine L. Nicholas jtwros 475,000
Christine L. Nicholas 20,000
Christopher I. Nicholas 20,000
Randall W. Whitcomb and Rita K. Whitcomb, Trustees and their 400,000
Successors in trust of The Randall W. Whitcomb Living Trust
Constance H. Keyserling, Trustee of the Constance H. Keyserling 40,000
Trust u/a/d September 10, 1996
TOTAL 3,375,000
EXECUTION COPY
EXHIBIT B
EXHIBIT B
TABLE B-1
SERIES A PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Frazier Healthcare III L.P. 744,401.82
Frazier Affiliates III, L.P. 5,598.18
TL Ventures V L.P. 737,248.00
TL Ventures V Interfund, L.P. 12,752.00
WS Investment Company 2000 B 25,000.00
WS Investment Company, LLC 12,500.00
Latham & Watkins 18,750.00
Vince Club Trust 18,750.00
TOTAL: 1,575,000.00
TABLE B-2
SERIES B PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Frazier Healthcare III L.P. 2,084,325.00
Frazier Affiliates III, L.P. 15,675.00
TL Ventures V L.P. 2,064,295.67
TL Ventures V Interfund, L.P. 35,704.33
TOTAL: 4,200,000.00
TABLE B-3
SERIES C PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
MPM BioVentures III, LP 753,141
MPM BioVentures III-QP, LP 11,201,201
MPM BioVentures III Parallel Fund, LP 338,287
MPM BioVentures III GmbH & Co. Beteiligungs KG 946,639
MPM Asset Management Investors 2003 BVIII LLC 216,872
Frazier Healthcare III L.P. 3,047,260
Frazier Affiliates III, L.P. 22,916
TL Ventures V L.P. 3,449,116
TL Ventures V Interfund, L.P. 59,656
InterWest Partners VIII, L.P. 4,231,140
InterWest Investors VIII, L.P. 33,772
InterWest Investors Q VIII, L.P. 121,052
Stockwell Fund L.P. 1,000,000
Twilight Venture Partners, LLC 175,439
TOTAL: 25,596,491
TABLE B-4
SERIES D PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Frazier Healthcare III L.P. 708,954.16
Frazier Affiliates III, L.P. 5,331.55
TL Ventures V L.P. 1,228,747.45
TL Ventures V Interfund, L.P. 21,252.55
MPM BioVentures III, LP 189,898.00
MPM BioVentures III-QP, LP 2,824,293.00
MPM BioVentures III Parallel Fund, LP 85,296.00
MPM BioVentures III GmbH & Co. Beteiligungs KG 238,687.00
MPM Asset Management Investors 2003 BVIII LLC 54,683.00
MPM Bioventures Strategic Fund, L.P. 535,714.00
InterWest Partners VIII, L.P. 2,067,214.29
InterWest Investors VIII, L.P. 16,500.00
InterWest Investors Q VIII, L.P. 59,142.86
Stockwell Fund L.P. 285,714.29
Twilight Venture Partners, LLC 142,857.14
Thomas Weisel Healthcare Venture Partners, L.P. 2,500,000.00
Aboa Venture II 31,517.00
Apteekkien Elakekassa 7,250.00
BankInvest Biomedical Ventures III LP 285,718.00
Bio Fund Ventures I LP 58,857.00
Bio Fund Ventures II LP 57,307.00
Bio Fund Ventures II Annex Fund LP 25,994.00
H&B Capital LP 168,069.00
Ilmarinen Mutual Pension Insurance 20,132.00
Innoventure Oy 34,187.00
Pohjala Non-Life Insurance 8,755.00
Sampo 34,481.00
Sampo Life Insurance 34,481.00
The Finnish National Fund for Research and Development 146,337.00
Suomi Mutual Life Assurance 35,020.00
2
Tapiola Corporate Life Insurance 9,477.00
Tapiola General Mutual Insurance 20,081.00
Tapiola Mutual Life Assurance 14,216.00
Tapiola Mutual Pension Insurance 27,311.00
Veritas Life Insurance 5,028.00
Veritas Pension Insurance 10,058.00
TOTAL: 11,998,516.29
TABLE B-5
SERIES D-1 PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Aboa Venture II 125,314.00
Apteekkien Elakekassa 28,823.00
BankInvest Biomedical Ventures III LP 1,136,024.00
Bio Fund Ventures I LP 234,021.00
Bio Fund Ventures II LP 227,857.00
Bio Fund Ventures II Annex Fund LP 103,338.00
H&B Capital LP 668,247.00
Ilmarinen Mutual Pension Insurance 80,049.00
Innoventure Oy 135,931.00
Pohjala Non-Life Insurance 34,810.00
Sampo 137,101.00
Sampo Life Insurance 137,101.00
The Finnish National Fund for Research and Development 581,836.00
Suomi Mutual Life Assurance 139,244.00
Tapiola Corporate Life Insurance 37,681.00
Tapiola General Mutual Insurance 79,842.00
Tapiola Mutual Life Assurance 56,523.00
Tapiola Mutual Pension Insurance 108,588.00
Veritas Life Insurance 19,990.00
Veritas Pension Insurance 39,992.00
TOTAL: 4,112,312.00
3
QUATRX PHARMACEUTICALS COMPANY
AMENDMENT TO
FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT TO FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
(the "AMENDMENT") is made and entered into as of this ___ day of May, 2005, by
and among QUATRX PHARMACEUTICALS COMPANY, a Delaware corporation (the
"COMPANY"), and the entities whose names are set forth on EXHIBIT A attached
hereto (referred to hereinafter collectively as the "INVESTORS" and each
individually as an "INVESTOR").
