EXHIBIT 99.7
GLOBAL CONSENT AND AGREEMENT
GLOBAL CONSENT AND AGREEMENT (this "Agreement") dated as of July 24,
2003 among Roche Holding Ltd, a joint stock company organized under the laws of
Switzerland ("Parent"), IGEN International, Inc., a Delaware corporation (the
"Company"), IGEN Integrated Healthcare, LLC, a Delaware limited liability
company and a wholly owned subsidiary of the Company ("Newco"), Meso Scale
Diagnostics, LLC., a Delaware limited liability company ("MSD"), Meso Scale
Technologies, LLC., a Delaware limited liability company ("MST"), Xxxxx
Xxxxxxxxxxx, an individual whose business address is MSD, 0000 Xxxxxxx Xxxx,
Xxxxxxxxxxxx, XX 00000 ("JW"), and JW Consulting Services, L.L.C., a Delaware
limited liability company ("JWCS").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company, Newco, Parent and 66 Acquisition Corporation II, a
Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), are
entering into an Agreement and Plan of Merger (the "Merger Agreement") pursuant
to which, among other things and on the terms and subject to the conditions set
forth therein, Sub will merge (the "Merger") with and into the Company;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company and Newco are entering into an agreement (the
"Restructuring Agreement") pursuant to which, prior to the Effective Time (as
defined in the Merger Agreement), the Restructuring (as defined in the
Restructuring Agreement) will be effected, as part of which (a) certain of the
assets of the Company, including the Company's limited liability membership
interests in MSD, and the Company's rights under and in respect of the MSD
Agreements (as defined below) will be transferred to Newco or one or more of
Newco's Subsidiaries and (b) Newco or one or more of its Subsidiaries will
assume the Assumed Liabilities (as defined in the Restructuring Agreement),
including the Company's liabilities and obligations under and in respect of the
MSD Agreements;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company, Newco, MSD, MST, JW and JWCS are entering into a certain
letter agreement (the "Letter Agreement") that contemplates, among other things,
certain agreements, arrangements and contributions in connection with the
Transactions in consideration thereof and in consideration of the execution and
delivery by MSD, MST, JW and JWCS of this Agreement; and
WHEREAS, the Company and MST are the sole members of MSD;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Action" means any claim, suit, action, arbitration, inquiry,
investigation or other proceeding of any nature (whether criminal, civil,
legislative, administrative, regulatory, prosecutorial or otherwise) by or
before any arbitrator or Governmental Entity or similar Person or body.
An "Affiliate" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person. For the avoidance of doubt, (i)
none of MSD, MST, JW, JWCS, Hyperion Catalysis International, a California
corporation, Wellstat Biologics Corporation, a Delaware corporation, Wellstat
Therapeutics Corporation, a California corporation, Proteinix Corporation, a
Delaware corporation, and Integrated Chemical Synthesizers, Inc., a Delaware
corporation, is an Affiliate of the Company or Newco for purposes of this
Agreement, and (ii) neither Genentech, Inc., a Delaware corporation, nor Chugai
Pharmaceutical Co., Ltd, a Japanese company, is an Affiliate of Parent for
purposes of this Agreement.
"Consent to License Agreement" means the Consent by MSD and MST to the
License Agreement and attached thereto.
"Continuing Licensee Subsidiary" means IGEN LS LLC, a Delaware limited
liability company and a wholly owned Subsidiary of the Company.
"Covenants Not to Xxx" means the Covenants Not to Xxx dated as of the
date hereof among Newco, Parent, R Diagnostics, MSD and MST.
"Employment Agreement" means the Employment Agreement dated as of
August 15, 2001 among MSD, the Company, MST and JW.
"Governmental Entity" means any domestic or foreign (whether national,
Federal, state, provincial, local or otherwise) government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign.
"I/R Confidentiality Agreement" means the confidentiality agreement
dated October 8, 2001 among the Company, R Diagnostics and X. Xxxxxxxx-Xx Xxxxx
Ltd.
"Joinder of the Ongoing Litigation Agreement" means the Joinder by MSD
and MST to Section 3.3 and Article 8 of the Ongoing Litigation Agreement and
attached thereto.
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"Liabilities" means any and all debts, liabilities, commitments and
obligations, whether fixed, contingent or absolute, matured or unmatured,
liquidated or unliquidated, accrued or not accrued, known or unknown, whenever
or however arising and whether or not the same would be required by generally
accepted accounting principles to be reflected in financial statements or
disclosed in the notes thereto.
"License Agreement" means the License Agreement dated as of the date of
this Agreement between the Company and the Continuing Licensee Subsidiary.
