EXHIBIT 10.21
IRREVOCABLE POWER OF ATTORNEY
AND CUSTODY AGREEMENT
by and among
Xxxxxxx X. Xxxxx, Xx. and Xxxxxxx X. Xxxxx
as Attorneys-in-Fact,
Packard BioScience Company
as Custodian and Company,
and
The Shareholders of Packard BioScience Company listed in Schedule I hereto
IRREVOCABLE POWER OF ATTORNEY
AND CUSTODY AGREEMENT
Xxxxxxx X. Xxxxx, Xx.
As Attorney-in-Fact
c/o Packard BioScience Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx X. Xxxxx
As Attorney-in-Fact
c/o Day, Xxxxx & Xxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Packard BioScience Company
For the Custodian and the Company
c/o Xxxxxxx X. Xxxxx, Xx.
Vice President, General Counsel and Secretary
Packard BioScience Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Chase Securities Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Banc of America Securities LLC
Xxxxxx Xxxxxx Partners LLC
As U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx International
Chase Securities Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Bank of America International Limited
Xxxxxx Xxxxxx International Limited
As Lead Managers of the Several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
0
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
The undersigned Shareholder (the "UNDERSIGNED") of Packard
BioScience Company, a Delaware corporation (the "COMPANY"), and the other
Shareholders of the Company listed in Schedule I attached hereto (the
undersigned and such other Shareholders being hereinafter collectively referred
to as the "SELLING SHAREHOLDERS") will enter into (i) a U.S. Purchase Agreement
(the "U.S. PURCHASE AGREEMENT"), among the Company, the Selling Shareholders and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Chase
Securities Inc., Xxxxxx X. Xxxxx & Co. Incorporated, Banc of America Securities
LLC, and Xxxxxx Xxxxxx Partners LLC, as representatives (the "U.S.
REPRESENTATIVES") of the several U.S. underwriters listed in Schedule A to the
U.S. Purchase Agreement (the "U.S. UNDERWRITERS"); and (ii) an International
Purchase Agreement (the "INTERNATIONAL PURCHASE AGREEMENT"), among the Company
and the Selling Shareholders and Xxxxxxx Xxxxx International Limited, Chase
Securities Inc., Xxxxxx X. Xxxxx & Co. Incorporated, Bank of America
International Limited, and Xxxxxx Xxxxxx International Limited, as lead managers
(the "LEAD MANAGERS") of the several international managers in Schedule A to the
International Purchase Agreement (the "MANAGERS" and together with the U.S.
Underwriters, the "UNDERWRITERS") pursuant to which each Selling Shareholder
will grant an option to the Underwriters to purchase up to the number of shares
of common stock, par value $.002 per share (the "COMMON STOCK") set forth
opposite such Selling Shareholder's name in Schedule B to the U.S. Purchase
Agreement and the International Purchase Agreement (the "OPTION SHARES"). The
U.S. Purchase Agreement and the International Purchase Agreement are
collectively hereinafter referred to as the "PURCHASE AGREEMENTS". Capitalized
terms used herein but not otherwise defined herein have the meanings ascribed
thereto in the Purchase Agreements.
The undersigned understands that the Company has filed with the
Securities and Exchange Commission (the "COMMISSION") a Registration Statement
on Form S-1 (the "REGISTRATION STATEMENT") in connection with the initial public
offering (the "OFFERING") of shares of its Common Stock. The undersigned and
each of the other Selling Shareholders have elected to sell their respective
Option Shares in the Offering. Accordingly, the Registration Statement will be
registered under the Securities Act of 1933, as amended (the "1933 ACT"),
covering the Option Shares to be granted by each of the Selling Shareholders.
The undersigned, by executing and delivering this Irrevocable Power of
Attorney and Custody Agreement (the "AGREEMENT"), confirms the undersigned's
willingness and intent to sell its Option Shares to the Underwriters pursuant to
the Purchase Agreements, and agrees, simultaneously with the execution and
delivery hereof, to cause the deposit of such Option Shares with Packard
BioScience Company, acting in its capacity as custodian hereunder (solely in
such capacity, the "CUSTODIAN"), all as hereinafter provided.