RECITALS
WHEREAS, the Company and certain of the Investors (the "PRIOR INVESTORS")
have entered into that certain Fourth Amended and Restated Investors' Rights
Agreement, dated as of November 22, 2004 (the "INVESTOR RIGHTS AGREEMENT"),
pursuant to which the Company and the Prior Investors made certain agreements
regarding registration rights and other matters set forth therein. Capitalized
terms used herein but not otherwise defined shall have the meaning given such
terms in the Investor Rights Agreement;
WHEREAS, the Company proposes to issue up to 5,357,141 additional shares of
its Series D Convertible Preferred Stock, par value $0.01 per share ("SERIES D
PREFERRED") and 4,260,035 shares of its Series D-1 Convertible Preferred Stock,
par value $0.01 per share ("SERIES D-1 PREFERRED") to additional Investors (the
"ADDITIONAL INVESTORS");
WHEREAS, Section 6.2 of the Investor Rights Agreement provides that the
Investor Rights Agreement may be amended and the observance thereof may be
waived only with the written consent of (i) the Company, (ii) the holders of at
least 60% of the outstanding shares of the Company's Series A Preferred and
Series B Preferred considered together as a single class (calculated on an as if
converted into Common Stock basis), (the "REQUISITE SERIES A AND B MAJORITY"),
(iii) the holders of at least 60% of the outstanding shares of Series C
Preferred as a separate class (the "REQUISITE SERIES C MAJORITY") and (iv) the
holders of at least 60% of the outstanding shares of Series D Preferred as a
separate class (the "REQUISITE SERIES D MAJORITY") (including for each purpose
any shares of Conversion Stock). Collectively, the Requisite Series A and B
Majority, the Requisite Series C Majority and the Requisite Series D Majority
are referred to herein as the "REQUISITE MAJORITIES";
WHEREAS, the Company, the Prior Investors and the Additional Investors
desire to amend the Investor Rights Agreement as provided herein; and
4
WHEREAS, the Investors executing this Amendment hold the Requisite
Majorities as of the date hereof.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Amendment hereby agree as follows:
AMENDMENT
1. Pursuant to Section 7.8 of the Investor Rights Agreement, upon its
execution of a counterpart signature page to the Investor Rights Agreement, each
of the Additional Investors shall be deemed an "Investor" under, and a party to,
the Investor Rights Agreement.
2. SECTION 1.1 of the Investor Rights Agreement (Financial Information) is
hereby amended by deleting the first paragraph thereof in its entirety and
replacing it with the following:
"The Company covenants and agrees that, commencing on the date of this
Agreement, the Company will furnish to each Major Investor, as defined
below, the information specified in this Section 1.1. For purposes of this
Section 1.1 only, for so long as an Investor, together with its affiliates,
holds not less than 500,000 shares of the Series A Preferred, the Series B
Preferred, the Series C Preferred, the Series D Preferred, the Series D-1
Preferred and/or the equivalent number (on an-as-converted basis) of shares
of Common Stock of the Company ("COMMON STOCK") issued upon the conversion
of such shares of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, or Series D-1 Preferred, such Investor shall
be a "MAJOR INVESTOR"."
