EXECUTION VERSION
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STOCKHOLDERS AGREEMENT
dated as of April 2, 2002
by and among
QUEST DIAGNOSTICS INCORPORATED,
QUEST DIAGNOSTICS NEWCO INCORPORATED,
XXXXX INVESTMENT ASSOCIATES VI, L.P.
and
KEP VI, LLC
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Table of Contents
Page
ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares.................................................2
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement.................................................2
SECTION 2.02. Irrevocable Proxy................................................3
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option..................................................3
SECTION 3.02. Payment of the Purchase Price....................................3
SECTION 3.03. Exercise of Option...............................................3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
SECTION 4.01. Organization, Authority and Qualification of the Stockholders....5
SECTION 4.02. No Conflict; Required Filings and Consents.......................6
SECTION 4.03. Ownership of Shares..............................................6
SECTION 4.04. Absence of Litigation............................................6
SECTION 4.05. Brokers..........................................................6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01. Organization, Authority and Qualification........................7
SECTION 5.02. No Conflict; Required Filings and Consents.......................7
ARTICLE VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares..........................8
SECTION 6.02. No Solicitation of Transactions..................................8
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SECTION 6.03. Further Action; Reasonable Best Efforts..........................8
SECTION 6.04. Information for Offer Documents and Proxy
Statement/Prospectus; Disclosure.................................8
ARTICLE VII
REGISTRATION RIGHTS
SECTION 7.01. Registration.....................................................9
SECTION 7.02. Blackout Periods.................................................9
SECTION 7.03. Obligations of Parent...........................................10
SECTION 7.04. Expenses of Registration........................................11
SECTION 7.05. Indemnification.................................................11
SECTION 7.06. Furnish Information.............................................13
ARTICLE VIII
TERMINATION
SECTION 8.01. Termination.....................................................14
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.........................................................15
SECTION 9.02. Severability....................................................16
SECTION 9.03. Entire Agreement; Assignment....................................16
SECTION 9.04. Parties in Interest.............................................17
SECTION 9.05. Specific Performance............................................17
SECTION 9.06. Governing Law...................................................17
SECTION 9.07. Waiver of Jury Trial............................................17
SECTION 9.08. Headings........................................................17
SECTION 9.09. Counterparts....................................................17
SECTION 9.10. Amendment.......................................................18
SECTION 9.11. Waiver..........................................................18
SECTION 9.12. Costs and Expenses of This Agreement and the Merger
Agreement.......................................................18
SECTION 9.13. Affiliate Letters...............................................18
SECTION 9.14. Adjustments.....................................................18
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of April 2, 2002 (this "Agreement"),
among QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation ("Parent"), QUEST
DIAGNOSTICS NEWCO INCORPORATED, a Delaware corporation and a wholly owned
subsidiary of Parent ("Purchaser"), XXXXX INVESTMENT ASSOCIATES VI, L.P., a
Delaware limited partnership ("LP"), and KEP VI, LLC, a Delaware limited
liability company ("LLC" and, together with LP as stockholders of UNILAB
CORPORATION (the "Company"), the "Stockholders"; and each of LP and LLC,
individually, a "Stockholder").
WHEREAS, Parent, Purchaser and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended from time
to time, the "Merger Agreement"; capitalized terms used but not defined in this
Agreement have the meanings attributed to such terms in the Merger Agreement),
pursuant to which (i) Purchaser shall commence a cash election exchange offer
(as such exchange offer may hereafter be amended from time to time in accordance
with the Merger Agreement, the "Offer") to acquire each issued and outstanding
share of common stock, par value $0.01 per share, of the Company ("Common
Stock") in exchange for, at the election of the holder thereof, either (x) a net
amount of $26.50 in cash, or (y) 0.3256 of a share of common stock, par value
$0.01 per share, of Parent, all in accordance with and subject to the terms and
conditions of the Merger Agreement; and (ii) following consummation of the
Offer, the Company shall merge with Purchaser (the "Merger");
WHEREAS, each Stockholder is the record or beneficial owner of the
number of shares of Common Stock set forth on Schedule A hereto opposite such
Stockholder's name (all such shares of Common Stock and any shares of Common
Stock hereafter acquired by the Stockholders prior to termination of this
Agreement being, the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Stockholders agree to enter into this
Agreement; and
WHEREAS, the Stockholders wish to induce Parent and Purchaser to enter
into the Merger Agreement and, therefore, the Stockholders are willing to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
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ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Each Stockholder agrees to promptly
(and, in any event, not later than two business days prior to the initial
scheduled expiration date of the Offer) tender or cause to be tendered into the
Offer, pursuant to and in accordance with the terms of the Offer, and not
withdraw or cause to be withdrawn (except following the termination of the Offer
in accordance with its terms), all of such Stockholder's Shares. Each
Stockholder acknowledges and agrees that Purchaser's obligation to accept for
exchange or payment shares of Common Stock in the Offer, including any Shares
tendered by a Stockholder, is subject to the terms and conditions of the Merger
Agreement and the Offer. Parent acknowledges and agrees that the ability of
Parent or Merger Sub to purchase shares of Parent Common Stock in the Offer is
subject to the terms and conditions of the Merger Agreement and the Offer.
