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EXHIBIT 2.2
GOVERNANCE AGREEMENT
THIS GOVERNANCE AGREEMENT (the "Agreement") is made as of ________,
2000, by and among PERKINELMER, INC., a Delaware corporation ("PerkinElmer"),
and GENOMIC SOLUTIONS INC., a Delaware corporation (the "Company").
RECITALS:
A. On January 24, 2000, PerkinElmer acquired 1,269,841 shares of the
Company's Series P Preferred Stock pursuant to an Investment Agreement dated
December 14, 1999, by and among the Company and PerkinElmer, as amended by a
First Amendment to Investment Agreement dated as of ______, 2000 (the
"Investment Agreement").
B. On January 25, 2000, PerkinElmer entered into separate Securities
Purchase Agreements (the "Securities Purchase Agreements") with substantially
all of the holders of the Company's equity securities (the "Holders"), pursuant
to which the Holders granted to PerkinElmer an option to acquire all of the
Company's equity securities owned by them.
C. On the date hereof, the Company has issued shares of callable common
stock (the "Callable Common Stock") in a Qualified IPO, as such term is defined
in the Investment Agreement, and the Securities Purchase Agreements have
terminated.
D. Pursuant to (i) the Company's Third Amended and Restated Certificate
of Incorporation (the "Restated Certificate"), which was filed by the Company on
the date hereof, (ii) written consents executed by the Holders, and (iii) the
Company's various option plans, effective as of the date hereof (1) all of the
shares of the Company's outstanding common stock, Class B Preferred Stock, Class
C Preferred Stock, Class D Preferred Stock and Class M Preferred Stock have been
reclassified as and converted into shares of Callable Common Stock, (2) all of
the shares of the Company's outstanding Class P Preferred Stock have been
reclassified as and converted into shares of the Company's common stock, (3)
each option to purchase shares of the Company's common stock has been converted
into an option to purchase shares of the Company's Callable Common Stock, (4)
each warrant to acquire shares of the Company's common stock which was subject
to mandatory exercise upon the consummation of a Qualified IPO (the "Exercised
Warrants") has been converted into the right to receive shares of Callable
Common Stock; and (5) each warrant, other than the Exercised Warrants and
warrants which expired upon the consummation of the Qualified IPO, has been
converted into a callable warrant to purchase shares of Callable Common Stock.
E. Pursuant to the Restated Certificate, the outstanding shares of
Callable Common Stock are subject to redemption by the Company upon the
Company's receipt of a Redemption Notice (as defined in the Restated
Certificate) from PerkinElmer, all upon the terms and subject to the conditions
provided in the Restated Certificate.
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F. PerkinElmer and the Company wish to set forth their agreement and
understanding regarding the Company's redemption of the Callable Common Stock.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. Unless otherwise defined in this Agreement, all
capitalized terms used in this Agreement shall have the meanings ascribed to
them in the Restated Certificate.
2. Redemption of Callable Common Stock. Subject to the provisions of
Article V, Section C3(c) of the Restated Certificate, the Company shall,
promptly upon receipt of a Redemption Notice, designate a depositary (the
"Depositary") for such redemption in accordance with Article V, Section
C3(b)(i)(A) of the Restated Certificate and notify PerkinElmer of such
designation. Upon receipt of written confirmation from the Depositary that the
Depositary has received sufficient funds from PerkinElmer to pay in full the
aggregate Redemption Price in respect of all outstanding shares of Callable
Common Stock, the Company shall give, or cause to be given, the Call
Notification in accordance with Article V, Section C3(a)(iii). The Company will
also issue and disseminate a press release announcing the redemption. In
addition, the Company will notify Nasdaq to suspend trading and will issue stop
transfer instructions to its transfer agent. The redemption date of the Callable
Common Stock shall be the date on which the Company gives the Call Notification
to the Holders. The calculation of the Redemption Price, which shall be made in
accordance with Article V, Section C3(a)(i) of the Restated Certificate, shall
be verified with PerkinElmer prior to the mailing of the Call Notification.
3. Indemnification. PerkinElmer shall indemnify the Company and its
officers and directors against all losses, claims, damages, liabilities and
expenses (including attorneys' fees) arising out of the redemption of the
Callable Common Stock pursuant to the Call in accordance with the provisions of
the Restated Certificate and this Agreement (including, without limitation, in
the event of the Company's consummation of the redemption of Callable Common
Stock in contravention of Section 160 of the Delaware General Corporation Law or
any other law for the protection of creditors), other than any such losses,
claims, damages, liabilities and expenses that result primarily from actions
taken or omitted in bad faith by the indemnified person or from the indemnified
person's gross negligence or willful misconduct.
4. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall
be given as follows:
If to the Company: With a copy to:
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Genomic Solutions Inc. Xxxxx Sugar, Esq.
0000 Xxxxxxx Xxxxx Xxxxx X Jaffe, Raitt, Heuer & Xxxxx,
Xxx Xxxxx, XX 00000 Professional Corporation
Attn: Xxxxxxx X. Xxxxxxxx One Xxxxxxxx Avenue, Ste 2400
Fax: 000-000-0000 Xxxxxxx, XX 00000
Fax: 000-000-0000
If to PerkinElmer: With a copy to:
PerkinElmer, Inc. Xxxxxxx Xxxxxx, Esq.
00 Xxxxxxx Xxxxxx Xxxx xxx Xxxx
Xxxxxxxxx, XX 00000 00 Xxxxx Xxxxxx
Attn: Xxxx Xxxxx Xxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other parties. Each such notice, request or other
communication shall be effective (a) if given by fax, when such fax is
transmitted to the fax number specified in this Section and the appropriate
confirmation is received, or (b) if given by any other means, when delivered at
the address specified in this Section.
5. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by PerkinElmer and the Company, or in the
case of a waiver, by the party against whom the waiver is to be
effective.
(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.
6. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party.
7. Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of Delaware.
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8. Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party shall have received
counterparts hereof signed by the other party.
9. Specific Performance. The Company acknowledges and agrees that
PerkinElmer's and the Company's respective remedies at law for a breach or
threatened breach of any of the provisions of this Agreement would be inadequate
and, in recognition of that fact, agrees that, in the event of a breach or
threatened breach by the Company or PerkinElmer of the provisions of this
Agreement, in addition to any remedies at law, PerkinElmer and the Company,
respectively, without posting any bond shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order, a
temporary or permanent injunction or any other equitable remedy which may then
be available.
10. Termination. This Agreement (other than Section 3 above) shall
terminate at such time as PerkinElmer beneficially owns 100% of the Company's
voting stock.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the day and year first above written.
GENOMIC SOLUTIONS INC.
By:
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Its:
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PERKINELMER, INC.
By:
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Its:
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