CORMEDIX, INC. STOCKHOLDER AGREEMENT
EXECUTION
VERSION
This
Stockholder Agreement (the “Agreement”)
is entered into as of the 30th day of January, 2008 by
and between CorMedix,
Inc., a Delaware corporation (the “Corporation”)
and ND
Partners LLC, a Delaware limited liability company (the “Investor”).
Recitals
Whereas,
pursuant to that certain Common Stock Subscription Agreement (the “Subscription
Agreement”) of even date herewith, the
Investor has agreed to subscribe for and accept from the Corporation, shares of
the Corporation’s Series A Common Stock (the
“Common
Stock”);
Whereas,
in connection with the execution of the Subscription Agreement, the parties
desire to enter into this Agreement in order to grant certain preemptive rights,
information rights and other rights to the Investor as set forth
below.
Now,
Therefore, in consideration of these premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1. GENERAL.
1.1 Definitions. As
used in this Agreement the following terms shall have the following respective
meanings:
(a) “Board”
means the Corporation’s Board of Directors.
(b) “Convertible
Promissory Notes” has the meaning set forth in Section
2.5(b).
(c) “Equity
Securities” means (i) any Common Stock, preferred stock or other
security of the Corporation, (ii) any security convertible into or
exercisable or exchangeable for, with or without consideration, 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.
(d) “Escrow
Agreement” means that certain Escrow Agreement, dated as of the date
hereof by and among Investor, the Corporation and the Escrow Agent named
therein.
(e) “Escrow
Shares” means the shares issued to Investor and held by the Escrow Agent
pursuant to this Agreement, the Subscription Agreement and the Escrow
Agreement.
(f) “Excluded
Securities” means the securities listed in Section 2.5.
(g) “Fully
Diluted Capitalization” shall have the meaning given in the Subscription
Agreement.
(h) “Initial
Offering” means the Corporation’s first firm commitment underwritten
public offering of its Common Stock registered under the Securities
Act.
(i) “License
Agreement” means that certain License and Assignment Agreement dated as
of even date herewith by and between the Corporation and the
Investor.
(j) “Qualifying
Financing Amount” means a total of $25,000,000 of cash raised by the
Corporation after the date hereof through the issuance and sale, to parties
other than the Investor, of Equity Securities or other securities convertible
into Equity Securities in one or a series of transactions.
(k) “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 or document.
(l) “SEC”
means the Securities and Exchange Commission.
(m) “Securities
Act” means
the Securities Act of 1933, as amended.
(n) “Shares” means
all shares of Common Stock issued to Investor, including Escrow
Shares.
SECTION
2. PREEMPTIVE
RIGHTS.
2.1 Subsequent
Offerings. Subject to applicable securities laws, the Investor
shall have a preemptive right to purchase its pro
rata share of all Equity Securities that the Corporation may, from time
to time, propose to sell and issue after the date of this Agreement, other than
the Excluded Securities. The Investor’s pro
rata share is equal to the ratio of (a) the number of Shares then
issued to Investor to (b) the Fully Diluted Capitalization of the Corporation
immediately prior to the issuance of such Equity
Securities.
2.2 Exercise
of Rights. If the Corporation proposes to issue any Equity
Securities, it shall give the Investor
written notice of its intention, describing the Equity Securities, the price and
the terms and conditions upon which the Corporation proposes to issue the
same. The Investor shall have fifteen (15) days
from the giving of such notice to agree to purchase its pro
rata share of the Equity Securities for the price and upon the terms and
conditions specified in the notice by giving written notice to the Corporation
and stating therein the quantity of Equity Securities to be
purchased. Notwithstanding the foregoing, the Corporation shall not
be required to offer or sell such Equity Securities to the Investor if such
offer or sale would cause the Corporation to be in violation of applicable
federal securities laws by virtue of such offer or sale.