Notwithstanding the foregoing, under certain circumstances set forth in Section
8.01(a) hereof, the Stockholders shall be entitled to withdraw Shares tendered
into the Offer. Parent shall give each Stockholder reasonably adequate notice so
as to enable the Stockholders to exercise such rights of withdrawal in a
reasonable manner, including by (i) providing the Stockholders with two business
days notice prior to any anticipated final expiration date of the Offer, and
(ii) arranging for the Offer to expire at midnight on the applicable expiration
date.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Each Stockholder hereby agrees
that, from and after the date hereof and until the earliest to occur of (x) the
Effective Time, (y) the termination of this Article II pursuant to Section
8.01(a) and (z) the termination of this Agreement pursuant to Section
8.01(b)(other than the certain specified Sections identified therein), at any
meeting of the stockholders of the Company, however called, and in any action by
consent of the stockholders of the Company, such Stockholder shall vote (or
cause to be voted) all such Stockholder's Shares (i) in favor of adoption of the
Merger Agreement, the Merger and all the transactions contemplated by the Merger
Agreement and this Agreement and otherwise in such manner as may be necessary to
consummate the Merger; (ii) against any action, proposal, agreement or
transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of the Company under the Merger Agreement
or of such Stockholder contained in this Agreement; and (iii) against any
action, agreement, transaction (other than the Merger Agreement or the
transactions contemplated thereby) or proposal (including any proposal relating
to a Competing Transaction) that could reasonably be expected to result in any
of the conditions to the Company's obligations under the Merger Agreement not
being fulfilled or that is intended, or could reasonably be expected, to impede,
interfere, delay, discourage or adversely affect the Merger Agreement, the
Offer, the Merger or this Agreement. Any vote by such Stockholder that is not in
accordance with this Section 2.01 shall be considered null and void, and the
provisions of Section 2.02 shall be deemed to take immediate effect.
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SECTION 2.02. Irrevocable Proxy. If, and only if, a Stockholder
fails to comply with the provisions of Section 2.01, such Stockholder hereby
agrees that such failure shall result, without any further action by such
Stockholder effective as of the date of such failure, in the constitution and
appointment of Parent and each of its executive officers from and after the date
of such determination until the earlier to occur of (x) the Effective Time, (y)
the termination of this Article II pursuant to Section 8.01(a) and (z) the
termination of this Agreement pursuant to Section 8.01(b) (other than the
certain specified Sections identified therein)(at which point such constitution
and appointment shall automatically be revoked) as such Stockholder's attorney,
agent and proxy (such constitution and appointment, the "Irrevocable Proxy"),
with full power of substitution, to vote and otherwise act with respect to all
such Stockholder's Shares at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed
meeting), and in any action by written consent of the stockholders of the
Company, on the matters and in the manner specified in Section 2.01. THIS PROXY
AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON
TO WHOM A STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS
AGREEMENT. Each Stockholder hereby revokes all other proxies and powers of
attorney with respect to all such Stockholder's Shares that may have heretofore
been appointed or granted, and no subsequent proxy or power of attorney shall be
given (and if given, shall not be effective) by such Stockholder with respect
thereto. All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of such Stockholder and any obligation of such
Stockholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of such Stockholder.
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option. Each Stockholder hereby grants to
Parent an irrevocable option (each, an "Option" and, collectively, the
"Options") to purchase all of such Stockholder's Shares at a purchase price per
Share of $26.50 (the "Purchase Price").
SECTION 3.02. Payment of the Purchase Price. The Purchase Price
shall be payable by Parent, at the option of Parent, either (x) in cash or (y)
in a combination of cash and shares of Parent Common Stock in the same
proportions as though such Shares and any other Tendered Cash Election Shares
had been acquired pursuant to and in accordance with the terms of the Offer,
taking into account for this purpose the aggregate number of Tendered Cash
Election Shares in the Offer, including the number of Stockholder Shares that
were Tendered Cash Election Shares.