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The undersigned hereby acknowledges receipt of (i) a form of U.S.
Purchase Agreement (a copy of which is attached hereto as Exhibit A) and form of
International Purchase Agreement (a copy of which is attached hereto as Exhibit
B) (collectively, the "DRAFT PURCHASE AGREEMENTS"), and (ii) copies of the U.S.
Preliminary Prospectus and the International Preliminary Prospectus, each dated
March 23, 2000, to be used in connection with the Offering. The undersigned
understands that the Purchase Agreements are subject to revision before
execution, with such changes as the Attorneys-in-Fact referred to below deem
appropriate (including with respect to the number of Option Shares of Common
Stock to be granted), and that the Registration Statement has not yet become
effective under the 1933 Act and is subject to amendment.
To induce the U.S. Underwriters and the Company to enter into the U.S.
Purchase Agreement, and the Managers and the Company to enter into the
International Purchase Agreement, and to secure their performance, the
undersigned agrees as follows:
1. APPOINTMENT OF ATTORNEYS-IN-FACT; GRANT OF AUTHORITY. For purposes
of effecting the sale of the undersigned's Option Shares pursuant to the
Purchase Agreements, the undersigned irrevocably makes, constitutes and appoints
Xxxxxxx X. Xxxxx, Xx. and Xxxxxxx X. Xxxxx and each of them, true and lawful
agents and attorneys-in-fact of the undersigned (each, an "ATTORNEY-IN-FACT"
and, collectively, the "ATTORNEYS-IN-FACT"), each with full power and authority,
subject to the terms and provisions hereof, to act hereunder, individually,
collectively, or through duly appointed successor attorneys-in-fact, in his or
their sole discretion (it being understood and agreed that the Attorneys-in-Fact
may, unless otherwise specified herein, act individually), all as hereinafter
provided, in the name of and for and on behalf of the undersigned, as fully as
could the undersigned if present and acting in person, with respect to the
following matters in connection with and necessary and incident to the
registration and sale of the undersigned's Option Shares in the Offering:
(a) to authorize and direct the Custodian and any other person or
entity to take any and all actions as may be necessary or deemed to be
advisable by the Attorneys-in-Fact or any of them to effect the sale,
transfer and disposition of any or all of the undersigned's Option Shares
in the Offering as the Attorneys-in-Fact or any of them may, in their sole
discretion, determine, including to direct the Custodian to deliver to the
U.S. Representatives and Lead Managers certificates evidencing any or all
of the Option Shares with appropriate stock powers or other instruments of
transfer duly endorsed or in blank, to effect the sale of any or all of the
Option Shares to the Underwriters pursuant to the terms of the Purchase
Agreements in the Offering;
(b) to execute and deliver the Purchase Agreements on behalf of the
undersigned, substantially in the forms of the Draft Purchase Agreements,
with such changes therein as the Attorneys-in-Fact or any of them, in their
sole discretion may determine (it being understood that the legal opinions
and "comfort" letters to be delivered pursuant to the Purchase Agreements
have not, at the date hereof, been negotiated), the execution and delivery
of such Purchase Agreements by any Attorneys-
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in-Fact to be conclusive evidence with respect to their approval thereof,
and carry out and comply with each and all of the provisions of the
Purchase Agreements;
(c) to take any and all actions that may be necessary or deemed to be
advisable by the Attorneys-in-Fact, or any of them, in their sole
discretion, with respect to the Registration Statement, including, without
limitation, the execution, acknowledgment and delivery of any certificates,
documents and consents which may be required by the Commission, appropriate
authorities of states or other jurisdictions, the Underwriters or legal
counsel or such certificates, documents and consents as may otherwise be
necessary or appropriate in connection with the registration of the Option
Shares under the 1933 Act or the securities or blue sky laws of the various
states and foreign jurisdictions or necessary to facilitate sales of the
Option Shares; and
(d) to take or cause to be taken any and all further actions, and
execute and deliver, or cause to be executed and delivered, any and all
such certificates, instruments, documents, stock certificates and share
powers and other instruments of transfer and closing as may be required by
the Purchase Agreements or as may otherwise be necessary or deemed to be
advisable by the Attorneys-in-Fact, or any of them, in connection
therewith, with such changes or amendments thereto as the Attorneys-in-Fact
or any of them may, in their sole discretion, approve (such approval to be
evidenced by their signature thereof), as may be necessary or desirable by
the Attorneys-in-Fact or any of them to effectuate, implement and otherwise
carry out the transactions contemplated by the Purchase Agreements and this
Agreement, or as may be necessary or deemed to be desirable by the
Attorneys-in-Fact, or any of them, in connection with the registration of
the Option Shares, pursuant to the 1933 Act or the securities or blue sky
laws of the various states and foreign jurisdictions, or the sale of the
Option Shares to the Underwriters.
