Stockholders Agreement, dated as of April 10, 2018, among Ocuphire Pharma, Inc. and Stockholders as defined therein
EX-4.9 2 nt10013045x1_ex4-9.htm EXHIBIT 4.9
Ocuphire Pharma, Inc.
Dated Effective as of April 10, 2018
TABLE OF CONTENTS
|2.||RESTRICTIONS ON TRANSFER.||3|
|2.1||General Restrictions on Transfer.||3|
|2.2||Notice of Transfer..||5|
|4.2||Manner of Voting.||6|
|4.3||Board Size. ||7|
|4.4||Election of Directors.||7|
|4.5||Failure to Designate a Director||7|
|4.6||No Liability for Election of Designated Director.||7|
|6.6||Governing Law; Venue; Waiver of Jury Trial.||12|
|6.7||Successors and Assigns.||12|
|6.12||Amendment and Waiver.||13|
|6.13||Delays or Omissions.||13|
|6.16||Titles and Subtitles.||14|
|6.17||Additional Major Stockholders.||14|
|6.18||Aggregation of Stock.||14|
|Schedule A - LIST OF STOCKHOLDERS ||A-1 |
|Exhibit 1 - ADOPTION AGREEMENT||1-1 |
OCUPHIRE PHARMA, INC.
THIS STOCKHOLDERS AGREEMENT (the “Agreement”) is entered into effective as of April 10, 2018 (the “Effective Date”) by and among Ocuphire Pharma, Inc., a Delaware corporation (the “Company”), and the holders of the Company’s common stock as listed on Schedule A attached hereto (each, a “Stockholder” and collectively, the “Stockholders”).
WHEREAS, the Stockholders are the owners of the outstanding capital stock of the Company; and
WHEREAS, certain of the Stockholders were owners of Ocularis Pharma, Inc., an Illinois corporation, a subchapter “S” corporation (the “Merging S Corp”); and
WHEREAS, certain of the Stockholders, including the Merging S Corp, were party to that certain Limited Liability Company Agreement (the “Ocularis LLC Agreement”) of Ocularis Pharma, LLC (the “Merging LLC”) dated as of January 8, 2010; and
WHEREAS, effective immediately prior to the effective time of this Agreement, the Merging Entities merged with and into the Company (the “Mergers”), pursuant to (a) that certain Agreement and Plan of Merger by and between the Company and Merging S Corp, dated as of April 9, 2018 and (b) that certain Agreement and Plan of Merger by and between the Company and Merging LLC, dated as of April 9, 2018; and
WHEREAS, in connection with the Mergers, the Stockholders party to the Ocularis LLC Agreement, representing a majority in interest of the ownership of the Merging LLC, desire that this Agreement shall effectively amend and restate the Ocularis LLC Agreement; and
WHEREAS, the parties wish to agree to certain rights and obligations regarding the capital stock of the Company, including without limitation, restrictions on transfer and buy-sell provisions.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Definitions. Capitalized terms not otherwise defined in this Agreement, shall have the following meanings:
(a) “Affiliate” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with such specified Person, including without limitation any partner, officer, director, manager or employee of such Person and any venture capital fund now or hereafter existing that is controlled by or under common control with one or more general partners or managing members of, or shares the same management company with, such Person.
(b) “Board” means the Board of Directors of the Company.
(c) “Certificate” means the Company’s certificate of incorporation, as amended or restated from time to time as permitted hereby.
(d) “Change in Control” means (i) the sale of substantially all of the assets of the Company, or (ii) the consolidation or merger of the Company with or into any other corporation or other entity or person or any other corporate reorganization, in which the capital stock of the Company prior to such consolidation, merger or reorganization, represents less than fifty percent (50%) of the voting power of the surviving entity immediately after such consolidation, merger or reorganization; provided, however, that (A) any consolidation or merger effected exclusively to change the domicile of the Company, (B) any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted or a combination thereof, or (C) a sale, lease, transfer, exclusive license or other disposition to, or merger with or into, a wholly owned subsidiary of the Company shall not constitute a Change in Control.
(e) “Common Stock” means the Company’s common stock, par value $0.0001 per share.
(f) “Equity Securities” means (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security or (iv) any such warrant or right.