2.3 Issuance
of Equity Securities to Other Persons. The Corporation shall
have ninety (90) days
thereafter to sell the Equity Securities in respect of which the Investor’s
rights were not exercised, at a price and upon general terms and conditions not
materially more favorable to the purchasers thereof than specified in the
Corporation’s notice to the Investor pursuant to Section 2.2
hereof. If the Corporation has not sold such Equity Securities within
ninety (90) days of the notice provided pursuant to Section 2.2, the
Corporation shall not thereafter issue or sell any Equity Securities, without
first offering such securities to the Investor in the manner provided
above.
2.
2.4 Sale
Without Notice. In lieu of giving notice to the Investor prior
to the issuance of Equity Securities as provided in Section 2.2, the Corporation
may elect to give notice to the Investor within thirty (30) days after the
issuance of Equity Securities. Such notice shall describe the type,
price and terms of the Equity Securities. The Investor shall have twenty (20)
days from the date of receipt of such notice to elect to purchase up to the
number of shares that would, if purchased by the Investor, maintain the
Investor’s pro
rata share (as set forth in Section 2.1) of the Corporation’s equity
securities. The closing of such sale shall occur within sixty (60)
days of the date of notice to the Investor.
2.5 Excluded
Securities. The preemptive rights established by this Section
2 shall have no application to any of the following Equity Securities (the
“Excluded
Securities”):
(a) all shares
of Common Stock and/or options, warrants or other Common Stock purchase rights
and the Common Stock issued pursuant to such options, warrants or other rights
(as adjusted for any stock dividends, combinations, splits, recapitalizations
and the like after the date hereof) issued or to be issued after the date hereof
to employees, officers or directors of, or consultants or advisors to the
Corporation or any subsidiary, pursuant to stock purchase or stock option plans
or other compensatory arrangements that are approved by the stockholders of the
Corporation;
(b) stock issued or issuable
pursuant to any rights or agreements, options, warrants or convertible
securities outstanding as of the date of this Agreement, excluding any Equity
Securities issued upon conversion of those certain promissory notes of the
Corporation outstanding as of the date of this Agreement and described in
Section 7 of Schedule 3(c) and 3(e) to the Subscription Agreement (the “Convertible
Promissory Notes”); and stock issued pursuant to any such rights or
agreements granted after the date of this Agreement, so long as the preemptive
rights established by this Section 2 were complied with, waived, or were
inapplicable pursuant to any provision of this Section 2.5 with respect to the
initial sale or grant by the Corporation of such rights or
agreements;
(c) any Equity Securities
issued for consideration other than cash pursuant to a merger, consolidation,
acquisition or similar business combination;
(d) any Equity Securities
issued in connection with any stock split, stock dividend or recapitalization by
the Corporation;
(e) any Equity Securities
issued pursuant to any equipment loan or leasing arrangement, real property
leasing arrangement, or debt financing from a bank or similar financial or
lending institution;
3.
(f) any Equity Securities that
are issued by the Corporation pursuant to a registration statement filed under
the Securities Act;
(g) any Equity Securities
issued in connection with strategic transactions involving the Corporation and
other entities, including, without limitation (i) joint ventures, strategic
alliances, or research and development collaborations, (ii) technology transfer,
licensing or development arrangements or (iii) other than any other transactions
involving third parties; provided
that such transaction is not primarily for equity financing purposes;
and
(h) any Equity Securities
issued to the Investor.
2.6 Termination
of Preemptive Rights. The rights granted to Investor pursuant
to this Section 2 shall terminate and be of no further force and effect upon the
earlier of (i) receipt by the Corporation of the Qualifying Financing Amount,
provided,
that Investor’s rights under Section 2.1 shall apply solely to the sale of
Equity Securities up to and including the Qualifying Financing Amount and (ii)
the termination of this Agreement pursuant to Section
5.12.
SECTION
3. COVENANTS
OF THE CORPORATION.
3.1 Basic
Financial Information and Reporting.
(a) The Corporation will
furnish the Investor a balance sheet of the Corporation when available to the
Board, as at the end of such fiscal year, and a statement of income and a
statement of cash flows of the Corporation, for such year, all prepared in
accordance with generally accepted accounting principles consistently applied
(except as noted therein or as disclosed to the recipients thereof), with the
exception that no notes need be attached to such statements and year-end audit
adjustments may not have been made, and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail.
