VOTING AGREEMENT
Exhibit 10.1
VOTING AGREEMENT, dated as of December ___, 2006 (this “Agreement”), by and among each of the
shareholders identified in Schedule I hereto (each of the foregoing, a “Shareholder” and,
collectively, the “Shareholders”) and Luminex Corporation, a Delaware corporation (“Parent”).
WHEREAS, concurrently with the execution of this Agreement, Parent and Tm Bioscience
Corporation, a corporation existing under the laws of the Province of Ontario (“TMB” or the
“Company”), are entering into a Merger Agreement, dated as of the date hereof (as amended,
supplemented, restated or otherwise modified from time to time, the “Merger Agreement”) pursuant to
which, among other things, Parent proposes to acquire (the “Arrangement”) all of the outstanding
common shares in the capital of the Company (the “Common Shares”) by way of a Plan of Arrangement
under the Business Corporations Act (Ontario).
WHEREAS, as of the date hereof, each Shareholder Beneficially Owns the number of Common Shares
set forth opposite such Shareholder’s name on Schedule I hereto.
WHEREAS, as a condition and inducement to Parent entering into the Merger Agreement, Parent
has required that the Shareholders agree, and the Shareholders have agreed, to enter into this
agreement and abide by the covenants and obligations with respect to the Covered Shares set forth
herein.
NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Capitalized Terms. For the purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective means ascribed to them in
the Merger Agreement
Section 1.02 Other Definitions. The following capitalized terms, as used in
this Agreement, shall have the meanings set forth below.
(a) “Beneficial Ownership” by a person of any securities includes ownership by any
person who, directly or indirectly, through any contract, arrangement, understanding, relationship
or otherwise, has or shares (i) voting power which includes the power to vote, or to direct the
voting of, such security; and/or (ii) investment power which includes the power to dispose, or to
direct the disposition, of such security, and shall include “beneficial ownership” as defined in
the Securities Act; provided that for purposes of determining Beneficial Ownership, a person shall
be deemed to be the Beneficial Owner of any securities which such person has, at any time during
the term of this Agreement, the right to acquire upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise (irrespective of whether the right to acquire such
securities is exercisable immediately or only after the passage of time, including the passage of
time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “Beneficially Own” and “Beneficially Owned” shall have a
correlative meaning.
- 2 -
(b) “control” (including the terms “controlled by” and “under common control
with”), with respect to the relationship between or among two or more persons, means the
possession, directly or indirectly, of the power to direct or cause the direction of the affairs or
management of a person, whether through the ownership of voting securities, as trustee or executor,
by contract or any other means.
(c) “Covered Shares” means, with respect to any Shareholder, such Shareholder’s
Existing Shares, together with any Common Shares or other voting share capital of the Company and
any securities convertible into or exercisable or exchangeable for Common Shares or other voting
share capital of the Company, in each case that such Shareholder acquires Beneficial Ownership of
on or after the date hereof
(d) “Encumbrance” means any security interest, pledge, mortgage, lien (statutory or
other), charge, option to purchase, lease or other right to acquire any interest or any claim,
restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other
encumbrance of any kind or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement), excluding restrictions under securities laws.
(e) “Existing Shares” means, with respect to each Shareholder, the number of Common
Shares Beneficially Owned (and except as may be set forth on Schedule I hereto, owned of
record) by such Shareholder, as set forth opposite such Shareholder’s name on Schedule I
hereto.
(f) “person” means any individual, corporation, limited liability company, limited
or general partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any other entity, or any
group comprised of two or more of the foregoing.
(g) “Representatives” means the officers, directors, employees, agents, advisors
and Affiliates of a person.
(h) “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge,
encumber, hypothecate or similarly dispose of (by merger (including by conversion into securities
or other consideration), by tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise), or to enter into any contract, option or other
arrangement or understanding with respect to the voting of or sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of (by merger, by tendering into any tender or
exchange offer, by testamentary disposition, by operation of law or otherwise).
