Exhibit 10.80
SHAREHOLDERS AGREEMENT
among
Medarex Inc.
GenPharm International, Inc.
Bankforeningernes Erhvervsudviklingsforening BankInvest
Biomedicinsk Udvikling
BI Asset Management Fondsmgalerselskab A/S
*****
____________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
S H A R E H O L D E R S A G R E E M E N T
This Shareholders Agreement (the "Agreement") is made as of February 25, 1999 by
and among
Medarex, Inc.
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a corporation organised under the laws of the State of New Jersey
GenPharm International, Inc.
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a corporation organised under the laws of the State of California
("GenPharm")
Bankforeningernes Erhvervsudviklingsforening BankInvest
Biomedicinsk Udvikling
33 Toldbodgade
DK-1022 Copenhagen K
Denmark
an association organised under the laws of the Kingdom of Denmark
("BankInvest")
BI Asset Management ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇/▇
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Denmark
a limited company organised under the laws of the Kingdom of Denmark
("BIAM")
*****
(each referred to as a "Party" and collectively referred to as the "Parties")
with respect to the shares of GFKJUS 519 ApS under change of name to Genmab ApS,
a Danish private limited company organised under the laws of the Kingdom of
Denmark and registered in the Danish Commerce and Companies Agency under
registration no. ApS 248.498 (the "Company"),
WHEREAS
A. GenPharm, which is a wholly owned subsidiary of Medarex, and Medarex
(GenPharm and Medarex together "Medarex") are the proprietary holders of
certain US patents, technology and know-how and GenPharm and Medarex have
on the even date hereof entered into a licence agreement (named Evaluation
and Commercialization Agreement) by and between GenPharm and Medarex as
licensor and the Company as licensee (the "Licence Agreement") granting the
Company a licence to utilise the proprietary rights for the purposes
stipulated in the Licence Agreement; the Licence Agreement is attached
hereto as EXHIBIT 1;
B. the Parties agree that the licence granted by GenPharm and Medarex under
the Licence Agreement has an estimated value of ***** with an additional
***** per target valuation added when Genmab exercises its options for each
of ***** additional targets;
C. BankInvest wishes to participate in the improvement and development of the
technology granted under the Licence Agreement;
D. Medarex and BankInvest have accordingly agreed to create a joint venture
which shall be carried out through the Company for the purposes referred to
in recital A and otherwise for the purposes and on the terms set out in
this Agreement;
E. the Company shall be capitalised by non-capital contribution by
GenPharm/Medarex of the Licence Agreement and by an initial aggregate
contribution in cash of ***** by BankInvest;
F. once contribution by GenPharm/Medarex of the License Agreement and by
BankInvest of ***** in cash have been completed, *****
G. at any time prior to the expiration of ninety (90) days from the date of
this Agreement, *****. The Parties including the third party investors are
hereinafter sometimes collectively referred to herein as the
"Shareholders".
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1.0 Interpretation
--- --------------------
1.1 Unless the context requires otherwise, words reporting in the singular
shall include the plural and vice versa.
1.2 In the event of any ambiguity or conflict arising between a clause of this
Agreement and any schedule, the former shall
prevail.
1.3 The headings used throughout this Agreement are inserted for reference
purposes only and are not to be considered or taken into account in
construing the terms and provisions of any paragraph nor to be deemed in
any way to qualify, modify or explain the effects of any such provisions or
terms.
1.4 Unless the context requires otherwise, a reference herein to any clause or
schedules is a reference to a clause or a schedule contained in or annexed
to this Agreement.
1.5 Reference herein to any statute or statutory provision includes a reference
to that statute or statutory provision as from time to time amended,
extended or re-enacted.
2.0 The Company
--- -----------
2.1 The name of the Company shall be Genmab ApS.
2.2 The nominal share capital of the Company amounts to DKK 125,000 (Danish
Kroner one hundred and twenty-five thousand 00/100), which share capital
has been registered and fully paid up. The Company is currently a wholly
owned subsidiary of Medarex.
2.3 The Company was purchased by Medarex as a pre-registered Company on 13
November 1998 and had as such not engaged in any activities until the
purchase. Since Medarex' purchase of the Company, the Company has not
engaged in any activities other than preparatory activities relating to the
joint venture operations contemplated by this Agreement.
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2.4 *****. The current articles of association are attached as EXHIBIT 3 to
this Agreement and a compiled summary issued by the Danish Commerce and
Companies Agency on 11 December 1998 is attached as EXHIBIT 4.
---------
2.5 The objectives of the Company are to engage in medical research, production
and sale of medical products as well as other business related thereto in
the opinion of the general meeting.