(b) As soon as practicable
after the end of the first, second and third quarterly accounting periods in
each fiscal year of the Corporation, and in any event within forty-five
(45) days
thereafter, a balance sheet of the Corporation as of the end of each such
quarterly period, and a statement of income and a statement
of cash flows of the Corporation for such period and for the current fiscal year
to date, prepared in accordance with generally accepted accounting principles
consistently applied (except as noted therein or as disclosed to the recipients
thereof), with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
(c) The Corporation will
furnish the Investor: (i) at least thirty (30) days prior to the beginning
of each fiscal year an annual budget and operating plans for such fiscal year
(and as soon as available, any subsequent written revisions thereto); and
(ii) as soon as practicable after the end of each month, and in any event
within twenty (20) days thereafter, a balance sheet of the Corporation as of the
end of each such month, and a statement of income and a statement of cash flows
of the Corporation for such month and for the current fiscal year to date,
including a comparison to plan figures for such period, prepared in accordance
with generally accepted accounting principles consistently applied (except as
noted thereon), with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made.
4.
3.2 Inspection
Rights. The Investor shall have the right to visit and inspect
any of the properties of the Corporation or any of its subsidiaries, and to
discuss the affairs, finances and accounts of the Corporation or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided,
however, that the Corporation shall not be obligated under this
Section 3.2 with respect to a competitor of the Corporation or with respect
to information which the Board determines in good faith is confidential or
attorney-client privileged and should not, therefore, be
disclosed.
3.3 Confidentiality
of Records. The Investor agrees to use the same degree of care
as the Investor uses to protect its own confidential information to keep
confidential any information furnished to such Investor hereof that the
Corporation identifies as being confidential or proprietary (so long as such
information is not in the public domain), except that the Investor may disclose
such proprietary or confidential information (i) to any partner, subsidiary or
parent of the Investor as long as such partner, subsidiary or parent is advised
of and agrees or has agreed to be bound by the confidentiality provisions of
this Section 3.3 or comparable restrictions; (ii) at such time as it enters
the public domain through no fault of the Investor; (iii) that is communicated
to it free of any obligation of confidentiality; (iv) that is developed by the
Investor or its agents independently of and without reference to any
confidential information communicated by the Corporation; or (v) as required by
applicable law.
3.4 Visitation
Rights. The Corporation shall allow one representative
designated by the Investor to attend all meetings of the Board in a nonvoting
capacity. The Corporation shall give such representative copies of
all notices, minutes, consents and other materials, financial or otherwise,
which the Corporation provides to its Board; provided, however, that the
Corporation reserves the right to exclude such representative from access to any
material or meeting or portion thereof if the Board, in good faith, believes
upon advice of counsel that such exclusion is reasonably necessary to preserve
the attorney-client privilege, to protect highly confidential information or for
other similar reasons. The decision of the Board with respect to the
privileged or confidential nature of such information shall be final and
binding.
3.5 Registration
Rights. If the Corporation shall issue any Equity Securities
and grant to the purchasers of such Equity Securities registration rights, the
Corporation shall grant the Investor pari
passu registration rights applicable to the Shares, subject to the terms,
conditions and restrictions applied to the purchasers receiving such
registration rights.
3.6 Liquidation
Rights. If the Corporation shall issue any Equity Securities
having rights senior to the Shares in respect of the receipt of a distribution
or payment upon any liquidation, dissolution, or winding up of the Corporation,
whether voluntary or involuntary, the Corporation shall grant the Investor pari
passu liquidation rights applicable to the Shares, subject to the terms,
conditions and restrictions applied to the liquidation rights of the purchasers
of such Equity Securities.
5.
