STOCKHOLDER TENDER AND SUPPORT AGREEMENT
Exhibit
(d)(3)
STOCKHOLDER
TENDER AND SUPPORT AGREEMENT
This
Stockholder Tender and Support Agreement dated as of January 21, 2008 (this
“Agreement”) is among each of the individuals or entities
listed on a signature page hereto (each, a “Stockholder”) and
Roche Holdings, Inc., a Delaware corporation
(“Parent”). Capitalized terms used but not defined
herein have the meanings assigned to them in the Agreement and Plan of Merger
dated as of the date of this Agreement (the “Merger Agreement”)
among Parent, Rocket Acquisition Corporation, a Delaware corporation and a
wholly-owned indirect subsidiary of Parent (“Merger
Subsidiary”), and Ventana Medical Systems, Inc., a Delaware corporation
(the “Company”).
WHEREAS,
each Stockholder beneficially owns (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) shares of common stock of the
Company, par value $0.001 per share (“Company Common
Stock”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Merger
Subsidiary and the Company are entering into the Merger Agreement, which
provides for, among other things, the making of a tender offer by Merger
Subsidiary for all of the outstanding shares of the Company Common Stock and
the
merger of Merger Subsidiary with and into the Company, upon the terms and
subject to the conditions set forth therein; and
WHEREAS,
as a condition to Parent’s willingness to enter into the Merger Agreement,
Parent has required that each Stockholder enter into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants,
representations, warranties and agreements set forth herein, and intending
to be
legally bound, the parties hereby agree as follows:
SECTION
1. Agreement to Tender. Each Stockholder
hereby agrees to validly tender or cause to be tendered in the Offer any and
all
shares of Company Common Stock currently beneficially owned by such Stockholder
(excluding for purposes of this Section 1 any shares of Company Common Stock
that are the subject of unexercised Company Stock Options and any Company
Restricted Shares and Company Performance Units) and any additional shares
of
Company Common Stock with respect to which such Stockholder becomes the
beneficial owner (including, without limitation, whether by purchase, by the
exercise of Company Stock Options or otherwise) after the date of this Agreement
(collectively, but excluding any shares that are disposed of in compliance
with
Section 6(b), the “Subject Shares”) pursuant to and in
accordance with the terms of the Offer no later than two Business Days after
the
receipt by such Stockholder of all documents or instruments required to be
delivered pursuant to the terms of the Offer, including but not limited to
the
letter of transmittal in the case of certificated Subject Shares. In
furtherance of the foregoing, at the time of such
tender,
each Stockholder shall (i) deliver to the depositary designated in the Offer
(the “Depositary”) (A) a letter of transmittal with respect to
its Subject Shares complying with the terms of the Offer, (B) a certificate
or
certificates representing such Subject Shares or an “agent’s message” (or such
other evidence, if any, of transfer as the Depositary may reasonably request)
in
the case of a book-entry transfer of any Subject Shares and (C) all other
documents or instruments, to the extent applicable, required to be delivered
by
other stockholders of the Company pursuant to the terms of the Offer, and/or
(ii) instruct its broker or such other Person that is the holder of record
of
any Subject Shares to tender such Subject Shares pursuant to and in accordance
with the terms of the Offer. Each Stockholder agrees that once its
Subject Shares are tendered, such Stockholder will not withdraw or cause to
be
withdrawn any of such Subject Shares from the Offer, unless and until this
Agreement shall have been terminated in accordance with Section
11(d).
SECTION
2. Documentation and Information. Each
Stockholder (i) consents to and authorizes the publication and disclosure by
Parent of such Stockholder’s identity and holding of Subject Shares, the nature
of such Stockholder’s commitments, arrangements and understandings under this
Agreement (including, for the avoidance of doubt, the disclosure of this
Agreement) and any other information, in each case, that Parent reasonably
determines is required to be disclosed by applicable Law in any press release,
the Offer Documents, the Company Proxy Statement (including all schedules and
documents filed with the SEC), or any other disclosure document in connection
with the Offer, the Merger and any transactions contemplated by the Merger
Agreement and (ii) agrees promptly to give to Parent any information it may
reasonably require for the preparation of any such disclosure
documents. Each Stockholder agrees to promptly notify Parent of any
required corrections with respect to any information supplied by such
Stockholder specifically for use in any such disclosure document, if and to
the
extent that any such information shall have become false or misleading in any
material respect.