3. SECTION 1.2 of the Investor Rights Agreement (Inspection) is hereby
amended by adding the following sentence at the beginning of such section:
"For purposes of Section 1.2 only, a "MAJOR INVESTOR" means an Investor
that, together with its affiliates, holds not less than 1,000,000 shares of
the Series A Preferred, the Series B Preferred, the Series C Preferred, the
Series D Preferred, the Series D-1 Preferred and/or the equivalent number
(on an-as-converted basis) of shares of Common Stock issued upon the
conversion of such shares of Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred, or Series D-1 Preferred."
4. SECTION 2.1 of the Investor Rights Agreement (Registration Rights;
Definitions) is hereby amended by replacing each occurrence of the phrase
"Series A Preferred, Series B Preferred, Series C Preferred or Series D
Preferred" with the phrase "Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred or Series D-1 Preferred."
5. SECTION 3.1 of the Investor Rights Agreement (Pre-emptive Rights;
General) is hereby amended by replacing the phrase "Series A Preferred, Series B
Preferred, Series C Preferred and/or Series D Preferred" with the phrase "Series
A Preferred, Series B Preferred, Series C Preferred, Series D Preferred and/or
Series D-1 Preferred."
5
6. SECTION 3.2 of the Investor Rights Agreement (Pre-emptive Rights; New
Securities) is hereby amended as follows:
(B) Section 3.2(a) is amended and restated in its entirety to read
"shares of Conversion Stock;"
(C) The following is added as Section 3.2(f):
"(f) Shares of Common Stock, Series D Preferred and Series D-1
Preferred issued pursuant to that certain Exchange Agreement, made as
of May ___, 2005, by and among the Company, Hormos Medical Corporation
("HORMOS"), and the shareholders of Hormos signatories thereto (the
"EXCHANGE AGREEMENT")."
7. SECTION 4.1 of the Investor Rights Agreement (Right to Purchase in
Connection with Initial Public Offering; Grant of Option) is hereby amended as
follows:
(B) the phrase "Series A Preferred, Series B Preferred, Series C
Preferred and Series D Preferred" is replaced by the phrase "Series A Preferred,
Series B Preferred, Series C Preferred, Series D Preferred and Series D-1
Preferred";
(C) the phrase "or issued to the Investor pursuant to the Exchange
Agreement" is inserted after "or the Series D Purchase Agreement" and before ",
as the case may be".
8. SECTION 6.1 of the Investor Rights Agreement (Assignment), is hereby
amended by (i) adding the phrase ", 40,000 shares of Series D-1 Preferred" after
"40,000 shares of Series D Preferred" and (ii) by adding the following clause
(g) after clause (f) of the penultimate sentence thereof: "and (g) in the case
of a transfer by SITRA, a partnership or other investment vehicle in which SITRA
is a significant investor and that is managed by present or former personnel of
SITRA, provided that as a condition precedent to such transfer, SITRA has
delivered to the Company, if so requested by the Company, an opinion of U.S.
counsel that the transfer of the Company's securities held by SITRA to such
partnership or other investment vehicle is exempt from the registration
requirements under the Securities Act."
9. SECTION 6.2 of the Investor Rights Agreement (Amendment of Rights), is
hereby amended by deleting the phrase "60% of the outstanding shares of Series D
Preferred as a separate class" and replacing it with "65% of the outstanding
shares of Series D Preferred as a separate class". In addition, the following
sentence shall be added to the end of Section 6.2: "Notwithstanding the
foregoing, the Company may amend EXHIBIT A hereto without the consent of the
Investors to add additional shares of Series D Preferred purchased under the
Amended and Restated Series D Preferred Stock Purchase Agreement."
10. Exhibit A to the Investor Rights Agreement is hereby amended and
restated in its entirety by EXHIBIT A attached hereto.
6
11. This Amendment may be executed in counterparts, each of which will be
deemed an original, but all of which together shall constitute one and the same
instrument.
12. This Amendment shall become effective immediately upon execution by the
Company and the Requisite Majorities.
13. Other than as set forth in this Amendment, all of the terms and
conditions of the Investor Rights Agreement shall continue in full force and
effect.
14. This Amendment shall be governed by and construed exclusively in
accordance with the substantive laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware excluding the body of law relating to conflict of laws and
choice of law.
[SIGNATURE PAGE FOLLOWS]
7
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT TO FOURTH
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT to be executed and delivered by
their respective officers hereunto duly authorized on the date first above
written.
COMPANY:
QUATRX PHARMACEUTICALS COMPANY
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
PRIOR INVESTORS:
MPM BIO VENTURES III, L.P. MPM BIO VENTURES III-QP, L.P.