3.7 Adjustment
to Issued Shares. The Corporation shall issue to Investor the
applicable number of Adjustment Shares and Adjustment Escrow Shares (as defined
below) promptly following any issuance and sale of any Equity Securities, except
for any Excluded Securities, provided, however, in the case of stock options,
warrants, convertible promissory notes or other convertible securities where
applicable conversion prices or exercise prices are not known at the time of
issuance, the Corporation shall issue to Investor the applicable number of
Adjustment Shares and Adjustment Escrow Shares at such time as the applicable
conversion price or exercise price is determined (including, with respect to the
Convertible Promissory Notes, if such conversion price is determined in
connection with or after the transaction or series of transactions in which the
Qualifying Financing Amount is received by the Corporation). For
purposes of this Agreement, “Adjustment
Shares” shall mean the number of shares of Common Stock such that
following the issuance of the Equity Securities, Investor’s then-outstanding
shares of Common Stock (excluding any Escrow Shares and excluding any Equity
Securities purchased by the Investor after the date hereof) shall represent a
total of 5% of the Fully-Diluted Capitalization of the Corporation (excluding
any Equity Securities purchased by the Investor after the date hereof), and
“Adjustment
Escrow Shares” shall mean the number of shares of Common Stock such that
following the issuance of the Equity Securities, Investor’s Escrow Shares shall
represent a total of 2% of the Fully-Diluted Capitalization of the Corporation
(excluding any Equity Securities purchased by the Investor after the date
hereof). Within five (5) days of becoming obligated to issue such
shares pursuant to this Section 3.7, (i) the Corporation shall deliver a
certificate representing such number of Adjustment Shares to Investor and such
shares shall be issued pursuant to the Subscription Agreement and (ii) the
Corporation shall deliver a certificate representing such number of Adjustment
Escrow Shares to Escrow Agent and thereupon such shares shall be Escrow Shares
issued pursuant to the Subscription Agreement and subject to the terms of the
Escrow Agreement. The Adjustment Escrow Shares shall be deemed to be
issued and outstanding shares of Corporation’s Common Stock from the times
required to be issued pursuant to this Section 3.7. The Escrow Shares
shall be held by the Escrow Agent, until in accordance with, and upon the events
described in Section 3 of the Escrow Agreement, the Escrow Agent shall release
the applicable number of Escrow Shares from the Escrow Account (as defined in
the Escrow Agreement), and deliver to Investor a certificate or certificates
evidencing such number of Escrow Shares.
3.8 Termination
of Covenants. The covenants of the Corporation contained in
Sections 3.1, 3.2 and 3.4 shall expire and terminate on such date that the
Investor (or its affiliates) holds less than 50% of the Initial Subscriber
Shares (as such term is defined in the Subscription Agreement). The
covenants of the Corporation contained in Sections 3.5-3.6 shall expire and
terminate upon consummation of one or more financings in which the Qualifying
Financing Amount is received by the Corporation. Except as is specifically
stated in Section 3.7, the covenants of the Corporation contained in Section 3.7
shall expire and terminate upon receipt by the Corporation of the Qualifying
Financing Amount in one or more financings, provided,
that Investor’s rights under such section shall apply solely to the sale of
Equity Securities up to and including the Qualifying Financing
Amount. The Investor shall not assign any of its rights or the
covenants contained in Section 3 without the express prior written consent of
the Corporation, and any attempted assignment of such rights or covenants by the
Investor without such consent shall be void and of no effect.
SECTION
4. RESTRICTIONS
ON TRANSFER
6.
4.1 Restrictions
on Transfer.
(a) Right
of First Refusal. The Investor shall not sell, assign, pledge, or in any
manner transfer any Shares or any right or interest therein, whether voluntarily
or by operation of law, or by gift or otherwise, except by a transfer which
meets the requirements set forth in this Section 4.1(a):
(i) If the Investor desires to
sell or otherwise transfer any of its Shares, it shall first give written notice
thereof to the Corporation. The notice shall name the proposed
transferee and state the number of Shares to be transferred, the proposed
consideration, and all other terms and conditions of the proposed
transfer.