ARTICLE II
VOTING
Section 2.01 Agreement to Vote. Each Shareholder hereby irrevocably and
unconditionally agrees that during the term of this Agreement, at the TMB Meeting and at any other
meeting of the Shareholders of the Company, however called, including any adjournment or
postponement thereof, such Shareholder shall, in each case to the fullest extent that the Covered
Shares are entitled to vote thereon:
- 3 -
(a) appear at each such meeting or otherwise cause the Covered Shares as to which
such Shareholder controls the right to vote to be counted as present thereat for purposes of
calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, all of the Covered Shares
as to which such Shareholder controls the right to vote (i) in favor of the approval and adoption
of the Arrangement; (ii) against any action or agreement that is in opposition to, or competitive
or inconsistent with, the Arrangement or that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company contained in the
Merger Agreement, or of such Shareholder contained in this Agreement; and (iii) against any TMB
Acquisition Proposal and against any other action, agreement or transaction that is prohibited by
the Merger Agreement or that would otherwise interfere with, delay, postpone, discourage, frustrate
the purposes of or adversely affect the Arrangement or the other transactions contemplated by the
Merger Agreement or this Agreement or the performance by the Company of its obligations under the
Merger Agreement or by such Shareholder of its obligations under this Agreement, including: (A) any
extraordinary corporate transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries (other than the Arrangement); (B) a sale, lease or
transfer of a material amount of assets of the Company or any of its Subsidiaries or any
reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (C) an
election of new members to the board of directors of the Company, other than nominees to the board
of directors of the Company in office on the date of this Agreement; (D) any change in the present
capitalization or dividend policy of the Company or any amendment or other change to the Company’s
certificate of incorporation or bylaws, except if approved by Parent; or (E) any other change in
the Company’s corporate structure.
Section 2.02 No Inconsistent Agreements. Each Shareholder hereby covenants
and agrees that, except for this Agreement, such Shareholder (a) has not entered into, and shall
not enter into at any time while this Agreement remains in effect, any voting agreement or voting
trust with respect to the Covered Shares, (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy, consent or power of attorney with respect to the
Covered Shares and (c) has not taken and shall not knowingly take any action that would make any
representation or warranty of such Shareholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Shareholder from performing any of its obligations under
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER
Each Shareholder hereby represents and warrants severally (and not jointly and severally), to
Parent as follows:
Section 3.01 Organization; Authorization; Validity of Agreement; Necessary
Action. Each Shareholder that is not an individual is duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its incorporation. Each Shareholder has
full power and capacity to execute and deliver this Agreement, to perform such Shareholder’s
obligations hereunder and to consummate the transactions contemplated hereby. The execution and
delivery by such Shareholder of this Agreement, the performance by it of its obligations hereunder
and the consummation by it of the transactions contemplated hereby have been duly and validly
authorized by such Shareholder and no other actions or
- 4 -
proceedings on the part of such Shareholder or any shareholder thereof are necessary to
authorize the execution and delivery by it of this Agreement, the performance by it of its
obligations hereunder or the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Shareholder and, assuming this Agreement
constitutes a valid and binding obligation of the other parties hereto, constitutes a legal, valid
and binding obligation of such Shareholder, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws
affecting the rights of creditors generally and the availability of equitable remedies (regardless
of whether such enforceability is considered in a proceeding in equity or at law).
Section 3.02 Ownership. Schedule I sets forth, opposite each
Shareholder’s name, the number of Common Shares over which such Shareholder has beneficial
ownership as of the date hereof. Each Shareholder’s Existing Shares are, and all of the Covered
Shares owned by such Shareholder from the date hereof through and on the Closing Date will be,
Beneficially Owned by such Shareholder. As of the date hereof, such Shareholder’s Existing Shares
constitute all of the Common Shares Beneficially Owned or owned of record by such Shareholder.
Other than in connection with the Company’s stock option or other incentive plans, no Shareholder
nor any Affiliate of a Shareholder owns or holds any right to acquire any additional shares of any
class of capital stock of the Company or other securities of the Company or any interest therein or
any voting rights with respect to any securities of the Company.
Section 3.03 No Violation. The execution and delivery of this Agreement by
each Shareholder does not, and the performance by such Shareholder of its obligations under this
Agreement will not, (i) conflict with or violate the certificate of incorporation, bylaws or other
comparable governing documents, as applicable, of such Shareholder, (ii) conflict with or violate
any law, ordinance or regulation of any Governmental Entity applicable to the Shareholder or by
which any of its assets or properties is bound, or (iii) conflict with, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of any Encumbrance on the properties or assets of the Shareholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Shareholder is a party or by which such Shareholder or
any of its assets or properties is bound, except for any of the foregoing as could not reasonably
be expected, either individually or in the aggregate, to impair the ability of such Shareholder to
perform its obligations hereunder on a timely basis.