"LLC Agreement" means the Limited Liability Company Agreement of MSD
dated as of November 30, 1995 by and between MST and the Company.
"M/R Confidentiality Agreement" means the confidentiality agreement
dated April 28, 2003 among the Company, MSD, R Diagnostics and X. Xxxxxxxx-Xx
Xxxxx Ltd.
"MSD Agreements" means all of the Contracts (as defined below) and
understandings, whether oral or written, between MSD or any of its Affiliates or
employees, on the one hand, and the Company or any of its Subsidiaries (other
than Newco), on the other hand, including, but not limited to the agreements set
forth on Schedule A to this Agreement, other than any stock option agreements
between the Company and any employee of MSD (including all stock option
agreements with JW granted to him in his capacity as a consultant to the
Company).
"MSD Transaction Documents" means (i) with respect to MSD and MST, the
Consent to License Agreement, the Joinder of the Ongoing Litigation Agreement,
and the Covenants Not to Xxx, (ii) with respect to the Company, the License
Agreement and the Ongoing Litigation Agreement, (iii) with respect to Newco, the
Covenants Not to Xxx, (iv) with respect to Parent, the Covenants Not to Xxx and
the Ongoing Litigation Agreement and (v) with respect to R Diagnostics, the
Ongoing Litigation Agreement.
"Ongoing Litigation Agreement" means the Ongoing Litigation Agreement
entered into on the date of this Agreement by and between the Company, R
Diagnostics and Roche Diagnostics Corporation, an Indiana corporation.
"PCR License Agreement" means the PCR License Agreement dated as of the
date of this Agreement among Newco, R Diagnostics, X. Xxxxxxxx-XxXxxxx Ltd, a
Swiss limited liability company, and Roche Molecular Systems, Inc., a Delaware
corporation.
"PCR Services Agreement" means the License Agreement (Human IVD
Services and Animal Diagnostic Services) dated as of the date of this Agreement
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among Newco, R Diagnostics, X. Xxxxxxxx-XxXxxxx Ltd, a Swiss limited liability
company, and Roche Molecular Systems, Inc., a Delaware corporation.
A "Person" means any individual, firm, corporation, partnership,
company, limited liability company, trust, joint venture, association,
Governmental Entity or other entity.
"Post-Closing Covenants Agreement" means the Post-Closing Covenants
Agreement dated as of the date of this Agreement among Parent, the Company and
Newco.
"R Diagnostics" means Roche Diagnostics GmbH, a German limited
liability company.
A "Subsidiary" of any Person means another Person, an amount of the
voting securities or other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
Person. For the avoidance of doubt, neither Genentech, Inc., a Delaware
corporation, nor Chugai Pharmaceutical Co., Ltd, a Japanese company, shall be
deemed to be a Subsidiary of Parent for purposes of this Agreement.
"Transaction Agreements" means (i) this Agreement, (ii) the Merger
Agreement, (iii) the Restructuring Agreement, (iv) the Post-Closing Covenants
Agreement, (v) the Tax Allocation Agreement dated as of the date hereof among
Parent, Sub, the Company and Newco, (vi) the Ongoing Litigation Agreement, (vii)
the Release and Agreement dated as of the date hereof among the Company, Newco,
Hyperion Catalysis International, Wellstat Biologics Corporation, Wellstat
Therapeutics Corporation, Proteinix Corporation and Integrated Chemical
Synthesizers, Inc., (viii) the License Agreement, (ix) the Improvements License
Agreement dated as of the date hereof between R Diagnostics and the Company, (x)
the Covenants Not to Xxx, (xi) the PCR License Agreement and (xii) the PCR
Services Agreement.
"Transactions" means the transactions contemplated by this Agreement
and the other Transaction Agreements.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Except for Section 2.05, with respect to which only MSD, MST and JWCS
shall be deemed to have made the representations and warranties set forth
therein, each of (a) MSD and MST represents and warrants, severally and not
jointly, to Parent, the Company, Newco, JW and JWCS, (b) each of Parent, the
Company and Newco represents and warrants, severally and not jointly, to MSD,
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MST, JW and JWCS and (c) each of JW and JWCS represents and warrants, jointly
and severally, to Parent, the Company, Newco, MSD and MST, in each case as of
the date hereof and as of the Effective Time, that:
Section 2.01. Organization, Standing and Power. If such Person is not
a natural Person, such Person is duly formed or organized, validly existing and
in good standing under the laws of the jurisdiction in which it is organized (in
the case of good standing, to the extent such jurisdiction recognizes such
concept) and has all corporate or limited liability company powers, as
applicable, governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted, except for such
governmental licenses, authorizations, permits, consents and approvals the
failure of which to have or obtain, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the business of such
Person and such Person's Subsidiaries, taken as a whole.