(g) “Initial Offering” means the Company’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act or merger transaction between the Company and a company that is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended.
(h) “Major Stockholder” means any holder of Shares who or which, together with any of such holder’s Affiliates, holds five percent (5%) or more of the outstanding Shares, or any assignee of record of such Shares in accordance with Section 2.
(i) “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
(j) “Preferred Stock” means any class or series of preferred stock issued by the Company that rights and/or preferences in addition and/or superior to the Common Stock that is hereafter acquired by any of the Stockholders and their permitted assigns, taken together.
(k) “Rule 144” means Rule 144, as promulgated under the Securities Act, or any similar or analogous rule promulgated under the Securities Act.
(l) “Securities Act” means the Securities Act of 1933, as amended.
(m) “Shares” means all shares of capital stock of the Company (including, without limitation, all shares of the Common Stock held or issuable upon conversion of convertible Preferred Stock) registered in the name of a Stockholder or beneficially owned by such Stockholder as of the Effective Date hereof and any and all other securities of the Company legally or beneficially acquired by each of the Stockholders after the Effective Date.
(n) “Subsidiary” means, with respect to any entity, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are owned directly or indirectly by such entity or any Subsidiary of such entity or by such entity and one or more Subsidiaries of such entity.
(o) “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, of any of the Shares of any Stockholder.
(p) “Warrants” means warrants to purchase Common Stock and Preferred Stock held by Major Stockholders.
2. RESTRICTIONS ON TRANSFER.
2.1 General Restrictions on Transfer.
(a) Each party hereto agrees not to make any disposition of all or any portion of the Shares unless and until:
(i) There is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such party shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by the Company, such party shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act and applicable state and foreign securities law. Notwithstanding the foregoing, no such opinion of counsel shall be required in connection with any transfer of Shares made in compliance with Rule 144.
Notwithstanding the provisions of clauses (i) and (ii) above, no such registration statement or opinion of counsel shall be necessary for a transfer by a party hereto that is: (A) a partnership transferring to its partners or former partners in accordance with partnership interests or to an Affiliate of such partnership; (B) a corporation transferring to a wholly-owned subsidiary or a parent corporation that owns all of the capital stock of such corporation; (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company; (D) an individual transferring to such individual’s family member or trust for the benefit of such individual; and (E) transfer to any Affiliate of a party; provided, however, that in each case the transferee will be subject to the terms of this Agreement to the same extent as if he were an original party hereto.
2.2 Notice of Transfer. Subject to compliance with the foregoing Section 2.1, if a Major Stockholder proposes to Transfer any Shares (each a “Selling Stockholder”), the Selling Stockholder shall promptly give written notice (each a “Transfer Notice”) simultaneously to the Company and to each of the other Major Stockholders at least thirty (30) days prior to the closing of such Transfer. The Transfer Notice shall describe in reasonable detail the proposed Transfer including, without limitation, the number and type of Shares of the Selling Stockholder to be transferred (the “Transfer Shares”), the nature of such Transfer, the consideration to be paid, and the name and address of each prospective purchaser or transferee. In the event that the Transfer is being made pursuant to the provisions of Section 2.3, the Transfer Notice shall also state under which clause of such Section 2.3 the Selling Stockholder proposes to make such Transfer.
2.3 Exempt Transfers. Notwithstanding the foregoing, the provisions of Section 2 shall not apply to: (a) the sale of any Shares to the public pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act; (b) any Transfer with respect to which the Board waives the application of the provisions of this Section 2; or (c) any Transfer (i) that is a conveyance in trust, gift or devise or descent of any Shares by a Stockholder to any family member, without consideration and for estate planning purposes, so long as the transferee agrees in writing to be bound by this Agreement as though an original Stockholder party hereto, (ii) to any person occurring as a matter of law upon the death, divorce or declaration of incompetence of a Stockholder, so long as the transferee agrees in writing to be bound by this Agreement as though an original Stockholder party hereto, (iii) to a receiver, levying creditor, trustee or receiver in bankruptcy proceedings or to a general assignee for the benefit of creditors, whether voluntary or by operation of law, so long as the transferee agrees in writing to be bound by this Agreement as though an original Stockholder party hereto, (iv) to the Company, (v) by merger or share exchange or an exchange of existing shares for other shares of the same or a different class or series in the Company, or (vi) to any equity owner (partner, stockholder, member or the like) of any Stockholder that is an “accredited investor”, as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act, so long as the transferee agrees in writing to be bound by this Agreement as though an original Stockholder party hereto.
