EXHIBIT (C)(2)
CONFORMED COPY
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of August 9, 1998 among Amersham Pharmacia
Biotech Inc., a Delaware corporation ("Parent"), APB Acquisition Corp., a
Delaware corporation ("Buyer"), and the holders listed on the signature pages
hereof (the "Stockholders") of the shares of common stock, $0.01 par value per
share, of Molecular Dynamics, Inc., a Delaware corporation (the "Company")
(together with the associated Rights (as defined in the Merger Agreement), the
"Shares"), and options to purchase Shares (the "Employee Options").
WHEREAS, in order to induce Parent and Buyer to enter into an
agreement and plan of merger ("Merger Agreement") with the Company dated as of
the date hereof, Buyer has requested the Stockholders, and the Stockholders
have agreed, to enter into this Agreement; and
WHEREAS, pursuant to the Merger Agreement, Buyer shall commence
an offer (as extended from time to time, the "Offer") to purchase all of the
outstanding shares of common stock, $0.01 par value per share, of the Company
at a price of $20.50 per Share (the "Offer Price").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Shares and Options
Section 1.1. Agreement to Tender. Each of the Stockholders
hereby agrees to tender in, and not to withdraw from, the Offer all Shares
presently owned by him as set forth on the signature page hereto and any
additional Shares acquired by such Stockholder (whether by purchase, exercise
of Employee Options pursuant to Section 1.2 hereof or otherwise) after the date
of this Agreement (the "Stockholder Shares").
Section 1.2. Exercise of Employee Options. (a) At Buyer's
written request Stockholder shall exercise some or all of its vested Employee
Options; provided, however, that Buyer shall only make such a request in
connection with the anticipated consummation of an Acquisition Proposal (as
defined in the Merger Agreement) or of the Offer. The exercise of such
Employee Options shall be subject to, and occur substantially simultaneously
with, the consummation of the Acquisition Proposal or the Offer, as
applicable.
(b) In the event Buyer shall request a Stockholder to exercise
some or all of such Stockholders' Employee Options, Buyer shall loan to such
Stockholder the aggregate exercise price payable by Stockholder in respect of
the number of Employee Options requested to be exercised, which amount will
be repaid to Buyer at such time as the Stockholder Shares are acquired in the
Offer or pursuant to an Acquisition Proposal (as defined in the Merger
Agreement).
Section 1.3. Other Consideration. (a) In the event of the
consummation of any Acquisition Proposal (as defined in the Merger Agreement),
each Stockholder shall pay to Buyer a portion of the consideration per Share
or vested Employee Option, as applicable (the "Consideration") received by
such Stockholder at the consummation of such Acquisition Proposal equal to (i)
in the case of Stockholder Shares, an amount equal to the excess, if any, of
the Consideration over the Offer Price multiplied by the number of Stockholder
Shares acquired pursuant to such Acquisition Proposal, or (ii) in the case of
vested Employee Options, an amount equal to the excess, if any, of the
Consideration over the Offer Price multiplied by the number of Stockholder
Shares underlying such vested Employee Options which are cashed or rolled over
pursuant to such Acquisition Proposal.
(b) If all or a portion of the price per Share or Employee
Option to be paid in such Acquisition Proposal consists of non-cash
consideration, the Consideration shall mean the cash consideration per
Share or Employee Option, as applicable, if any, plus the fair market value
of the non-cash consideration per Share or Employee Option, as applicable,
as set forth in such Acquisition Proposal or, if not so set forth, as
determined by Buyer's investment bankers.
(c) Any amounts payable by Stockholder to Buyer hereunder
shall be paid no later than 30 days following the consummation of the
relevant Acquisition Proposal.