2. TERMS OF SALE. The undersigned agrees that, in the event and only
in the event the Company has executed and delivered, or has agreed
to execute and deliver, the Purchase Agreements, then the Attorneys-in-Fact, or
any of them, acting individually shall be irrevocably directed and obligated to:
(a) execute and deliver the Purchase Agreements on behalf of the
undersigned at such time that the price to the public, the purchase price
to be paid by the Underwriters and the underwriting discount are determined
in accordance with the terms and conditions of the Purchase Agreements and
as set forth in Section 3 hereof;
(b) authorize and direct the Custodian and any other person or entity
to take any and all actions as may be necessary or deemed to be advisable
by the Attorneys-in-Fact or any of them, in their sole discretion, to
effect the sale, transfer and disposition
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of the undersigned's Option Shares in the Offering and to deliver, or cause
to be delivered, certificates representing the undersigned's Option Shares
so sold, transferred and disposed of to the U.S. Representatives and the
Lead Managers at the Closing Time or any Date of Delivery all in accordance
with the terms and conditions of the Purchase Agreements; and
(c) authorize and direct the Custodian to return to the undersigned
any of the undersigned's Option Shares not sold in the Offering.
3. SOLE AUTHORITY OF ATTORNEYS-IN-FACT AND THE COMPANY. The
undersigned agrees that each and any Attorney-in-Fact has the sole authority to
agree with the Underwriters upon the price at which the Option Shares will be
sold to the public, the purchase price to be paid by the Underwriters and the
underwriting discount in the Offering. The undersigned further agrees that,
prior to the execution of the Purchase Agreements, the Company may withdraw the
Registration Statement and terminate the Offering in its sole discretion for any
reason whatsoever or for no reason, without any liability to any Selling
Shareholder. Following execution of the Purchase Agreements, termination of the
Offering by any party will be governed by the terms and conditions of the
Purchase Agreements.
4. IRREVOCABILITY. The undersigned has conferred and granted the power
of attorney and all other authority contained herein for the purpose of
completing the Offering and in consideration of the actions of the Company and
the Underwriters in connection therewith. Therefore, the undersigned hereby
agrees that all power and authority hereby conferred is coupled with an interest
and is irrevocable and, to the fullest extent not prohibited by law, shall not
be terminated by any act of the undersigned or by operation of law or by the
occurrence of any event whatsoever, including, without limitation, the death,
incapacity, bankruptcy, dissolution of marital relationship or insolvency of the
undersigned or any similar event. If, after the execution of this Agreement, any
such event shall occur before the completion of the transactions contemplated by
the Purchase Agreements and/or this Agreement, the Attorneys-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of such
transactions, including the delivery of the certificates for the undersigned's
Option Shares to be sold to the Underwriters, as if such event had not occurred
and regardless of notice thereof.