Section 2.02. Authority; Execution and Delivery; Enforceability. If
such Person is not a natural Person, such Person has all requisite corporate or
limited liability company power and authority, as applicable, to execute and
deliver this Agreement and each MSD Transaction Document to which it is a party
and to consummate the transactions contemplated hereby and thereby. If such
Person is not a natural Person, the execution and delivery by such Person of
this Agreement and each MSD Transaction Document to which it is a party and the
consummation by such Person of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate or limited liability
company action on the part of such Person. If such Person is a natural Person,
such Person has the full legal capacity to enter into, execute and deliver this
Agreement without the consent or approval of any other Person. Such Person has
duly executed and delivered this Agreement and each MSD Transaction Document to
which it is a party, and, assuming due execution and delivery hereof by each
other party hereto and thereto, this Agreement and each MSD Transaction Document
to which it is a party constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
Section 2.03. No Conflicts; Consents. (a) The execution and delivery
by such Person of this Agreement and each MSD Transaction Document to which it
is a party do not, and the consummation of the transactions contemplated hereby
and thereby and compliance with the terms hereof and thereof will not, conflict
with, or result in any violation of or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any lien upon any of the properties or assets of such Person
or any Subsidiary of such Person under, any provision of (i) if such Person is
not a natural Person, the charter, organizational or formation documents of such
Person, (ii) any contract, lease, license, indenture, note, bond, agreement,
permit, concession, franchise or other instrument (a "Contract") to which such
Person or any Subsidiary of such Person is a party or by which their respective
properties or
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assets is bound or (iii) subject to the filings and other matters referred to in
Section 2.03(b), any judgment, order or decree (a "Judgment") or statute, law,
ordinance, rule or regulation whether foreign or domestic applicable to such
Person or any Subsidiary of such Person or their respective properties or
assets, other than, (A) in the case of clauses (ii) and (iii) above, any such
items that, individually or in the aggregate, (x) in the case of each of Parent,
MSD, MST, JW and JWCS only, would not reasonably be expected to have a material
adverse effect on the business of such Person and such Person's Subsidiaries,
taken as a whole, and (y) would not reasonably be expected to materially impair
the ability of such Person or any Subsidiary of such Person to perform its
obligations under this Agreement or any MSD Transaction Document to which it is
a party or consummate the transactions contemplated hereby and thereby or (B) in
the case of clauses (i), (ii) and (iii) above, any such items that are waived or
cured by operation of this Agreement or the Letter Agreement.
(b) No consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, or permit from, any
Governmental Entity, is required to be obtained or made by such Person or any
Subsidiary of such Person in connection with the execution, delivery and
performance by such Person or any Subsidiary of such Person of this Agreement or
any MSD Transaction Document to which it is a party or the consummation of the
transactions contemplated hereby and thereby, other than such items that the
failure of which to obtain or make, individually or in the aggregate, (i) in the
case of each of Parent, MSD, MST, JW and JWCS only, would not reasonably be
expected to have a material adverse effect on the business of such Person and
such Person's Subsidiaries, taken as a whole, and (ii) would not reasonably be
expected to materially impair the ability of such Person or any Subsidiary of
such Person to perform its obligations under this Agreement or any MSD
Transaction Document to which it is a party or consummate the transactions
contemplated hereby and thereby.
Section 2.04. Brokers. No broker, investment banker, financial advisor
or other Person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the Transactions based upon
arrangements made by or on behalf of such Person, other than in the case of the
Company, Xxxxxx Brothers, Inc.
Section 2.05. Ownership of MSD, MST and JWCS. Each of MSD, MST and
JWCS hereby represents and warrants, severally and not jointly, to Parent and
Newco, as of the date hereof and as of the Effective Time, that (i) Schedule B
sets forth a true and complete list of all the members, and their respective
membership interests and voting rights, of each of MSD, MST and JWCS and (ii)
none of MSD, MST or JWCS has any members other than as set forth on Schedule B.
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ARTICLE 3
CERTAIN AGREEMENTS
Section 3.01. Consent. Each of JW, JWCS, MSD and MST (each, a
"Consenting Party") hereby acknowledges receipt of a copy of each Transaction
Agreement, and each Consenting Party has carefully reviewed, and consulted its
legal advisors with respect to, each Transaction Agreement. Each Consenting
Party hereby consents to the Transaction Agreements and the consummation of the
Transactions, and grants all waivers and consents which are necessary under the
MSD Agreements to permit the consummation of the Transactions and the
performance by the Company, Newco, and each Consenting Party of their
obligations under the Transaction Agreements in accordance with their terms.