SECTION
3. Voting Agreement. Each Stockholder
agrees that if such Stockholder’s Subject Shares have not been previously
accepted for payment pursuant to the Offer, such Stockholder hereby agrees
that
at any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of the holders of Company Common Stock, however called (each,
a “Company Stockholders Meeting”), or in connection with any
written consent of the holders of Company Common Stock, such Stockholder shall
vote (or cause to be voted) or deliver a written consent (or cause a written
consent to be delivered) with respect to all such Stockholder’s Subject Shares,
in each case, to the fullest extent that such Subject Shares are entitled to
be
voted at the time of any vote or action by written consent:
(a)
in favor of Section 1 the adoption of the Merger Agreement and Section 2 without
limitation of the preceding clause (i), the approval of any proposal to adjourn
or
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postpone
the Company Stockholders Meeting to a later date if there are not sufficient
votes for adoption of the Merger Agreement on the date on which the Company
Stockholders Meeting is held; and
(b)
against any action or agreement that would reasonably be expected to frustrate
the purposes of, impede, hinder, interfere with, prevent, delay or adversely
affect the consummation of the transactions contemplated by the Merger
Agreement, including, but not limited to, any agreement or arrangement related
to an Acquisition Proposal.
SECTION
4. Irrevocable Proxy. Each Stockholder
hereby irrevocably appoints Parent as attorney-in-fact and proxy for and on
behalf of such Stockholder, for and in the name, place and stead of such
Stockholder, to:
(a)
attend any and all Company Stockholder Meetings;
(b)
vote, express consent or dissent or issue instructions to the record holder
to
vote such Stockholder’s Subject Shares in accordance with the provisions of
Section 3 at any such meeting; and
(c)
grant or withhold, or issue instructions to the record holder to grant or
withhold, in accordance with the provisions of Section 3, all written consents
with respect to the Subject Shares. The foregoing proxy shall be
deemed to be a proxy coupled with an interest, is irrevocable (and as such
shall
survive and not be affected by the death, incapacity, mental illness or insanity
of such Stockholder) until the end of the Agreement Period (as defined below)
and shall not be terminated by operation of Law or upon the occurrence of any
other event other than the termination of this Agreement pursuant to Section
11(d). Each Stockholder authorizes such attorney and proxy to
substitute any other Person to act hereunder, to revoke any substitution and
to
file this proxy and any substitution or revocation with the Secretary of the
Company. Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with and granted in
consideration of and as an inducement to Parent entering into the Merger
Agreement and that such irrevocable proxy is given to secure the obligations
of
the Stockholder under Section 3 hereof. Parent covenants and agrees
with each Stockholder that Parent will exercise the foregoing proxy consistent
with the provisions of Section 3 hereof.
SECTION
5. Representations and Warranties of Each
Stockholder. Each Stockholder, severally but not jointly as to
any other Stockholder, represents and warrants to Parent as follows (it being
understood that, except where expressly stated to be given or made as of the
date hereof only, the representations and warranties contained in this Agreement
shall be made as of the date hereof, as of the Acceptance Date and, if such
Stockholder’s Subject Shares have not been previously accepted for payment
pursuant to the Offer, as of the date of each Company Stockholders
Meeting:
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(a)
Organization. If such Stockholder is not an individual, it
is duly organized and validly existing and in good standing under the laws
of
the jurisdiction of its organization.
(b)
Authorization. If such Stockholder is not an individual, it
has full corporate, limited liability company, partnership or trust power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. If such Stockholder is an individual, he has full legal
capacity, right and authority to execute and deliver this Agreement and to
perform his obligations hereunder. If such Stockholder is not an
individual, the execution, delivery and performance by such Stockholder of
this
Agreement and the consummation by such Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Stockholder. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a valid and legally binding
obligation of such Stockholder.
(c)
No Violation.