3.0 Capitalisation of the Company and Subscription of Shares
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3.1 The shares of the Company shall be divided into three share classes: A , B
and C. The class A and class B shares shall have special rights in case of
winding up of the Company as described in clause 4.5 and the Class B shares
shall have special rights upon increase of the share capital as described
in clause 4.4. The shares of Medarex shall belong to class A. The shares of
the Investors shall belong to class B. Class C is the ordinary class of
shares and the shares of the Key Employees shall belong to this class.
Save the special rights in case of winding up of the Company and upon
increase of the Company's share capital, the class A shares, the class B
shares and the class C shares shall have equal rights in the Company. All
shares shall carry equal voting rights. The shares shall be non-negotiable
and shall be noted by name in the Company's share ledger.
3.2 Prior to signing of this Agreement, the nominal DKK 125,000 shares
currently held by Medarex shall be divided into class A, B and C of which
nominal ***** shall belong to class A, nominal ***** shall belong to class
B and nominal ***** shares shall belong to class C.
Upon the execution and delivery of this Agreement, Medarex shall sell
nominal ***** shares of class B shares to BIAM, nominal ***** shares of
class B shares to BankInvest and nominal ***** shares of class C shares to
the Key Employees. The shareholdings of each Key Employee shall be as
agreed
____________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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in EXHIBIT 5 hereto. *****. Once such sale of shares has been completed,
the shareholdings of the Parties shall be as follows:
Medarex ***** *****
BankInvest ***** *****
Key Employees ***** *****
BIAM ***** *****
***** *****
3.3 Immediately following the completion of the sale of shares as described in
clause 3.2, the Company shall be capitalised by non-capital contribution
from Medarex (and its subsidiary GenPharm) of the Licence Agreement and by
capital contribution by BankInvest of *****. The contribution shall be made
against subscription of new shares and the contribution of ***** shall
entitle each contributor to nominal ***** shares equivalent to a
subscription price of ***** per share of nominal ***** (for an average
subscription price of ***** per share of nominal *****, based on a total of
***** shares issued to each of BankInvest and Medarex). The subscription by
Medarex shall be in new class A shares against contribution of the Licence
Agreement valued by Ernst & Young to ***** in their valuation report of
February 25, 1999. BankInvest shall subscribe nominal ***** new class B
shares by an initial contribution of ***** in cash (for an average
subscription price of ***** per share of nominal *****, based on a total of
***** shares issued). Once the subscription of new shares has been
effected, the Parties shareholdings in the Company shall be as follows
Medarex ***** *****
***** *****
***** *****
***** *****
***** *****
3.4 *****.
3.5 In addition to the initial distribution of the share capital of the Company
as set forth in Clause 3.3 above, upon exercise by the Company of its
option under the License Agreement to receive licenses to up to *****
additional targets, Medarex shall receive for each such licensed target
*****. 1.1
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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4.0 The Shares of the Company
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41. Restriction on Transfer of Shareholders' Shares; First Offer
(i) No Shareholder shall sell, assign or otherwise transfer any of its
shares except as permitted by this Agreement.
(ii) Except as set forth herein, if any Shareholder (the "Selling
Shareholder") proposes to offer and sell any of its shares (other than
any sale of such shares as part of a proposed registered public
offering), it shall offer such shares (the "Offered Shares") (i)
firstly to the other Shareholders holding shares within the same class
as the Offered Shares (ii) secondly to the Shareholders of class A (if
the Offered Shares belong to class B or class C) or class B (if the
Offered Shares belong to class A or represent remaining class C shares
not purchased by class C or class A shareholders) and (iii) thirdly to
the Shareholders holding class C shares, pursuant to a written notice
(the "Transfer Notice") specifying the number of Offered Shares and
the proposed price and terms of sale. No Shareholder shall give such a
Transfer Notice unless such Shareholder has obtained a bona fide
written offer to purchase the Offered Shares from an unaffiliated
third party at arms-length. The Selling Shareholder shall attach to
the Transfer Notice a true copy of the written offer setting forth all
the terms of the proposed purchase, including the names and address of
the purchaser or purchasers and the written agreement of such
purchaser or purchasers that they will be bound by the terms and
conditions of this Agreement. The other Shareholders shall have the
prior right to purchase all (but not less than all) of the Offered
Shares at such price and upon such terms. In such instance, the
Shareholders shall have thirty (30) days to exercise their right of
first offer. If more than one Shareholder desires to purchase the
Offered Shares, the shares shall be purchased in accordance with the
aforementioned ranking of the pre-emptive rights. If two or more
Shareholders whose pre-emptive rights are ranking equally desires to
purchase the Offered Shares, each Shareholder within the same ranking
desiring to purchase such Offered Shares ("Accepting Shareholder")
shall have the right to purchase its proportionate share of the
Offered Shares. For purposes of the Agreement, "proportionate share"
shall mean a fraction the numerator of which shall be the number of
shares owned by the Accepting Shareholder and the denominator of which
shall be the number of shares owned by all the Accepting Shareholders.
