OMNIBUS STOCKHOLDERS’ AGREEMENT
Exhibit
10.10
OMNIBUS
STOCKHOLDERS’ AGREEMENT
This
OMNIBUS STOCKHOLDERS’ AGREEMENT (this “Agreement”)
is
made and entered into as of October 24, 2003, by and among ▇▇▇▇▇▇ Technologies,
Inc., a Delaware corporation (“▇▇▇▇▇▇”),
Historical Autographs U.S.A., Inc., a Nevada corporation (“HAUSA”),
Spectrum Laboratories, Inc., a Delaware corporation (“Spectrum”),
Cedars-Sinai Medical Center, a California nonprofit public benefit corporation
(the “Junior
Preferred Investor”),
Achilles ▇. ▇▇▇▇▇▇▇▇▇, M.D., Ph.D. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustees of
the
A & K Demetriou Family Trust created on November 13, 2000 (collectively,
“Demetriou”)
and
▇▇▇▇▇ ▇▇▇▇▇, M.D., Ph.D. and ▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, “Rozga,”
and,
collectively with Demetriou, the "Founders").
Spectrum, the Junior Preferred Investor, and the Founders are sometimes
collectively hereinafter referred to as the "Holders".
RECITALS
▇. ▇▇▇▇▇▇
has entered into that certain Agreement and Plan of Reorganization (the
“Plan
of Reorganization”),
dated
October 20, 2003, among ▇▇▇▇▇▇, HAUSA, HAUSA Acquisition, Inc., a Nevada
corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, pursuant to which ▇▇▇▇▇▇ will
merge with HAUSA Acquisition, Inc. (the “Merger”).
As a
result of the Merger, each share of common stock of ▇▇▇▇▇▇ outstanding
immediately before the Merger will be converted into one share of common stock
of HAUSA (the common stock of HAUSA to be issued in the Merger is herein
referred to as the “Common
Stock”).
▇.
▇▇▇▇▇▇
and the Holders are parties to that certain First Amended and Restated
Stockholders’ Agreement, dated as of December 21, 2001 (the “Existing
Stockholders’ Agreement”).
▇. ▇▇▇▇▇▇,
the Founders and the Junior Preferred Investor are parties to that certain
Investors’ Rights Agreement, dated as of June 29, 2001 (the “Investors’
Rights Agreement”).
D. As
a
result of the reorganization of ▇▇▇▇▇▇’ ownership that will occur in the Merger,
(i) ▇▇▇▇▇▇ and the Holders agree that the Existing Stockholders’ Agreement
should be terminated, effective as of the Merger, and (ii) ▇▇▇▇▇▇, the Junior
Preferred Investor and the Founders agree that the Investors’ Rights Agreement
should be terminated, effective as of the Merger.
E. Pursuant
to the Plan of Reorganization, all outstanding shares of preferred stock of
▇▇▇▇▇▇ are required to be converted into additional shares of ▇▇▇▇▇▇ common
stock, which shares of ▇▇▇▇▇▇ common stock will be converted into shares of
Common Stock in the Merger.
F. The
Junior Preferred Investor, the owner of all of the issued and outstanding shares
of ▇▇▇▇▇▇’ preferred stock, is willing to convert its 681,818 shares of Junior
Preferred Stock for 681,818 shares of ▇▇▇▇▇▇ common stock immediately prior
to
the Merger on the terms and conditions of this Agreement.
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G. The
parties to this Agreement agree that the restrictions imposed by the two
Founder’s Restricted Stock Purchase Agreements, each entered into as of
September 1, 2002 by one of the Founders and ▇▇▇▇▇▇ (the “Founder’s
Agreements”),
on
the ▇▇▇▇▇▇ shares owned by the Founders will no longer be necessary or
appropriate following the Merger.