(i)
The execution and delivery of this Agreement by such Stockholder does not,
and
the performance by such Stockholder of such Stockholder’s obligations hereunder
will not, Section 3 if such Stockholder is not an individual, contravene,
conflict with, or result in any violation or breach of any provision of its
articles of incorporation, bylaws or similar organizational documents, Section
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assuming compliance with the matters referred to in Section 5(c)(ii),
contravene, conflict with, or result in a violation or breach of any provision
of applicable Law or any judgment, injunction, order or decree of any
Governmental Authority with competent jurisdiction or Section 5 constitute
a
default, or an event that, with or without notice or lapse of time or both,
could become a default, under, or cause or permit the termination, cancellation,
acceleration or other change of any right or obligation or the loss of any
benefit to which the such Stockholder is entitled under any provision of any
agreement or other instrument binding upon such Stockholder, except, in the
case
of clauses (B) and (C), for such matters as would not reasonably be expected
to
have, individually or in the aggregate, a material adverse effect on such
Stockholder’s ability to perform its obligations under this
Agreement.
(ii) No
consent, approval, order, authorization or permit of, or registration,
declaration or filing with or notification to, any Governmental Authority or
any
other Person is required by or with respect to such Stockholder in connection
with the execution and delivery of this Agreement by such Stockholder or the
performance by such Stockholder of such Stockholder’s obligations hereunder,
except for the filing with the SEC of any Schedules 13D or 13G or amendments
to
Schedules 13D or 13G and filings under Section 16 of the 1934 Act as may be
required in connection with this Agreement and the transactions contemplated
hereby
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and
except
for any actions or filings the absence of which would not reasonably be expected
to have, individually or in the aggregate, a material adverse effect on such
Stockholder’s ability to perform its obligations under this
Agreement.
(d)
Ownership of Subject Shares. As of the date hereof, such
Stockholder is, and (except with respect to any Subject Shares Transferred
in
accordance with Section 6(b) hereof or accepted for payment pursuant to the
Offer) at all times during the Agreement Period will be, the beneficial owner
of
such Stockholder’s Subject Shares with no restrictions on such Stockholder’s
rights of disposition pertaining thereto, except for any applicable restrictions
on Transfer under the 1933 Act. Except to the extent of any Subject
Shares acquired after the date hereof (which shall become Subject Shares upon
that acquisition), the number of shares of the Company Common Stock set forth
on
Schedule A opposite the name of such Stockholder are the only shares of Company
Common Stock beneficially owned by such Stockholder on the date of this
Agreement. Other than the Subject Shares and any shares of Company
Common Stock that are the subject of unexercised Company Stock Options and
any
Company Restricted Shares and Company Performance Units held by such Stockholder
(the number of which is set forth opposite the name of such Stockholder on
Schedule A), such Stockholder does not own any shares of Company Stock or any
options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has not interest in or voting rights with respect
to any securities of the Company.
(e)
Proxy. None of such Stockholder’s Subject Shares are subject
to any voting agreement or proxy on the date of this Agreement, except pursuant
to this Agreement.
(f)
Absence of Litigation. With respect to such Stockholder, as
of the date hereof, there is no action, suit, investigation or proceeding
pending against, or, to the knowledge of such Stockholder, threatened against
or
otherwise affecting, such Stockholder or any of its or his properties or assets
(including such Stockholder’s Subject Shares) that could reasonably be expected
to impair the ability of such Stockholder to perform his or its obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
(g)
Opportunity to Review; Reliance. Such Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon such Stockholder’s execution, delivery and performance of this
Agreement.
(h)
Finders’ Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Parent or the Company
in
respect of this Agreement based upon any arrangement or agreement made by or
on
behalf of such Stockholder in his capacity as such.
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(i)
No Other Representations or Warranties. Except for the
representations and warranties expressly contained in this Section 5, such
Stockholder makes no express or implied representation or warranty with respect
to any Stockholder, the Subject Shares or otherwise.
SECTION
6. No Proxies for or Encumbrances on Subject
Shares.