2.4 Existing Rights. This Agreement is subject to, and shall in no manner limit the right which the Company may have to repurchase securities from the Stockholder pursuant to (a) a stock restriction agreement or other agreement between the Company and the Stockholder, and (b) any right of first refusal set forth in the bylaws of the Company or in any incentive stock option, restricted stock or other incentive plan or agreement adopted by the Company for the benefit of its employees, non-employee directors, contractors and consultants.
(a) Each certificate representing Shares shall (unless otherwise permitted by the provisions of the Agreement) be stamped or otherwise imprinted with a legend substantially similar to the following (in addition to any legend required under applicable state securities laws) (the “Legend”):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S), AS PROVIDED IN THE BYLAWS OF THE CORPORATION.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS AGREEMENT AMONG THE CORPORATION AND ITS STOCKHOLDERS. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.
(b) During the term of this Agreement, the Company shall not remove, and shall not permit to be removed (upon registration of transfer, re-issuance of otherwise), the Legend from any such certificate and shall place or cause to be placed such legend on any new certificate issued to represent Shares theretofore represented by a certificate bearing such legend. The Stockholders agree that the Company shall instruct its transfer agent to impose transfer restrictions on the shares represented by certificates bearing the Legend to enforce the provisions of this Agreement and the Company agrees to promptly do so.
(c) In the event of any issuance of Shares after the Effective Date to any of the Stockholders (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), such Shares shall become subject to this Agreement and shall be endorsed with the Legend.
(d) The foregoing legend shall be removed only upon termination of this Agreement.
3. INTENTIONALLY OMMITTED.
4.1 General. The Stockholders each agree to hold all their Shares (including, without limitation, all shares of the Common Stock now held or issuable upon conversion of any convertible Preferred Stock) subject to, and to vote their Shares in accordance with, the provisions of this Section 4.
4.2 Manner of Voting. The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent, or in any other manner permitted by applicable law. All of the Stockholders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any party entitled to designate Directors (as defined below) to call a special meeting of the Stockholders for the purpose of electing Directors as provided herein.
4.3 Board Size. At all regular or special meetings of the stockholders of the Company following the Effective Date, each of the Stockholders shall vote all of their respective Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of capital stock of the Company) so as to ensure that the size and composition of the Board is as directed by the then current Board (each a “Director” and, collectively, the “Directors”). The initial size of the Board shall be three (3) Directors and may be increased to up to five (5) Directors by the then current Board.
4.4 Election of Directors. On all matters relating to the election of the Directors, the Stockholders agree to vote all Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of capital stock of the Company) so as to elect initially the following Directors: Alan Meyer and Mina Sooch; and thereafter the nominees recommended by the then current Board.
4.5 Failure to Designate a Director. In the absence of any designation from the Persons or groups with the right to designate a Director as specified above, the Director previously designated by them and then serving shall be reelected if still eligible to serve as provided herein.
4.6 No Liability for Election of Designated Director. No party, nor any Affiliate of any such party, shall have any liability as a result of nominating or designating a person for election as a Director for any act or omission by such person in his or her capacity as a Director, nor shall any party have any liability as a result of voting for any such person in accordance with the provisions of this Agreement. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement.
4.7 Drag-Along Right.
(a) In the event that the Board and those Stockholders holding a majority in interest of the outstanding capital stock of the Company vote to approve a Change in Control, then each Stockholder hereby agrees:
(i) if such Change in Control requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (i) all such Shares in favor of, and adopt, such Change in Control (together with any related amendment to the Certificate required in order to implement such Change in Control), and (ii) in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Change in Control;
(ii) if such Change in Control is to be effected by sale of Company capital stock to a third party (a “Stock Sale”), to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by all other holders of Company capital stock and, except as permitted in Section 4.7(b), on the same terms and conditions as holders of the same class or series of Company capital stock are so selling;
(iii) to execute and deliver all related documentation and take such other action in support of the Change in Control as shall reasonably be requested by the Company in order to carry out the terms and provisions of this Section 4.7, including, without limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, exchange agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(iv) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares owned by such Stockholder or its Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquirer in connection with the Change in Control;
(v) not to assert or exercise any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Change in Control; and
(vi) if the consideration to be paid in exchange for the Shares in any Change in Control includes any securities and due receipt thereof by any Stockholder would require under applicable law (A) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities, or (B) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D, as promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for such Stockholder’s Shares.
