TRANSACTION AGREEMENT
Exhibit
3
This
TRANSACTION AGREEMENT,
dated as
of April 4, 2007 (this “Agreement”), is by and between Xxxxxx X. Xxxxxxxxxxx
(the "Stockholder”)
and
Roche Holdings Ltd (“Roche”).
RECITAL
WHEREAS,
Roche
desires to purchase from the Stockholder and the Stockholder desires to sell
to
Roche 1,000 shares of Series B Preferred Stock (collectively referred to herein
as the “Shares”)
of
BioVeris Corporation, a Delaware corporation (the “Company”),
and to
enter into other agreements as herein provided for the consideration and on
the
terms set forth in this Agreement.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants, conditions and agreements
contained herein and for such other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, each
intending to be legally bound hereby, agree as follows:
1. Transactions.
1.1 Purchase
and Sale of Shares. Subject
to
the terms and conditions of this Agreement, at
the
Closing (as defined in Section 1.5), the Stockholder will sell and transfer
to
Roche and Roche will purchase and acquire from the Stockholder, all of the
Stockholder’s right, title and interest in and to the Shares and any claims
associated therewith.
1.2 Release. Effective
immediately upon the Closing, the Stockholder as to himself and his respective
successors, assigns and heirs hereby (a) releases, acquits and forever
discharges the Company and its 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) agree not to bring 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 against any such party (in each case, solely in their capacities
as such) related to or arising out of in the case of (a) and (b) above, any
and
all claims, causes of action, suits, demands or liabilities or obligations,
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 the Company, or any such other persons, which Stockholder has or ever
had that arise out of or in any way relate to the Shares (including the initial
issuance and sale thereof).
1.3 Other
Agreements.
In
connection with this Agreement, the Stockholder has entered into a
Non-Dislcosure and Non-Solicitation Agreement with the Company as of the date
hereof.
1.4 Consideration.
In
consideration of the agreements referred to in Sections 1.1, 1.2 and 1.3 above,
Roche agrees to pay to the Stockholder $2,750,000
(the “Consideration”).
1.5 Closing.
The
closing (the “Closing”)
contemplated by this Agreement shall take place at the offices of Skadden,
Arps,
Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, immediately
prior to the effective time as contemplated by that certain Agreement and Plan
of Merger dated as of the date hereof among Roche
Holdings Ltd, Lili Acquisition Corporation and the Company (the “Merger
Agreement”).
1.6 Delivery.
At the
Closing, (i) Roche shall pay to the Stockholder the Consideration by wire
transfer in immediately available funds to an account designated by the
Stockholder and (ii) the Stockholder shall deliver to Roche a certificate or
certificates representing the Shares,
endorsed
in blank or accompanied by duly executed assignment documents.
2. Representations,
Warranties and Covenants of the Stockholder.
The
Stockholder represents, warrants and covenants to Roche as follows:
2.1 Power
and Authority.
The
Stockholder has full power and authority to enter into this Agreement, perform
his obligations hereunder, sell the Shares and carry out the transactions
contemplated herein. This
Agreement constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against him in accordance with its terms, except
(a) as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditor’s generally and (b) as limited by general principles
of equity that restrict the availability of equitable remedies.
2.2 Title
to the Shares.
The
Stockholder is the record and beneficial owner of the Shares. The Stockholder
owns the Shares free and clear of any
claim,
lien, option, pledge, security interest, right of first refusal, or restriction
of any kind, including any restriction on use, voting, transfer, receipt of
income, or exercise of any other attribute of ownership (each an “Encumbrance”).
2.3 No
Transfer; No Encumbrance.
The
Stockholder shall not offer,
sell or otherwise dispose of any of the Shares prior to the Closing. The
Stockholder shall not cause the Shares to become subject to any Encumbrance
prior to the Closing.
3. Representations
and Warranties of Roche.
Roche
represents and warrants to the Stockholder as follows:
3.1 Corporate
Power and Authority.
Roche
has full power and authority to enter into this Agreement, perform its
obligations hereunder, purchase the Shares and carry out the transactions
contemplated herein. The execution and delivery of this Agreement, the
performance by Roche of its obligations hereunder and the consummation of the
transactions contemplated herein have been duly authorized by all actions on
the
part of Roche required by applicable law and its constituent
documents.
