Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx
March 13, 1998
______________________
______________________
______________________
Ladies and Gentlemen:
This letter is to confirm our agreement regarding all of the _____________
common shares, without par value, (the "Shares") of International Murex
Technologies Corporation, a British Columbia corporation (the "Company") held by
you. In order to induce Xxxxxx Laboratories, an Illinois corporation ("Buyer")
to enter into an Acquisition Agreement, to be dated as of the date hereof
between the Company and Buyer (the "Acquisition Agreement"), you hereby agree as
follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its
terms; (ii) neither the execution of this letter agreement nor the consummation
by you of the transactions contemplated hereby will constitute a violation of,
or conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which you are a party
or by which you or the Shares are bound; and (iii) Buyer or its subsidiary shall
upon purchase of the Shares receive good and marketable title to the Shares,
free and clear of all liens, claims, encumbrances and security interests of any
kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Xxxxx with respect to any matters related to the acquisition of the
Company by Xxxxx and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Xxxxx may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter
agreement and the Acquisition Agreement (i) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
(ii) supersede all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof. This
Agreement is not intended to confer upon any other person any rights or remedies
hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the
Expiration Date. Notwithstanding the foregoing, such right of termination shall
not be available to any party whose breach of any obligation hereunder has been
the cause of or resulted in the failure of the transactions contemplated
hereunder to be consummated. No such termination shall relieve any party from
liability for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and
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not the law of conflicts) of the State of Illinois. Each of the parties shall
pay its own expenses in connection with the execution and performance of this
letter agreement.
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
XXXXXX LABORATORIES
By:
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Name:
Title:
Acknowledged and agreed:
By:
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Name:
Title:
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