(b) Notwithstanding the foregoing Section 4.7(a), no Stockholder will be required to comply with such section in connection with any proposed Change in Control unless:
(i) any representations and warranties to be made by such Stockholder in connection with such proposed Change in Control are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, including, without limitation, representations and warranties that (A) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Stockholder in connection with the proposed Change in Control have been duly authorized, if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms, and (D) neither the execution and delivery of documents to be entered into in connection with such proposed Change in Control, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with such proposed Change in Control, other than the Company (except to the extent that funds may be paid in proportion to the amount of consideration to be received by such Stockholder out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Stockholder of any of identical representations, warranties and covenants provided by all Stockholders);
(iii) the liability for indemnification, if any, of such Stockholder in such proposed Change in Control and for the inaccuracy of any representations and warranties made by the Company in connection with such proposed Change in Control, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Stockholder of any of identical representations, warranties and covenants provided by all Stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such proposed Change in Control (in accordance with the provisions of the Certificate);
(iv) the Stockholder’s liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such proposed Change in Control in accordance with the provisions of the Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such proposed Change in Control, except with respect to claims related to fraud, intentional misrepresentation or willful misconduct by such Stockholder, the liability for which need not be limited as to such Stockholder;
(v) upon the consummation of such proposed Change in Control, (A) each holder of each class or series of the Company’s capital stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (B) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of Preferred Stock of such same series, (C) each holder of the Common Stock will receive the same amount of consideration per share of such Common Stock as is received by other holders in respect of their shares of the Common Stock, and (D) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of the Preferred Stock and Common Stock on the basis of the relative liquidation preferences, if any, set forth in the Certificate in connection with a liquidation or a Change in Control, as applicable; and
(vi) subject to the foregoing subsection (v), requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of such proposed Change in Control, all holders of such capital stock will be given the same option.
4.8 Irrevocable Proxy. Each Stockholder hereby constitutes and appoints the Secretary and each Assistant Secretary of the Company, with full power of substitution, as the proxies of the party with respect to the matters set forth herein, including without limitation, election of the Directors in accordance with Section 4.4 and the drag-along provisions of Section 4.7, and hereby authorizes each of them to represent and to vote, if and only if the party (a) fails to vote or (b) attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of this Agreement, all of such party’s Shares in accordance with such sections. The proxy granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of the Company and the parties in connection with the transactions contemplated by this Agreement and, as such, is coupled with an interest and shall be irrevocable unless and until this Agreement terminates or expires pursuant to Section 6.5. Each Stockholder hereby revokes any and all previous proxies with respect to the Shares and shall not hereafter, unless and until this Agreement terminates or expires pursuant to Section 6.5, purport to grant any other proxy or power of attorney with respect to any of the Shares, deposit any of the Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of the Shares, in each case, with respect to any of the matters set forth herein.
4.9 Additional Shares.
(a) In the event that after the Effective Date, the Company enters into an agreement with any Person to issue shares of capital stock to such Person, following which such Person shall hold Shares, then the Company shall cause such Person, as a condition precedent to entering into such agreement, to become a party to this Agreement by executing an Adoption Agreement in the form attached to this Agreement as Exhibit 1 (the “Adoption Agreement”), agreeing to be bound by and subject to the terms of this Agreement as a Stockholder and thereafter such person shall be deemed a Stockholder for all purposes under this Agreement.
(b) In the event that subsequent to the Effective Date any shares or other securities are issued on, or in exchange for, any of a Stockholder’s Shares by reason of any stock dividend, stock split, combination of shares, reclassification or the like, such shares or securities shall be deemed to be Shares for purposes of this Agreement.