If the other Shareholders fail to exercise their right of first offer,
then
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the Selling Shareholders will be free to offer and sell the Offered
Shares for a period of three (3) months upon the terms and conditions
specified in the Transfer Notice or on negotiated terms which are less
favourable to the offeree(s) than the terms and conditions set forth
in such Transfer Notice. The completion of such offer and sale or the
failure to complete such offer and sale of such shares within such
three (3) months, or any change in the terms and conditions of the
proposed offer and sale set forth in the Transfer Notice which is more
favourable to the offeree(s) of the Offered Shares, shall retrigger
the right of first offer of the other Shareholders requiring a new
Transfer Notice to the other Shareholders, recommencing the relevant
time periods, with respect to any further sale of the Offered Shares
by the Selling Shareholders (including the sale of the Offered Shares
pursuant to such revised, favourable terms). Payment for the Offered
Shares shall be made in the manner provided in clause 4.2. Whether or
not the Offered Shares are purchased as hereinabove provided, they
shall remain subject to the provisions of this Agreement.
(iii) The provisions of clause 4.1 (i) and (ii) shall not apply to any
proposed transfer of shares by a Shareholder to a Related Party,
provided that any such transferee shall first become a party to this
Agreement and agree to become bound by the provisions hereof. For the
purpose of this Agreement "Related Party" shall mean any corporation
or other entity which is directly or indirectly controlling,
controlled by or under the common control with a shareholder. The term
"control" shall mean the direct or indirect ownership of fifty percent
(50%) or more of the outstanding shares or other voting rights of the
subject entity to elect directors, or if not meeting the preceding,
any entity owned or controlled by or owning or controlling at the
maximum control or ownership right permitted in the country where such
entity exists.
(iv) In addition, the foregoing provisions of clause 4.1 (i) and (ii) shall
not apply in the event Medarex and the Investors shall agree to sell
all of their shares to an unrelated third party (an "Acquisition"). In
such event, the remaining Shareholders hereby agree to sell all of
their shares to such unrelated third party in the Acquisition for the
same consideration and upon the same terms and conditions as received
by Medarex and the Investors in the Acquisition.
(v) In the event that Medarex and the Investors shall agree to sell or
otherwise transfer a "controlling interest" in the Company (a "Change
of Control"), to an unrelated third party, the remaining Shareholders
shall have the right to have their shares purchased by such
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unrelated third party for the same consideration and upon the same
terms and conditions as received by Medarex and the Investors ( the
"Put Option"). Any such unrelated third party by agreeing to purchase
such controlling interest hereby agrees to purchase the shares of any
remaining Shareholder who exercises such Put Option. For the purposes
of this clause 4.1(v) the term "controlling interest" shall mean the
direct or indirect ownership of fifty-one percent (51%) of the
outstanding shares or other voting rights to elect directors as of the
date of any transaction which results in a Change of Control. The
foregoing provisions of clause 4.1 (i) and (ii) shall not apply to the
sale of shares by a Shareholder pursuant to the exercise of the Put
Option.
(vi) Anything herein to the contrary notwithstanding, any proposed transfer
of shares by a Shareholder in violation of the provisions of this
clause 4.1 or of any applicable law then in effect shall be null and
void and the Company shall not record any such transfer in its share
ledger records.
4.2 Exercise of Option by Shareholder
If any Shareholder exercises its right to purchase shares pursuant to the
provisions of 4.1(i) above, payment therefor and delivery of such shares
shall be made in the following manner:
(i) Within seven (7) days after the purchaser exercises his right to
purchase, the Selling Shareholder shall give to the purchaser not less
than five (5) days nor more than ten (10) days' notice by registered
mail of his or its intention to deposit the share certificates
representing the shares to be sold with counsel mutually agreeable to
purchaser and the Selling Shareholder (or in the absence of such
agreement with the Company's then general legal counsel, acting as
escrow agent (the "Escrow Agent"). The Selling Shareholder shall
specify also the time and place of the contemplated deposit and the
purchase price to be paid for the shares by the purchaser.