5. DEPOSIT AND DELIVERY OF OPTION SHARES. The undersigned hereby
appoints the Company as Custodian (in such capacity, the "CUSTODIAN") to hold
the undersigned's Option Shares and to deliver or to dispose of them in
accordance with the instructions of the Attorneys-in-Fact or any of them as set
forth herein, with full power in the name of, and for and on behalf of, the
undersigned.
(a) If stock certificates with respect to the undersigned's Option
Shares are in the undersigned's possession, the undersigned has delivered
to and deposited such certificates with the Custodian upon execution of
this Agreement, duly endorsed to the Company or in blank, or accompanied by
proper instruments of transfer to the Company or in blank.
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(b) If certificates for any of the undersigned's Option Shares are to
be delivered to the Custodian by someone other than the undersigned, the
undersigned hereby agrees to deliver to and deposit with the Custodian an
irrevocable stock power duly executed in blank.
(c) The undersigned authorizes and directs the Custodian, upon
appropriate instructions from the Attorneys-in-Fact, to deliver to the
Underwriters such of the undersigned's Option Shares as are to be purchased
by the Underwriters under the Purchase Agreements and to deliver, or cause
to be delivered, certificates representing such Option Shares to the U.S.
Representatives and the Lead Managers at the Closing Time or any Date of
Delivery against receipt of payment therefor.
(d) The undersigned hereby authorizes and directs the
Attorneys-in-Fact and the Custodian to issue appropriate receipts to the
Underwriters in the name of the undersigned as payee. If any Option Shares
are sold pursuant to the Purchase Agreements then the undersigned also
authorizes and directs the Attorneys-in-Fact and the Custodian to
acknowledge on behalf of the undersigned receipt of the Option Securities
by the Underwriters.
6. THE CUSTODIAN. The Custodian's execution of this Agreement shall
constitute the acceptance by the Custodian of the agency herein conferred, and
shall evidence its agreement to carry out and perform its duties under this
Agreement in accordance with the provisions hereof; subject, however, to the
following terms and conditions, which all signatories hereto agree shall govern
and control the rights, duties and immunities of the Custodian:
(a) The Custodian, in its capacity as Custodian, shall have no duties
to the undersigned hereunder except those expressly set forth herein and
shall not be liable in such regard except for the performance of such
duties as are specifically set out herein, subject to Section 10 hereof.
The Custodian shall not be responsible for the performance of the powers of
attorney contained herein by any signatory hereto, or for the
interpretation of any of the provisions of such powers of attorney.
(b) If a controversy arises between two or more of the Selling
Shareholders, or between any of the Selling Shareholders and any other
person, as to whether or not or to whom the Custodian shall deliver the
certificates for the Option Shares or any funds held by it, or as to any
other matter arising out of or relating hereto or to the property held by
the Custodian hereunder or as to the interpretation of this Agreement
regarding the duties or obligations of the Custodian hereunder, the
Custodian shall not be required to determine the same until the rights of
the parties to the dispute shall have finally been determined by agreement
or by final order of a court of competent jurisdiction; PROVIDED, HOWEVER,
that the time for appeal for any such final order shall have expired
without an appeal having been made. The Custodian shall deliver the
property, or any portion thereof, within 15 days after it has received
written notice of
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any such agreement or final order (accompanied by an affidavit that the
time for appeal has expired without an appeal having been made) in
accordance with the terms of the final agreement or order. The Custodian
shall be entitled to assume that no such controversy has arisen unless it
has received a written notice that such a controversy has arisen which
refers specifically to this Agreement and identifies by name and address
the adverse claimants to the controversy. Notwithstanding the foregoing,
if, after the execution of this Agreement, any such controversy shall occur
before the completion of the transactions contemplated by the Purchase
Agreements and/or this Agreement, the Attorneys-in-Fact and the Custodian
are nevertheless authorized and directed to complete all of such
transactions, including the delivery of the certificates for the
undersigned's Option Shares to be sold to the Underwriters, as if such
controversy had not occurred and regardless of notice thereof.