5. MARKET STAND-OFF.
5.1 Market Stand-Off. Each Stockholder agrees not to sell, dispose of, transfer, make any short sale of, or grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Equity Securities, during the one hundred and eighty (180) day period following the effective date of the Company’s first firm commitment underwritten public offering of its Common Stock (or such shorter or longer period as the underwriters or the Company shall request in order to facilitate compliance with FINRA Rule 2711 or NYSE Member Rule 472 or any successor or similar rule or regulation) (the “Lock Up Period”); provided, however, that nothing contained in this Section 5 shall prevent the exercise of any repurchase rights of the Company for such Equity Securities during the Lock Up Period. Each Stockholder agrees to execute and deliver such other agreements as may be reasonably requested by the Company and/or the managing underwriters that are consistent with the foregoing or that are necessary to give further effect to the foregoing provision. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to a Stockholder’s Equity Securities until the end of such period. The underwriters of the Company’s stock are intended third party beneficiaries of this Section 5 and shall have the right, power and authority to enforce the provisions hereof as though they were a party to this Agreement.
6.1 Ownership. Each Stockholder represents and warrants to the other Stockholders and the Company that:
(a) such Stockholder now owns the Stockholder’s Shares, free and clear of liens or encumbrances, and has not, prior to or on the Effective Date, executed or delivered any proxy or entered into any other voting agreement or similar arrangement other than one which has expired or terminated prior to the Effective Date;
(b) such Stockholder has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Stockholder enforceable in accordance with its terms; and
(c) such Stockholder is, or, at the time of purchase of the interests in the Merging LLC, was, an “accredited investor” within the meaning of Rule 501 of Regulation D, as promulgated under the Securities Act or is an executive officer or director of the Company and in such capacity is sufficiently familiar with the affairs of the Company to evaluate the risks and merits of owning shares of the Company.
6.2 Further Action. If and whenever a Stockholder’s Shares are sold, the Stockholder or the personal representative of the Stockholder shall do all things and execute and deliver all documents and make all transfers, and cause any transferee of the Stockholder Shares to do all things and execute and deliver all documents, as may be necessary to consummate such sale consistent with this Agreement.
6.3 Specific Performance. The parties hereto hereby declare that it is impossible to measure in money the damages which will accrue to a party hereto or to their heirs, personal representatives, or assigns by reason of a failure to perform any of the obligations under this Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding to specifically enforce the provisions hereof, any person against whom such action or proceeding is brought hereby waives the claim or defense therein that such party or such personal representative has an adequate remedy at law, and such person shall not offer in any such action or proceeding the claim or defense that such remedy at law exists.
6.4 Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
6.5 Termination. Except as otherwise provided in this Agreement, and specifically except for the obligations set forth in Section 5 hereof which shall survive any termination of this pursuant to subsections (a) and (b) below, this Agreement shall continue in full force and effect from the Effective Date through the earliest of the following dates, on which date it shall terminate in its entirety:
(a) the date of the closing of the Initial Offering;
(b) the date of the closing of a Change in Control; or
(c) the date upon which the parties hereto terminate this Agreement by written consent of the Company and the holders of at least a majority of the outstanding shares of capital stock of the Company subject to this Agreement.
6.6 Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of laws. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of Michigan and any United States District Court in the State of Michigan for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
6.7 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of Shares from time to time and become a party to this Agreement.
6.8 Transfers. As a condition precedent to the Company’s recognizing any transferee or assignee of any Shares to any Person, such Person shall agree in writing to be subject to each of the terms of this Agreement by executing and delivering an Adoption Agreement. Upon the execution and delivery of an Adoption Agreement by any transferee, such transferee shall be deemed to be a party hereto as if such transferee were the transferor and such transferee’s signature appeared on the signature pages of this Agreement and shall be deemed to be a Stockholder. The Company shall not permit the transfer of the Shares subject to this Agreement on its books or issue a new certificate representing any such Shares unless and until such transferee shall have complied with the terms of Section 2.1. Each certificate representing the Shares subject to this Agreement if issued on or after the Effective Date shall be endorsed by the Company with the legend set forth in Section 2.5.