By: MPM Bio Ventures III GP, L.P., its By: MPM Bio Ventures III GP, L.P.,
General Partner its General Partner
By: MPM Bio Ventures III LLC, its By: MPM Bio Ventures III LLC, its
General Partner General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Series A Member Title: Series A Member
MPM BIO VENTURES III PARALLEL FUND, L.P. MPM BIO VENTURES III GMBH & CO.
BETEILINGUNGS KG
By: MPM Bio Ventures III GP, L.P., By: MPM Bio Ventures III GP, L.P., in
its General Partner its capacity as the Managing
Limited Partner
By: MPM Bio Ventures III LLC, its By: MPM Bio Ventures III LLC, its
General Partner General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Series A Member Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS 2003 MPM BIOVENTURES STRATEGIC FUND, L.P.
BVIII LLC
By: By: MPM Bio Ventures III GP, L.P.,
------------------------------------ its General Partner
Name: By: MPM Bio Ventures III LLC, its
---------------------------------- General Partner
Title: Manager
By:
---------------------------------
Name:
-------------------------------
Title: Series A Member
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
XXXXXX XXXXXX HEALTHCARE VENTURE
PARTNERS, L.P.
By: Xxxxxx Xxxxxx Healthcare Venture
Partners LLC, its General Partner
By: Xxxxxx Xxxxxx Capital Management
LLC, its Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX HEALTHCARE III, X.X. XXXXXXX AFFILIATES III, L.P.
By: FHM III, L.L.C. By: FHM III, L.L.C.
Its: General Partner Its: General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Member Title: Member
TL VENTURES V L.P. TL VENTURES V INTERFUND L.P.
By: TL Ventures V Management L.P. By: TL Ventures V LLC
Its: General Partner Its: Manager
By: TL Ventures V LLC By:
Its: Manager ---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INTERWEST INVESTORS VIII, L.P. INTERWEST INVESTORS VIII, L.P.
By: InterWest Management Partners By: InterWest Management Partners
VIII, LLC VIII, LLC
Its: General Partner Its: General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
INTERWEST INVESTORS Q VIII, L.P.
By: InterWest Management Partners
VIII, LLC
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
XXXXXXXXX FUND, L.P. TWILIGHT VENTURE PARTNERS, LLC
By: Xxxxxxxxx Managers, LLC, its By:
general partner ---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WS INVESTMENT COMPANY, LLC WS INVESTMENT COMPANY 2000 B
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
XXXXXX & XXXXXXX XXXXX CLUB TRUST
By: By:
------------------------------------ ---------------------------------
Name: Name: Xxxx X. Xxxxxxxxxxx, not
---------------------------------- individually, but solely as
Title: trustee of the Xxxxx Club Trust
---------------------------------
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
COUNTERPART SIGNATURE PAGE TO
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT
OF QUATRX PHARMACEUTICALS COMPANY
In accordance with Section 7.8 of that certain Fourth Amended and Restated
Investors' Rights Agreement, dated as of November 22, 2004, as amended (the
"AGREEMENT"), by and among QuatRx Pharmaceuticals Company, a Delaware
corporation, and the persons and entities listed on the signature pages thereto,
the undersigned hereby executes and delivers this counterpart signature page to
the Agreement, and in connection therewith, hereby agrees to be bound by all of
the terms and conditions set forth in the Agreement, effective as of
[_________], 2005.