H. The
Merger and the other transactions contemplated by the Plan of Reorganization
are
scheduled to occur by no later than October 30, 2003.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the premises, covenants and obligations
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
1. TERMINATION
OF PRIOR AGREEMENTS
1.1 Termination
of Prior Agreements. Subject
to the consummation of the Merger, the parties to the Existing Stockholders’
Agreement and to the Investors’ Rights Agreement hereby agree that each such
agreement shall automatically terminate and be cancelled effective as of the
effectiveness of the Merger.
1.2 Waiver
of Rights Under Prior Agreements. Each
party to this Agreement who is also a party to either of the Existing
Stockholders’ Agreement or the Investors’ Rights Agreement hereby waives any and
all rights such party may have under such agreements relating to this Agreement,
the Plan or Reorganization, or any of the transactions contemplated by any
of
the foregoing agreements, including the right to approve such transactions
or
the right of first refusal to purchase any shares issuable in any such
transactions.
2. CONVERSION/EXCHANGE
OF PREFERRED STOCK
2.1 The
Junior Preferred Investor hereby agrees to exchange/convert all of the 681,818
shares of Junior Preferred Stock owned by the Junior Preferred Investor for
681,818 shares of ▇▇▇▇▇▇ common stock (the “Exchange”).
In
order to effect the Exchange, the Junior Preferred Investor is hereby delivering
to ▇▇▇▇▇▇ the stock certificate representing all of the shares of Junior
Preferred Stock owned by the Junior Preferred Investor, which certificate has
been duly endorsed for cancellation. Subject to Section 2.2 below, the Junior
Preferred Investor hereby irrevocably instructs ▇▇▇▇▇▇ to cancel the foregoing
certificate and the shares of Junior Preferred Stock immediately prior to the
Merger, and Arbios hereby agrees to cancel the Junior Preferred Stock and to
issue the 681,818 shares of ▇▇▇▇▇▇ common stock in the Exchange immediately
before the Merger becomes effective. However, ▇▇▇▇▇▇ agrees that it will not
cancel the shares of Junior Preferred Stock until immediately prior to the
closing of the Merger. ▇▇▇▇▇▇ and the Junior Preferred Investor hereby agree
that the Exchange shall for all purposes be deemed to be effective immediately
prior to the closing of the Merger if the Merger occurs, and that the shares
of
Junior Preferred Stock shall be deemed to have been exchanged for shares of
▇▇▇▇▇▇ common stock at the time that the Merger occurs. Since the 681,818 shares
of ▇▇▇▇▇▇ common stock to be issued to the Junior Preferred Investor in the
Exchange shall, in connection with the Merger, automatically be converted into
681,818 shares of Common Stock of HAUSA, the parties hereto agree that the
stock
certificate to be received by the Junior Preferred Investor as a result of
the
Exchange may be issued as a stock certificate for 681,818 shares of Common
Stock
of HAUSA immediately after the Merger.
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2.2 In
the
event that the Merger has not been consummated by October 31, 2003, ▇▇▇▇▇▇
shall
thereafter not cancel the shares of Junior Preferred Stock and shall promptly
thereafter return to the Junior Preferred Investor the stock certificate
representing the Junior Preferred Stock.
3. REGISTRATION
RIGHTS
3.1 Definitions.
For
purposes of this Section 3:
(a) Registration
Rights Holders.
The
term “Registration
Rights Holder”
means
the Junior Preferred Investor and the Founders, and any assignee of record
of
the Registrable Securities to whom rights set forth herein have been duly
assigned in accordance with this Agreement.
(b) Registration.
The
terms “register,”
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(c) Registrable
Securities.
The
term “Registrable
Securities"
means:
(i) all shares of Common Stock of HAUSA listed on Schedule A, which shares
are
expected to be issued to the Registration Rights Holders in the Merger, together
with any other shares of HAUSA that may be acquired by the Registration Rights
Holders or any of the Registration Rights Holders' permitted successors and
assigns after the Merger; and (ii) any shares of Common Stock of HAUSA issued
as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect
to,
or in exchange for or in replacement of, all such shares of Common Stock
described in clause (i) of this Section 3.1 (c); excluding
in all
cases, however, any Registrable Securities sold by a person in a transaction
in
which rights under this Section 3 are not assigned in accordance with this
Agreement or any Registrable Securities sold to the public or sold pursuant
to
Rule 144 promulgated under the Securities Act.