6.9 Entire Agreement. This Agreement, the Exhibits and Schedules hereto and the other documents delivered pursuant thereto 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; provided, however, that in the event of a conflict between the terms of this Agreement and any of those certain Restricted Stock Purchase Agreements entered into by and between the Company and certain of the Stockholders (the “RSAs”), the terms of the RSAs shall control.
6.10 Prior Agreement. Those Stockholders party to the Ocularis LLC Agreement, representing a majority in interest of the ownership of the Merging LLC, desire that this Agreement shall effectively amend and restate the Ocularis LLC Agreement, and that following the effective time of the Merger, each Stockholder who was a member of the Merging LLC shall be deemed to be party to this Agreement, in so far as such Stockholder would be bound by the provisions of the Ocularis LLC Agreement prior to the effective time of the Merger.
6.11 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
6.12 Amendment and Waiver.
(a) Except as otherwise expressly provided herein, this Agreement may be amended or modified only upon the written consent of the Company and the holders of at least a majority of the outstanding shares of capital stock of the Company subject to this Agreement. Any such amendment or modification effected in accordance with this Section 6.11(a) shall be binding on all stockholders of the Company, even if they do not execute such consent.
(b) Any party hereto may waive compliance with any agreements, covenants or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.
(c) Except as otherwise expressly provided, the obligations of the Company and the rights of the Stockholders under this Agreement may be waived with respect to all stockholders of the Company (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the holders of at least a majority of the outstanding shares of capital stock of the Company subject to this Agreement. Any such waiver effected in accordance with this Section 6.11(c) shall be binding on all stockholders of the Company, even if they do not execute such consent. Each Stockholder acknowledges that by the operation of this Section 6.11(c), holders of at least a majority of the outstanding capital stock of the Company subject to this Agreement will have the right and power to diminish or eliminate all rights of any Stockholder under this Agreement.
(d) For the purposes of determining the Stockholders entitled to vote or exercise any rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its stock as maintained by or on behalf of the Company.
6.13 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any Stockholder, upon any breach, default or noncompliance of the Company under this Agreement 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 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 Stockholder’s part of any breach, default or noncompliance under the Agreement or any waiver on such Stockholder’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to the Stockholders, shall be cumulative and not alternative.
6.14 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) 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 party to be notified at the address as set forth on the signature pages, Schedules or Exhibits attached hereto, at the address on the Company’s records for the Stockholders, or at such other address as such party may designate by ten (10) days’ advance written notice to the other parties hereto.
6.15 Attorneys’ Fees. In the event that any suit or action is instituted to enforce any provision in this Agreement, 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.
6.16 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
6.17 Additional Major Stockholders. Notwithstanding anything to the contrary contained herein, if the Company shall issue Equity Securities in accordance with Section 3, any purchaser of such Equity Securities that would qualify such purchaser as a Stockholder or Major Stockholder shall become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement or an Adoption Agreement and shall be deemed a party hereunder and a “Stockholder” and, as applicable, a “Major Stockholder”.
6.18 Aggregation of Stock. All Shares held or acquired by Affiliated entities or persons or persons or entities under common management or control shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
6.19 Counterparts. This Agreement may be executed and delivered in any number of counterparts and by a separate instrument that references this Agreement for purposes of execution and delivery hereof, each of which shall be an original, but all of which together shall constitute one instrument. This Agreement may be executed and delivered by facsimile or other means of electronically imaging a signature.
signatures on following pages
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement as of the date set forth in the first paragraph hereof.
|Ocuphire Pharma, Inc.|| |
| || || |
|By: ||/s/ Mina Sooch|| |
|Name: ||Mina Sooch|| |
|Title: ||Chief Executive Officer|| |
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement as of the date set forth in the first paragraph hereof.
|THE STOCKHOLDERS:|| || |
| || || |
|/s/ Mina Sooch|| ||/s/ Konstantinos Charizanis|
| || |
|Date:|| ||Date: 5/25/2018|
|/s/ Alan R. Meyer||/s/ William H. Pitlick|
|Alan R. Meyer||William H. Pitlick|
|/s/ Bernhard Hoffmann||/s/ Deno Bokas|
CAPITAL MIDWEST FUND, L.P.