(c) The Custodian will acknowledge in writing to each of the Selling
Shareholders receipt by physical delivery of any certificates representing
the undersigned's Option Shares when such certificates are received.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The undersigned
represents, warrants and agrees that:
(a) All authorizations and consents, including, but not limited to,
any releases necessary for the execution and delivery by the undersigned of
this Agreement and for the sale and delivery of the undersigned's Option
Shares to the Underwriters as contemplated hereby and in the Purchase
Agreements substantially in the form attached hereto as Exhibits A and B
have been obtained and are in full force and effect; and the undersigned
has full right, power and authority to enter into the Purchase Agreements
and this Agreement and to sell, transfer and deliver the undersigned's
Option Shares to the Underwriters as contemplated hereby and in the
Purchase Agreements.
(b) The undersigned has read and understands the Draft Purchase
Agreements including, without limitation, the representations and
warranties of the respective Selling Shareholder contained in Section 1(b)
thereof (the "SECTION 1(B) REPRESENTATIONS AND WARRANTIES"), and confirms
the accuracy of such representations as of the date hereof; the undersigned
will promptly, after becoming aware thereof, notify the Attorneys-in-Fact
and the Company (i) if any Section 1(b) Representation and Warranty of the
undersigned ceases to be true and correct at any time after the date hereof
or (ii) if any representation and warranty of the undersigned contained in
this Agreement is not true and correct.
(c) The undersigned has not taken and will not take, directly or
indirectly, any action intended to constitute, or which has constituted, or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock; and to assure compliance
with Regulation M under the Securities Exchange Act of 1934, as amended
("xxx 0000 XXX"), the undersigned will not make bids for or purchases of,
or induce bids for or purchases of, directly or indirectly, any
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shares of Common Stock until the distribution of all shares being sold in
the Offering has been completed; the undersigned has not distributed and
will not distribute any prospectus or other offering material in connection
with the Offering and sale of the Shares other than the prospectuses filed
with the Commission in connection with the Registration Statement.
The foregoing representations, warranties and agreements are for the
benefit of and may be relied upon by the Attorneys-in-Fact, the Company, the
other Selling Shareholders the Underwriters and their respective legal counsel.
The undersigned agrees, if so requested in writing by the Attorneys-in-Fact or
by the Company, the Underwriters or their respective legal counsel, to provide
one or more certificates setting forth such matters as to which Wachtell,
Lipton, Xxxxx & Xxxx, as counsel for the Company, Shearman & Sterling, as
counsel for the Underwriters, and Day Xxxxx & Xxxxxx LLP, as counsel for the
Selling Shareholders, are entitled to rely in rendering their opinions pursuant
to the Purchase Agreements.
8. PAYMENT. The undersigned hereby authorizes and directs the
Attorneys-in-Fact or any of them to take such action as may be required to
provide for the distribution or delivery to the undersigned as promptly as
practicable of the undersigned's portion of the wire transfer of immediately
available funds described in Section 2(c) of the Purchase Agreements, which wire
transfer to the bank account designated by the Custodian will constitute all of
the proceeds of the Offering owing to the undersigned for his Option Shares
purchased at the Closing Time or on the relevant Date of Delivery. The
undersigned agrees that the Attorneys-in-Fact may deposit any amounts owing to
the undersigned by wire transfer of funds or by deposit pursuant to the
instructions noted below the signature of the undersigned. Subject to the
provisions of Section 4 of the Purchase Agreements, the undersigned hereby
authorizes and directs the Attorneys-in-Fact to pay on behalf of the undersigned
all expenses and taxes incident to the sale and delivery of the Option Shares
that may be sold by the undersigned to the Underwriters and the undersigned will
advance to the Attorneys-in-Fact or reimburse them in the full amount of any
such expenses, taxes or reimbursements; PROVIDED, HOWEVER, that in connection
with the payment by the undersigned of the New York State stock transfer tax,
the Attorneys-in-Fact will be required to use their best efforts to obtain a
rebate of such tax before seeking reimbursement from the undersigned.