(d) SEC.
The
term “SEC”
or
“Commission”
means
the U.S. Securities and Exchange Commission.
(e) Securities
Act.
The
term “Securities
Act”
means
the Securities Act of 1933, as amended.
3.2 Piggyback
Registrations.
(a) Registration
Rights.
Subject
to the completion of the Merger, HAUSA agrees to the following registration
provisions. HAUSA shall notify the Registration Rights Holders in writing at
least thirty (30) days prior to filing any registration statement under the
Securities Act for purposes of effecting a public offering of securities of
HAUSA (including, but not limited to, registration statements relating to
secondary offerings of securities of HAUSA), and will afford the Registration
Rights Holders an opportunity to include in such registration statement all
or
any part of the Registrable Securities then held by the Registration Rights
Holders. Notwithstanding the foregoing, the registration rights provided by
this
Section 3.2 shall not apply to any registration statement (i) relating to any
employee benefit plan or an SEC Rule 145 transaction, (ii) filed by HAUSA
pursuant to those certain Subscription Agreements--Bridge Offering entered
into
in September 2003 between ▇▇▇▇▇▇ and the purchasers of $400,000 of ▇▇▇▇▇▇’
convertible promissory notes, or (iii) filed by HAUSA pursuant to those certain
Subscription Agreements entered into between ▇▇▇▇▇▇ and the investors who
purchased up to $4,010,000 of ▇▇▇▇▇▇’ Units (consisting of shares of ▇▇▇▇▇▇
common stock and warrants) in September and October 2003. If a Registration
Rights Holder desires to include in any such registration statement all or
any
part of the Registrable Securities held by such Registration Rights Holder,
it
shall, within twenty (20) days after receipt of the above-described notice
from
HAUSA, so notify HAUSA in writing, and in such notice shall inform HAUSA of
the
number of Registrable Securities such Registration Rights Holder wishes to
include in such registration statement. If a Registration Rights Holder decides
not to include all of its Registrable Securities in any registration statement
thereafter filed by HAUSA, such Registration Rights Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed
by
HAUSA with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
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(b) Underwriting.
If a
registration statement under which HAUSA gives notice under this
Section 3.2 is for an underwritten offering, then HAUSA shall so advise the
Registration Rights Holders in writing. In such event, the right of each
Registration Rights Holder to have its Registrable Securities included in a
registration pursuant to this Section 3.2 shall be conditioned upon such
Registration Rights Holder's participation in such underwriting and the
inclusion of such Registration Rights Holder's Registrable Securities in the
underwriting to the extent provided herein. In connection with such underwritten
offering, each participating Registration Rights Holder shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s)
in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude shares
(including Registrable Securities) from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first,
to
HAUSA in full for shares of HAUSA stock it proposes to offer in a primary
offering, and second,
to the
participating Registration Rights Holders ratably in accordance with the number
of shares each requesting Registration Rights Holder requested to be
underwritten; provided,
however,
that
the right of the underwriters to exclude shares (including Registrable
Securities) from the registration and underwriting as described above shall
be
restricted so that the aggregate number of Registrable Securities of all
Registration Rights Holders included in any such registration is not reduced
below ten percent (10%) of the shares included in the registration. If a
Registration Rights Holder disapproves of the terms of any such underwriting,
such Registration Rights Holder may elect to withdraw therefrom by written
notice to HAUSA and the underwriter, delivered at least twenty (20) business
days prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. Any such exclusion or withdrawal in such
underwriting shall not limit the rights of the Registration Rights Holder to
include its Registrable Securities in any subsequent underwritten offering
under
this Section 3.2(b).