Section 3.04 Consents and Approvals. The execution and delivery of this
Agreement by each Shareholder does not, and the performance by such Shareholder of its obligations
under this Agreement and the consummation by it of the transactions contemplated hereby will not,
require such Shareholder to obtain any consent, approval, authorization or permit of, or to make
any filing with or notification to, any Governmental Entity.
Section 3.05 Absence of Litigation. There is no claim, action, proceeding
or investigation pending or, to the knowledge of any Shareholder, threatened against or affecting
any Shareholder or any of their respective Affiliates before or by any Governmental Entity that
could reasonably be expected to impair the ability of any Shareholder to perform its obligations
hereunder on a timely basis.
Section 3.06 Reliance by Parent. Each Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon each Shareholder’s
execution and delivery of this Agreement and the representations and warranties of such Shareholder
contained herein.
- 5 -
ARTICLE IV
OTHER COVENANTS
Section 4.01 Prohibition on Transfers, Other Actions. Each Shareholder
hereby agrees not to (i) Transfer any of its Covered Shares, Beneficial Ownership thereof or any
other interest therein; (ii) enter into any agreement, arrangement or understanding with any
person, or take any other action, that violates or conflicts with or would reasonably be expected
to violate or conflict with, or result in or give rise to a violation of or conflict with, such
Shareholder’s representations, warranties, covenants and obligations under this Agreement; or (iii)
take any action that could restrict or otherwise affect such Shareholder’s legal power, authority
and right to comply with and perform its covenants and obligations under this Agreement. Any
Transfer in violation of this provision shall be void. Each Shareholder also agrees not to engage
in any transaction with respect to any of the Covered Shares with the primary purpose of depriving
Parent of the intended benefits of this Agreement.
Section 4.02 Stock Dividends, etc. In the event of a stock split, stock
dividend or distribution, or any change in the Common Shares by reason of any split-up, reverse
stock split, recapitalization, combination, reclassification, exchange of shares or the like, the
terms “Existing Shares” and “Covered Shares” shall be deemed to refer to and include such shares as
well as all such stock dividends and distributions and any securities into which or for which any
or all of such shares may be changed or exchanged or which are received in such transaction.
Section 4.03 No Solicitation. Except only and to the limited extent as may
otherwise be specifically permitted pursuant to Sections 4.4 and 4.5 the Merger Agreement, each
Shareholder hereby agrees that during the term of this Agreement he, she or it shall not, and shall
not permit any of his, her or its Subsidiaries, Affiliates or Representatives to, directly or
indirectly through another person, (i) solicit, initiate, knowingly encourage or facilitate
(including by way of furnishing information or entering into any form of agreement, arrangement or
understanding) the initiation of any inquiries or proposals regarding a TMB Acquisition Proposal,
(ii) participate in any discussions or negotiations regarding any TMB Acquisition Proposal, or
(iii) enter into any agreement, arrangement or understanding related to any TMB Acquisition
Proposal. Each Shareholder hereby represents that, as of the date hereof, it is not engaged in any
discussions or negotiations with respect to any TMB Acquisition Proposal and agrees immediately to
cease and cause to be terminated all discussions or negotiations with any person conducted
heretofore with any person other than Parent with respect to any proposal that constitutes, or may
reasonably be expected to lead to, a TMB Acquisition Proposal, and will take the necessary steps to
inform its affiliates and Representatives of the obligations undertaken by such Shareholder
pursuant to this Agreement, including this Section 4.03. Each Shareholder also agrees that any
violation of this Section 4.03 by any of its affiliates or Representatives shall be deemed to be a
violation by such Shareholder of this Section 4.03.
Section 4.04 Directors’ Duties. Notwithstanding Section 4.03, if
an individual Shareholder is also a director or officer of the Company, the foregoing provisions
shall not prevent such Shareholder, when acting solely in his role as a director or officer of the
Company from (i) providing information, as required by law, or making disclosures to the Company’s
shareholders, as required by law, with respect to any submission or proposal unsolicited after
November 17, 2006 regarding a TMB Acquisition Proposal, if in the opinion of the Company’s board of
directors, following consultation with outside counsel, such response or disclosures are required
by applicable law or (ii) otherwise acting in a manner strictly consistent with the limited and
permitted exceptions provided in Sections 4.4 and 4.5 of the Merger Agreement.