(a)
Except pursuant to the terms of this Agreement, during the Agreement Period,
no
Stockholder shall (nor permit any Person under such Stockholder’s control to),
without the prior written consent of Parent, directly or indirectly, Section
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grant any proxies, powers of attorney, rights of first offer or refusal or
enter
into any voting trust, Section 7 sell (including short sell), assign, transfer,
tender, pledge, encumber, grant a participation interest in, hypothecate or
otherwise dispose of (including by gift) (each, a “Transfer”),
Section 8 otherwise permit any Liens to be created on, or Section 9 enter into
any contract, agreement, option, instrument or other arrangement or
understanding with respect to the direct or indirect Transfer of, any Subject
Shares. No Stockholder shall, and shall not permit any Person under
such Stockholder’s control or any of its or their respective representatives to,
seek or solicit any such Transfer or any such contract, agreement, option,
instrument or other arrangement or understanding.
(b)
Notwithstanding the foregoing, each Stockholder shall have the right
to
Transfer all or any portion of its or his Subject Shares to a Permitted
Transferee of such Stockholder if and only if such Permitted Transferee shall
have agreed in writing, in a manner reasonably acceptable in form and substance
to Parent, Section 10 to accept such Subject Shares subject to the terms and
conditions of this Agreement and Section 11 to be bound by this Agreement and
to
agree and acknowledge that such Person shall constitute a Stockholder for all
purposes of this Agreement. “Permitted Transferee”
means, with respect to any Stockholder, (A) any other Stockholder,
(B) a spouse,
lineal descendant or antecedent, brother or sister, adopted child or grandchild
or the spouse of any child, adopted child, grandchild or adopted grandchild
of
such Stockholder, (C) any trust, the trustees of which include only the Persons
named in clauses (A) or (B) and the beneficiaries of which include only the
Persons named in clauses (A) or (B), (D) any corporation, limited liability
company or partnership, the stockholders, members or general or limited partners
of which include only the Persons named in clauses (A) or (B), or (E) if such
Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled
to receive distributions from such trust.
(c)
Each Stockholder hereby authorizes Parent to direct the Company to impose stop
orders to prevent the Transfer of any Subject Shares on the books of the Company
in violation of this Agreement.
SECTION
7. Waiver of Appraisal Rights. Each
Stockholder hereby irrevocably waives any and all rights he or it may have
as to
appraisal, dissent or any similar or related matter with respect to any of
such
Stockholder’s Subject
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Shares
that may arise with respect to the Merger or any of the transactions
contemplated by the Merger Agreement, including, without limitation, under
Section 262 of Delaware Law.
SECTION
8. Notices of Certain Events. Each
Stockholder shall notify Parent of any development occurring after the date
hereof that causes, or that would reasonably be expected to cause, any breach
of
any of the representations and warranties of such
Stockholder set forth in Section 5.
SECTION
9. Further Assurances. Parent and each
Stockholder will each execute and deliver, or cause to be executed and
delivered, all further documents and instruments and use their respective
reasonable best efforts to take, or cause to be taken, all actions and to do,
or
cause to be done, all things necessary, proper or advisable under applicable
Laws and regulations, to perform their respective obligations under this
Agreement.
SECTION
10. Certain Adjustments. In the event of a
stock split, stock dividend or distribution, or any change in the Company Common
Stock by reason of a stock split, reverse stock split, recapitalization,
combination, reclassification, readjustment, exchange of shares or the like,
the
term “Subject Shares” shall be deemed to refer to and include such shares as
well as all such stock dividends and distributions and any securities into
which
or for which any or all of such shares may be changed or exchanged.
SECTION
11. Miscellaneous.
(a)
Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission)
and
shall be given,
If
to
Parent:
Roche
Holdings, Inc.
0000
X.
Xxxxxx Xx., Xxxxx #000
Xxxxxxxxxx,
XX 00000-0000
Attention:
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Xxxxx
Xxxxxxxxxx
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Facsimile
No.: (000) 000-0000
with
a
copy to:
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
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Xxxxxxxxxxx
Xxxxx
Xxxx
X. Xxxxxxxx
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Facsimile
No.: (000) 000-0000
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If
to a
Stockholder, to his, her or its address set forth on a signature page hereto,
with copies to:
Sidley
Austin LLP
0
Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
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Xxxxxx
X. Xxxx
Xxxxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxx
Xxxxxx
X. Xxxxxxx
|
Facsimile
No.: (000) 000-0000
Xxxxx
& Xxxxxx LLP
One
Arizona Center
000
Xxxx
Xxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxxx
Facsimile
No.: (000) 000-0000
and/or
to
such other address or facsimile number as such party may hereafter specify
for
the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. on a business
day
in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
business day in the place of receipt.