(ii) The Selling Shareholder shall deposit the share certificates
representing the shares to be sold with the Escrow Agent at the time
and place specified in such notice. The share certificates shall be
duly endorsed in blank for transfer, and shall be accompanied by all
other documents necessary for an effective transfer. The Selling
Shareholder shall deposit with the Escrow Agent sufficient funds to
pay for any transfer stamps or tax. Upon receipt of the share
8
certificates from the Selling Shareholder, the Escrow Agent shall send
written notice thereof to the purchaser.
(iii) Within thirty (30) days after the deposit of the share certificates by
the Selling Shareholder with the Escrow Agent, the purchaser shall
deposit cash with the Escrow Agent in an amount equal in value to the
purchase price of such shares as provided in clause 4.1(i) .
(iv) The Escrow Agent shall upon receipt of the deposit of the purchase sum
notify the Selling Shareholder of the deposit, whereupon the Selling
Shareholder within seven (7) days shall request the Company to make a
note of the transfer in the Company's share ledger. The Company shall
forward a certified copy of the Company's share ledger with the note
of transfer to the Escrow Agent and the Selling Shareholder.
(v) Upon receipt by the Escrow Agent of a certified copy of the Company's
share ledger containing a duly registration of the transfer, the
Escrow Agent shall deliver all such share certificates to the
purchaser with all necessary tax transfer stamps thereon duly affixed
and canceled, as well as other documents received with respect to the
transfer of such shares. Simultaneously therewith, the Escrow Agent
shall pay over the purchase price to the Selling Shareholder.
(vi) The fees and all other expenses of the Escrow Agent shall be paid
one-half by the Selling Shareholder and one-half by the purchaser.
(vii) Until the delivery of the share certificates to the purchaser and the
payment of the purchase price to the Selling Shareholder, the
-Purchaser shall be deemed the owner of such shares and shall be
entitled to all of the rights of a shareholder of such shares
including, but not limited to, the right to vote such shares at all
meetings of shareholders and the right to receive any dividends
declared and paid with respect to such shares.
(viii) The Company agrees that it will not at any time permit any transfer to
be made on its books or records of the certificates representing
shares of the Company owned by any of the Shareholders unless such
transfer is made pursuant to and is in accordance with the terms and
conditions of this Agreement.
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4.3 Restriction on Assignment of Shares
--- -----------------------------------
None of the Parties shall in any way assign, transfer or have their
shares transferred in any way other than by transfer of ownership in
accordance with the terms of this Agreement including by pledge,
charge, lien, restriction, creditors proceedings or otherwise.
4.4 *****
---
4.4.1 *****.
4.4.2 *****.
4.4.3 *****.
4.5 Winding Up of the Company
4.5.1 *****.
4.5.2 *****.
4.5.3 *****.
4.5.4 *****.
4.5.5 The Shareholders owning at least ***** of the total share capital
shall have the right, at any time, to claim that a Liquidation Event
has occurred and is continuing and may demand that the Company be
liquidated (a "Liquidation Demand"). Such Shareholders shall notify
the Board of Directors and each Shareholder of such Liquidation
Demand. If the holders of ***** or more of the share capital determine
that a Liquidating Event shall not have occurred, then the Company
shall not be liquidated
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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and shall continue its operations in accordance with the terms of this
Agreement. If the holders of less than *****, but more than *****, of
the share capital determine that no Liquidating Event shall have
occurred then the determination of whether a Liquidating Event exists
shall be submitted to arbitration pursuant to the provisions of clause
17.2 below with the burden of proof resting with the Shareholders
making such Liquidation Demand. If the arbitrators determine that a
Liquidating Event shall have occurred then the Company shall be
liquidated in accordance with the provisions of clauses 4.5.1, 4.5.3
and 4.5.4 above, otherwise the Company shall continue its operations
in accordance with the terms of this Agreement.
4.6 Warrants
4.6.1 The board of directors is hereby authorised to issue warrants to new
employees, directors and consultants for nominal DKK for the purchase
of up to ***** class C shares on terms and conditions as shall be
determined by the board. The authorisation shall be implemented in
the Company's articles of association.
4.7 Termination of Employment
4.7.1 If a Key Employee's employment with the Company is terminated prior to
1 January 2000, the Key Employee shall sell seventy-five percent (75%)
of his shares to the other Shareholders in accordance with clause 4.1
hereof. If employment is terminated on or after 1 January 2000 but
prior to 1 January 2001, the Key Employee shall sell fifty percent
(50%) of his shares to the other Shareholders. If employment is
terminated on or after 1 January 2001 but prior to 1 January 2003 the
Key Employee shall sell twenty-five percent (25%) of his shares to the
other Shareholders. After 1 January 2003 the Key Employee shall not be
obligated to sell any of his shares to the other Shareholders.