(ii) For fifteen (15) days
following receipt of such notice, the Corporation shall have the option to
purchase all (but not less than all) of the Shares specified in the notice at
the price and upon the terms set forth in such notice; provided,
however, that, with the consent of the Investor, the Corporation shall
have the option to purchase a lesser portion of the Shares specified in said
notice at the price and upon the terms set forth therein. In the
event of a gift, property settlement or other transfer in which the proposed
transferee is not paying the full price for the Shares, and that is not
otherwise exempted from the provisions of this Section 4.1(a), the price
shall be deemed to be the fair market value of the stock at such time as
determined in good faith by the Board. In the event the Corporation
elects to purchase all of the Shares or, with consent of the Investor, a lesser
portion of the Shares, it shall give written notice to the Investor of its
election and settlement for said Shares shall be made as provided below in
paragraph (d).
(iii) The Corporation may assign
its rights hereunder.
(iv) In the event the
Corporation and/or its assignee(s) elect to acquire any of the Shares of the
Investor as specified in said notice, the Secretary of the Corporation shall so
notify the Investor and settlement thereof shall be made in cash within thirty
(30) days after the Secretary of the Corporation receives said notice; provided
that if the terms of payment set forth in the notice were other than cash
against delivery, the Corporation and/or its assignee(s) shall pay for said
Shares on the same terms and conditions set forth in said notice.
(v) In the event the
Corporation and/or its assignees(s) do not elect to acquire all of the Shares
specified in the notice, the Investor may, subject to and in accordance with the
provisions of Section 4.1(b), within the ninety (90) day period following the
expiration of the option rights granted to the Corporation and/or its
assignees(s) herein, transfer the Shares specified in said notice which were not
acquired by the Corporation and/or its assignees(s) as specified in said
notice. All Shares so sold by the Investor shall continue to be
subject to the provisions of this Agreement in the same manner as before the
transfer.
(vi) Anything to the contrary
contained herein notwithstanding, the following transactions shall be exempt
from the provisions of this Section 4.1(a):
(1) Investor’s bona fide
pledge or mortgage of any Shares to a lender, provided that any subsequent
transfer of said Shares by said institution shall be conducted in the manner set
forth in this Agreement.
7.
(2) A transfer of Shares by
the Investor to its affiliates, provided
that the transferee will agree in writing to be subject to the terms of this
Agreement to the same extent as if it were the Investor hereunder.
(3) A transfer of Shares to
its members or former members of the Investor in accordance with their interest
in the Investor; provided
that the transferee will agree in writing to be subject to the terms of this
Agreement to the same extent as if he were the Investor hereunder.
(4) A transfer by a holder who
holds Shares as a transferee pursuant to this Section 4.2(a) either during such
holder’s lifetime or on death by will or intestacy to such holder’s spouse or
children, or to a trust or other entity of which the holder or such holder’s
spouse or children is a beneficiary/beneficial owner, or to an entity
controlling, controlled by or under common control with such holder, provided
that any such transferee will agree in writing to be subject to the terms of
this Agreement to the same extent as if he were the Investor
hereunder.
(b) The Investor agrees not to
make any disposition of any shares of the Corporation held by the Investor
unless such disposition complies with the terms of the Escrow Agreement and
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 and Section 4.2; or
(ii) (A) The transferee
has agreed in writing to be bound by the terms of this Agreement, (B) the
Investor shall have notified the Corporation of the proposed disposition and
shall have furnished the Corporation with a detailed statement of the
circumstances surrounding the proposed disposition, and (C) if reasonably
requested by the Corporation, the Investor shall have furnished the Corporation
with an opinion of counsel, reasonably satisfactory to the Corporation, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Corporation will not require
opinions of counsel for transactions made pursuant to Rule 144, except in
unusual circumstances.
Notwithstanding the
provisions of this subsection (b), no such restriction shall apply to a transfer
by the Investor if it transfers shares to its members or former members in
accordance with their interest in the Investor; provided
that the transferee will agree in writing to be subject to the terms of this
Agreement to the same extent as if he were the Investor hereunder.