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(c) Expenses.
All
expenses incurred in connection with a registration pursuant to this
Section 3.2 (excluding underwriters' and brokers' discounts and
commissions), including, without limitation all federal and “blue sky”
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for HAUSA, shall be borne by HAUSA. The participating
Registration Rights Holders shall bear their proportionate share (based on
the
total number of their shares sold in such registration) of any counsel
representing all of the participating Registration Rights Holders and all
discounts, commissions or other amounts payable to underwriters or brokers
in
connection with such registration.
3.3 Obligations
of HAUSA.
Whenever required to effect the registration of any Registrable Securities
under
this Agreement, HAUSA shall, as expeditiously as reasonably
possible:
(a) Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, upon the request of any participating Registration Rights
Holder, keep such registration statement effective for ninety (90) days (or
until all Registrable Securities included therein have been sold if the
registration is filed on Form S-3 or any similar successor form).
(b) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(c) Furnish
to each participating Registration Rights Holder such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such
Registration Rights Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by the Registration Rights
Holder that are included in such registration.
(d) Use
its
reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or “blue sky” laws of such
jurisdictions as shall be reasonably requested by any participating Registration
Rights Holder, provided that HAUSA shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering. Each Registration Rights Holder
participating in such underwriting hereby agrees to also enter into and perform
its obligations under such an agreement.
(f) Notify
the participating Registration Rights Holders (at any time when a prospectus
relating to such registration statement is required to be delivered under the
Securities Act) of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing. HAUSA will use
reasonable efforts to amend or supplement such prospectus in order to cause
such
prospectus not to include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
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(g) Cause
all
Registrable Securities registered pursuant hereunder to be listed on each
securities exchange or trading system on which similar securities issued by
HAUSA are then listed.
3.4 Furnish
Information.
It
shall be a condition precedent to the obligations of HAUSA to take any action
pursuant to Section 3.3 that the Registration Rights Holders shall furnish
to
HAUSA such information regarding Registration Rights Holders, the Registrable
Securities held by them, and the intended method of disposition of such
securities as shall be required to timely effect the registration of their
Registrable Securities.
3.5 Delay
in Registration.
No
Registration Rights Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 3.
3.6 Indemnification.
In the
event any Registrable Securities are included in a registration statement under
Section 3.2:
(a) By
HAUSA.
To the
extent permitted by law, HAUSA shall indemnify and hold harmless each of the
participating Registration Rights Holders and each of its partners, members,
directors, officers and shareholders, any underwriter (as defined in the
Securities Act) for any such Registration Rights Holder and each person, if
any,
who controls any such Registration Rights Holder or underwriter within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended, (the “1934
Act”)
(collectively, “Registration
Rights Holder Indemnitees”),
against any losses, claims, damages, or liabilities (joint or
several) to
which
they (or any of them) may become subject under the Securities Act, the 1934
Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any
of the following statements, omissions or violations (collectively a
“Violation”):
(i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements
thereto;
(ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading;
or
(iii) any
violation or alleged violation by HAUSA of the Securities Act, the 1934 Act,
any
federal or state securities law or any rule or regulation promulgated under
the
Securities Act, the 1934 Act or any federal or state securities law in
connection with the offering covered by such registration
statement;
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and
HAUSA
will reimburse each of the Registration Rights Holder Indemnitees for any legal
or other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that
the indemnity agreement contained in this Section 3.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of HAUSA (which consent
shall
not be unreasonably withheld, delayed or conditioned), nor shall HAUSA be liable
in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly
for
use in connection with such registration by any Registration Rights Holder
Indemnitees, including without limitation, any information furnished by the
participating Registration Rights Holders to HAUSA pursuant to Section 3.4
hereof.
(b) By
the
Participating Registration Rights Holders.