4.7.2 The purchase price for the shares sold according to clause 4.7.1.
shall be the nominal value per share paid by such Key Employee
pursuant to clause 3.2 hereof.
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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4.7.3 *****.
4.8 Warning of Third Party
4.8.1 The Parties acknowledge and agree that a note of this Agreement shall
be made in the Company's share ledger to disclose that the
shareholders have concluded this Agreement which imposes certain
restrictions on the shareholders' rights in the Company including
provisions on pre-emptive rights.
4.8.2 If at any time it is decided to issue share certificates in respect of
the shares in the Company, the Parties agree and acknowledge that
their share certificates shall be clearly endorsed to disclose the
existence of this Agreement which imposes certain restrictions on the
shareholders' rights in the Company including provisions on pre-
emptive rights.
5.0 Listing of the Company
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5.1 *****.
5.2 This Agreement is automatically terminated upon the initial public
offering of the Company's shares and the listing of such shares on a
stock exchange, and each Shareholder's shares shall be automatically
converted into the class of shares being offered to the public and
each Shareholder shall be deemed to own the class of shares which is
being offered to the public in the same proportion as the share
capital they owned immediately prior to such conversion.
5.0 Management of the Company
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5.1 General Meetings
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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6.1.1 The general meeting of the Shareholders of the Company is the highest
authority of the Company. The annual general meeting shall be held not
later than 5 months after the end of each financial year of the
Company.
6.1.2 The chairman of the board of directors shall at the request of
Shareholder(s) holding at least ***** percent of the issued share
capital of the Company within 7 days of the request call an
extraordinary general meeting to be convened for the business day
following as close as practically possible to the expiry of the notice
period referred to in clause 6.1.3. The agenda shall include the items
proposed by said Shareholder(s).
6.1.3 Notices convening general meetings shall unless otherwise agreed
between the Shareholders be sent by telefax and confirmed by
simultaneous dispatch by registered airmail to each Shareholder not
later than 21 days before the meeting. Such notice shall include the
agenda and specify the place and date of the meeting. Unless otherwise
agreed among the Parties any meeting shall take place in Copenhagen.
Any enclosures to the agenda shall be forwarded to reach the
Shareholders at least 10 days before the general meeting. 1.1.1
6.1.4 Notwithstanding any provisions to the contrary in the articles of
association of the Company the Parties hereby undertake and warrant to
each other that they shall vote or cause to be voted by their shares
in such a manner as to give full effect to this Shareholders Agreement
and to support the business interests of the Company unless otherwise
agreed.
6.1.5 All matters before the general meeting shall be resolved by the
affirmative vote of the holders of at least ***** of the share capital
unless a higher majority is required under clause 6.1.6 or under the
Danish Companies Act.
6.1.6 Each Party hereto agrees not to vote in favour of any resolution
relating to any of the following matters unless Shareholders
representing ***** of the share capital vote in favour of such
resolution:
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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(a) increase or decrease of share capital of the Company;
(b) capital distributions to the Shareholders;
(c) change of articles of association of the Company;
(d) liquidation of the Company except as required by this Agreement or
applicable law; and
(e) any of the matters referred to in clause 6.2.4.
6.1.7 The agenda for the annual general meeting shall include inter alia the
following items:
(a) annual report of the board of directors concerning the activities
of the past year;
(b) adoption of the annual audited financial statements;
(c) appointment or removal of directors of the board, if and when
applicable law requires such appointment or removal; (1)
(d) appointment of auditors and fixing of their remuneration; and
(e) declaration of dividend.
6.1.8 A shareholder has the right to be represented at the general meeting by
a proxy who does not need to be a shareholder of the Company.
A shareholder or a proxy for a shareholder may be accompanied by one
advisor who may speak at the general meeting on behalf of the
shareholder.
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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6.2 Board of Directors
6.2.1 *****.
6.2.2 The board of directors shall appoint the chairman from among
themselves and the chairman will be elected at the first board meeting
after the general meeting. The chairman will be elected for a period
of one year. Regardless of who is acting as chairman, each director
shall have only one vote and none of the votes shall be a casting
vote. *****.
6.2.3 Except as set forth below in 6.2.4. all decisions of the board are
taken by a majority of the members of the board present or duly
represented. However, a resolution in writing signed by all the
directors for the time being entitled to receive notice of a meeting
of the board shall be as valid and effectual as if it had been passed
at a meeting of the board duly convened and held.