INVESTOR:
---------------------------------------
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AMENDMENT]
EXECUTION COPY
EXHIBIT A
TABLE A-1
SERIES A PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Xxxxxxx Healthcare III L.P. 744,401.82
Xxxxxxx Affiliates III, L.P. 5,598.18
TL Ventures V L.P. 737,248.00
TL Ventures V Interfund, L.P. 12,752.00
WS Investment Company 2000 B 25,000.00
WS Investment Company, LLC 12,500.00
Xxxxxx & Xxxxxxx 18,750.00
Xxxxx Club Trust 18,750.00
TOTAL: 1,575,000.00
TABLE A-2
SERIES B PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Xxxxxxx Healthcare III L.P. 2,084,325.00
Xxxxxxx Affiliates III, L.P. 15,675.00
TL Ventures V L.P. 2,064,295.67
TL Ventures V Interfund, L.P. 35,704.33
TOTAL: 4,200,000.00
TABLE A-3
SERIES C PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
MPM BioVentures III, LP 753,141
MPM BioVentures III-QP, LP 11,201,201
MPM BioVentures III Parallel Fund, LP 338,287
MPM BioVentures III GmbH & Co. Beteiligungs KG 946,639
MPM Asset Management Investors 2003 BVIII LLC 216,872
Xxxxxxx Healthcare III L.P. 3,047,260
Xxxxxxx Affiliates III, L.P. 22,916
TL Ventures V L.P. 3,449,116
TL Ventures V Interfund, L.P. 59,656
InterWest Partners VIII, L.P. 4,231,140
InterWest Investors VIII, L.P. 33,772
InterWest Investors Q VIII, L.P. 121,052
Xxxxxxxxx Fund L.P. 1,000,000
Twilight Venture Partners, LLC 175,439
TOTAL: 25,596,491
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AMENDMENT]
TABLE A-4
SERIES D PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Xxxxxxx Healthcare III L.P. 708,954.16
Xxxxxxx Affiliates III, L.P. 5,331.55
TL Ventures V L.P. 1,228,747.45
TL Ventures V Interfund, L.P. 21,252.55
MPM BioVentures III, LP 189,898.00
MPM BioVentures III-QP, LP 2,824,293.00
MPM BioVentures III Parallel Fund, LP 85,296.00
MPM BioVentures III GmbH & Co. Beteiligungs KG 238,687.00
MPM Asset Management Investors 2003 BVIII LLC 54,683.00
MPM Bioventures Strategic Fund, L.P. 535,714.00
InterWest Partners VIII, L.P. 2,067,214.29
InterWest Investors VIII, L.P. 16,500.00
InterWest Investors Q VIII, L.P. 59,142.86
Xxxxxxxxx Fund L.P. 285,714.29
Twilight Venture Partners, LLC 142,857.14
Xxxxxx Xxxxxx Healthcare Venture Partners, L.P. 2,500,000.00
Aboa Venture II 31,517.00
Apteekkien Elakekassa 7,250.00
BankInvest Biomedical Ventures III LP 285,718.00
Bio Fund Ventures I LP 58,857.00
Bio Fund Ventures II LP 57,307.00
Bio Fund Ventures II Annex Fund LP 25,994.00
H&B Capital LP 168,069.00
Ilmarinen Mutual Pension Insurance 20,132.00
Innoventure Oy 34,187.00
Pohjala Non-Life Insurance 8,755.00
Sampo 34,481.00
Sampo Life Insurance 34,481.00
The Finnish National Fund for Research and Development 146,337.00
Suomi Mutual Life Assurance 35,020.00
Tapiola Corporate Life Insurance 9,477.00
Tapiola General Mutual Insurance 20,081.00
Tapiola Mutual Life Assurance 14,216.00
Tapiola Mutual Pension Insurance 27,311.00
Veritas Life Insurance 5,028.00
Veritas Pension Insurance 10,058.00
TOTAL: 11,998,516.29
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND
RESTATED INVESTORS' RIGHTS AGREMENT]
TABLE A-5
SERIES D-1 PREFERRED STOCK
INVESTOR NAME NUMBER OF SHARES
------------- ----------------
Aboa Venture II 125,314.00
Apteekkien Elakekassa 28,823.00
BankInvest Biomedical Ventures III LP 1,136,024.00
Bio Fund Ventures I LP 234,021.00
Bio Fund Ventures II LP 227,857.00
Bio Fund Ventures II Annex Fund LP 103,338.00
H&B Capital LP 668,247.00
Ilmarinen Mutual Pension Insurance 80,049.00
Innoventure Oy 135,931.00
Pohjala Non-Life Insurance 34,810.00
Sampo 137,101.00
Sampo Life Insurance 137,101.00
The Finnish National Fund for Research and Development 581,836.00
Suomi Mutual Life Assurance 139,244.00
Tapiola Corporate Life Insurance 37,681.00
Tapiola General Mutual Insurance 79,842.00
Tapiola Mutual Life Assurance 56,523.00
Tapiola Mutual Pension Insurance 108,588.00
Veritas Life Insurance 19,990.00
Veritas Pension Insurance 39,992.00
TOTAL: 4,112,312.00
[SIGNATURE PAGE TO AMENDMENT TO FOURTH AMENDED AND
RESTATED INVESTORS' RIGHTS AGREMENT]
EXECUTION COPY
EXHIBIT 7.16
HORMOS EMPLOYEE'S NON-DISCLOSURE AGREEMENT
EXHIBIT 7.16
SUPPLEMENT TO THE EMPLOYMENT CONTRACT
Parties to the Agreement
The employer
The employee
Hormos Medical Oyj
_____________________________________
CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
During the employment and thereafter, the employee undertakes not to reveal any
employer's trade, business or professional secrets or any other confidential
information that is disclosed to him/her or that otherwise may come to his/her
knowledge to a third party or use such information for any other purpose except
approved by the employer. By signing this document the employee confirms having
received employer's current internal guidelines concerning the handling of
confidential information ("Tietoturvapolitiikka") and confirms that he/she shall
comply with the terms of the said guidelines. Said guidelines shall form a part
of the condition of the employee's employment contract. The guidelines can be
later complemented or modified by employer's notice.