Notwithstanding the preceding sentence, (a) the foregoing consents shall not (i)
apply to any act or omission which constitutes fraud in the inducement with
respect to this Agreement, the Letter Agreement, any MSD Transaction Document or
the Transactions, or (ii) affect any Consenting Party's rights to enforce this
Agreement, the Letter Agreement, any MSD Transaction Document to which it is a
party or any Transaction Agreement to which it is a third party beneficiary, in
each case, in accordance with its respective terms, and (b) from and after the
effectiveness of the Restructuring, all of the MSD Agreements will remain in
full force and effect and will be enforceable against each of the Consenting
Parties and Newco in accordance with their terms.
Section 3.02. Acknowledgement and Consent. (a) In furtherance and not
in limitation of Section 3.01, each Consenting Party acknowledges that, pursuant
to the Restructuring Agreement and as part of the Restructuring, all of the
Company's rights under and in respect of the MSD Agreements shall be assigned
to, and all of the Company's Liabilities under and in respect of the MSD
Agreements will be assumed by, Newco upon the effectiveness of the Restructuring
(the "MSD Transfer").
(b) Each Consenting Party hereby consents to the MSD Transfer and, as
of and with effect from the consummation of the MSD Transfer, unconditionally
releases the Company from its obligations, duties and Liabilities (express and
implied) under the MSD Agreements, whether arising before, at or after the MSD
Transfer. Each Consenting Party expressly consents to and accepts the assumption
by Newco of all the rights, obligations, duties and Liabilities (express and
implied) of the Company under the MSD Agreements, whether arising before, at or
after the MSD Transfer, and agrees to perform its obligations, duties and
Liabilities (express or implied) under the MSD Agreements in accordance with
their terms in favor of Newco. In this regard, MST hereby consents to the
admission of Newco as a Class A Member, a Class B Member and a Class C Member of
MSD, effective upon the effectiveness of the MSD Transfer, as a successor to the
Company, in accordance with Sections 8 and 9 of the LLC Agreement and hereby
waives compliance by the Company and Newco with the terms and conditions thereof
for the purposes of such admission. Each of the foregoing events is conditioned
upon the consummation of the MSD Transfer,
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shall occur simultaneously with the MSD Transfer without any further action by
any party, and, together with the MSD Transfer, shall have the effect of
amending the MSD Agreements.
(c) The Company, Newco and each Consenting Party accordingly agree that
as of and with effect from the MSD Transfer, each of the MSD Agreements will
cease to create or confer any rights or obligations on or as to the Company,
except for the Company's confidentiality obligations thereunder, which shall
remain in full force and effect notwithstanding the MSD Transfer, and each of
the MSD Agreements will continue as an agreement among the parties thereto
(other than the Company) and Newco on the same terms and conditions as those
stated in such MSD Agreement. The Company, Newco, MSD and MST agree to amend and
restate each such MSD Agreement to reflect such matters effective from the MSD
Transfer.
(d) Each Consenting Party acknowledges and agrees that, notwithstanding
any provision of any MSD Agreement to the contrary, such Consenting Party shall
not be entitled to any payment from the Company as a result of or in connection
with the Transactions or the MSD Transfer, except as specifically provided in
the Letter Agreement and except as provided in any stock option agreements
between the Company and any employee of MSD (including all stock option
agreements with JW granted to him in his capacity as a consultant to the
Company).
(e) As of and with effect from the consummation of the MSD Transfer,
except for the rights of the Continuing Licensee Subsidiary under the License
Agreement and the Consent to License Agreement, (i) Newco shall own all right,
title and interest in and to any and all intellectual property and other
proprietary and confidential information or materials owned by the Company as of
the date hereof or benefits acquired by the Company between the date hereof and
immediately prior to the consummation of the MSD Transfer (other than that owned
by MSD, MST, JW or JWCS or such rights that expire, terminate or are otherwise
disposed of in a manner not inconsistent with the MSD Agreements) to which MSD,
MST, JW or JWCS has any direct or indirect rights or benefits (including
patents, copyrights and trade secrets) pursuant to the MSD Agreements and (ii)
the Company thereafter shall hold no interest in MSD nor shall it have
possession of, or rights or access to, any proprietary or confidential
information of MSD, MST, JW or JWCS, and the Company will not own or otherwise
have rights or seek to own or otherwise have rights in any intellectual property
or other proprietary information or materials which MSD, MST, JW or JWCS owns or
to which MSD, MST, JW or JWCS otherwise has any direct or indirect rights or
benefits (including patents, copyrights and trade secrets) pursuant to the MSD
Agreements.