- 6 -
Section 4.05 Notice of Acquisitions, Proposals Regarding Prohibited
Transactions.
(a) Each Shareholder hereby agrees to notify Parent in writing of the number of any
additional Common Shares or other securities of the Company of which such Shareholder acquires
Beneficial Ownership on or after the date hereof, such notice to be delivered by such Shareholder
as promptly as practicable (and in any event within three Business Days of such acquisition).
(b) Each Shareholder hereby agrees to notify Parent as promptly as practicable (and
in any event within 24 hours after receipt) in writing of any inquiries or proposals (other than
inquiries or proposals which are made to TMB itself), which are received by, any information which
is requested from, or any negotiations or discussions which are sought to be initiated or continued
with, such Shareholder or any of its affiliates with respect to any TMB Acquisition Proposal or any
other matter referred to in Section 4.03 (including the material terms thereof and the identity of
such person(s) making such inquiry or proposal, requesting such information or seeking to initiate
or continue such negotiations or discussions, as the case may be). Such Shareholder will keep
Parent fully informed in all material respects of any related developments, discussions and
negotiations relating to the matters described in the preceding sentence (including any change to
the proposed terms thereof) and shall provide to Parent as soon as practicable after receipt or
delivery thereof copies of all correspondence and other written materials sent or provided to such
Shareholder or any of its Subsidiaries from any person that describes the terms or conditions of
any TMB Acquisition Proposal or other proposal that is the subject of any such inquiry, proposals
or information requests.
Section 4.06 Waiver of Appraisal Right. To the fullest extent permitted by
applicable law, each Shareholder hereby waives any rights of appraisal or rights to dissent from
the Merger that it may have under applicable Law.
Section 4.07 Fiduciary obligations. Parent agrees and acknowledges that the
Shareholders are bound hereunder solely in their capacity as shareholders of the Company and that
the provisions hereof shall not be deemed or interpreted to bind them in their capacity as
directors or officers of the Company.
Section 4.08 Further Assurances. From time to time, at Parent’s request and
without further consideration, each Shareholder shall execute and deliver such additional documents
and take all such further action as may be reasonably necessary to effect the actions and
consummate the transactions contemplated by this Agreement. Without limiting the foregoing, each
Shareholder hereby authorizes Parent and the Company to publish and disclose in any announcement or
disclosure required by applicable Law or in the Circular such Shareholder’s identity and ownership
of its Covered Shares and the nature of such Shareholder’s obligations under this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.01 Termination. This Agreement shall remain in effect until the
earlier to occur of (i) the Effective Time and (ii) the date of termination of the Merger Agreement
in accordance with its terms, and after the occurrence of such applicable event this Agreement
shall terminate and be of no further force; provided, however, that (A) each
Shareholder shall have the right to terminate this Agreement by written notice to Parent if the
terms of the Merger Agreement are amended or waived without the written consent of such
Shareholder, but only if such amendment or waiver creates any additional condition to the
consummation of the Merger, decreases the value of the consideration to be received by the
Shareholders
- 7 -
in the Merger, changes the form of the consideration to be received by the Shareholders in the
Merger or otherwise adversely affects such Shareholder in any material respect. The provisions of
this Section 5.01 and of Sections 5.05 through 5.13 shall survive any termination of this
Agreement. Nothing in this Section 5.01 and no termination of this Agreement shall relieve or
otherwise limit any party of liability for breach of this Agreement.
Section 5.02 No Control. Nothing contained in this Agreement shall give
Parent the right to control or direct the Company or the Company’s operations.
Section 5.03 No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or
with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to
the Covered Shares shall remain vested in and belong to the Shareholders, and Parent shall have no
authority to direct any Shareholder in the voting or disposition of any of the Covered Shares,
except as otherwise provided herein.
