EXHIBIT 1
SHAREHOLDER AGREEMENT
(VOTING)
This SHAREHOLDER AGREEMENT (this "Agreement"), dated as of April 26,
2006, is by and between Siemens Medical Solutions USA, Inc., a Delaware
corporation (the "Purchaser") and each of the shareholder(s) set forth in the
signature pages hereto (each, a "Shareholder" and collectively, the
"Shareholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Purchaser, Dresden Acquisition
Corporation, a California corporation ("Merger Sub"), and Diagnostic Products
Corporation, a California corporation (the "Company") are entering into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement");
WHEREAS, each Shareholder is the beneficial owner of the number of
shares of Company Common Stock set forth opposite such person's name on Schedule
I (the "Shares");
WHEREAS, the Company Shareholders' Approval is required to consummate
the Merger; and
WHEREAS, the board of directors of the Company has, prior to the
execution of this Agreement, by resolution duly adopted by unanimous vote at a
meeting duly called and held and at which all directors were present, which
resolution has not subsequently been rescinded or modified in any manner
whatsoever, (i) determined that the Merger Agreement and the Merger are fair to
and in the best interests of the shareholders of the Company, (ii) approved the
Merger Agreement and the transactions contemplated thereby, including the
Merger, and (iii) resolved to recommend that holders of shares of the Company
Common Stock approve the Merger Agreement and the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, respective covenants and agreements of
the parties contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 DEFINED TERMS. Terms used in this Agreement and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement.
ARTICLE II
VOTING AGREEMENT
SECTION 2.1 GRANT OF PROXY; AGREEMENT TO VOTE. Upon the terms and
subject to the conditions hereof, each Shareholder hereby grants with respect to
the Shares
owned by such Shareholder, in addition to any shares of Company Common Stock
acquired by Shareholder after the date hereof, an irrevocable proxy to the
Purchaser (and agrees to execute such documents or certificates evidencing such
proxy as the Purchaser may reasonably request) to vote, at any meeting of the
Company's shareholders, or in connection with any written consent of the
Company's shareholders, (i) in favor of the approval of the Merger Agreement and
the Merger and (ii) against any Acquisition Proposal, other than the Merger.
Each Shareholder further agrees to cause all Shares owned by such Shareholder,
in addition to any shares of Company Common Stock acquired by Shareholder after
the date hereof, to be voted in accordance with the foregoing. This proxy is
coupled with an interest and until this Agreement is terminated pursuant to
Section 5.1 hereof is irrevocable. Upon the execution of this Agreement by a
Shareholder, such Shareholder hereby revokes any and all other proxies (other
than the proxy granted herein) given by such Shareholder with respect to the
subject matter hereof. Each Shareholder acknowledges receipt and review of a
copy of the Merger Agreement. Each Shareholder agrees not to enter into any
agreement or commitment with any Person, the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Each
Shareholder represents and warrants to the Purchaser that (i) such Shareholder
is the direct or indirect beneficial owner of the Shares set forth opposite such
Shareholder's name on Schedule I, (ii) this Agreement has been duly executed and
delivered by such Shareholder, and (iii) this Agreement constitutes the valid
and binding agreement of such Shareholder, enforceable against such Shareholder
in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
and similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law), in each case now or hereafter in effect.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser
represents and warrants to Shareholders that (i) this Agreement has been duly
executed and delivered by the Purchaser, and (ii) this Agreement constitutes the
valid and binding agreement of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
and similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law), in each case now or hereafter in effect.
ARTICLE IV
COVENANTS
SECTION 4.1 COVENANTS OF THE SHAREHOLDERS. Each Shareholder covenants
and agrees with the Purchaser that, during the period commencing on the date
hereof and ending on the date this Agreement is terminated under Section 5.1
hereof:
(a) Shareholder shall not sell, transfer, pledge, or dispose of
any Shares or offer to make such a sale, transfer, pledge or other disposition
(collectively, "Transfer") to any Person;
provided that this Section 4.1(a) shall not prohibit a Transfer of Shares by a
Shareholder (i) if Shareholder is an individual, (ii) to any member of
Shareholder's immediate family, or to a trust for the benefit of Shareholder or
any member of Shareholder's immediate family, (iii) upon the death of
Shareholder, or (iv) if Shareholder is a partnership or limited liability
company, to one or more partners or members of Shareholder or to an affiliated
corporation under common control with Shareholder; provided that a Transfer
referred to in this sentence shall be permitted only if, as a precondition to
such Transfer, the transferee agrees in a writing, reasonably satisfactory in
form and substance to Purchaser, to be bound by the terms of this Agreement.
(b) Shareholder waives, and agrees not to exercise or assert, any
applicable appraisal rights under Chapter 13 of the California General
Corporation Law in connection with the Merger.
(c) Shareholder shall execute and deliver such other documents and
instruments and take such further actions as are necessary in order to ensure
that the Purchaser receives the benefit of this Agreement.
ARTICLE V
TERMINATION
SECTION 5.1 TERMINATION. This Agreement shall terminate and be of no
further force or effect upon the earliest to occur of (i) the mutual written
consent of the Purchaser and the Shareholder, (ii) the Effective Time, (iii) the
termination of the Merger Agreement in accordance with its terms, or (iv) an
amendment to the Merger Agreement that reduces or otherwise changes the form of
the Merger Consideration to which the Shareholders would have been entitled.