Section 3.03. Certain Claims. (a) Parent shall not, and shall not
permit any other Affiliate of Parent or encourage any other Person to, either
before or after the Effective Time, assert any rights or pursue any actions or
claims,
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whether directly or on a derivative basis, against (i) any Consenting Party or
any of its or his Affiliates or (ii) any of the current or former members of the
board of managers, members, managers, officers, employees, consultants,
advisors, attorneys, trustees or agents of any Consenting Party or any of its or
his Affiliates (in each case, solely in their capacities as such), in each case
for acts or omissions occurring (A) prior to the date of this Agreement or (B)
after the date of this Agreement and prior to the Effective Time, whether known
or unknown, and Parent shall not, and Parent shall not permit any Affiliate of
Parent to, cooperate with any Person in the assertion of any such rights or
pursuing any such actions or claims except (x) as required by subpoena or other
judicial or legal process or (y) as required by any inquiry by a Governmental
Entity, but in each case only to the extent such inquiry or requirement to
cooperate has not arisen as a result of a breach of this Section 3.03(a);
provided, however, that this Section 3.03(a) shall not (1) affect any Person's
right to enforce any Transaction Agreement, any MSD Transaction Document, any
I/R Agreement (as defined in the Restructuring Agreement) or any Newco I/R
Agreement (as defined in the Restructuring Agreement) or any provision herein or
therein in accordance with its terms, (2) apply to any act or omission which
constitutes fraud in the inducement with respect to any Transaction Agreement,
any MSD Transaction Document, any I/R Agreement or any Newco I/R Agreement or
(3) apply to any action permitted or required by the Ongoing Litigation
Agreement; provided further, however, that in the event this Agreement is
terminated, this Section 3.03(a) shall be null and void and shall not operate as
a waiver or release of any rights, actions, interests or claims that might have
been asserted or pursued but for this Section 3.03(a).
(b) No Consenting Party shall, and no Consenting Party shall permit any
other Affiliate of such Consenting Party or encourage any other Person to,
either before or after the Effective Time, assert any rights or pursue any
actions or claims, whether directly or on a derivative basis, against (i) Parent
or any of its Affiliates or (ii) any of the current or former directors,
officers, employees, consultants, advisors, attorneys, trustees or agents of
Parent or any of its Affiliates (in each case, solely in their capacities as
such), in each case for acts or omissions occurring (A) prior to the date of
this Agreement or (B) after the date of this Agreement and prior to the
Effective Time, whether known or unknown, and such Consenting Party shall not,
and shall not permit any Affiliate of such Consenting Party to, cooperate with
any Person in the assertion of any such rights or pursuing any such actions or
claims except (x) as required by subpoena or other judicial or legal process or
(y) as required by any inquiry by a Governmental Entity, but in each case only
to the extent such inquiry or requirement to cooperate has not arisen as result
of a breach of this Section 3.03(b); provided, however, that this Section
3.03(b) shall not (1) affect any Person's right to enforce any Transaction
Agreement, any MSD Transaction Document, any I/R Agreement or any Newco I/R
Agreement or any provision herein or therein in accordance with its terms, (2)
apply to any act or omission which constitutes fraud in the inducement with
respect to any Transaction Agreement, any MSD Transaction Document, any I/R
Agreement or any Newco I/R Agreement or (3) apply to any action permitted or
9
required by the Ongoing Litigation Agreement; provided further, however, that in
the event this Agreement is terminated, this Section 3.03(b) shall be null and
void and shall not operate as a waiver or release of any rights, actions,
interests or claims that might have been asserted or pursued but for this
Section 3.03(b).
Section 3.04. No Change Of Control; Other Agreements. (a) Each of the
Company, Newco, and each Consenting Party acknowledges and agrees that the
execution and delivery of the Transaction Agreements does not, and the
consummation of the Transactions will not, constitute a "Change in Control" as
defined in the Joint Venture Agreement dated as of November 30, 1995 among MSD,
MST and the Company, as amended, or the Employment Agreement.
(b) Each of the Company, Newco, MSD and MST acknowledges and agrees
that (i) upon the MSD Transfer, notwithstanding anything in the LLC Agreement to
the contrary, (A) the Company shall be permitted to transfer its entire interest
in MSD to Newco and (B) Newco shall be admitted as a member of MSD with respect
to the transferred interest, shall be bound as a member by the LLC Agreement and
shall execute and deliver to MSD and MST a signature page to the LLC Agreement
(but Newco shall be deemed a party to, and shall be bound by, the LLC Agreement
whether or not it delivers such signature page), (ii) Sections 8 and 9 of the
LLC Agreement with respect to the transfer of the Company's interest in MSD to
Newco are waived for purposes of the foregoing transfer and admission, and (iii)
the Company shall have no right to receive any distributions that may be made by
MSD following the MSD Transfer.