Upon termination of the employee's employment contract, the employee shall
immediately return to the employer all material belonging to the employer that
is in employee's possession without retaining any copies of the said materials.
The employee hereby assigns to the employer any and all assignable copyrights,
with right to further assign such rights and the right to amend the work, to all
work the employee has created or shall create during and related to the
employment relationship.
The inventions and all proprietary rights therein discovered or made by the
employee (whether alone or jointly with others) at any time during the
employment shall (subject to any contrary mandatory provisions of the relevant
laws of Finland) belong exclusively to the employer as described in more detail
in the employer's inventions "The Hormos Medical Employee Invention Regulation".
By signing this document the employee confirms having received and approving the
employer's current internal guidelines concerning employee's inventions to be
binding on him/her.
The said guidelines shall form a part of the conditions of employee's employment
contract. The guidelines can be later complemented or modified by employer's
notice. Any possible modifications do not have retroactive effects to such
inventions of which an employees invention notification has been already filed.
The employee approves that the compensation based on the Employee Invention
Regulation corresponds with the fair and reasonable compensation as defined in
the Act on Employee Inventions and the employee does not have any other demands
for compensation based on the rights acquired by the employer from the employee.
The purpose of this supplement to the employment contract is to supplement
the employee's employment contract. In case this document is in conflict with
the employee's employment contract, this supplement shall prevail.
Place and date
________________________________________
The employer The employee
Hormos Medical Oyj
_____________________________________ ________________________________________
EXHIBIT 8.7
LEGAL OPINION OF COUNSEL TO HORMOS
ROSCHIER XXXXXXXX
QuatRx Pharmaceuticals Company
000 Xxxx Xxxxxxxxxx Xxxxxxx,
xxxxx 000 Xxx Xxxxx, XX 00000
XXX
May 23, 2005
Dear Sirs,
We have acted as legal advisers to Hormos Medical Corporation (the "Company") as
to Finnish law in connection with the exchange agreement with QuatRx
Pharmaceuticals Company ("Quat-Rx") dated 20 May 2005 (the "Agreement") and, in
such capacity, we have examined copies of the following documents:
(i) the Articles of Association of the Company, as of the date hereof;
(ii) the relevant entries in the official Trade Register of the National Board
of Patents and Registration (the "Trade Register") relating to the Company,
as of the date hereof;
(iii) minutes of the meeting of the Board of Directors of the Company held on 25
April 2005 (the "Board minutes");
(iv) minutes of the Extraordinary Shareholders' Meeting of the Company held on
11 April 2005 (the "EGM minutes");
(v) the Agreement; and
(vi) Extract from the Finnish Book-Entry Securities System dated 6 May 2005
identifying the shareholders of the Company.
The Articles of Association of the Company, the relevant entries in the Trade
Register, the Board minutes and the EGM minutes are hereinafter referred to as
the "Governing Documents".
Terms defined in the Agreement shall have the same meaning herein unless
otherwise stated.
A. ASSUMPTIONS
In giving the opinion stated herein, we have made the following assumptions:
ROSCHIERRAIDLA
XXXXX-BALTIC PARTNERING
FINLAND - ESTONIA - LATVIA - LITHUANIA
Roschier Xxxxxxxx Raidla & Partners Lcjins, Torgans & Vonsovics Norcous & Partners
Helsinki Oulu Tampere Vaasa Turku Tallinn Riga Vilnius
keskuskatu 7 A Roosikrantsi 2 Valdemara 20 A Gostauto 12 A
F1-00100 Helsinki, Finland EE-10119 Xxxxxxx, Xxxxxxx XX-0000 Xxxx, Xxxxxx LT-01I08 Vilnius, Lithuania
Tel. +358 (O)00 000 0000 Tel. x000 000 0000 Tel. x000 000 0000 Tel. x000 0000 0000
(i) that all documents submitted to us as copy, specimen documents or conformed
copies conform to the originals thereof;
(ii) that all documents submitted to us in draft form will be or have been
executed in the form of such drafts subject only to amendments of a
non-material nature and such amendments of which we have approved on or
before the date of this opinion;
(iii) that all documents have been validly authorized, executed and delivered by
all of the parties thereto (other than the Company);
(iv) that the signatures on the originals of all documents submitted to us are
genuine;
(v) that the Agreement and all other documents referred to herein are and at
all times will continue to be and constitute, legal, valid and binding
obligations of the parties thereto, enforceable in accordance with their
terms, under the laws of all jurisdictions by which they are stated to be
governed or which are otherwise applicable to them, other than the laws of
Finland;
(vi) that the relevant resolutions by the Board of Directors of the Company
evidenced by the Board minutes and by the Extraordinary Shareholders'
Meeting of the Company evidenced by the EGM minutes have remained in full
force and effect unaltered and have not been exceeded; and
(vii) that the choice of the law of the state of New York as the governing law
of the Agreement has been made in good faith and is valid under such law.