9. OWNERSHIP OF STOCK. Subject to the terms hereof, until payment of
the purchase price for the Option Shares being sold by the undersigned pursuant
to the Purchase Agreements has been made by or for the account of the
Underwriters, each of the Selling Shareholders shall remain the owner of all of
its respective Option Shares. However, until such payment in full has been made
or until the Purchase Agreements have been terminated, the undersigned agrees
that the undersigned will not give, sell, pledge, hypothecate, grant any lien on
or security interest in, transfer, deal with or contract with respect to the
undersigned's Option Shares or any interest therein, except (i) to the
Underwriters pursuant to the Purchase Agreements and (ii) to the Custodian as
provided herein.
10 RELEASE. Subject to the provisions of Section 12 hereof, the
undersigned hereby agrees to release and does release the Attorneys-in-Fact and
each of them and the
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Custodian from any and all liabilities, joint or several, to which they may
become subject insofar as such liabilities (or action in respect thereof) arise
out of or are based upon any action taken or omitted to be taken, including, but
not limited to, not executing the Purchase Agreements or not proceeding with the
Offering for any reason whatsoever, by the Attorneys-in-Fact or the Custodian
pursuant hereto, except for their gross negligence or willful misconduct or bad
faith.
11. WAIVER. Subject to the provision of Section 12 hereof, the
undersigned acknowledges and agrees that, by accepting payment for the Option
Shares purchased by the Underwriters pursuant to the Purchase Agreements, the
undersigned forever releases and discharges the Company and its heirs,
successors and assigns from any and all claims whatsoever that the undersigned
now has, or may have in the future, arising out of, or related to the Option
Shares.
12. INDEMNIFICATION. (a) Each Selling Shareholder, severally and not
jointly, agrees to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense as and to the extent described in the indemnity agreement of
such Selling Shareholder contained in subsection (a) of Section 6 of the
Purchase Agreements (except that the reference in clause (iv) therein to Xxxxxxx
Xxxxx shall be to the Company), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information (as defined in the Purchase Agreements), or any U.S. or
International preliminary prospectuses or the U.S. or International Prospectuses
or any amendment or supplement thereto (or any prospectus wrapper) in reliance
upon and in conformity with written information furnished to the Company by such
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or such U.S. or
International preliminary prospectuses or the U.S. or International Prospectuses
or any amendment or supplement thereto (or any prospectus wrapper); PROVIDED
that the liability of such Selling Shareholder under this indemnity agreement
shall not exceed the net proceeds received by such Selling Shareholder from the
sale of his Option Shares pursuant to the Purchase Agreements.
(b) The Company agrees to indemnify and hold harmless each Selling
Shareholder against any and all loss, liability, claim, damage and expense as
and to the extent described in the indemnity agreement of the Company contained
in subsection (a) of Section 6 of the Purchase Agreements (except that the
reference in clause (iv) therein to Xxxxxxx Xxxxx shall be to the Selling
Shareholders), as incurred, and will reimburse such Selling Shareholder for any
and all expense whatsoever (including the fees and disbursements of up to one
counsel chosen by the Selling Shareholders), reasonably incurred by such Selling
Shareholder in investigating, preparing or defending against any such
litigation, investigation, proceeding or claim as such expenses are incurred.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which
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indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; PROVIDED, HOWEVER, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under this
Section 12 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) OTHER PROVISIONS. The provisions of this Section 12 will be in
addition to any liability which the Company or any Selling Shareholder may
otherwise have, including, but not limited to, Sections 7 and 8 of the
Purchase Agreements.
13. TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the date, if any, on which the Registration Statement is
withdrawn, (ii) if the Purchase Agreements have not been executed by the parties
thereto within 30 days from the date hereof, then the date that is 30 days after
the date hereof and (iii) the date on which the sale of the shares to be sold in
the Offering (including the Option Shares, if any Option Shares are to be
purchased pursuant to the Purchase Agreements) is consummated and the proceeds
have been distributed to the Selling Shareholders, whether or not all the Option
Shares owned by the Selling Shareholders are sold in the Offering.