(c) This Agreement is deemed to constitute written notice to MSD, as
required pursuant to Section 2.7(c) of the IGEN/MSD License Agreement, dated as
of November 30, 1995, as amended, concerning the Merger and the other
Transactions.
(d) Each of the Company, MSD, MST and JW acknowledges and confirms that
the Employment Agreement dated as of August 1, 1997, among MSD, the Company, MST
and JW, is null and void and was superceded by the Employment Agreement.
ARTICLE 4
RELEASES
Section 4.01. Releases. Effective immediately prior to the Effective
Time, in consideration of mutual releases, covenants, licenses, agreements,
rights and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Parent, as to itself and its past, present and
future Affiliates (including, from and after the Effective Time, the Company),
and its and their respective successors, predecessors, assigns, heirs, officers,
directors, employees, consultants and trustees, on the one hand (in each case,
solely in their capacities as such), and each Consenting Party, as to itself or
himself and its or his past, present and future Affiliates, and its or his and
their respective successors, predecessors, assigns, heirs, officers, members of
the board of managers, members, managers, employees, consultants and trustees,
on the other hand (in each case, solely in their capacities as such), hereby (a)
releases, acquits and forever discharges the other and its or his past,
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present and future Affiliates and its or his and their respective successors,
predecessors, assigns, heirs, officers, directors, members of the board of
managers, members, managers, employees, consultants and trustees (in each case,
solely in their capacities as such), in respect of and from, and (b) agrees not
to bring any Action against the other and its or his past, present and future
Affiliates and its or his and their respective successors, predecessors,
assigns, heirs, officers, directors, members of the board of managers, members,
managers, employees, consultants and trustees (in each case, solely in their
capacities as such) related to or arising out of, in the case of each of clause
(a) and (b), any and all debts, demands, Actions, causes of action, suits,
accounts, covenants, Contracts, agreements, torts, damages and any and all
claims, defenses, offsets, Judgments, demands and Liabilities whatsoever, of
every name and nature, both at law and in equity, known or unknown, suspected or
unsuspected, accrued or unaccrued, which have been or could have been asserted
against such other Person, which the releasing Person has or ever had which
arise out of or in any way relate or are incidental to events, circumstances or
actions taken by such other Person prior to or as of the Effective Time;
provided, however, that the foregoing general release shall not (i) affect any
Person's right to enforce any Transaction Agreement, any MSD Transaction
Document or any Newco I/R Agreement or any provision herein or therein in
accordance with its terms or (ii) apply to any act or omission which constitutes
fraud in the inducement with respect to any Transaction Agreement, any MSD
Transaction Document or any Newco I/R Agreement. For the purposes of this
Section 4.01, no Newco Company (as defined in the Restructuring Agreement) is or
ever has been an Affiliate of Parent.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement shall survive the Effective
Time. This Section 5.01 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
Section 5.02. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses (or at such
other address for a party as shall be specified by like notice) of a fax
followed by delivery of such notice by overnight courier of an international
reputation:
(a) if to Parent or, after the Effective Time, the Company, to:
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Roche Holding Ltd
Xxxxxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Xxxxxxxxxxx
Attention: Xxxxx Xxxxx
Fax: x00 00 000 0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
(b) if to Newco or, prior to the Effective Time, the Company, to:
IGEN International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
and:
Joint Venture Operating Committee
IGEN International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chairman
Fax: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
and:
Xxxxxx Xxxxxxxx & Xxxxxxx XXX
Xxxxxxxx Xxxxx, 0xx Xxxxx
0000 X. Xxxxxx Xxxxxx
00
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
(c) if to MSD or MST, to:
Meso Scale Diagnostics, LLC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Section 5.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any applicable
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
Section 5.04. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties. Each party need not sign
the same counterpart.
Section 5.05 . Entire Agreement; No Third-Party Beneficiaries. This
Agreement (a) taken together with the other Transaction Agreements, the MSD
Transaction Documents, the MSD Agreements, the Letter Agreement, the I/R
Confidentiality Agreement, the letter agreement dated November 6, 2002 between
the Company and R Diagnostics and the M/R Confidentiality Agreement, constitute
the entire agreement, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter of
this Agreement; provided that as of and after the Effective Time, the I/R
Confidentiality Agreement shall have no further force and effect and shall be
superseded by Section 3.07 of the Post-Closing Covenants Agreement and (b)
13
except for the provisions of Section 3.03 and Section 4.01 of this Agreement, is
not intended to confer upon any Person other than the parties any rights or
remedies.