(b)
Amendment and Waivers.
(i)
Any provision of this Agreement may be amended or waived during the Agreement
Period if, but only if, such amendment or waiver is in writing and is signed,
in
the case of an amendment, by each party to this Agreement or, in the case of
a
waiver, by each party against whom the waiver is to be effective.
(ii)
No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.
(c)
Binding Effect; Benefit; Assignment.
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(i)
The provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their respective successors and
assigns.
(ii) Neither
any Stockholder, on the one hand, nor Parent, on the other hand, may assign
this
Agreement or any of his or its rights, interests or obligations hereunder
(whether by operation of Law or otherwise) without the prior written approval
of
Parent or such Stockholder, as applicable, except that Parent may transfer
or
assign its rights and obligations under this Agreement, in whole or from time
to
time in part, to one or more of its Affiliates at any time; provided
that such transfer or assignment shall not relieve Parent of its obligations
under this Agreement.
(d)
Termination. This Agreement shall automatically terminate
and become void and of no further force or effect on the earlier of (i) the
Effective Time, (ii) the termination of this Agreement by written notice from
Parent to the Stockholders, (iii) the occurrence of an Adverse Recommendation
Change, and (iv) the termination, or modification in a manner adverse to the
stockholders of the Company, of the Offer or the termination of the Merger
Agreement in accordance with its terms (the period from the date hereof through
such time being referred to as the “Agreement Period”);
provided that (A) Sections 11(a), 11(b), 11(e), 11(h) and
11(n) shall
survive such termination and (B) no such termination shall relieve or release
any Stockholder or Parent from any obligations or liabilities arising out of
his
or its breach of this Agreement prior to its termination.
(e)
Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial.
(i)
This Agreement shall be governed by and construed in accordance with the law
of
the State of Delaware, without regard to the conflicts of law rules of such
state.
(ii)
The parties hereto agree that any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be brought in
the
Delaware Chancery Court or, if such court shall not have jurisdiction, in any
federal court located in the State of Delaware or other Delaware state court,
and each of the parties hereby irrevocably consents to the jurisdiction of
such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted
by
law, any objection that it may now or hereafter have to the laying of the
venue
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of
any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees
that service of process on such party as provided in Section 11(a) shall be
deemed effective service of process on such party.
(iii)
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
(f)
Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or
other Governmental Authority to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to
the fullest extent possible.
(g)
Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof,
in addition to any other remedy to which they are entitled at law or in
equity.
(h)
Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by or on behalf of the party incurring such cost
or
expense.
(i)
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 a counterpart hereof signed by all of the other
parties hereto. Until and unless each party has received a
counterpart hereof signed by the other party hereto, this Agreement shall have
no effect and no party shall have any right or obligation hereunder (whether
by
virtue of any other oral or written agreement or other
communication).
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(j)
Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of hereof
and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
(k)
Headings. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or
interpretation of this Agreement.
(l)
Interpretation. Any reference to any national, state, local
or foreign Law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context otherwise requires. When a
reference is made in this Agreement to Sections or Schedules, such reference
shall be to a Section of or Schedule to this Agreement unless otherwise
indicated. Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.” In this Agreement, the Stockholder of any
Company Common Stock held in trust shall be deemed to be the relevant trust
and/or the trustees thereof acting in their capacities as such trustees, in
each
case as the context may require to be most protective of Parent, including
for
purposes of such trustees’ representations and warranties as to the proper
organization of the trust, their power and authority as trustees and the
non-contravention of the trust’s governing instruments.
(m)
No Presumption. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.
(n)
Obligations. The obligations of each Stockholder under this
Agreement are several and not joint, and no Stockholder shall have any liability
or obligation under this Agreement for any breach hereunder by any other
Stockholder.