SECTION 3.03. Exercise of Option. (a) Each of the Options shall
become exercisable by Parent for a ten business day period (the "Option Exercise
Period") commencing on the Initial Exercisability Date. For purposes of this
Agreement, the "Initial Exercisability Date" shall be the date on which either
(1) the Merger Agreement is terminated by Parent or the Company pursuant to
Section 10.01(a), Section 10.01(b) or clause (ii) of Section 10.01(d), or (2)
the Merger Agreement is terminated by Parent or the Company pursuant to Section
10.01(d)(i) thereof, if (w) in the case of clauses (1) and (2) of this Section
3.03(a), at the time of termination,
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no Parent Share Price Decrease (without giving effect to clause (3) in the
definition thereof) shall have occurred and be continuing, (x) in the case of
clauses (1) and (2) of this Section 3.03(a), at the time of termination, all of
the conditions set forth in Section 2.01(c) of the Merger Agreement shall have
been satisfied, (y) in the case of a termination of the Merger Agreement
pursuant to Section 10.01(d)(i) or Section 10.01(d)(ii) thereof, at the time of
termination, the conditions set forth in paragraphs (c) and (d) of clause (v) of
Annex I shall have been satisfied, and no litigation of the type described in
paragraph (a) of clause (v) of Annex I shall have been brought by any
Governmental Authority on antitrust grounds and remain pending, and (z) in the
case of a termination of the Merger Agreement on the Termination Date pursuant
to Section 10.01(d)(i) or Section 10.01(d)(ii), at the time of termination, the
conditions set forth in clauses (ii), (iii) and (iv) of Annex I of the Merger
Agreement shall have been satisfied. The Options shall be exercisable in whole
but not in part, and in no event shall Parent be permitted to exercise an Option
with respect to a Stockholders' Shares unless Parent concurrently exercises all
Options to purchase the Shares of all Stockholders. Notwithstanding anything to
the contrary contained in this Agreement, in no event shall any Stockholders'
Shares be purchased after the close of business on the 45th day following the
termination of the Merger Agreement (the "Option Termination Date").
(b) If Parent wishes to exercise the Options during the Option
Exercise Period, Parent shall send a written notice (the "Exercise Notice") to
each Stockholder of its intention to exercise such Stockholder's Option,
specifying the place, and, if then known, the time and the date (the "Closing
Date") of the closing of such purchase (the "Closing"). The Closing Date shall,
subject to satisfaction of the conditions in paragraph (d), occur on the later
of (i) the third business day after the date on which such Exercise Notice is
delivered and (ii) one business day following the expiration or termination of
the waiting period under the HSR Act applicable to the consummation of the
purchase and sale of the Shares hereunder. For the purposes of this Agreement,
the term "business day" means any day that is not a Saturday, a Sunday or a day
on which banks are not required or authorized by law or executive order to be
closed in the City of New York.
(c) At the Closing, (i) each Stockholder shall deliver to Parent (or
its designee) such Stockholder's Shares by delivery of a certificate or
certificates evidencing such Shares duly endorsed to Parent or accompanied by
stock powers duly executed in favor of Parent, with all necessary stock transfer
stamps affixed, and (ii) Parent shall pay for the Stockholders' Shares with (a)
cash or (b) a combination of cash and shares of Parent Common Stock in the same
proportions as though such Shares and any other Tendered Cash Election Shares
had been acquired pursuant to and in accordance with the terms of the Offer,
taking into account for this purpose the aggregate number of Tendered Cash
Election Shares in the Offer, including the number of Stockholder Shares that
were Tendered Cash Election Shares, in either case in accordance with the
provisions of Sections 3.02(a) and 3.02(b).
(d) The Closing shall be subject to the satisfaction or, in the case
of clause (iv) below, waiver by the Stockholders of each of the following
conditions:
(i) no Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law that is then in effect and no
Order shall have been entered or be in effect, in either case that has
the effect of making the acquisition of
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the Shares by Parent illegal or otherwise restricting, preventing or
prohibiting consummation of the purchase and sale of the Shares
pursuant to the exercise of the Options;
(ii) any waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder shall
have expired or been terminated;
(iii) the approval for listing of any shares of Parent Common
Stock to be issued to Stockholders hereunder on the NYSE, subject to
official notice of issuance; and
(iv) all of the conditions to the Offer set forth in Section
2.01(c) of the Merger Agreement shall have been satisfied.
At the Closing, (i) each Stockholder will deliver good and valid
title to such Stockholder's Shares free and clear of any Liens and, upon
delivery to Parent of such Shares and payment for the Purchase Price therefor as
contemplated herein, Parent will receive good, valid and marketable title to
such Stockholder's Shares free and clear of any Liens, and (ii) Parent shall
deliver to each Stockholder the cash portion of the Purchase Price to which such
Stockholder is entitled pursuant to Section 3.02 by wire transfer in immediately
available funds to a bank account to be designated by such Stockholder in a
written notice to Parent at least two business days prior to the Closing and,
with respect to the stock portion of the Purchase Price, if any, Parent shall
deliver to each Stockholder stock certificates evidencing the shares of Parent
Common Stock to which such Stockholder is entitled pursuant to Section 3.02.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby jointly and severally represents and warrants
to Parent and to Purchaser as follows:
SECTION 4.01. Organization, Authority and Qualification of the
Stockholders. (a) Each Stockholder is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization or
formation and has all necessary power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Each Stockholder is duly licensed or qualified
to do business and is in good standing in each jurisdiction in which the
properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified would not prevent or materially delay the ability of
such Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement. The execution and delivery of this
Agreement by each Stockholder, the performance by each Stockholder of its
obligations hereunder and the consummation by each Stockholder of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of each Stockholder. This Agreement has been duly and validly
executed and delivered by each Stockholder and (assuming due authorization,
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execution and delivery by Parent and Purchaser) this Agreement constitutes a
legal, valid and binding obligation of each Stockholder enforceable against each
Stockholder in accordance with its terms.