(c) Any sale or transfer, or
purported sale or transfer, of securities of the Corporation shall be null and
void unless the terms, conditions, and provisions of this Section 4.1 are
strictly observed and followed.
(d) Each certificate
representing the Shares shall be stamped or otherwise imprinted with legends
substantially similar to the following (in addition to any legend required under
applicable state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE CORPORATION
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
8.
THE
SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDER
AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES
OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST
REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S).
(e) The Corporation shall be
obligated to reissue promptly unlegended certificates at the request of the
Investor if the Corporation has completed its Initial Offering and the Investor
shall have obtained an opinion of counsel (which counsel may be counsel to the
Corporation) reasonably acceptable to the Corporation to the effect that the
securities proposed to be disposed of may lawfully be so disposed of without
registration, qualification and legend, provided
that the second legend listed above shall be removed only at such time as
the Investor is no longer subject to any restrictions hereunder.
(f) Any legend endorsed on an
instrument pursuant to applicable state securities laws and the stop-transfer
instructions with respect to such securities shall be removed upon receipt by
the Corporation of an order of the appropriate blue sky authority authorizing
such removal.
4.2 “Market
Stand-Off” Agreement. The Investor hereby agrees that it shall
not sell, transfer, make any short sale of, grant any option for the purchase
of, or enter into any hedging or similar transaction with the same economic
effect as a sale, any securities of the Corporation held by the Investor (other
than those included in the registration) (i) during the 180-day period following
the effective date of the Initial Offering (or such longer period as the
underwriters or the Corporation shall request in order to facilitate compliance
with NASD Rule 2711 or NYSE Member Rule 472 or any successor or similar rule or
regulation), and (ii) the 90-day period following the effective date of a
registration statement of the Corporation filed under the Securities Act (or
such longer period as the underwriters or the Corporation shall request in order
to facilitate compliance with NASD Rule 2711 or NYSE Member Rule 472 or any
successor or similar rule or regulation); provided,
that, with respect to (i) and (ii) above, all executive officers and directors
of the Corporation and all holders of at least one percent (1%) of the
Corporations’s voting securities are
bound by and have entered into similar agreements. The obligations described in
this Section 4.2 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated
in the future, or a registration relating solely to a transaction on Form S-4 or
similar forms that may be promulgated in the future.
9.
SECTION
5. MISCELLANEOUS.
5.1 Governing
Law. This Agreement shall be governed by and construed under
the laws of the State of New York in
all respects as such laws are applied to agreements among New York residents
entered into and to be performed entirely within New York, without reference to
conflicts of laws or principles thereof. The parties agree that any
action brought by either party under or in relation to this Agreement, including
without limitation to interpret or enforce any provision of this Agreement,
shall be brought in, and each party agrees to and does hereby submit to the
jurisdiction and venue of, any state or federal court located in the Borough of
Manhattan, County of New York.
5.2 Successors
and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors, assigns, heirs, executors, and
administrators and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Shares from time to time; provided,
however, that prior to the receipt by the Corporation of adequate written
notice of the transfer of any Shares specifying the full name and address of the
transferee, the Corporation may deem and treat the person listed as the holder
of such shares in its records as the absolute owner and holder of such shares
for all purposes, including the payment of dividends or any redemption
price.
5.3 Entire
Agreement. This Agreement, the Subscription Agreement 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
oral or written representations, warranties, covenants and agreements except as
specifically set forth herein and therein. Each party expressly
represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this
Agreement.
5.4 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.
5.5 Amendment
and Waiver. Except as otherwise expressly provided, this
Agreement may be amended or modified, and the obligations of the Corporation and
the rights of the Investor may be waived, only upon the written consent of the
Corporation and the Investor.
10.
5.6 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 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 party’s part of any breach, default or noncompliance under the
Agreement or any waiver on such party’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 any party, shall be cumulative
and not alternative.
5.7 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 hereof hereto or at such other address as such party may designate by ten
(10) days advance written notice to the other parties hereto.
5.8 Attorneys’
Fees. In the event that any suit or action is instituted under
or in relation to this Agreement, including without limitation 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.
