AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Exhibit
1
AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT
AGREEMENT,
dated as of May 2, 2007 and effective as of April 4, 2007, among Roche Holding
Ltd, a joint stock company organized under the laws of Switzerland
(“Parent”),
and
the stockholders of BioVeris Corporation, a Delaware corporation (the
“Company”),
that
are parties hereto (each, a “Stockholder”
and,
collectively, the “Stockholders”).
WHEREAS,
in order to induce Parent and Lili Acquisition Corporation, a wholly-owned
subsidiary of Parent (“Sub”),
to
enter into an Agreement and Plan of
Merger,
dated as of the date hereof (the “Merger
Agreement”),
with
the Company, Parent had requested each Stockholder, and each Stockholder had
agreed to enter into a stockholders agreement (the “Stockholders
Agreement”)
with
respect to all shares of common stock, par value $0.001 per share, of the
Company (the “Common Shares”)
and all
shares of Series B Preferred Stock, par value $0.001 per share, of the Company
(the “Preferred
Shares”
and,
together with the Common Shares, the “Shares”)
that
such Stockholder beneficially owned,
WHEREAS,
on April 4, 2007, Parent and the Stockholders entered into the Stockholders
Agreement; and
WHEREAS,
the parties desire to amend and restate in its entirety the Stockholders
Agreement to reflect the accurate ownership of the Stockholders;
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
1
Voting
Agreement
Section
1.01.
Voting Agreement. Each
Stockholder hereby agrees, severally and not jointly, that from and after the
date hereof and until the earliest to occur of (i) the Effective Time, (ii)
the
termination of the Merger Agreement in accordance with its terms, or (iii)
a
Company Adverse Recommendation Change unrelated to a Takeover Proposal (such
earliest occurrence being the "Expiration
Time")
to vote
or cause to be voted all Shares Beneficially Owned by such Stockholder at the
time of any vote to approve and adopt the Merger Agreement and any other
agreements contemplated thereby and any actions directly related thereto at
any
meeting of the stockholders of the Company and any adjournment thereof (a
"Stockholder
Meeting"),
at
which such Merger Agreement and such other related agreements (or any amended
version thereof, other than any amendment which reduces the purchase price,
approved by the board of directors of the Company) or such other actions are
submitted for consideration and vote of the stockholders of the Company (or
pursuant to action by written consent in lieu
of
any
such meeting). Each Stockholder hereby agrees that, until the Expiration Time,
he or she will not vote any Shares in favor of the approval of any (i) Takeover
Proposal, (ii) reorganization, recapitalization, liquidation or winding up
of
the Company or any other extraordinary transaction involving the Company not
contemplated by the Merger Agreement or (iii) corporate action (other than
an
adjournment of the Stockholder Meeting which is recommended by the Board of
Directors of the Company) the consummation of which would frustrate the
purposes, or prevent or delay the consummation, of the transactions contemplated
by the Merger Agreement.
ARTICLE
2
Representations
and Warranties of Each Stockholder
Each
Stockholder hereby, severally and not jointly, represents and warrants to Parent
that:
Section
2.01.
Authorization.
Such
Stockholder has full power and authority to execute and deliver this Agreement,
and to perform such Stockholder’s obligations hereunder. This Agreement has been
duly executed and delivered by such Stockholder and constitutes a valid and
binding obligation of such Stockholder, enforceable against him or her in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and similar laws relating to or affecting
creditors generally.
Section
2.02.
Non-Contravention.
Other
than the filing by such Stockholder of any reports with the SEC, the execution,
delivery and performance by such Stockholder of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (i)
violate any applicable law, rule regulation, judgment, injunction, order or
decree, (ii) require any consent or other action by any person under, constitute
a default under, or give rise to any right of termination, cancellation or
acceleration or to a loss of any benefit to which such Stockholder is entitled
under any provision of any agreement or other instrument binding on such
Stockholder or (iii) result in the imposition of any Lien on any asset of such
Stockholder.
Section
2.03.
Ownership
of Shares.
Such
Stockholders are the Beneficial Owners of the number of Shares set forth
opposite such Stockholders signature on the signature pages hereto (excluding
Shares subject to options), free and clear of any Lien and any other limitation
or restriction (including any restriction on the right to vote or otherwise
dispose of such Shares) except as otherwise set forth in the Company’s proxy
statement for its September 12, 2006 annual meeting. None of such Shares is
subject to any voting trust or other agreement or arrangement with respect
to
the voting of such Shares.
2
ARTICLE
3
Representations
and Warranties of Parent
Parent
represents and warrants to each Stockholder that:
Section
3.01.