This
Agreement constitutes the legal, valid and binding obligation of Roche,
enforceable against it in accordance with its terms, except (a) as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditor’s generally and (b) as limited by general principles of equity
that restrict the availability of equitable remedies.
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4. Mutual
Covenants; Closing Condition.
4.1 Closing.
Subject
to the conditions of this Agreement, the Stockholder and Roche shall cause
the
Closing to occur immediately prior to the effective time of the merger pursuant
to the Merger Agreement.
4.2 Public
Announcements.
No press
release or announcement concerning the transactions contemplated hereby shall
be
issued by the Stockholder or Roche or any of their affiliates without the prior
consent of the other party hereto, except as such press release or announcement
may be required by law, rule or regulation, in which case the party required
to
issue the release or announcement shall, to the extent practicable, allow the
other party hereto reasonable time to comment on such release or announcement
in
advance of the issuance of such release or announcement, or the press release
contemplated by the Merger Agreement.
4.3 Closing
Condition - Merger Agreement.
All of
the conditions to the closing of the Merger Agreement shall have been satisfied
or waived, except for those conditions that shall be satisfied at the closing
of
the Merger Agreement, and each of the parties to the Merger Agreement shall
have
notified each other party to the Merger Agreement, in writing (with copies
of
such notices having been delivered to the parties hereto) that it is ready,
willing and able to consummate the transactions contemplated by the Merger
Agreement and that it intends to consummate the transactions contemplated by
the
Merger Agreement immediately following the consummations of the transactions
contemplated by this Agreement.
5. Termination.
Notwithstanding anything herein to the contrary, this Agreement shall be
terminated automatically if, prior to the Closing, the Merger Agreement is
terminated in accordance with its terms.
6. Miscellaneous.
6.1 Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing and shall be deemed given if delivered personally, facsimiled (which
is
confirmed) or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses, which addresses can be modified by providing
written notice to the other party:
If
to
Roche, to:
Xxxxxxxxxxxxxxxxx
000
XX-0000
Xxxxx
Xxxxxxxxxxx
Attention:
General Counsel
Facsimile:
x00 00 000 0000
with
a
copy (which shall not constitute notice) to:
3
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxxxxxx Xxxxx, Esq.
Facsimile:
212-450-3800
If
to the
Stockholder, to:
c/o
BioVeris Corporation
00000
Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
President
Facsimile:
(000) 000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
0000
X
Xxxxxx, XX
Xxxxxxxxxx,
Xxxxxxxx xx Xxxxxxxx 00000-0000
Attention:
Xxxxxx X. Xxxxxx, III, Esq.
Facsimile:
(000) 000-0000
6.2 Amendment;
Waiver.
Neither
this Agreement, nor any of the terms or provisions hereof, may be amended,
modified, supplemented or waived, except by a written instrument signed by
the
parties hereto. No waiver of any of the provisions of this Agreement shall
be
deemed or shall constitute a waiver of any other provision hereof, nor shall
such waiver constitute a continuing waiver. No failure of either party to insist
upon strict compliance by the other party with any obligation, covenant,
agreement or condition contained in this Agreement shall operate as a waiver
of,
or estoppel with respect to, any subsequent or other failure.
6.3 Severability.
Each
term and provision of this Agreement constitutes a separate and distinct
undertaking, covenant, term or provision hereof. In the event that any term
or
provision of this Agreement shall be determined to be unenforceable, invalid
or
illegal in any respect, such unenforceability, invalidity, or illegality shall
not affect any other term or provision of this Agreement, but this Agreement
shall be construed as if such unenforceable, invalid or illegal term or
provision had never been contained herein.
6.4 Entire
Agreement.
This
Agreement contains, and is intended as, a complete statement of all the terms
and arrangements between the parties with respect to the matters provided for,
supersedes any previous agreements and understandings between the parties with
respect to those matters and cannot be changed or terminated
orally.
6.5 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, applicable to contracts executed in and to be performed
entirely in that state, without regard to conflicts of laws
principles.
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6.6 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original of the party executing the same and all of which,
when
taken together, will be deemed to constitute one and the same
agreement.
[Signature
Page Follows]
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/ Xxxx Xxxxxxxxxxx | |
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Name: Xxxx
Xxxxxxxxxxx
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Title: Director
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STOCKHOLDER:
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/s/
Xxxxxx X. Xxxxxxxxxxx
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Shares
of Preferred Stock Beneficially Owned:
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1,000 |
XXXXXX
X. XXXXXXXXXXX
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