ARTICLE 2
Grant of Proxy
Each Stockholder hereby revokes any and all previous proxies
granted with respect to such Stockholder's Shares relating to the approval and
adoption of the Merger Agreement, as the same may be amended from time to
time, all agreements related to the Offer and the Merger and any actions
relating thereto, any proposal or transaction which could prevent or delay the
consummation of the transactions contemplated by the Merger Agreement or this
Agreement and any other related matters (including the adjournment,
postponement or continuation of any meeting of the stockholders of the Company
at which any of the foregoing are submitted for the consideration of the
stockholders of the Company) (the "Merger Matters"). By entering into this
Agreement, each Stockholder hereby grants a proxy appointing Buyer as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express consent or dissent, or
otherwise to utilize such voting power in such manner and upon such Merger
Matters as Buyer or its proxy or substitute shall, in Buyer's sole discretion,
deem proper with respect to the Stockholder Shares. The proxy granted by such
Stockholder pursuant to this Article 2 is irrevocable and is granted in
consideration of Buyer's entering into this Agreement and the Merger
Agreement; provided, however, that such proxy shall be revoked upon
termination of this Agreement in accordance with its terms.
ARTICLE 3
Representations and Warranties of the Stockholders
Each Stockholder, severally and not jointly, represents and
warrants to the Buyer that:
Section 3.1. Valid Title. The Stockholder is the sole,
true, lawful and beneficial owner of the Stockholder Shares and Employee
Options with no restrictions on the Stockholder's voting rights, where
applicable, or rights of disposition pertaining thereto. At any Closing, the
Stockholder will convey good and valid title to the Stockholder Shares being
purchased free and clear of any and all claims, liens, charges, encumbrances
and security interests. None of the Stockholder Shares is subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares.
Section 3.2. Non-Contravention. The execution, delivery and
performance by the Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not contravene or constitute
a default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Stockholder or to a loss of any
benefit of the Stockholder under any provision of applicable law or regulation
or of any agreement, judgment, injunction, order decree, or other instrument
binding on the Stockholder or result in the imposition of any lien on any asset
of the Stockholder.
Section 3.3. Binding Effect. This Agreement is the valid and
binding Agreement of the Stockholder, enforceable against the Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally. If this Agreement is being executed in a representative or
fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform such Agreement.
Section 3.4. Total Securities. The number of Shares and
Employee Options set forth on the signature page hereto are the only Shares and
Employee Options beneficially owned by the Stockholder and, except as set
forth on such signature page, such Stockholders own no options to purchase or
rights to subscribe for or otherwise acquire any securities of the Company and
has or have no other interest in or voting rights with respect to any
securities of the Company.
Section 3.5. Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from Buyer or the Company in respect
of this Agreement based upon any arrangement or agreement made by or on behalf
of the Stockholder in their capacities as such.
ARTICLE 4
Representations and Warranties of Buyer
The Buyer represents and warrants to each of the Stockholders:
Section 4.1. Corporate Power and Authority. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized by the board of directors of
Buyer and no other corporate action on the part of Buyer is necessary to
authorize the execution, delivery or performance by Buyer of this Agreement
and the consummation by Buyer of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Buyer and is a valid and
binding Agreement of Buyer, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
ARTICLE 5
Covenants of the Stockholders
Each of the Stockholders hereby covenants and agrees that:
Section 5.1. No Proxies for or Encumbrances on Stockholder
Shares. Except pursuant to the terms of this Agreement, the Stockholder shall
not, without the prior written consent of Buyer, directly or indirectly, (i)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Stockholder Shares or (ii)
acquire, sell, assign, transfer, encumber or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect
to the direct or indirect acquisition or sale, assignment, transfer,
encumbrance or other disposition of, any Stockholder or Employee Options
during the term of this Agreement. The Stockholder shall not seek or solicit
any such acquisition or sale, assignment, transfer, encumbrance or other
disposition or any such contract, option or other arrangement or assignment or
understanding and agrees to notify Buyer promptly and to provide all details
requested by Buyer if the Stockholder shall be approached or solicited,
directly or indirectly, by any person with respect to any of the foregoing.