6.2.4 Resolutions concerning the following matters which must be referred to
the board for decision require unanimous approval by the board:
(a) to authorize the acquisition by purchase, lease or otherwise, of
properties or other assets necessary or appropriate to the
conduct of the Company's business when the cost per acquisition
exceeds *****; (1)
(b) to authorize the sale, lease, exchange or other disposition of
properties or other assets of the Company when the amount
involved exceeds *****;
(c) to authorize the creation of mortgages, charges, liens, or any
other encumbrances on the Company's properties;
(d) to approve the appointment of the management and the employment
policy of the Company;
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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(e) to authorise the obtaining of loans for the Company which in the aggregate
exceeds ***** in any financial year;
(f) to authorize the granting of credit or making of loans by the Company which
amount in the aggregate exceeds ***** in any financial year;
(g) to authorize any unbudgeted expenditure in excess of *****;
(h) to enter into or change or terminate any agreement with a shareholder, or
persons or organisations related to the shareholders of the Company;
(i) the entering into of contracts outside the ordinary course of business or
contracts on unusual terms within the ordinary course of business including
but not limited to significant expansion or reduction of the activities of
the Company;
(j) the giving of guarantees or indemnities other than for the Company's own
obligations;
(k) the instituting and settlement of legal proceedings;
(l) the approval of an annual business plan and budget for the Company;
(m) any investment in or acquisition of or merger with another company or other
legal entity; (1)
(n) such other decisions as are mutually and unanimously agreed by the Parties;
(o) proposed changes in share capital; and
(p) proposed transfer of shares (in companies other than the Company itself);
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
16
6.2.5 Board meetings shall be held at places to be decided by *****.
6.2.6 Board meetings shall be called by the chairman with not less than four
(4) weeks' notice unless otherwise mutually agreed upon. The chairman
shall call a board meeting within two (2) days after having been
requested to do so. These meetings shall be convened for a business day
as closely as possible following the expiry of the aforesaid notice if
so required by two (2) members of the board of directors.
6.2.7 Board meetings shall be called by telefax and confirmed by simultaneous
dispatch by registered airmail. The call notice shall include the agenda
and specify place and date of the meeting. Any enclosures to the agenda
shall be forwarded with a confirming letter.
6.2.8 The Company shall pay the directors' reasonable travel, lodging and
related expenses in connection with board meetings and general meetings
but directors are not otherwise entitled to directors' fees. The general
meeting may however unanimously decide that the Company shall pay a
reasonable directors' fee, such decision to be valid for one year at a
time.
6.2.9 The board of directors shall be able to transact business at any
directors' meeting only if all ***** directors are present either in
person or by telephone conference call.
6.2.10 The board of directors may unanimously agree to conduct a board meeting
by a conference call, in which case minutes of the board meeting shall
be circulated among the directors for their signature. The signature by
each director of the minutes of the meeting shall serve as evidence to
the director's approval of the business transacted at the board meeting.
1.1.1
A member of the board of directors may attend a board meeting by a
conference call even though the other directors are physically present
at the meeting. The signature by the director of the minutes of the
meeting shall serve as evidence to the director's approval of the
business transacted at the board meeting.
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
17
6.2.11 Minutes of each board meeting shall be circulated among the directors
for their signature. The signature by each director of the minutes shall
serve as evidence to the director's approval of the business transacted
at the board meeting.
6.2.12 *****. Notifications thereof shall be made by registered mail to the
chairman of the board of the Company. If required by the Danish
Companies Act, the chairman shall, without delay, call an extraordinary
meeting to effect the replacement.
6.3 The Management
6.3.1 Unless otherwise agreed, the Company shall have only one chief executive
officer (in Danish: "Adm.direcktor") to execute the decisions of the
board and to manage the daily operations and affairs of the Company.
6.3.2 The chief executive officer shall be appointed unanimously by the board
of directors.
*****.
6.4 Other Employees
6.4.1 All and any officer of the Company shall be appointed unanimously by the
board of directors.
6.4.2 *****.
7.0 Audit
-----
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
18
7.1 Upon signing of this Agreement the Parties have agreed to appoint
Delloitte & Touche as the sole auditors of the Company. Change of
auditors requires approval at a general meeting by a majority of
shareholders representing ***** of the share capital.
8.0 Financial Year and Reporting
8.1 The financial year of the Company shall be a period of 12 calendar
months ending on the last day of each calendar year.
8.2 The accounts of the Company shall be drawn up in accordance with
generally accepted Danish and International accounting principles
consistently applied.