Section 5.06. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 5.07. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective; provided that prior to the Effective Time any waiver by the
Company shall also require the prior written consent of Parent.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 5.08. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties; provided, however, that the
parties acknowledge and agree that the conversion of Newco in accordance with
Section 2.01 of the Restructuring Agreement and the continuation of Newco as a
result thereof shall be deemed not to be an assignment and shall not require any
consent of any party. Any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
Section 5.09. Enforcement; Consent to Service of Process. (a) The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any Delaware state court or any Federal court of the United States
of America sitting in the State of Delaware, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, except as
otherwise specifically provided in any other Transaction Agreement with respect
to the parties thereto, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of any Delaware state court or any Federal Court of
the United States sitting in the State of Delaware in the event any dispute
arises out of this Agreement or any
14
Transaction, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to this Agreement or any
Transaction in any court other than in any Delaware state court or any Federal
court of the United States of America sitting in the State of Delaware and (iv)
waives any right to trial by jury with respect to any action related to or
arising out of this Agreement or any Transaction.
(b) Parent hereby appoints Roche Holdings, Inc., with offices on the
date of this Agreement at 0000 X. Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx,
Xxxxxxxx 00000, as its authorized agent (the "Authorized Agent"), upon whom
process may be served in any suit, action or proceeding arising out of or
relating to this Agreement or any Transaction that may be instituted in any
court described in Section 5.09(a). Parent agrees to take any and all reasonable
action, including the filing of any and all documents, that may be necessary to
establish and continue such appointment in full force and effect as aforesaid.
Parent agrees that service of process upon the Authorized Agent shall be, in
every respect, effective service of process upon Parent.
Section 5.10. Termination. In the event the Merger Agreement is
terminated pursuant to its terms prior to the Effective Time, this Agreement
shall automatically and simultaneously terminate. In the event of such
termination, no party shall have any liability to any other party pursuant to
this Agreement. It is understood that consummation of the Merger shall not
constitute a termination of this Agreement.
Section 5.11. Interpretation. When a reference is made in this
Agreement to a Section, Schedule or party, such reference shall be to a Section
of or a Schedule or party to this Agreement unless otherwise indicated. Whenever
the words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation". The words
"hereof", "herein" and "hereby" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The words "date hereof" shall refer to the date of
this Agreement. The term "or" is not exclusive. The word "extent" in the phrase
"to the extent" shall mean the degree to which a subject or other thing extends,
and such phrase shall not mean simply "if". The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement or instrument that is defined or referred to herein or in
any agreement or instrument that is referred to herein, means such agreement or
instrument as from time to time amended, modified or supplemented. References to
a Person are also to its permitted successors and assigns.
15
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
ROCHE HOLDING LTD
By: /s/ D. Xxxxx X. Xxxxx
-------------------------------------
Name: D. Xxxxx X. Xxxxx
Title: President and Chairman
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
IGEN INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive
Officer
IGEN INTEGRATED
HEALTHCARE, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Operating
Officer
MESO SCALE DIAGNOSTICS, LLC.
By: /s/ X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: President and Chief Executive
Officer
MESO SCALE TECHNOLOGIES, LLC.
By: /s/ X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: President and Chief Executive
Officer
XXXXX XXXXXXXXXXX
/s/ X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
JW CONSULTING SERVICES, L.L.C.
By: /s/ X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: President and
Chief Executive Officer
SCHEDULE A
MSD AGREEMENTS
1. Joint Venture Agreement dated as of November 30, 1995, as amended,
among IGEN International, Inc. (the "Company"), Meso Scale Diagnostics,
LLC. ("MSD") and Meso Scale Technologies, LLC. ("MST").
2. Limited Liability Company Agreement of Meso Scale Diagnostics, LLC.
dated as of November 30, 1995, as amended, between the Company and MST.
3. IGEN/MSD License Agreement dated as of November 30, 1995, as amended,
between the Company and MSD.
4. MSD/MST Sublicense Agreement, dated as of November 30, 1995, as
amended, among the Company, MSD and MST.
5. License Agreement dated as of November 30, 1995 among the Company, MSD
and MST.
6. Employment Agreement dated as of August 15, 2001 among the Company,
MSD, MST and Xxxxx X. Xxxxxxxxxxx ("JW").
7. Consulting Agreement dated as of August 15, 2001 between the Company
and JW.