Notwithstanding any such termination, the provisions of Sections 10, 11 and 12
hereof shall survive termination of this Agreement and remain in full force and
effect. This Agreement shall also terminate (including without limitation with
respect to the indemnification obligations set forth in Section 12, but
excluding Sections 10 and 11) and cease to have force and effect if the options
granted under Section 2(b) of each of the Purchase Agreements expire without
being exercised at least in part. Following any termination of this Agreement,
the Attorneys-in-Fact and the Custodian shall have no further responsibilities
or liabilities to the undersigned hereunder except to redeliver to the
undersigned its Option Shares not sold in the Offering and to deliver to the
undersigned its stock powers described in Section 4 hereof held in custody and
to distribute to the undersigned its portion of the net proceeds of the
Offering, if any.
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14. NOTICES. Any notice required to be given pursuant to this
Agreement shall be deemed given if in writing and delivered in person, or if
given by telephone or telegraph if subsequently confirmed by letter, (i) to
Xxxxxxx X. Xxxxx, Xx. as Attorney-in-Fact, c/o Packard BioScience Company, 000
Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 or to Xxxxxxx X. Xxxxx, as
Attorney-in-Fact, c/o Day, Xxxxx & Xxxxxx LLP, 185 Asylum Street, Hartford,
Connecticut 06103-3499 (ii) to Packard BioScience Company, for the Company and
Custodian, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention:
General Counsel, (iii) to the Selling Shareholders at the addresses set forth in
Schedule I attached hereto, and (iv) to Wachtell, Lipton, Xxxxx & Xxxx at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxxxxxx, Esq.
15. APPLICABLE LAW. The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the
substantive laws of the State of Connecticut.
16. BINDING EFFECT. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned, and this
Agreement shall inure to the benefit of, and shall be binding upon, the
undersigned and the undersigned's heirs, executors, administrators, successors
and assigns.
17. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which constituting an original but all of which together
constituting one instrument.
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This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_________________________
Name: Xxxxx X. Xxxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
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Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
11
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:____________________________
Name: Xxxxxxx X. XxXxxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:________________________
Name: Xxxxxx Xxxxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:________________________
Name: Xxxxx Xxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:__________________________
Name: Staf van Cauter
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_________________________
Name: Xxxxxx Xxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_____________________________
Name: Xxxxxx Xxxxx Xxxxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_____________________________
Name: Xxxxxxx X. Xxxxxxx
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
(Signatures continued from prior page)
PACKARD BIOSCIENCE COMPANY
By:_________________________
Name:
Title:
(Signatures continued on next page)
(Signatures continued from prior page)
CUSTODIAN
Packard BioScience Company hereby accepts the appointment as Custodian
pursuant to the foregoing Agreement, and agrees to abide by and act in
accordance with the terms of said Agreement.
Dated: April ___, 2000
PACKARD BIOSCIENCE COMPANY
___________________________________
Name: Xxx X. Xxxxxx
Title: Vice President & Chief Financial
Officer
(Signatures continued on next page)
(Signatures continued from prior page)
ATTORNEYS-IN-FACT
Xxxxxxx X. Xxxxx, Xx. hereby accepts the appointment as
Attorney-in-Fact pursuant to the foregoing Irrevocable Power of Attorney and
Custody Agreement, and agrees to abide by and act in accordance with the terms
of said Agreement.
Dated: April __, 2000
------------------------------
Xxxxxxx X. Xxxxx hereby accepts the appointment as Attorney-in-Fact
pursuant to the foregoing Irrevocable Power of Attorney and Custody Agreement,
and agrees to abide by and act in accordance with the terms of said Agreement.