|/s/ Sean Ainsworth||/s/ Stephen Einhorn|
|SEAN AINSWORTH||Name: Stephen Einhorn|
|Date:||Title: General Partner|
|GANTZ FAMILY 2011 DYNASTY TRUST DATED AUGUST 25, 2011||/s/ Stephen E. Einhorn|
|(formerly WILBUR H. GANTZ III REVOCABLE TRUST||STEPHEN E. EINHORN |
|/s/ Edward J. Bradley Jr. || /s/ Gerald D. Horn |
|Name: Edward J. Bradley Jr. || GERALD D. HORN |
|Title: Trustee |
|/s/ Richard Baxter|| ||/s/ Diane Brown|
RICHARD B. BAXTER
| ||Name: Diane Brown|
|Date: 5/1/2018|| ||Date: 5-17-18|
| || || |
|/s/ Marilyn B. Beach|| ||/s/ Peter R. Blum|
|MARILYN B. BEACH|| |
PETER R. BLUM
|Date: 4/15/18||Date: 4/17/2018 |
|/s/ Lindsay E. Beach||/s/ James Broyhill II|
|LINDSAY E. BEACH|| |
JAMES THOMAS BROYHILL II
|/s/ Ashley Beach||/s/ Melanie E. Broyhill|
ASHLEY B. BEACH
|MELANIE ELIZABETH BROYHILL|
|/s/ Michel Beaubaire||/s/ Timothy P. Broyhill|
|MICHAEL S. BEAUBAIRE||TIMOTHY PENNELL BROYHILL|
| /s/ John Beslow |
| JOHN BESLOW || |
| Date: 4/18/2018 ||THE BURT TRUST DATED MAY 17, 2007 |
|/s/ J. Steven Cole ||/s/ Susan B. Burt|
| J. STEVEN COLE ||Name: Susan B. Burt |
| Date: 4/17/2018 ||Its: Trustee |
|Date: June 8, 2018 |
|/s/ Wayne Carr|| ||/s/ C.B. Bradley|
|WAYNE F. CARR|| ||C.B. Bradley|
|Date: 4/16/2018|| ||Date: |
| || || |
|CARTWRIGHT LIVING TRUST, DATED DECEMBER 12, 2002 AND ANY AMENDMENT THERETO || |
KENT J. DE LUCENAY TRUST U/A/D 6/15/93
|/s/ David F. Cartwright|| ||/s/ De Lucenay Trust|
|Name: David F. Cartwright|| |
|Its: Trustee||Its: |
|Date: 4/17/2018||Date: |
|/s/ Norman Cohen||/s/ William Dow|
NORMAN E. COHEN
|Date:||Date: 29 April 2018 |
|/s/ Peter Drake|
|PETER F. DRAKE|
|LAURA B. DUGAN REVOCABLE TRUST AGREEMENT DATED |
|MAY 20, 2014|
|/s/ Brenda Cole||/s/ Laura B. Dugan|
|BRENDA F. COLE||Name: Laura B. Dugan|
|Its: Trustee |
| /s/ DeLucenay Trust ||/s/ Lawrence D. Damron|
| BIO-CHEMICAL PARTNERS VI || |
LAWRENCE D. DAMRON
Date: May 15, 2018
|/s/ George Faurot|| ||/s/ Frank Farwell|
|GEORGE F. FAUROT|| ||FRANCIS C. FARWELL III|
|Date: 4/23/2018|| ||Date: 4/29/2018|
| || || |
|FILIPPINI CHILDREN'S TRUST|| || |
|/s/ Eugene J. Rudnik|| /s/ John J. Held |
|Name: Eugene J. Rudnik||JOHN J. AND YVONNE H. HELD|
|Date: 4/25/2018 |
|FISH FAMILY TRUST DTD. 1/08/96|
|/s/ Fish Family Trust||/s/ Jack T. Holladay|
|Name: ||JACK T. HOLLADAY|
|It: ||Date: April 13, 2018|
|FRANCES R. GROSSMAN REVOCABLE TRUST||STATE OF ILLINOIS DEPT. OF COMMERCE AND ECONOMIC OPPORTUNITY|
|/s/ Frances R. Grossman ||/s/ Robert Kerr|