8. Letter agreement dated August 15, 2001, as amended, among the Company,
MSD and MST regarding employees.
9. Letter agreement dated August 15, 2001, as amended, among the Company,
MSD and MST regarding equipment.
10. Letter agreement dated August 15, 2001 among the Company, JW and JW
Consulting Services, L.L.C. ("JWCS") regarding insurance.
11. Letter agreement dated August 15, 2001 among the Company, MSD, MST and
JW regarding litigation and settlement fees and expenses.
12. Letter agreement dated August 15, 2001 among the Company, MSD and JW
regarding certain advisory and related activities.
13. Letter agreement dated November 30, 1995 between the Company and JW
regarding indemnification.
A-1
14. Indemnification Agreement dated as of October 26, 2001 between the
Company and JW.
15. Indemnification Agreement effective as of November 30, 1996 between the
Company, JW and JWCS.
16. Agreement of Sublease for space at 0000X Xxxxx Xxxxx Xxxxxxx, dated
August 15, 2001, between the Company and MSD.
17. Agreement of Sublease for space at 0000X Xxxxx Xxxxx Xxxxxxx, dated
August 15, 2001, between the Company and MSD.
18. Agreement of Sublease for space at 0000X Xxxxx Xxxxx Xxxxxxx, dated
August 15, 2001, between the Company and MSD.
19. Agreement of Sublease for space at 0000X Xxxxx Xxxxx Xxxxxxx, dated
August 15, 2001, between the Company and MSD.
20. Agreement of Sublease for space at 0000X Xxxxx Xxxxx Xxxxxxx, dated
August 15, 2001, between the Company and MSD.
21. Agreement of Sublease for space at 0000 Xxxxxxxxxx Xxxxx, dated August
15, 2001, between the Company and MSD.
22. Agreement of Sublease for space at 0000-0000 Xxxxxxxx Xxxxx, dated
August 15, 2001, between the Company and MSD.
23. Agreement of Sublease for space at 0000 Xxxx Xxxx Xxxxx, dated August
15, 2001, between the Company and MSD.
24. Agreement of Sublease for space at 00000 Xxxxxxxxxx Xxxxx (Shared with
the Company), dated August 15, 2001, between the Company and MSD.
25. Agreement of Sublease for space at 9149-9161 Industrial Court (includes
"Clean Room"), dated August 15, 2001, between the Company and MSD.
26. Agreement of Sublease for space at 0000-0000 Xxxxxxx Xxxx, dated August
15, 2001, between the Company and MSD.
27. Letter Agreement dated March 12, 2003 by and among the Company, MSD,
MST, JWCS and JW, amending the MSD Agreements with respect to the
formation of MSD Europe, L.L.C.
28. Letter agreement among MSD, the Company and MST dated January 30, 2001
A-2
29. Letter agreement among MSD, the Company and MST dated November 29, 2000
30. Letter agreement among MSD, the Company and MST and the attached
non-binding term sheet dated February 20, 2001
31. Letter agreement among JW, MSD and the Company dated August 15, 2001
32. Employment Agreement among MSD, the Company, MST and JW dated as of
August 1, 1997
33. Confidentiality agreement dated April 28, 2003 among the Company, MSD,
R Diagnostics and X. Xxxxxxxx-Xx Xxxxx Ltd.
34. Letter agreement dated the date of the Agreement among the Company,
Newco, MSD, MST, JW and JWCS
A-3
SCHEDULE B
OWNERSHIP OF MSD AND MST
Meso Scale Diagnostics, LLC.
The members of Meso Scale Diagnostics, LLC. ("MSD") consist of IGEN
International, Inc. ("IGEN") and Meso Scale Technologies, LLC. ("MST").
The membership interests of IGEN and MST in MSD are as follows:
Class A (voting) interest: 31% held by IGEN and 69% held by MST
Class B (non-voting) interest: 100% held by IGEN and none held by MST
Class C (non-voting) interest: 100% held by IGEN and none held by MST
The voting rights of IGEN and MST with respect to MSD are set forth in the Joint
Venture Agreement, dated as of November 30, 1995, among MSD, MST and IGEN, as
amended, and in the MSD Limited Liability Company Agreement, dated as of
November 30, 1995, between IGEN and MST, as amended.
Meso Scale Technologies, LLC.
The sole member of MST is Xxxxx X. Xxxxxxxxxxx, who holds 100% of the membership
interests and all voting rights associated therewith.
JW Consulting Services, LLC.
The sole member of JW Consulting Services, LLC. is Xxxxx X. Xxxxxxxxxxx, who
holds 100% of the membership interests and all voting rights associated
therewith.
B-1
