Execution Version

 

 

This STOCKHOLDERS AGREEMENT (this “Agreement”), dated as of April 15, 2015, is by and among (i) CollabRx, Inc., a Delaware corporation (the “Company”), (ii) Thomas R. Mika (the “Continuing Stockholder”) and (iii) each of the other Persons whose name appears on the signature pages hereto (each, a “New Stockholder” and, collectively, the “New Stockholders”).

 

RECITALS

 

WHEREAS, the Company, CollabRx Merger Sub, Inc., a Nevada corporation and a direct wholly owned subsidiary of the Company (“Merger Sub”), and Medytox Solutions, Inc., a Nevada corporation (“Medytox”), are all of the parties to the Agreement and Plan of Merger, dated as of even date herewith (as the same may be amended from time to time in accordance with the terms thereof, the “Merger Agreement”), pursuant to which, among other things, Merger Sub will be merged with and into Medytox (the “Merger”), with Medytox continuing as the surviving company and a direct wholly owned subsidiary of the Company, on the terms and subject to the conditions set forth in the Merger Agreement;

 

WHEREAS, pursuant to and subject to the terms and conditions of the Merger Agreement, each share of outstanding capital stock of Medytox (except the Company Preferred Stock), par value $0.0001 per share, shall be converted in the Merger into the right to receive shares of common stock, par value $0.01 per share, of the Company (the “Company Common Stock”);

 

WHEREAS, pursuant to and subject to the terms and conditions of the Merger Agreement, upon consummation of the Merger and following the grant of the Post-Closing Parent Options, the Continuing Stockholder is expected to continue to Beneficially Own shares of Company Common Stock and/or options to purchase Company Common Stock;

 

WHEREAS, as an inducement and a condition to entering into the Merger Agreement, , each of the parties to the Merger Agreement has requested that the Continuing Stockholder and the New Stockholders enter into this Agreement with the Company; and

 

WHEREAS, the Company, the Continuing Stockholder and the New Stockholders hereto wish to set forth in this Agreement certain terms and conditions regarding the Continuing Stockholder’s ongoing rights relating to the governance of the Company.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, warranties and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties agree as follows:

 

---

ARTICLE I
GOVERNANCE

 

 

 

 

 

 

---

 

 

Notwithstanding the provisions of this Article I, the Continuing Stockholder will not be entitled to designate any Continuing Stockholder Designees to the Board pursuant to this Article I in the event that the Board reasonably determines that (a) the election of such Continuing Stockholder Designee to the Board would cause the Company to not be in compliance with Applicable Law or (b) such Continuing Stockholder Designee has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any order, decree or judgment of any Governmental Authority prohibiting service as a director of any public company or (c) such Continuing Stockholder Designee is not reasonably acceptable to the Board or Corporate Governance Committee.  In any such case described in clause (a), (b) or (c) of the immediately preceding sentence, the Continuing Stockholder will withdraw the designation of such proposed Continuing Stockholder Designee and, so long as no Continuing Stockholder Rights Termination Event has occurred, be permitted to designate a replacement(s) therefor (which replacement Continuing Stockholder Designee will also be subject to the requirements of this Section 1.3).

 

 

 

---

 

 

ARTICLE II
REPRESENTATIONS AND WARRANTIES

 

 

 

---

 

 

 

 

 

---

 

 

 

 

 

---

ARTICLE III
DEFINITIONS

 

 

“Affiliate” means, with respect to any Person, an “affiliate” as defined in Rule 405 promulgated under the Securities Act.

 

“Applicable Law” means, with respect to any Person, any foreign, federal, state or local statute, law (including common law), ordinance, rule, regulation, regulatory guideline having the force of law, order, writ, injunction, judgment or decree applicable to such Person, its assets, properties, operations or business.

 

“Beneficial Owner” or “Beneficially Own” has the meaning assigned to such term in Rule 13d-3 promulgated under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance).

 

“Business Day” means a day on which banks are generally open for normal business in New York, New York, which day is not a Saturday or a Sunday.

 

“Continuing Stockholder Designees” means, subject to Section 1.3, two (2) individuals designated in writing by the Continuing Stockholder for election or appointment to the Board, one of whom shall be a senior executive employed on a full time basis by the Company and one of whom shall have no employment or other direct or indirect service relationship with the Company or any of its Affiliates whatsoever and shall otherwise satisfy the criteria for an "independent director" under the rules of NASDAQ and any other exchange on which shares of Company Common Stock are listed.

 

“Continuing Stockholder Director” means the Continuing Stockholder Designees who have been elected to the Board.

 

“Continuing Stockholder Rights Termination Event” shall be deemed to occur on the earliest of (a) the end of any Business Day following the Closing Date on which the number of shares of Company Common Stock outstanding and/or underlying derivative securities (including options) exercisable or convertible into Company Common Stock that is Beneficially Owned by the Continuing Stockholder and the Continuing Stockholder's Controlled Affiliates and Immediate Family Members in the aggregate for any reason represents less than the Minimum Equity Percentage, (b) the first (1^st) anniversary of the date of this Agreement and (c) the date of termination of the Continuing Stockholder's employment relationship with the Company or any Subsidiary for any reason.