|Name: Frances R. Grossman ||Name: Robert Kerr|
|Its: Trustee ||Title: Deputy Director, OEIT |
|Date: 5/9/2018 ||Date: 5-9-2018|
|ROBERT T., JR ISHAM TRUST DATED 2/28/94 |
|/s/ R. Radcliffe Hastings||/s/ Robert Isham Jr. Trust |
|R. RADCLIFFE HASTINGS||Name: |
|Date: 4/17/2018||Its: |
| ||RICHARD M. JAFFE, AS TRUSTEE OF THE RICHARD M. JAFFEE REVOCABLE TRUST DATED JUNE 21, 1974, AS AMENDED |
|/s/ Klaus Julicher || ||/s/ Richard Jaffe |
|KLAUS JULICHER || ||Name: Richard Jeffree |
|Date: 17/4/2018 || ||Its: Trustee |
|Date: 4/24/18 |
|/s/ David Kading ||/s/ Robert J. Lepkowski |
|DAVID L. KADING ||ROBERT J. LEPKOWSKI |
|Date: 4/23/2018 ||Date: 5/9/18 |
|/s/ Shashi Karan ||/s/ David Lisberg |
|SHASHI KARAN AND PATSY WOSEPKA ||DAVID LISBERG |
|Date: 4/23/18 ||Date: |
|/s/ Taylor T. Kilfoil ||/s/ Mark & Mary Massery |
|TAYLOR T. KILFOIL ||MARK AND MARY MASSERY |
|Date: ||Date: 4-23-18 |
|/s/ Lawrence H.N. Kinet ||/s/ Marguerite Mcdonald |
|LAWRENCE H.N. KINET ||MARGUERITE B. MCDONALD |
|Date: ||Date: |
|/s/ Stephen Klyce ||/s/ A. Bruce Montgomery, Mdd. |
|STEPHEN D. KLYCE ||A. BRUCE MONTGOMERY, M.D. |
|Date: ||Date: 4/14/2018 |
|MOW TRUST DATED APRIL 17, 2008 |
|/s/ Harry Kraemer ||/s/ Jonathan Mow |
|HARRY M. AND JULIE J KRAEMER ||Name: Jonathan Mow |
|Date: ||Its: Trustee |
|Date: 5/25/2018 |
|GEORGE A. MOSHER INVESTMENT TRUST |
|/s/ George Mosher ||/s/ Mosher Investment |
|GEORGE A. MOSHER ||Name: |
|Date: 4/24/18 ||Its: |
|PHILIPS TRUST ||RIVERSIDE HOLDINGS, LLP |
|/s/ Kevin E. Phillips ||By: /s/ Mark S. Speers |
|Name: Kevin E. Phillips ||Name: Mark S. Speers |
|Its: Trustee ||Title: Member |
|Date: ||Date: 4/23/2018 |
|ALAN C. TAN AND SUZANNE M KOHUO, CO- TRUSTEES OF THE KOHUO TAN FAMILY TRUST DATED 4/24/2006 || JEFFREY S. ROSS, LVING TRUST U/A/D 08/10/17 |
|/s/ Alan Tan ||/s/ Jeffrey Ross |
|Name: Alan Tan - Kohno Trust ||Name: |
|Its: ||Its: |
|Date: ||Date: 4/30/2018 |
|/s/ Keith D. Terry ||/s/ Sheri Rowen |
|KEITH D. TERRY ||SHERI L. ROWEN |
|Date: ||Date: |
|WELDON LIMITED PARTNERSHIP |
|/s/ Barry Usow ||By: /s/ Weldon Limited Partnership |
|BARRY H. USOW ||Name: Weldon Limited Partnership |
|Date: ||Title: GP |
|Date: 4/19/2018 |
|/s/ Stephen Einhorn ||/s/ Harold Wong |
|EINHORN ASSOCIATES ||HAROLD WONG |
|Date: ||Date: 4/17/2018 |
|/s/ Craig Yee |
|CRAIG YEE |
|/s/ Arnold Wong ||/s/ Gwendolyn Wong |
|ARNOLD WONG ||GWENDOLYN WONG |
|Date: 4/17/2018 ||Date: 4/17/2018 |