To the
extent permitted by law, each participating Registration Rights Holder will
indemnify and hold harmless HAUSA, each of its directors, each of its officers
who have signed the registration statement, and each person, if any, who
controls HAUSA within the meaning of the Securities Act or the 1934 Act
(collectively, “Company
Indemnitees”),
against any losses, claims, damages or liabilities (joint or several) to which
HAUSA or any such Company Indemnitee may become subject under the Securities
Act, the 1934 Act or other federal or state law, but only insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise
out
of or are based upon any Violation, in each case to the extent (and only to
the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such participating Registration Rights Holder
expressly for use in connection with such registration, including without
limitation, any information furnished by such participating Registration Rights
Holder to HAUSA pursuant to Section 3.4 hereof; and such participating
Registration Rights Holder will reimburse any legal or other expenses reasonably
incurred by HAUSA or any such Company Indemnitee as incurred in connection
with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that
the indemnity agreement contained in this Section 3.6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such participating
Registration Rights Holder which consent shall not be unreasonably withheld,
delayed or conditioned; and provided
further,
that
the total amounts payable in indemnity by any participating Registration Rights
Holder under this Section 3.6(b) in respect of any Violation shall not
exceed the net proceeds received by such participating Registration Rights
Holder in the registered offering out of which such Violation
arises.
(c) Notice.
Promptly after receipt by an indemnified party under this Section 3.6 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 3.6, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided,
however,
that an
indemnified party shall have the right to retain its own counsel, with the
fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party
of
any liability to the indemnified party under this Section 3.6, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 3.6.
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(d) Defect
Eliminated in Final Prospectus.
The
foregoing indemnity agreements of HAUSA and the participating Registration
Rights Holders are subject to the condition that, insofar as they relate to
any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the “Final
Prospectus”),
such
indemnity agreement shall not inure to the benefit of any person if a copy
of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Securities Act.
(e) Contribution.
If the
indemnification provided for in this Section 3.6 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
loss
or expense referred to herein, then the indemnifying party, in lieu of
indemnifying the indemnified party, shall contribute to the amount paid or
payable by such indemnified party with respect to such loss or expense in the
proportion that is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
that resulted in such loss or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact or the omission to state
a
material fact relates to information supplied by the indemnifying party or
by
the indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
In
any such case, (A) no such Registration Rights Holder will be required to
contribute any amount in excess of the net proceeds received from all such
Registrable Securities offered and sold by such Registration Rights Holder
pursuant to such registration statement; and (B) no person or entity guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity
who
was not guilty of such fraudulent misrepresentation.
(f) Conflict
with Underwriting Agreement.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in any underwriting agreement entered
into in connection with an underwritten public offering are in conflict with
the
foregoing provisions, the provisions in the underwriting agreement will
control.
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(g) Survival.
The
obligations of HAUSA and the participating Registration Rights Holders under
this Section 3.6 shall survive the completion or termination of any
offering of Registrable Securities in a registration statement.
3.7 Rule
144 Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, HAUSA agrees to:
(a) Make
and
keep public information concerning HAUSA available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) Use
reasonable, diligent efforts to file with the Commission in a timely manner
all
reports and other documents required of HAUSA under the Securities Act and
the
1934 Act (at any time after it has become subject to such reporting
requirements); and
(c) So
long
as a Registration Rights Holder owns Registrable Securities, to furnish to
such
Registration Rights Holder upon request such information as the holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Registration Rights Holder to sell any such securities
without registration.
3.8 Assignment.
Notwithstanding anything herein to the contrary, the registration rights of
the
Registration Rights Holders under Section 3 hereof may be assigned only to
a party who acquires at least 200,000 shares of Registrable Securities,
provided,
however
that no
party may be assigned any of the foregoing rights unless HAUSA is given written
notice by the assigning party at the time of such assignment stating the name
and address of the assignee and identifying the securities of HAUSA as to which
the rights in question are being assigned; and provided further
that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement.
4. “MARKET
STAND-OFF” AGREEMENT. Each
Holder has previously entered into a “market stand-off agreement” with ▇▇▇▇▇▇,
either in the Investors’ Rights Agreement or in a stock purchase agreement.