SECTION 5.2 EFFECT OF TERMINATION. In the event of any termination of
this Agreement, this Agreement (other than Article VI) shall become void and of
no effect with no liability on the part of any party hereto; provided that no
such termination shall relieve any party hereto from liability for any willful
breach of this Agreement prior to termination thereof.
ARTICLE VI
GENERAL
SECTION 6.1 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given to a party if delivered in person or sent by overnight delivery
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice) on the date
of delivery, or if by facsimile, upon confirmation of receipt:
If to the Purchaser: Siemens Medical Solutions USA, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Secretary
with a copy to: Siemens Corporation
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: General Counsel
With a copy Xxxxxxxx Chance US LLP
(which shall not 00 Xxxx 00xx Xxxxxx
constitute notice) to: Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Diagnostics Products Corporation
Shareholders: 0000 Xxxxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
With a copy O'Melveny & Xxxxx LLP
(which shall not 000 Xxxxx Xxxx Xxxxxx
constitute notice) to: Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: C. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
SECTION 6.2 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement,
whether express or implied, is intended to or shall confer any rights, benefits
or remedies under or by reason of this Agreement on any persons other than the
parties and their respective successors and permitted assigns, nor is anything
in this Agreement intended to relieve or discharge the obligation or liability
of any third person to any party, nor shall any provisions give any third person
any right or subrogation over or action against any party.
SECTION 6.3 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California,
without giving effect to the conflicts of law provisions thereof. Each party
waives any right to a trial by jury in any action to enforce or defend any right
under this Agreement or any amendment, instrument, document or agreement
delivered, or which in the future may be delivered, in connection with this
Agreement and agrees that any action shall be tried before a court and not
before a jury.
SECTION 6.4 ASSIGNMENT; SUCCESSORS. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns. No party to this Agreement may
assign its rights or delegate its obligations
under this Agreement, whether by operation of law or otherwise, to any other
person without the express prior written consent of the other party hereto. Any
such assignment or transfer made without the prior written consent of the other
party hereto shall be null and void.
SECTION 6.5 AMENDMENTS; WAIVERS. Subject to applicable law, this
Agreement may only be amended pursuant to a written agreement executed by all
the parties, and no waiver of compliance with any provision or condition of this
Agreement and no consent provided for in this Agreement shall be effective
unless evidenced by a written instrument executed by the party against whom such
waiver or consent is to be effective. No waiver of any term or provision of this
Agreement shall be construed as a further or continuing waiver of such term or
provision or any other term or provision.
SECTION 6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of all the parties and supersedes any and all prior and
contemporaneous agreements, memoranda, arrangements and understandings, both
written and oral, between the parties, or either of them, with respect to the
subject matter hereof. No representation, warranty, promise, inducement or
statement of intention has been made by any party which is not contained in this
Agreement and no party shall be bound by, or be liable for, any alleged
representation, promise, inducement or statement of intention not contained
herein or therein.
SECTION 6.7 COUNTERPARTS. To facilitate execution, this Agreement may
be executed in any number of counterparts (including by facsimile transmission),
each of which shall be deemed to be an original, but all of which together shall
constitute one binding agreement on the parties, notwithstanding that not all
parties are signatories to the same counterpart.
SECTION 6.8 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event any of the provisions of this Agreement were not
performed in accordance with the terms hereof and that the parties are entitled
to specific performance of the terms hereof in addition to any other remedies at
law or in equity.
SECTION 6.9 SHAREHOLDER CAPACITY. By executing and delivering this
Agreement, the Shareholder makes no agreement or understanding herein in his or
her capacity or actions as a director, officer or employee of the Company. The
Shareholder is signing and entering into this Agreement solely in his, her or
its capacity as the beneficial owner of the Shares, and nothing herein shall
limit or affect in any way any actions that may be hereafter taken by him or her
in his or her capacity as an employee, officer or director of the Company or in
any other capacity.
SECTION 6.10 HEADINGS; CONSTRUCTION. The Article, Section and paragraph
headings contained in this Agreement are for reference purposes only and do not
form a part of this Agreement and do not in any way modify, interpret or
construe the intentions of the parties. As used in this Agreement, unless
otherwise provided to the contrary, (a) all references to days or months shall
be deemed references to calendar days or months and (b) any reference to a
"Section" or "Article" shall be deemed to refer to a section or article of this
Agreement. The words "hereof," "herein" and "hereunder" and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Unless otherwise specifically provided for herein, the term "or"
shall not be deemed to be exclusive.
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IN WITNESS WHEREOF, the parties have duly executed this Shareholder
Agreement as of the date first above written.
SIEMENS MEDICAL SOLUTIONS USA, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Prof. Xx. Xxxxx X. Xxxxxxxxx
Title: Chairman
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
S-1
SHAREHOLDER:
/s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, individually and as
trustee
SCHEDULE I
Name and Address of Shareholder Shares
------------------------------- ------
Xxxxxxx Xxxxxxx c/o 4,756,152 (By Trust)
Diagnostics Products Corporation 3,956 (By 401k)
0000 Xxxxxxx Xxxxxxxxx Xxxxx 4,886 (By 401k of
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Deceased Husband)
Schedule I-1