SECTION 4.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each Stockholder do not, and the
performance of this Agreement by each Stockholder shall not, (i) conflict with
or violate the agreement of limited partnership, limited liability company
agreement or equivalent organizational documents, as the case may be, of such
Stockholder, (ii) assuming satisfaction of the requirements set forth in 4.02(b)
below, conflict with or violate any Law applicable to such Stockholder or by
which any property or asset of such Stockholder is bound or affected or (iii)
result in any breach of, or constitute a default (or 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 a Lien on any Shares (other than pursuant to this Agreement)
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation of such
Stockholder, except for any such conflicts, violations, breaches, defaults or
other occurrences that would not prevent or materially delay the ability of such
Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by each Stockholder
do not, and the performance of this Agreement by each Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws and the premerger
notification requirements of the HSR Act, and (ii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the ability of such
Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
SECTION 4.03. Ownership of Shares. As of the date hereof, each
Stockholder is the record or beneficial owner of, and has good title to, the
number of Shares set forth opposite such Stockholder's name on Schedule A
hereto. Except as set forth on Schedule A, such Shares are all the securities of
the Company owned, either of record or beneficially, by such Stockholder as of
the date hereof and such Stockholder does not have any option or other right to
acquire any other securities of the Company. The Shares owned by such
Stockholder are owned free and clear of all Liens, other than any Liens created
by this Agreement. Except as provided in this Agreement, such Stockholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares owned by such Stockholder.
SECTION 4.04. Absence of Litigation. As of the date of this
Agreement, there is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholders, threatened
against either Stockholder, or any property or asset of either Stockholder,
before any Governmental Authority that seeks to delay or prevent the
consummation of the transactions contemplated by this Agreement.
SECTION 4.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions
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contemplated by this Agreement based upon arrangements made by or on behalf of
either, or both, of the Stockholders.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser hereby jointly and severally represent
and warrant to the Stockholders as follows:
SECTION 5.01. Organization, Authority and Qualification. Each of
Parent and Purchaser is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all necessary
power and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. Each of Parent
and Purchaser is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
prevent or materially delay the ability of Parent or Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement. The execution and delivery of this Agreement by each of Parent and
Purchaser, the performance by each of Parent and Purchaser of its obligations
hereunder and the consummation by each of Parent and Purchaser of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of each of Parent and Purchaser. This Agreement has been duly
and validly executed and delivered by each of Parent and Purchaser and (assuming
due authorization, execution and delivery by each Stockholder) this Agreement
constitutes a legal, valid and binding obligation of each of Parent and
Purchaser enforceable against Parent and Purchaser in accordance with its terms.
SECTION 5.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each of Parent and Purchaser do not,
and the performance of this Agreement by each of Parent and Purchaser shall not,
(i) conflict with or violate the certificate of incorporation and by-laws of
Parent or Purchaser, (ii) assuming satisfaction of the requirements set forth in
Section 5.02(b) below, conflict with or violate any Law applicable to Parent or
Purchaser or by which any property or asset of Parent or Purchaser is bound or
affected or (iii) result in any breach of, or constitute a default (or 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,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation of Parent or Purchaser,
except for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or materially delay the ability of Parent or
Purchaser to carry out its obligations under, and to consummate the transactions
contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Purchaser do not, and the performance of this Agreement by each of Parent
and Purchaser shall not, require any consent, approval, authorization or permit
of, or filing with, or notification to, any Governmental Authority, except (i)
for applicable requirements, if any, of the Securities Act, the Exchange Act,
Blue Sky Laws and the premerger notification requirements of the XXX Xxx,
0
and (ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay the ability of Parent or Purchaser to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
ARTICLE VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares. Each
Stockholder hereby agrees that, except as contemplated by this Agreement, such
Stockholder shall not (i) sell, transfer, tender (except into the Offer),
pledge, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to (other
than the Irrevocable Proxy), deposit into any voting trust, enter into any
voting agreement, or create or permit to exist any Liens of any nature
whatsoever (other than pursuant to this Agreement) with respect to, any of such
Stockholder's Shares (or agree or consent to, or offer to do, any of the
foregoing), or (ii) take any action that would make any representation or
warranty of such Stockholder herein untrue or incorrect in any material respect
or have the effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations hereunder.
SECTION 6.02. No Solicitation of Transactions. None of the
Stockholders shall, directly or indirectly, through any director, officer,
affiliate, employee, representative, agent or otherwise, (i) solicit, initiate,
endorse, accept or encourage the submission of any Competing Transaction, or
(ii) participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or otherwise cooperate in any way with
respect to, or participate in, assist, facilitate, endorse or encourage any
proposal that constitutes, or may reasonably be expected to lead to, a Competing
Transaction; provided, however, that nothing herein shall prevent an officer or
director of a Stockholder from acting in his or her capacity as a director of
the Company, or taking any action in any capacity (including at the direction of
the Company Board), but only in either such case as and to the extent permitted
by Section 8.04(b) of the Merger Agreement. Each Stockholder shall, and shall
direct or cause its directors, officers, employees, representatives and agents
to, and shall use its reasonable efforts to cause its affiliates to, immediately
cease and cause to be terminated any discussions or negotiations with any
parties that may be ongoing with respect to a Competing Transaction.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon the
terms and subject to the conditions hereof, Parent, Purchaser and each
Stockholder shall use their reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement.