(o)
Stockholder Capacity. Each Stockholder is signing and
entering this Agreement solely in his capacity as the beneficial owner of
Subject Shares, and nothing herein shall limit or affect in any way any actions
that may be hereafter taken by him in his capacity as an employee, officer
or
director of the Company or any Subsidiary of the Company.
(p)
Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time.
SECTION
12. Representations and Warranties of
Parent. Parent represents and warrants to each Stockholder, as
of the date hereof and as of the date of each Company Stockholders Meeting
and
the Acceptance Date, that it has full power and authority to execute and deliver
this Agreement and to perform its
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obligations
hereunder. The execution, delivery and performance by Parent of this
Agreement and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of
Parent. This Agreement constitutes a valid and legally binding
obligation of Parent.
[The
next
page is the signature page]
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The
parties hereto have executed this Tender and Support Agreement as of the date
first written above.
ROCHE
HOLDINGS, INC.
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By:
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/s/
Xxxxx Xxxxxxxxxx
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Name: |
Xxxxx
Xxxxxxxxxx
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Title: | Vice President and Corporate Secretary |
[Stockholder
Signatures Begin on the Next Page]
Xxxxxx
X. Xxxxx
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/s/ Xxxxxx X. Xxxxx | |
Address:
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Facsimile:
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[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxxx
X. Xxxxxxxx
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/s/ Xxxxxx X. Xxxxxxxx | |
Address:
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[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxxx
X. Xxxxx
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/s/ Xxxxxx X. Xxxxx | |
Address:
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[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxxxxxxxx
X. Xxxxxxx
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/s/ Xxxxxxxxxxx X. Xxxxxxx | |
Address:
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[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxxx
X. Xxxxxx, M.D.
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/s/ Xxxxxx X. Xxxxxx, M.D. | |
Address:
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[Tender
and Support Agreement – Stockholder Signature Page]
Xxxx
Xxxxxxxxx
|
|
/s/ Xxxx Xxxxxxxxx | |
Address:
|
|
|
[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxxxxx
X.
Xxxxxx
|
|
/s/ Xxxxxxxx X. Xxxxxx | |
Address:
|
|
|
[Tender
and Support Agreement – Stockholder Signature Page]
Xxxx
X. Xxxxxx
|
|
/s/ Xxxx X. Xxxxxx | |
Address:
|
|
|
[Tender
and Support Agreement – Stockholder Signature Page]
Xxxx
X. Xxxxxx
|
|
/s/ Xxxx X. Xxxxxx | |
Address:
|
|
|
[Tender
and Support Agreement – Stockholder Signature Page]
Xxxxx
X.
Xxxxxxxx
|
|
/s/ Xxxxx X. Xxxxxxxx | |
Address:
|
|
|
[Tender
and Support Agreement – Stockholder Signature Page]
SCHEDULE
A
Name
|
Number
of Shares Beneficially Owned
|
Number
of Shares Subject
to
Unexercised Company Stock Options
|
Number
of Company Restricted Shares
|
Number
of Company Performance Units
|
Xxxxxx
X. Xxxxx
|
0
|
48,114
|
0
|
0
|
Xxxxxx
Xxxxxxxx
|
0
|
37,453
|
0
|
0
|
Xxxxxx
X. Xxxxx
|
231,082
|
115,724
|
0
|
0
|
Xxxxxxxxxxx
X. Xxxxxxx
|
75,857
|
590,263
|
0
|
4,354
|
Xxxxxx
X. Xxxxxx, M.D.
|
63,771
|
212,097
|
0
|
0
|
Xxxx
Xxxxxxxxx
|
12,632
|
226,164
|
0
|
15,000
|
Xxxxxxxx
X. Xxxxxx
|
0
|
66,666
|
0
|
0
|
Xxxx
X. Xxxxxx
|
40,800
|
128,954
|
0
|
0
|
Xxxx
X. Xxxxxx
|
11,823
|
36,000
|
11,000
|
0
|
Xxxxx
X. Xxxxxxxx
|
118,568
|
81,209
|
0
|
0
|
A-1