5.9 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.
5.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
5.11 Pronouns. All
pronouns contained herein, and any variations thereof, shall be deemed to refer
to the masculine, feminine or neutral, singular or plural, as to the identity of
the parties hereto may require.
5.12 Termination. This
Agreement shall terminate and be of no further force or effect upon the earliest
of: (i) the consummation of a merger, consolidation or other corporate
transaction involving (directly or indirectly) the Corporation such that
immediately after the consummation of such merger, consolidation or other
corporate transaction, the stockholders of the Corporation immediately prior
thereto do not own, directly or indirectly, outstanding voting securities
representing more than 50% of the combined outstanding voting power of the
surviving entity in such merger, consolidation or other corporate transaction in
substantially the same proportions as their ownership of the outstanding voting
securities of the Corporation immediately prior to such transaction; (ii) the
Corporation’s Initial Offering; and (iii) the date upon which the Corporation
merges with or otherwise becomes a wholly-owned subsidiary of a company that is
subject to the public company reporting requirements of the Securities Exchange
Act of 1934, as amended, or the equivalent reporting requirements of the Ontario
Securities Commission, or that is listed on the London Stock Exchange main
market, the Euronext markets, or AIM, provided,
that the Investor’s obligations under Sections 3.3 and 4.2 shall continue and
survive such termination.
11.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
12.
In
Witness Whereof, the parties hereto have executed this Stockholder
Agreement as of the date set forth in the first paragraph
hereof.
|
CORPORATION:
CORMEDIX,
INC.
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title:
CEO
INVESTOR:
ND
PARTNERS LLC
By: /s/
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Managing Member of Spinnaker
Capital
LLC, the Managing Member of ND Partners
LLC
|
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
Table Of Contents
|
Page
|
||
|
SECTION
1.
|
GENERAL
|
1
|
|
1.1
|
Definitions
|
1
|
|
SECTION
2.
|
PREEMPTIVE
RIGHTS
|
2
|
|
2.1
|
Subsequent
Offerings
|
2
|
|
2.2
|
Exercise
of Rights
|
2
|
|
2.3
|
Issuance
of Equity Securities to Other Persons
|
2
|
|
2.4
|
Sale
Without Notice
|
3
|
|
2.5
|
Excluded
Securities
|
3
|
|
2.6
|
Termination
of Preemptive Rights
|
4
|
|
SECTION
3.
|
COVENANTS
OF THE CORPORATION
|
4
|
|
3.1
|
Basic
Financial Information and Reporting
|
4
|
|
3.2
|
Inspection
Rights
|
5
|
|
3.3
|
Confidentiality
of Records
|
5
|
|
3.4
|
Visitation
Rights
|
5
|
|
3.5
|
Registration
Rights
|
5
|
|
3.6
|
Liquidation
Rights
|
5
|
|
3.7
|
Adjustment
to Issued Shares
|
5
|
|
3.8
|
Termination
of Covenants
|
6
|
|
SECTION
4.
|
RESTRICTIONS
ON TRANSFER
|
6
|
|
4.1
|
Restrictions
on Transfer
|
7
|
|
4.2
|
“Market
Stand-Off” Agreement
|
9
|
|
SECTION
5.
|
MISCELLANEOUS
|
10
|
|
5.1
|
Governing
Law
|
10
|
|
5.2
|
Successors
and Assigns
|
10
|
|
5.3
|
Entire
Agreement
|
10
|
|
5.4
|
Severability
|
10
|
|
5.5
|
Amendment
and Waiver
|
10
|
|
5.6
|
Delays
or Omissions
|
11
|
|
5.7
|
Notices
|
11
|
|
5.8
|
Attorneys’
Fees
|
11
|
i.
Table Of Contents
(CONTINUED)
|
Page
|
||
|
5.9
|
Titles
and Subtitles
|
11
|
|
5.10
|
Counterparts
|
11
|
|
5.11
|
Pronouns
|
11
|
|
5.12
|
Termination
|
11
|
ii.