B. OPINION
Based on the foregoing assumptions and subject to the qualifications set out
below, we are of the opinion that as of the date hereof:
(i) STATUS: The Company is a corporation duly organized and validly existing
under the laws of Finland and has the capacity to xxx or be sued in its own
name, and the Company has the power and authority to own its property and
assets and to carry on business;
(ii) POWER AND AUTHORITY: The Company has the power and authority to enter into
and perform the Agreement and has taken all necessary action to authorize
the entry into and performance of the Agreement and the transactions
contemplated thereby;
(iii) LEGAL VALIDITY OF THE AGREEMENT: The Agreement has been duly executed by
the Company and constitutes legal, valid and binding obligations of the
Company enforceable in accordance with its terms;
(iv) NON-CONFLICT WITH LAWS: The execution, delivery or performance by the
Company of the Agreement, and the consummation or performance by the
Company of the transactions contemplated thereby, does not and will not
conflict (i) with any applicable Finnish law or regulation or the Governing
Documents, or (ii) to the best of our knowl-
ROSCHIERRAIDLA
edge, with any official or judicial order, or (iii) to the best of out
knowledge, with any agreement or document to which the Company is a party
or which is binding upon it or any of its assets;
(v) NO NOTICE: Neither the execution or delivery of the Agreement, nor the
consummation of any of the transactions contemplated thereby by the Company
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
Finnish governmental, municipal or other authority or agency, or, to the
best of our knowledge, under any agreements or documents to which the
Company is a party, except as set forth in the section 4.15 of the
Disclosure Schedule;
(vi) NO PROCEEDINGS: To the best of our knowledge, there is no action, suit or
proceeding against the Company that is either pending or that has been
threatened in writing;
(vii) AUTHORIZATION OF HORMOS SHARES: Immediately prior to the Closing, the
authorized, issued and outstanding equity securities of the Company consist
solely of 892,464 Series A Shares, 319,485 Series B Shares and no Series C
Shares (collectively, the "HORMOS SHARES"). All of the outstanding Hormos
Shares have been duly authorized and validly issued, are fully paid and
non-assessable and are according to Finnish Book-Entry Securities System
owned, of record and beneficially, by the Persons and in the amounts set
forth in Section 4.3 of the Hormos Disclosure Schedule. The Company has
issued Options to purchase 117,446 Series A Shares;
(viii) INSOLVENCY PROCEEDINGS: To the best of our knowledge, no insolvency
proceedings (whether voluntary or involuntary) have been initiated against
the Company;
(ix) COMPLIANCE WITH SECURITIES LAWS: The execution, delivery or performance by
the Company of the Agreement, and the consummation or performance by the
Company of the transactions contemplated thereby, does not and will not
conflict with any applicable Finnish securities laws or regulations; and
(x) GENERAL STATEMENT OF FINNISH COMPANIES ACT: Under the Finnish Companies Act
a shareholder of more than 9/10 of the (i) shares in a company and (ii)
votes of all the shares, has a right to squeeze out other shareholders'
shares against payment of the market value of the shares. A shareholder,
whose shares may be squeezed out pursuant to the above, has a right to
demand that the shares of such shareholder be squeezed out.