8.3 The Parties shall cause the Company to distribute monthly progress
reports to the directors specifying costs incurred compared with the
budget, cash flow statements, and balance sheets as well as general
information on all matters influencing the progress of the project. Such
progress report shall be distributed to each of the directors not later
than 1 month after the end of the month to which the report relates.
8.4 Annual financial statements and annual reports shall be prepared by the
chief executive officer. They shall be approved by the Company's
auditors and forwarded to the directors by the chief executive officer
not later than fourteen (14) days prior to the annual general meeting at
which the annual financial statements and reports are to be approved,
cf. clause 6.1.1.
The annual financial statements shall include a profit and loss account,
and a balance sheet.
8.5 Not later than 3 months before the end of each financial year a budget
containing profit and loss accounts, cash flow and balance sheet
projections for the subsequent financial year shall be prepared by the
chief executive officer and forwarded to each of the directors. The
board of directors shall
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
19
consider and approve the budget and the chairman shall for that purpose
convene a meeting of the board to be held before the beginning of each
such subsequent financial year.
9.0 Dividend
--------
9.1 Unless otherwise agreed between ***** of the Shareholders, no profits of
the Company shall be distributed to the Shareholders as dividend, such
distribution to be subject to the availability of distributable profits.
10.0 Confidentiality
---------------
10.1 The Parties recognise that during their common shareholding in the
Company they will acquire information
(i) which one of the Parties considers as confidential;
(ii) which one of the Parties has received from a third party and has
obliged itself to keep confidential;
(iii) which the Company considers as confidential;
(In this clause collectively referred to as "Confidential Information").
10.2 It is hereby understood and agreed that any Confidential Information
revealed or released by any Party shall be held in strict confidence and
- will not without the prior written consent of the Party in question
be revealed or released to any third party; and
- will not be used for any purpose whatsoever except for the benefit
of the purpose of the common shareholding of the Parties in the
Company
20
except such information that
(i) is or becomes available to the public through no breach of
this Agreement;
(ii) is known by the recipient at the time of disclosure by the
other Party hereto;
(iii) is received by the recipient after disclosure by the other
Party hereto from a source not a party to this Agreement who
is entitled to disclose same;
(iv) is required to be disclosed by applicable law.
10.3 The Parties are responsible for actions executed by their employees or
associated persons who have access to the Confidential Information
disclosed by the other Party.
10.4 The Parties recognise that the License Agreement grants to the Company
exclusive rights to certain targets and other intellectual property
rights and agree that the provisions of the License Agreement with
regard to the rights granted to the Company thereunder are hereby
incorporated in this Agreement as if fully set forth herein.
10.5 The contents of this clause 10 (other than the rights granted under the
License Agreement) shall survive for ***** years after the termination
of this Agreement.
11.0 Non-Performance
---- ---------------
11.1 In the event that a Party (the "Defaulting Party") commits a material
breach - which also includes a Party's suspension of payments,
liquidation, bankruptcy, application for a compulsory composition of
debts, or moratorium - of the provisions of this Agreement or any other
agreement relating to the operation of the Company (in the case of any
other agreement providing such agreement is material
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
21
to the operations of the Company) which is incapable of being remedied
or which being capable of being remedied is not remedied within 30 days
of notice from another Party specifying the breach and requiring its
remedy, then the other Party (hereinafter referred to as the
"Complainant" or "Complainants" as the case may be) shall be entitled
to compensation for all damages arising from the breach, if necessary
by instituting arbitration proceedings according to clause 17.
12.0 Voting at General Meetings - Right of Parties
---- ---------------------------------------------
12.1 The Parties undertake to cause their duly appointed representatives and
directors to vote at general meetings and meetings of the board of
directors of the Company in accordance with the terms of this Agreement
in the case of the directors subject to applicable legal duties under
the laws of the Kingdom of Denmark.
12.2 Each of Medarex and BankInvest shall through its duly appointed
representative have the right upon the giving of notice at least 3 days
in advance to the chief executive officer with a copy to the chairman
of the board of directors to inspect at normal business times the
books, records and documents of the Company and obtain copies of or
make extracts from such books and records provided such representatives
agree to be bound by the duty of confidentiality set forth in clause
10.
13.0 Priority of Agreement
---- ---------------------
13.1 In the event of any conflict or inconsistency between the provisions of
this Shareholders Agreement and the articles of association of the
Company, the terms of this Shareholders Agreement shall prevail in all
matters among the Parties. The Parties will collaborate in causing the
Company to amend its articles of association to remove any conflict or
inconsistency between the articles of association and the Shareholders
Agreement.