Section 5.04 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied (upon telephonic
confirmation of receipt), on the first Business Day following the date of dispatch if delivered by
a recognized next day courier service or on the third Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, post prepaid. All notices
hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
| (a) | If to Parent, at: |
Bass, Xxxxx & Xxxx PLC
Amsouth Center
Suite 2700
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Amsouth Center
Suite 2700
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with copies (which shall not constitute notice) to:
Blake, Xxxxxxx & Xxxxxxx LLP
World Exchange Plaza
20th Floor
45 O’Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxx
World Exchange Plaza
20th Floor
45 O’Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxx
Attention: Xxxx Xxxxxxx
Telecopier No.: 613-788-2247
Telecopier No.: 613-788-2247
| (b) | if to any Shareholder, to: |
- 8 -
with copies (which shall not constitute notice) to:
| (c) | if to the Company, to: |
Tm Bioscience Corporation:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute Notice) to:
Stikeman Elliott LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxxxx and Xxxxxxx Pogrin
Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Section 5.05 Interpretation. The words “hereof” “herein” and “hereunder”
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, and Section references are to this Agreement
unless otherwise specified. 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 meanings
given to terms defined herein shall be equally applicable to both the singular and plural forms of
such terms. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This
Agreement is the product of negotiation by the parties having the assistance of counsel and other
advisers. It is the intention of the parties that this Agreement not be construed more strictly
with regard to one party than with regard to the others.
Section 5.06 Counterparts. This Agreement may be executed by facsimile and
in counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same counterpart.
Section 5.07 Entire Agreement. This Agreement and, to the extent referenced
herein, the Merger Agreement, together with the several agreements and other documents and
instruments referred to herein or therein or annexed hereto or thereto, embody the complete
agreement and understanding among the parties hereto with respect to the subject matter hereof and
supersede and preempt any prior understandings, agreements or representations by or among the
parties, written and oral, that may have related to the subject matter hereof in any way.
- 9 -
Section 5.08 Governing Law; Specific Performance; Consent to Jurisdiction;
Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the Laws
of the Province of Ontario, regardless of the Laws that might otherwise govern under applicable
principles of conflicts of Laws thereof
(b) The parties agree that irreparable damage would occur and that the parties
would not have any adequate remedy at law 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,
this being in addition to any other remedy to which they are entitled at law or in equity.
(c) Each party hereto hereby waives, to the fullest extent permitted by applicable
Law, any right it may have to a trial by jury in respect of any suit, action or other proceeding
arising out of this Agreement or the transactions contemplated hereby. Each party hereto (i)
certifies that no representative, agent or attorney of any other party has represented, expressly
or otherwise, that such party would not, in the event of any action, suit or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement, by, among other things, the mutual waiver and certifications
in this Section 5.09.
Section 5.09 Amendment; Waiver. This Agreement may not be amended except by
an instrument in writing signed by Parent and each Shareholder. Each party may waive any right of
such party hereunder by an instrument in writing signed by such party and delivered to Parent and
the Shareholders.
Section 5.10 Remedies.
(a) Each party hereto acknowledges that monetary damages would not be an adequate
remedy in the event that any covenant or agreement in this Agreement is not performed in accordance
with its terms, and it is therefore agreed that, in addition to and without limiting any other
remedy or right it may have, the non-breaching party will have the right to an injunction,
temporary restraining order or other equitable relief in any court of competent jurisdiction
enjoining any such breach and enforcing specifically the terms and provisions hereof. Each party
hereto agrees not to oppose the granting of such relief in the event a court determines that such a
breach has occurred, and to waive any requirement for the securing or posting of any bond in
connection with such remedy.
(b) All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be cumulative and not alternative, and the
exercise or beginning of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such party.
Section 5.11 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
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 to the
- 10 -
fullest extent permitted by applicable Law in an acceptable manner to the end that the
transactions contemplated by this Agreement are fulfilled to the extent possible.
Section 5.12 Successors and Assigns; Third Party Beneficiaries. Neither
this Agreement nor any of the rights or obligations of any party under this Agreement shall be
assigned, in whole or in part (by operation of law or otherwise), by any party without the prior
written consent of the other parties hereto. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by the parties hereto and their respective heirs,
executors, successors and permitted assigns, as the case may be. Nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties hereto or their respective
heirs, executors, successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where
applicable, by their respective officers or other authorized person thereunto duly authorized) as
of the date first written above.
| LUMINEX CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE I
Beneficial Ownership of Covered Shares
| Name and Address of Shareholder | Covered Shares |
See attached schedule