SECTION 6.04. Information for Offer Documents and Proxy
Statement/Prospectus; Disclosure. Each Stockholder covenants and agrees that
none of the information relating to such Stockholder and its affiliates for
inclusion in the Schedule 14D-9, the Offer Documents or, if applicable, the
Proxy Statement/Prospectus or the Merger Registration Statement that has been
furnished to Parent by such Stockholder for inclusion in
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such documents will, at (i) the time the Schedule 14D-9 or the Proxy
Statement/Prospectus (or any amendment or supplement thereto) is first filed
with the SEC or mailed to stockholders of the Company, (ii) the time the Merger
Registration Statement is declared effective, or (iii) the time of the Company
Stockholders Meeting (in the case of information included in the Proxy
Statement/Prospectus), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Nothing contained herein shall require the
Stockholders to furnish information relating to the Company to Parent for
inclusion in the Offer Documents or, if applicable, the Proxy
Statement/Prospectus or Merger Registration Statement. Each Stockholder agrees
to permit Parent and Purchaser to publish and disclose in the Offer Documents
and, if applicable, the Proxy Statement/Prospectus, the Merger Registration
Statement and any related filings under applicable securities Laws such
Stockholder's identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement and any other
information regarding such Stockholder as required by applicable Law.
ARTICLE VII
REGISTRATION RIGHTS
SECTION 7.01. Registration. As promptly as practicable (and in any
event within five business days) after the Acceptance Date or, if applicable,
the date on which Parent has purchased the Stockholders' Shares pursuant to
Section 3.01, Parent shall file with the SEC, and thereafter use its reasonable
best efforts to have declared effective as soon as practicable, a "shelf"
Registration Statement on Form S-3 (a "Shelf Registration Statement") pursuant
to Rule 415 promulgated under the Securities Act covering the resale by the
Stockholders of shares of Parent Common Stock issued to such Stockholders
pursuant to the Offer as Stock Consideration or, if applicable, pursuant to the
purchase of the Stockholder's Shares following the exercise of the Options (the
"Registrable Shares"). Parent shall, subject to customary terms and conditions
(including, without limitation, Section 7.02), use its reasonable efforts to
keep the Shelf Registration Statement continuously effective from the date that
such Shelf Registration Statement is declared effective until the first
anniversary of such effective date (the "Effectiveness Period"). The plan of
distribution contemplated by the Shelf Registration Statement may include,
without limitation, block trades and hedging transactions executed by, or on
behalf of, the Stockholders.
SECTION 7.02. Blackout Periods. Notwithstanding anything to the
contrary contained herein, Parent shall have the right to defer or delay filing
the Shelf Registration Statement for a period of not more than 60 days or
suspend sales under the Shelf Registration Statement filed hereunder or defer
the updating of such filed Shelf Registration Statement and suspend sales
thereunder during no more than two periods aggregating not more than 60 days
(each, a "Blackout Period"), in either case in the event that Parent furnishes
to the Stockholders a certificate signed by the President or Chief Executive
Officer of Parent stating that, in the good faith opinion of such person, such
registration or sale would interfere with any material transaction then being
proposed by Parent or would otherwise require disclosure of any material event
that Parent would not otherwise be required to disclose; provided, however, that
Parent
10
shall extend the Effectiveness Period by the number of days, if any, during
which the registration rights contemplated hereunder are subject to a Blackout
Period.