▇▇▇▇▇▇ and the Holders hereby agree that all such existing market stand-off
agreements shall terminate and become ineffective if and when the Merger is
closed.
The
parties hereto agree to the following market stand-off provisions, which
provisions shall become effective if and when the Merger is closed. Each Holder
hereby agrees that it shall not, to the extent requested by HAUSA or an
underwriter of securities of HAUSA, sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise transfer or dispose of any Common
Stock or other shares of stock of HAUSA then owned by such Holder (other than
to
transferees or partners of the Holder who agree to be similarly bound) for
such
period of time beginning on the date such Holder is notified in writing by
HAUSA
or the representative of the underwriters of HAUSA’s Common Stock that HAUSA
proposes to file a registration statement under the Securities Act and ending
on
the date specified by HAUSA or the representatives of such underwriters, such
period not to exceed ninety (90) days following the effective date of the
registration statement of HAUSA filed under the Securities Act; provided,
however,
that
(i) all executive officers and directors of HAUSA then holding Common Stock
and
(ii) each stockholder of HAUSA holding in the aggregate at least one percent
(1%) of the total equity of HAUSA, enter into similar agreements.
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In
order
to enforce the foregoing covenant, HAUSA shall have the right to place
restrictive legends on the certificates representing the shares subject to
this
Section and to impose stop transfer instructions with respect to the Common
Stock and such other shares of stock of each Holder (and the shares or
securities of every other person subject to the foregoing restriction) until
the
end of such period. Each Holder further agrees to enter into any agreement
reasonably required by the underwriters to implement the foregoing within any
reasonable timeframe so requested.
5. AMENDMENT
OF FOUNDER’S AGREEMENTS; VESTING OF STOCK
▇▇▇▇▇▇
and the Holders hereby agree that the Repurchase Option and the Right of First
Refusal (as such terms are defined in the Founder’s Agreements) shall be
terminated effective immediately prior to the effectiveness of the Merger.
Accordingly, the parties to this Agreement hereby agree that, effective
immediately prior to the Merger, (i) the vesting periods of all of the shares
of
▇▇▇▇▇▇ common stock owned by each of the Founders (or their assignees) shall
be
accelerated and all such shares shall become fully Vested Shares (as defined
in
the Founder’s Agreements), (ii) the Repurchase Option and the Right of First
Refusal, and all of the other provisions of Sections 5 and 6 of the Founder’s
Agreements, shall become null and void and shall be deemed to be deleted from
those agreements, and (iii) ▇▇▇▇▇▇, as the Escrow Holder, shall release any
of
the Founders’ shares then held in escrow pursuant to the Founder’s Agreements.
The parties to this Agreement further agree that the certificates representing
the Common Stock issuable to the Founders following the Merger shall not bear
any legend referring to the Repurchase Option and the Right of First
Refusal.
6. TERMINATION
This
Agreement shall automatically terminate in the event that the Merger has not
been consummated on or before October 31, 2003.
7. MISCELLANEOUS
7.1 Entire
Agreement Superseding Prior Agreements.
This
Agreement constitutes and contains the entire agreement and understanding of
the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations, both written or oral, between the parties with respect to the
subject matter hereof. Specifically, this Agreement amends, restates and
supersedes in whole the Existing Stockholders’ Agreement and the Investors’
Rights Agreement.
7.2 Amendments
of Rights and Waivers.
Any
provision of this Agreement may be amended, and the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of ▇▇▇▇▇▇, HAUSA and Registration
Rights Holders holding at least 50% of the then Registrable Securities then
outstanding. Notwithstanding the foregoing, however, in the event that any
proposed amendment or waiver of any provision of this Agreement adversely
affects the rights or remedies of the Junior Preferred Investor, then such
amendment or waiver shall also require the written consent of the Junior
Preferred Investor.
10
7.3 Successors
And Assigns.