Corporate Authorization. The
execution, delivery and performance by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby are within the
corporate powers of Parent and have been duly authorized by all necessary
corporate action. This Agreement constitutes a valid and binding Agreement
of
Parent, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium and similar
laws relating to or affecting creditors generally.
ARTICLE
4
Covenants
of Each Stockholder
Each
Stockholder, severally and not jointly, hereby covenants and agrees
that:
Section
4.01.
No
Proxies for or Encumbrances on Shares.
Except
pursuant to the terms of this Agreement, such Stockholder shall not, without
the
prior written consent of Parent, directly or indirectly, grant any proxies
or
enter into any voting trust or other agreement or arrangement with respect
to
the voting of any Shares.
ARTICLE
5
Miscellaneous
Section
5.01.
Personal Capacity. No
person
executing this Agreement who is or becomes during the term hereof a director
or
officer of the Company makes any agreement or understanding herein in his or
her
capacity as a director or officer of the Company. Each Stockholder signs solely
in his or her capacity as the Beneficial Owner of the Shares and nothing herein
shall limit or affect any actions taken by any Stockholder in his or her
capacity as an officer or director of the Company.
Section
5.02.
Amendments;
Termination.
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. This Agreement shall automatically terminate
upon the Expiration
3
Time.
Upon
termination, all rights and obligations of the parties hereto, and under any
agreement contemplated hereby, will automatically terminate and become void
without further action by any party.
Section
5.03.
Expenses.
All
costs and expenses incurred in connection with this Agreement shall be paid
by
the party incurring such cost or expense.
Section
5.04.
Successors
and Assigns.
Neither
this Agreement nor any right, interest or obligation hereunder may be assigned
by any party hereto, in whole or in part (whether by operation of Law or
otherwise) without the prior written consent of the other parties hereto and
any
attempt to do so will be null and void. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section
5.05.
Governing
Law.
This
Agreement shall construed in accordance with and governed by the laws of the
State of Delaware. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in the Chancery Court of the State
of Delaware or any federal court sitting in the State of Delaware, and the
parties hereto hereby irrevocably submit to the exclusive jurisdiction of such
courts (and, in the case of appeals, appropriate appellate courts therefrom)
in
any such action or proceeding and irrevocably waive the defense of an
inconvenient forum to the maintenance of any such action or proceeding. The
consents to jurisdiction set forth in this paragraph shall not constitute
general consents to service of process in the State of Delaware and shall have
no effect for any purpose except as provided in this paragraph and shall not
be
deemed to confer rights on any Person other than the parties hereto. The parties
hereto agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by applicable Law.
Section
5.06.
No
Waiver.
No
failure or delay by Parent in exercising any right, power or privilege under
this Agreement 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.
Section
5.07.
WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.
Section
5.08.
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.
4
This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
Section
5.09.
Severability.
If any
term, provision or covenant of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
Section
5.10.
Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement is not performed in accordance with the terms hereof
and that the parties shall be entitled to seek specific performance of the
terms
hereof in addition to any other remedy to which they are entitled at law or
in
equity.
Section
5.11.
Consent to Service of Process. Parent
hereby appoints Roche Holdings, Inc., a Delaware corporation (the “Authorized
Agent”), upon whom process may be served in any suit, action or proceeding
arising out of or relating to this Agreement. 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.
ARTICLE
6
Definitions
Capitalized
terms used herein but not defined herein shall have the meaning set forth in
the
Merger Agreement, mutatis
mutandis.
“Beneficial
Owner”
or
“Beneficial
Ownership”
with
respect to any securities means having “beneficial ownership” of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act).
5
IN
WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed
as of
the day and year first above written.
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By:
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/s/
Xxxxx
Xxxxx
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Name: Xxxxx
Xxxxx
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Title: Director
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By:
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/s/
Beat
Kraehenmann
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Name: Beat
Kraehenmann
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Title: Director
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STOCKHOLDERS:
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Shares
of Common Stock Beneficially Owned by Xxxxxx and Xxxxxx
Xxxxxxxxxxx:
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5,597,437*
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/s/
Xxxxxx X.
Xxxxxxxxxxx
XXXXXX
X. XXXXXXXXXXX
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Shares
of Preferred Stock Beneficially Owned by Xxxxxx X.
Xxxxxxxxxxx:
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1,000
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/s/ Xxxxxx
Xxxxxxxxxxx
XXXXXX
XXXXXXXXXXX
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________________
*
Includes
332,000 Options to Purchase Common Stock owned by Xxxxxx and Xxxxxx Xxxxxxxxxxx,
which amount includes vested and unvested Options.