 

---

“Control” means the possession, directly or indirectly, of the sole power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Controlled Affiliate” means any Affiliate of the specified Person that is, directly or indirectly, Controlled by the specified Person.

 

“Corporate Governance Committee” means the Corporate Governance Committee or the Nominating Committee of the Company, as applicable, or any successor committee in respect of the foregoing.

 

“Encumbrance” means any charge, pledge, option, mortgage, deed of trust, hypothecation, security interest, lien, claim, license, encroachment, easement or defect or imperfection of title, or any right of first refusal or other restriction on use, voting or transfer, or any other similar limitation, restriction or encumbrance.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Governmental Authority” means any federal, national, state, local, cantonal, municipal, international or multinational government or political subdivision thereof, governmental department, commission, board, bureau, agency, taxing or regulatory authority, instrumentality or judicial or administrative body, or arbitrator or self-regulatory organization, having jurisdiction over the matter or matters in question.

 

“Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a natural Person referred to herein.

 

“Minimum Equity Percentage” means such percentage of the outstanding shares of Company Common Stock on a Fully Diluted Basis represented by 75% of the number of shares of Company Common Stock and/or derivative securities (including options) exercisable or convertible therefor granted to the Continuing Stockholder out of the Post-Closing Parent Stock Options, calculated at the time the Post-Closing Parent Stock Options are granted.

 

“Organizational Documents” means any charter, certificate of incorporation, articles of association, bylaws, operating agreement or similar formation or governing documents and instruments.

 

“Person” means any individual, corporation, company, partnership (limited or general), joint venture, limited liability company, association, trust or other entity.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Total Voting Power” means, as of any date of determination, the total number of votes that may be cast in the election of directors of the Company if all Voting Securities then outstanding were present and voted at a meeting held for such purpose.  The percentage of the Total Voting Power Beneficially Owned by any Person as of any date of determination is the percentage of the Total Voting Power of the Company that is represented by the total number of votes that may be cast in the election of directors of the Company by Voting Securities then Beneficially Owned by such Person.

 

---

“Transfer” means (a) any direct or indirect offer, sale, lease, assignment, Encumbrance, pledge, hypothecation, disposition or other transfer (by operation of law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of law or otherwise), of any capital stock or interest in any capital stock or (b) in respect of any capital stock or interest in any capital stock, to enter into any swap or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such capital stock or interest in capital stock, whether any such swap, agreement, transaction or series of transaction is to be settled by delivery of securities, in cash or otherwise.

 

“Voting Securities” means shares of Company Common Stock and any other securities of the Company entitled to vote generally in the election of directors of the Company.

 

ARTICLE IV
MISCELLANEOUS

 

 

 

To the Company:

 

CollabRx, Inc.

44 Montgomery Street, Ste.  800

San Francisco, CA 94104

Attn: Seamus Lagan

Fax: (561) 855-1620

Email: tmika@collabrx.com

 

With a concurrent copy to (which shall not constitute notice):

 

---

Akerman LLP

One Southeast Third Avenue, 25th Fl.

Miami, FL 33131

Attn: J.  Thomas Cookson

Fax: (305) 374-5095

Email: tom.cookson@akerman.com

 

To the Continuing Stockholder:

 

Thomas R. Mika

44 Montgomery Street, Ste. 800

San Francisco, CA 94104

Email: tmika@collabrx.com

 

With a concurrent copy to (which shall not constitute notice)

 

Goodwin Procter LLP

135 Commonwealth Drive

Menlo Park, CA 94025

Attn: William Davisson

Fax: (650) 853-1038

Email: wdavisson@goodwinprocter.com

 

or to any New Stockholder to the address set forth under such New Stockholder's signature on the signature pages hereto.

 

 

 

 

---

 

 

 

 

 

---

 

 

 

The remainder of this page left intentionally blank.

 

---

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized representatives as of the date first above written.

 

	COLLABRX, INC.
	By:	/s/ Thomas R. Mika
		Name: Thomas R. Mika
		Title: President and Chief Executive
		Officer
		CONTINUING STOCKHOLDER:
		/s/  Thomas R. Mika
		Name: Thomas R. Mika
		NEW STOCKHOLDERS:
		/s/ Sharon Hollis
		Sharon Hollis
		/s/ Francisco Roca III
		Francisco Roca III
		/s/ Steve Sramowicz
		Steve Sramowicz
		/s/ Tom Mendolia
		Tom Mendolia
		/s/ Jace Simmons
		Jace Simmons
		/s/ William Forhan
		William Forhan

 

Signature page to Stockholders Agreement

 

---

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized representatives as of the date first above written.

	NEW STOCKHOLDERS:
	Alcimede, LLC
	By:	/s/ Seamus Lagan
	Name:  Seamus Lagan
	Title:  Authorized Signatory
	Epizon, Ltd.
	By:	/s/ Wilhelm Toothe
	Name:  Wilhelm Toothe
	Title:  Authorized Signatory
	Aella, Ltd.
	By:	/s/ Wilhelm Toothe
	Name:  Wilhelm Toothe
	Title:  Authorized Signatory

---