C. QUALIFICATIONS
This opinion is subject to the following qualifications:
(i) the obligations of the Company and the rights of QuatRx under the Agreement
are subject to all bankruptcy, moratorium, reorganization, administration,
insolvency and other laws affecting creditors' rights generally and may
also be subject to limitation of action by effluxion of time;
(ii) enforcement of the Agreement may be limited by general principles of
equity; in particular, equitable remedies (such as an order for specific
performance or an injunction) are discretionary remedies and may not be
available under the laws of Finland where dam-
ROSCHIERRAIDLA
ages are considered to be an adequate remedy, and nothing in this opinion
should be taken to indicate that any particular remedy would be available
with respect to any particular provision of the Agreement in any particular
instance. Moreover, the effectiveness of terms in the Agreement exculpating
a party from liability or duty otherwise owed may be limited by law or
subject to mitigation. The term "enforceable", when used herein, means that
the obligations assumed by the relevant party under the relevant document
are of a type which Finnish law generally enforces or recognizes; however,
enforcement before the courts of Finland will in any event be subject to
the remedies available in such courts (some of which may be discretionary
in nature) and to the availability of defenses such as set-off, abatement,
counter-claim and force majeure;
(iii) any provision in the Agreement which involves an indemnity for costs of
litigation is subject to the discretion of the court to decide whether and
to what extent a party to litigation should be awarded the costs incurred
by it in connection therewith;
(iv) there may be circumstances in which a Finnish court would not treat as
conclusive certificates and determinations which according to the Agreement
are stated to be so treated, and any provision which states that a certain
calculation, determination or certificate will be conclusive and binding
may not apply where such calculation, determination or certificate is
fraudulent or manifestly inaccurate or erroneous;
(v) where any party is vested with a discretion or may determine a matter in
its opinion, Finnish law may require that such discretion is exercised
reasonably or that such opinion is based on reasonable grounds;
(vi) the opinions expressed herein "to the best of our knowledge" have been so
expressed based upon our general knowledge and information available to us
without inquiry or independent investigation;
(vii) Finnish courts will not give effect to obligations the performance of
which, in the jurisdiction in which they are to be performed, would be
illegal under the laws of that jurisdiction nor will they give effect to
contract provision purporting to constitute a waiver of applicable
mandatory provisions of law;
(viii) the question of whether or not any provisions of the Agreement which may
be invalid on account of illegality may be severed from the other provision
thereof in order to save those other provisions would be determined by a
Finnish court in its discretion;
(ix) as regards jurisdiction, a Finnish court may stay proceedings if concurrent
proceedings are being brought elsewhere;
(x) the application by a Finnish court of the law of the state of New York in
relation to the Agreement is subject to (i) the law of the state of New
York not being contrary to such mandatory rules of Finnish law that due to
their public nature or general interest shall be considered applicable
irrespective of the agreed choice of law; and (ii) the application of the
law of the state of New York not resulting in an outcome contrary to the
public policy (ordre public) of the Finnish legal system;
ROSCHIERRAIDLA
(xi) in any proceedings before a Finnish court for the enforcement of the
Agreement, the proceedings would be conducted in accordance with the
statutory Finnish procedural rules and the court would not be obliged to
give effect to provisions in the Agreement, such as agreements regarding
the manner in which service of process is carried out, to the extent in
conflict with such statutory rules;
(xii) the files in respect of the Company maintained by the Trade Register may
not be up to date and, in particular, documents required to be filed with
the Trade Register may not be filed immediately or may not be available for
immediate inspection;
(xiii) the obligations of the Company under the Agreement may be subject to
statutory limitation under Finnish law, the limitation period being the
earlier of (i) three (3) years as of the date when the payment obligation
becomes due and payable and (ii) three (3) years from the date on which the
relevant non.-breaching party to the Agreement became or should have become
aware of a breach of contract and (iii) ten (10) years from the date on
which such breach occurred. Each of the above limitation periods can be
interrupted by QuatRx reminding the Company of its obligations. Any payment
made by the Company under the Agreement in respect of the Company's
obligations shall also be deemed to interrupt the relevant limitation
period. Upon such interruption, a new limitation period of equal length
commences;
(xiv) powers of attorney (including appointment of the Securityholder
Representative under Section 3.2(b) of the Agreement), although stated to
be irrevocable, may under Finnish law be revocable; and
(xv) we express no opinion as to any law other than the law of Finland as
presently in force and we have assumed that there is nothing in any other
law that affects our opinion stated herein; in particular, we have made no
independent investigation of the law of the state of New York as a basis
for the opinion stated herein and do not express or imply any opinion
thereon; legal concepts expressed or described herein shall be governed by
and words and expressions used herein shall be construed in accordance with
Finnish law notwithstanding that original Finnish terms and definitions may
not always have been used.
This opinion is rendered to you in the very matter specified herein and may not
without our prior written consent be divulged to others or referred to or relied
upon in any other matter or context whatsoever.
Yours faithfully,
ROSCHIER XXXXXXXX, ATTORNEYS LTD.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
ROSCHIERRAIDLA