Section 5.2. No Shopping. Until such time as the Merger
Agreement shall be terminated, the Stockholder shall not directly or
indirectly (i) solicit, initiate or encourage (or authorize any person to
solicit, initiate or encourage) any inquiry, proposal or offer from any person
to acquire the business, property or capital stock of the Company or any
direct or indirect subsidiary thereof, or any acquisition of a substantial
equity interest in, or a substantial amount of the assets of, the Company or
any direct or indirect subsidiary thereof, whether by merger, purchase of
assets, tender offer or other transaction or (ii) subject to the fiduciary
duty of the Stockholder as a director of the Company under applicable law,
participate in any discussion or negotiations regarding, or furnish to any
other person any information with respect to, or otherwise cooperate in any
way with, or participate in, facilitate or encourage any effort or attempt by
any other person to do or seek any of the foregoing. The Stockholder shall
promptly advise Buyer of the terms of any communications it may receive
relating to any of the foregoing.
ARTICLE 6
Miscellaneous
Section 6.1. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.
Section 6.2. Further Assurances. The Buyer and the
Stockholders will each execute and deliver or cause to be executed and
delivered all further documents and instruments and use its best efforts to
secure such consents and take all such further action as may be reasonably
necessary in order to consummate the transactions contemplated hereby or to
enable the Buyer to exercise and enjoy all benefits and rights of the
Stockholders with respect to the Shares.
Section 6.3. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or
bound, to consummate and make effective the transactions contemplated by this
Agreement, to obtain all necessary waivers, consents and approvals and effect;
all necessary registrations and filings, including, but not limited to,
filings under the HSR Act (as defined in the Merger Agreement), responses to
requests for additional information related to such filings, and submission of
information requested by governmental authorities, and to rectify any event or
circumstances which could impede consummation of the transactions contemplated
hereby.
Section 6.4. Specific Performance. The parties hereto agree
that the Buyer would be irreparable damaged if for any reason the Stockholders
failed to tender the Stockholder Shares or exercise the Employee Options or to
perform any of its other obligations under this Agreement, and that the Buyer
would not have an adequate remedy at law for money damages in such event.
Accordingly, the Buyer shall be entitled to specific performance and injunctive
and other equitable relief to enforce the performance of this Agreement by the
Stockholders. This provision is without prejudice to any other rights that the
Buyer may have against the Stockholders for any failure to perform its
obligations under this Agreement.
Section 6.5. Notices. All notices, requests, claims, demands
and other communications hereunder shall be deemed to have been duly given
when delivered in person, by cable, telegram or telex, or by registered or
certified mail (postage prepaid, return receipt requested) to such party at its
address set forth on the signature page hereto.
Section 6.6. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Stockholder Shares.
Section 6.7. Amendments; Termination. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall terminate automatically upon the termination of the Merger Agreement,
provided that Section 1.3 will survive any such termination until the date
which is nine months thereafter, provided further, that if an Acquisition
Proposal shall have been made on or prior to such date, Section 1.3 shall
survive until 30 days following the consummation of such Acquisition Proposal.
Section 6.8. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto; provided, however,
that Buyer may assign its rights and obligations to any affiliate of Buyer;
provided, further, that no Stockholder may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the Buyer.
Section 6.9. Governing Law. This Agreement shall construed in
accordance with and governed by the law of Delaware without giving effect to
the principles of conflicts of laws thereof.
Section 6.10. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
AMERSHAM PHARMACIA BIOTECH INC.
By: /s/ Xxxxx X. X. Xxxxx
------------------------------------
Name: Xxxxx X. X. Xxxxx
Title: Vice President
APB ACQUISITION CORP.
By: /s/ Xxxxx X. X. Xxxxx
------------------------------------
Name: Xxxxx X. X. Xxxxx
Title: President
/s/ Xxxxx X. Xxxxxxxx
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Class of Shares/ Xxxxx X. Xxxxxxxx
Stock/ Employee
Employee Options
Options Owned
-------- ---------
common 118,082
stock
Employee 263,750
Options
(vested)
/s/ Xxx Xxxxxxx
------------------------------------
Class of Shares/ Xxx X. Xxxxxxx
Stock/ Employee
Employee Options
Options Owned
-------- -------
common 13,198
stock
Employee 221,020
Options
(vested)