Dated: April __, 2000
------------------------------
(End of signature pages)
SCHEDULE I
================================= ============= =========== ==============
NAME AND ADDRESS OF SELLING MAXIMUM MAXIMUM TOTAL NUMBER
SHAREHOLDER NUMBER OF NUMBER OF OF OPTION
U.S. OPTION INTER- SHARES
SHARES NATIONAL
OPTION
SHARES
--------------------------------- ------------- ----------- --------------
Xxxxx X. Xxxxxx
One Gold Street, Apt. #27H-J
Xxxxxxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Xxxxxxx X. XxXxxxxx
00 Xxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Xxxxxx Xxxxxxx
Xxx Xxxxxxxx
Xxxxxxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Xxxxx Xxxxx
0 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Staf van Cauter
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Xxxxxx Xxxxx
Research Parc
Xxxxxxxxxxxx 00
Xxxxxx X-0000
Xxxxxxx
--------------------------------- ------------- ----------- --------------
Xxxxxx Xxxxx Xxxxxxx
0000 XX Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
--------------------------------- ------------- ----------- --------------
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
===========================================================================
INSTRUCTIONS
(For completing the Irrevocable Power of Attorney and Custody Agreement)
A. You have been sent five copies of the Irrevocable Power of Attorney
and Custody Agreement (the "Agreement"). Please complete and return
four copies of the Agreement and stock certificate(s) as set forth in
paragraph D below. A fully executed copy of the Agreement will be
returned to you; a fully executed copy of the Agreement and your stock
certificate(s) will be retained by the Custodian; and a fully executed
copy of the Agreement will be delivered one to the Attorneys-in-Fact
and one to the U.S. Representatives and Lead Managers.
B. Complete Schedule A attached hereto.
C. Each copy of the Agreement and each stock certificate or stock power
deposited hereunder must be executed by you with your signature on the
Agreement and the stock certificate(s) or the accompanying stock power
guaranteed by a commercial bank or trust company in the United States
or any broker which is a member firm of the New York Stock Exchange.
Please sign the stock certificate(s) or stock power and the Agreement
exactly as your name appears on your stock certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s) with stock
powers attached along with all four executed copies of the completed
Agreement should be promptly returned by hand delivery or by certified
mail appropriately insured to:
Packard BioScience Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
If sent through the mail, it is recommended that the certificate(s)
not be endorsed, but an executed stock power be sent under separate
cover from the certificate(s).
E. If any certificate that you submit represents a greater number of
shares of Option Securities than the aggregate number of shares of
Option Securities which you agree to sell pursuant to the Purchase
Agreements, the Custodian will cause to be delivered to you in due
course, but not earlier than ten days after the closing for the
purchase of Option Securities by the Underwriters, a certificate for
the excess number of Option Securities.
F. For purposes of discharging your obligations under the Purchase
Agreements, please contact Xxxxxxx X. Xxxxx, Xx. or Xxxxxxx X. Xxxxx
if any information or representation included in the foregoing
Agreement or the Purchase Agreements should change, or if you become
aware of any new information, at any time prior to termination of
the period referred to in Section 13 of the Agreement.
1
G. For the purpose of getting your spouse to join in and consent to the
Agreement, please have your spouse fill out the Consent of Spouse
which is attached hereto as Annex A.
2
-------------------------------------
(Name of Selling Stockholder)
SCHEDULE A
Certificate(s) for Shares of Common Stock of
PACKARD BIOSCIENCE COMPANY
Deposited under
Irrevocable Power of Attorney and Custody Agreement
Certificate Number of Option Shares Represented Number of Option Shares from
Number by Certificate this Certificate to Be Sold*
Total:
* If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
ANNEX A
CONSENT OF SPOUSE
I am the spouse of ______________________. On behalf of myself, my heirs,
legatees, and assigns, I hereby join in and consent to the terms of the
foregoing Irrevocable Power of Attorney and Custody Agreement and agree to the
sale of the shares of Common Stock of Packard BioScience Company, registered in
the name of my spouse or otherwise registered, which my spouse proposes to sell,
or to agree to sell, pursuant to the Purchase Agreements referred to in the
Irrevocable Power of Attorney and Custody Agreement.
Dated: April __, 2000
---------------------------------
(Signature of Spouse)
1