SECTION 7.03. Obligations of Parent. In connection with using its
reasonable best efforts to effect the registration under the Shelf Registration
Statement of any Registrable Shares, Parent shall, as expeditiously as possible:
(a) prepare and file with the SEC such amendments and supplements to
the Shelf Registration Statement and the prospectus used in connection therewith
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Shares covered by the Shelf
Registration Statement and as may be necessary to keep such Shelf Registration
Statement effective as provided in Sections 7.01 and 7.02, and promptly notify
the Stockholders (i) when the Shelf Registration Statement and the prospectus
used in connection therewith has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the same
has become effective; (ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement and the prospectus used in
connection therewith or for additional information; or (iii) of any stop order
issued or, to Parent's knowledge, threatened to be issued by the SEC and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered;
(b) furnish to the Stockholders such numbers of copies of the Shelf
Registration Statement and amendments and supplements thereto and the prospectus
included therein in conformity with the requirements of the Securities Act, any
exhibits filed therewith and such other documents and information as they may
reasonably request;
(c) use all reasonable best efforts to register or qualify the
Registrable Shares covered by the Shelf Registration Statement under such other
securities or Blue Sky Laws of such jurisdiction within the United States as
shall be reasonably appropriate for the distribution of the Registrable Shares
covered by the Shelf Registration Statement; provided, however, that Parent
shall not be required in connection therewith or as a condition thereto to
qualify to do business in or to file a general consent to service of process in
any jurisdiction wherein it would not but for the requirements of this paragraph
(c) be obligated to do so; and provided further, however, that Parent shall not
be required to qualify such Registrable Shares in any jurisdiction in which the
securities regulatory authority requires that any Stockholder submit any shares
of its Registrable Shares to the terms, provisions and restrictions of any
escrow, lockup or similar agreement(s) for consent to sell Registrable Shares in
such jurisdiction unless such Stockholder agrees to do so;
(d) promptly notify each Stockholder upon becoming aware of the
happening of any event as a result of which the prospectus included in such
Shelf Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and, at the request of any such
Stockholder, promptly prepare and furnish to such Stockholder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
11
statements therein not misleading in light of the circumstances under which they
were made. In the event Parent shall give such notice, Parent shall extend the
Effectiveness Period by the number of days during the period from and including
the date of the giving of such notice to the date when Parent shall make
available to the Stockholders such supplemented or amended prospectus; and
(e) enter into customary agreements and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
the Registrable Shares to be so included in the Shelf Registration Statement.
SECTION 7.04. Expenses of Registration. All expenses incurred in
connection with the Shelf Registration Statement, including without limitation
all registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance), fees of the National Association of Securities Dealers, Inc. or
listing fees, messenger and delivery expenses, all fees and expenses of
complying with state securities or Blue Sky Laws, and the fees and disbursements
of counsel for Parent, but excluding any brokers' discounts or commissions,
shall be paid by Parent. The Stockholders shall bear and pay the fees and
disbursements of their counsel in connection with any registrations, filings and
qualifications made pursuant to this Agreement.
SECTION 7.05. Indemnification. (a) Parent shall indemnify and hold
harmless each Stockholder, such Stockolder's directors and officers, each person
who participates in the offering of such Registrable Shares, and each person, if
any, who controls such Stockholder, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) arise out of or are based on any
untrue or alleged untrue statement of any material fact contained in the Shelf
Registration Statement on the effective date thereof (including any prospectus
filed under Rule 424 under the Securities Act or any amendments or supplements
thereto) or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each such
Stockholder, such Stockholder's directors and officers and controlling persons
for any legal or other expenses reasonably incurred by them (but not in excess
of expenses incurred in respect of one counsel for all of them) in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 7.05(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of Parent (which consent shall not be unreasonably withheld); provided
further, that Parent shall not be liable to any Stockholder, such Stockholder's
directors and officers or controlling persons in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with the Shelf Registration Statement,
preliminary prospectus, final prospectus or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Stockholder, such
Stockholder's directors and officers or controlling persons.
12
(b) Each Stockholder jointly and severally shall indemnify and hold
harmless Parent, each of its directors and officers, each person, if any, who
controls Parent within the meaning of the Securities Act, and each agent and any
underwriter for Parent (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities, joint or several, to which Parent or any
such director, officer, controlling person, agent or underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Shelf Registration Statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such Shelf Registration Statement,
preliminary or final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by or on
behalf of such Stockholder expressly for use in connection with such
registration; and each such Stockholder shall reimburse Parent or any such
director, officer, controlling person, agent or underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this
Section 7.05 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 7.05, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party (unless
(i) such indemnified party reasonably objects to such assumption on the grounds
that there may be defenses available to it which are different from or in
addition to those available to such indemnifying party, (ii) the indemnifying
party and such indemnified party shall have mutually agreed to the retention of
such counsel or (iii) in the reasonable opinion of such indemnified party,
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding, in which case the indemnified party shall be
reimbursed by the indemnifying party for the reasonable expenses incurred in
connection with retaining separate legal counsel); provided, however, that an
indemnified party shall have the right to retain its own counsel, with all fees
and expenses thereof to be paid by such indemnified party, and to be apprised of
all progress in any proceeding the defense of which has been assumed by the
indemnifying party, it being understood that the indemnifying party will control
such defense. The failure to notify an indemnifying party promptly of the
commencement of any such action shall not relieve the indemnifying party from
any liability in respect of such action which it may have to such indemnified
party on account of the indemnity contained in this Section 7.05, unless (and
only to the extent) the indemnifying party was prejudiced by such failure, and
in no event shall such failure relieve the indemnifying party from any other
liability which it may have to such indemnified party. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent
will not be unreasonably withheld), effect any settlement, compromise or
discharge of any claim or pending or threatened proceeding in respect of which
the indemnified party is or could have been a party
13
and indemnity could have been sought hereunder by such indemnified party, unless
such settlement, compromise or discharge includes an unconditional release of
such indemnified party from all liability arising out of such claim or
proceeding.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by Law, the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. In no event shall (i) the liability of any Stockholder pursuant to
this paragraph (d) be greater in amount than the aggregate amount of net
proceeds received by such Stockholder upon the sale of its Shares to Parent in
the Offer or hereunder or (ii) the liability of any indemnifying party be
greater in amount than the amount for which such indemnifying party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 7.05(a) or 7.05(b) hereof had been available under the
circumstances.