Subject
to the provisions of Section 4 hereof, the terms and conditions of this
Agreement shall inure to the benefit of, and shall be binding upon, the
respective successors and permitted assigns of the parties hereto.
7.4 Governing
Law.
This
Agreement shall be governed by and construed exclusively in accordance with
the
internal laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware excluding
that body of law relating to conflict of laws and choice of law.
7.5 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision(s) were
so
excluded and shall be enforceable in accordance with its terms.
7.6 Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
to the party to be notified or five (5) days after deposit with the United
States Post Office by registered or certified mail, postage prepaid and
addressed as follows: (i) If to the Holders, at their addresses indicated on
signature page of this Agreement; and (ii) if to HAUSA (after the Merger),
at
its principal executive offices, or (iii) in each case at such other address
as
any party may designate by giving ten (10) days advance written notice to all
other parties.
7.7 Headings.
The
headings or captions to sections used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement.
7.8 Costs
and Attorneys’ Fees.
If any
action at law or in equity is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and reasonable attorneys' fees and
disbursements incurred in each such action, including any and all appeals or
petitions therefrom, in addition to any other relief to which such party may
be
entitled.
7.9 Third
Parties.
Nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights
or
remedies under or by reason of this Agreement.
7.10 Adjustments
for Stock Splits, Etc.
Wherever in this Agreement there is a reference to a specific number of shares
of Common Stock of HAUSA of any class or series, then, upon the occurrence
of
any subdivision, combination or stock dividend of such class or series of stock,
the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
7.11 Aggregation
of Stock.
All
shares held or acquired by affiliated entities or persons shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
11
7.12 Counterparts.
This
Agreement may be executed in two or more counterparts, and signature pages
may
be delivered by facsimile, each of which shall be deemed an original, but all
of
which together shall constitute one and the same instrument.
12
IN
WITNESS WHEREOF, the Holders, ▇▇▇▇▇▇ and HAUSA have caused this OMNIBUS
STOCKHOLDERS’ AGREEMENT to be duly executed as of the date first written
above.
| Achilles ▇. ▇▇▇▇▇▇▇▇▇ | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Achilles ▇. ▇▇▇▇▇▇▇▇▇, M.D., Ph.D., as | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustee of Trustee of | |
| the A & K Demetriou Family Trust | the A & K Demetriou Family Trust | |
| created on November 13, 2000 | created on November 13, 2000 | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇▇
▇▇▇▇▇
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇, M.D., Ph.D.
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇-▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇-▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇
Technologies, Inc.
|
Historical
Autographs U.S.A., Inc.
|
|
|
By:
▇▇▇▇▇
▇▇▇▇▇
|
By:
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇
▇▇▇▇▇
|
Name:
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Title:
President
|
Title:
President
& Director
|
|
Cedars-Sinai
Medical Center
|
Spectrum
Laboratories, Inc.
|
|
|
By:
▇▇▇▇▇▇
▇▇▇▇▇▇
|
By:
▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇, M.D.
|
Name:
▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title: Senior
Vice President
for Academic Affairs
|
Title:
Chief Executive Officer
|
|
| By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | c/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: Senior Vice President |
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
for
Finance and CFO
|
||
| Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
▇▇▇▇
▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
||
13
SCHEDULE
A
|
NAME
OF REGISTRATION
RIGHTS
HOLDERS
|
NUMBER
OF SHARES
OF
COMMON STOCK
OWNED
IMMEDIATELY AFTER THE MERGER
|
|
|
Achilles
▇. ▇▇▇▇▇▇▇▇▇, M.D., Ph.D, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustees of
the A
& K Demetriou Family Trust
|
2,500,000
|
|
|
▇▇▇▇▇
▇▇▇▇▇, M.D., Ph.D. and ▇▇▇▇▇▇ ▇▇▇▇▇
|
2,500,000
|
|
|
Cedars-Sinai
Medical Center
|
681,818
|
|
|
|
14