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
22
14.0 General Provisions
---- ------------------
14.1 If any of the provisions of this Agreement is found to be inconsistent
with, or void under applicable law, the validity of the remaining
provisions shall not thereby be affected. In such case, the Parties
shall agree to replace the ineffective provision by a new one of
basically the same contents which shall be legally valid, binding and
enforceable.
14.2 No modification, amendment to or cancellation of this Agreement shall be
valid unless the same is in writing and signed by the parties hereto;
provided, however, that the shareholders owning at least ***** of the
share capital may effect any such modification, amendment, waiver or
cancellation on behalf of all shareholders.
14.3 The Parties declare that they have not and shall not conclude any
contracts or agreements which are inconsistent with the provisions of
this Agreement.
14.4 Unless agreed to by ***** of the shareholders, each document,
certificate, statement, report, accounts, agenda, minutes and other
written material referred to in this Agreement shall be in the English
language or be accompanied by an English translation thereof.
14.5 Except as specifically provided otherwise in this Agreement, no Party
shall be deemed the legal representative or agent of another Party nor
shall a Party have the right or authority to assume, create, or incur
any liability or any obligation of any kind, expressed or implied,
against or in the name or on behalf of another Party, nor shall this
agreement be construed as having created a general or limited
partnership among the Parties unless in each instance the other Parties
shall have first consented thereto in writing.
15.0 Notices
---- -------
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
23
15.1 All notices to be given by a Party to another in connection with this
Agreement, shall be given in writing in English and shall be sufficient
in all respects if given personally by hand or sent by telefax confirmed
by registered airmail, postage prepaid, addressed as follows:
To Medarex:
Medarex Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
Att.: The President
(Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇)
(Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇)
To GenPharm:
GenPharm International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Att: President
(Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇)
(Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇)
To BankInvest:
Bankforeningernes Erhvervsudviklingsforening BankInvest
Biomedicinsk ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ K
Denmark
Att.: The General Manager
(Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇)
(Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇)
*****
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
24
or to such other address as the Party to receive such notice shall
designate by written notice to the other Parties. Any notice sent
otherwise shall be considered null and void. The effective date of any
notice shall be the date on which it is actually received by the
addressee except if sent by telex or telefax in which case it shall be
effective upon the date which such telex or telefax is indicated as
having been received by the receiving Party.
16.0 Duration
---- --------
16.1 This Agreement comes into force on the date upon which it has been
signed by the Parties and shall remain in force and be binding upon the
Parties as long as they are shareholders in the Company.
16.2 In case a Party no longer wishes to participate in the Company then,
unless otherwise agreed upon, the only way to terminate the
participation in the Company is to sell the shares according to clause
4.
17.0 Governing Law and Arbitration.
---- ------------------------------
17.1 This Agreement shall be governed by and construed in accordance with the
laws of the Kingdom of Denmark.
17.2 All disputes arising in connection with this Agreement shall be settled
finally under the rules of The Danish Institute of Arbitration
(Copenhagen Arbitration) by arbitrators appointed in accordance with
said rules. The place of arbitration shall be Copenhagen. The cost of
the arbitration, including administrative and arbitrators' fees and
costs of attorneys' fees, shall be shared according to the decision of
the Arbitration Court. Judgement on an award rendered by an arbitrator
of arbitrators may be entered in any court having jurisdiction thereof.
17.3 The Parties shall undertake to do their utmost with a view to enabling
the arbitration court to make a decision if at all reasonably possible
within 3 months from the date of its first sitting.
18.0 Force Majeure
---- -------------
25
18.1 No liability under the Agreement will result to a Party from delay in
performance caused by an event of "Force majeure", that is,
circumstances beyond the reasonable control of the Party affected
thereby, including without limitation, Acts of God, fire, war,
government regulation or labour unrest. A Party whose performance of
obligations has been delayed by an event of "Force majeure" (the
Affected Party) will immediately notify the other Parties and will use
its best efforts to overcome the effect of the event of "Force majeure"
as soon as possible. The Affected Party will, to the extent that is
reasonable under the circumstances, be relieved of its obligations under
the Agreement for so long as the event of "Force majeure" is in effect."
IN WITNESS WHEREOF the Parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day and year
first above written.
For and on behalf of Medarex Inc. For and on behalf of Bankforeningernes
Erhvervsudviklingsforening BankInvest
Biomedicinsk Udvikling
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ [illegible]
------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
For and on behalf of *****
GenPharm International, Inc. *****
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ *****
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ *****
Title: President and Chief Officer
*****
___________________
***** REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
26