(e) The parties hereto agree that it would not be just and equitable
if contribution pursuant to Section 7.05(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
SECTION 7.06. Furnish Information. It shall be a condition precedent
to the obligations of Parent to take any action pursuant to this Article VII
that the Stockholders shall furnish to Parent such information regarding
themselves and the intended method of disposition of such securities as Parent
shall reasonably request and as shall be required in connection with the action
to be taken by Parent; provided that Parent and the Stockholders hereby
acknowledge and agree that, unless otherwise expressly agreed to in writing by
the Stockholders, for all purposes of this Agreement the only information
furnished or to be furnished to Parent for use in any registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement hereunder are statements specifically relating to (a) transactions
between such Stockholders and their respective affiliates, on the one hand, and
Parent, on the other hand, (b) the beneficial ownership of shares of Common
Stock by such Stockholders and their respective affiliates and (c) the name and
address of such Stockholders. If any additional information about the
Stockholders or the plan of distribution (other than for an underwritten
offering) is required by Law to be disclosed in any such document, then the
Stockholders shall promptly furnish to Parent such information for disclosure
upon request by Parent.
14
ARTICLE VIII
TERMINATION
SECTION 8.01. Termination. (a) Each of the Stockholder's obligations
under Section 1.01 and Article II hereof shall terminate upon the occurrence of
a Parent Share Price Decrease (as defined in Section 8.01(c) below); provided,
however, that each Stockholder's obligation under Section 1.01 to tender and not
withdraw its Shares pursuant to the Offer shall terminate prior to such time
upon the expiration or termination of, or the acceptance for payment of shares
of Common Stock pursuant to, the Offer.
(b) Except with respect to Article IX hereof which shall survive the
termination of this Agreement and remain in full force and effect thereafter,
all of the provisions of this Agreement shall terminate, and no party shall have
any rights or obligations hereunder, and this Agreement shall become null and
void and have no further force or effect upon the earlier to occur of (1) the
Effective Time and (2) the termination of the Merger Agreement; provided,
however, that (A) in the case of clause (2) of this Section 8.01(b), the
provisions of Article III shall survive the termination of this Agreement and
remain in full force and effect until the Option Termination Date, (B) in the
case of clause (2) of this Section 8.01(b), Sections 4.01, 4.02(a)(i), 4.03 and
4.05 and the provisions of Article V (other than Sections 5.02(a)(ii), (a)(iii)
and 5.02(b)) hereof shall survive the termination of this Agreement and remain
in full force and effect subject to the penultimate sentence of this paragraph,
(C)(i) in the case of clause (2) of this Section 8.01(b), the provisions of
Section 6.01 shall survive the termination of this Agreement and remain in full
force and effect until the Option Termination Date, and (ii) in the case of
clauses (1) and (2) of this Section 8.01(b), the provisions of Section 6.03
shall survive such termination and remain in full force and effect until the
Option Termination Date, unless the Shares are purchased by Parent pursuant to
the exercise of the Options, in which case Section 6.03 shall survive
indefinitely, and (D) in the case of clauses (1) and (2) of this Section
8.01(b), the provisions of Article VII shall survive the termination of this
Agreement and remain in full force and effect (x) if the Shares are not
purchased by Parent either pursuant to the Offer or through the exercise of the
Options, until the Option Termination Date or (y) if the Shares are purchased by
Parent pursuant to the Offer or through the exercise of the Options, until the
obligations of the parties thereunder have been complied with. Notwithstanding
anything to the contrary contained in Section 8.01, the representations and
warranties of the parties contained in Articles IV and V of this Agreement (i)
shall terminate upon acceptance for payment of the Shares in the Offer, and (ii)
shall not survive the purchase of Shares by Parent through the exercise of the
Options except, in the case of this clause (ii), for those provisions set forth
in clause (B) of the previous sentence, which shall survive for a period of
three years following the Closing. Nothing contained in this Section 8.01(b)
shall relieve any party of any liability for any willful or intentional breach
of this Agreement.
(c) A "Parent Share Price Decrease" shall occur if (1) during the
five trading days ending on the second trading day prior to the then scheduled
expiration date of the Offer (the "Measuring Period"), the average closing
trading price for a share of Parent Common Stock (as reported in the Wall Street
Journal or, if not reported thereby, by any other authoritative source) (the
"Parent Post-Announcement Average Share Price") shall be less than 50% of the
Parent Pre-Announcement Average Share Price (a "50% Parent Share Price
Decrease"), (2) at
15
the time of determination, if any, of the occurrence of a 50% Parent Share Price
Decrease, the Parent Share Price Decrease Percentage (as defined below) is 25%
greater than the Index Share Price Decrease Percentage (as defined below), if
any, and (3) at the time of such determination, all of the conditions to the
Offer (other than the Minimum Condition) have been satisfied or, to the extent
permitted, waived by Parent. For purposes of this Section 8.01, the "Index
Company" means the company identified on Schedule B attached hereto; the "Index
Post-Announcement Average Share Price" means the weighted average closing
trading price for shares of common stock of the Index Company (as reported in
the Wall Street Journal or, if not reported thereby, by any other authoritative
source) during the Measuring Period; the "Index Pre-Announcement Average Share
Price" means the weighted average closing trading price for shares of common
stock of the Index Company (as reported in the Wall Street Journal or, if not
reported thereby, by any other authoritative source) for the five trading days
immediately preceding the date of this Agreement; the "Index Share Price
Decrease Percentage" means the quotient, expressed as a percentage, of (i) the
excess of the Index Pre-Announcement Average Share Price over the Index
Post-Announcement Average Share Price, if positive (and zero, if such amount is
negative), divided by (ii) the Index Pre-Announcement Average Share Price; the
"Parent Pre-Announcement Average Share Price" means the average closing trading
price for a share of Parent Common Stock (as reported in the Wall Street Journal
or, if not reported thereby, by any other authoritative source) for the five
trading days immediately preceding the date of this Agreement; and, the "Parent
Share Price Decrease Percentage" means the quotient, expressed as a percentage,
of (i) the excess of the Parent Pre-Announcement Average Share Price over the
Parent Post-Announcement Average Share Price, if positive (and zero, if such
amount is negative), divided by (ii) the Parent Pre-Announcement Average Share
Price.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 9.01):
if to the Stockholders:
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx XX, Esq.
16
with a copy to:
Unilab Corporation
00000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq.
if to Parent or Purchaser:
Quest Diagnostics Incorporated
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X'Xxxxx
SECTION 9.02. 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 so long as the economic or legal
substance of the transactions contemplated hereby and by the Merger Agreement
are not affected in any manner materially adverse to any party. 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 in a mutually acceptable manner in order that such transactions be
consummated as originally contemplated to the fullest extent possible.
SECTION 9.03. Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof. This Agreement shall not be assigned by operation of law or otherwise,
except that Parent and Purchaser may assign all or any of their rights and
obligations
17
hereunder to any wholly owned subsidiary of Parent, provided that no such
assignment shall relieve Parent or Purchaser of its obligations hereunder.
SECTION 9.04. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and, except as set
forth in Section 9.10 hereof, nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
SECTION 9.05. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at Law or in equity.
SECTION 9.06. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that State (other than those
provisions set forth herein that are required to be governed by the General
Corporation Law of the State of Delaware). All actions and proceedings arising
out of or relating to this Agreement shall be heard and determined exclusively
in any New York state or federal court sitting in the Borough of Manhattan of
The City of New York. The parties hereto hereby (a) submit to the exclusive
jurisdiction of any state or federal court sitting in the Borough of Manhattan
of The City of New York for the purpose of any action arising out of or relating
to this Agreement brought by any party hereto, and (b) irrevocably waive, and
agree not to assert by way of motion, defense, or otherwise, in any such action,
any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement may not be enforced in or by
any of the above-named courts.
SECTION 9.07. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable Law any right it may
have to a trial by jury with respect to any litigation directly or indirectly
arising out of, under or in connection with this Agreement. Each of the parties
hereto (a) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce that foregoing waiver and (b)
acknowledges that it and the others hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 9.07.
SECTION 9.08. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 9.09. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
18
SECTION 9.10. Amendment. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto. Notwithstanding the
foregoing, the provisions of this Agreement shall not be amended without the
prior written consent of the Company.
SECTION 9.11. Waiver. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 9.12. Costs and Expenses of This Agreement and the Merger
Agreement. All costs and expenses of the parties hereto, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
SECTION 9.13. Affiliate Letters. Each Stockholder agrees to execute
an affiliate letter, as soon as practicable after the date hereof, in the form
attached to the Merger Agreement as Exhibit A.
SECTION 9.14. Adjustments. (a) In the event (i) of any increase or
decrease or other change in the Shares by reason of stock dividend, stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) that a
Stockholder becomes the beneficial owner of any additional shares of Common
Stock or other securities of the Company, then the terms of this Agreement shall
apply to the shares of capital stock and other securities of the Company held by
the Stockholders immediately following the effectiveness of the events described
in clause (i), or such Stockholder becoming the beneficial owner thereof
pursuant to clause (ii).
(b) Each Stockholder hereby agrees to promptly notify Parent and
Purchaser of the number of any new Shares or other securities acquired by such
Stockholder, if any, after the date hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
QUEST DIAGNOSTICS INCORPORATED
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
QUEST DIAGNOSTICS NEWCO INCORPORATED
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXX INVESTMENT ASSOCIATES VI,
L.P.
By: Xxxxx XX VI, LLC, its General Partner
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Member
KEP VI, LLC
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Member
Acknowledged and Agreed
(with respect to Article II)
UNILAB CORPORATION
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
