TENDER AND SUPPORT AGREEMENT
Exhibit (e)(19)
This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of January 12, 2011, is
entered into by and among IDEX Corporation, a Delaware corporation (“Parent”), Nano Merger
Sub, Inc., a Delaware corporation (the “Purchaser”), and Xxxxxxxx Xxxxxxxxx
(“Stockholder”).
WHEREAS, contemporaneously with the execution of this Agreement, Parent, the Purchaser and
Microfluidics International Corporation, a Delaware corporation (the “Company”), are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger
Agreement”), which provides, among other things, for the Purchaser to conduct a tender offer
(the “Offer”) for all of the issued and outstanding shares of common stock, par value $0.01
per share, of the Company (“Shares”) and the merger of the Purchaser with and into the
Company, with the Company continuing as the surviving corporation (the “Merger”), upon the
terms and subject to the conditions set forth in the Merger Agreement (capitalized terms used
herein without definition shall have the respective meanings specified in the Merger Agreement);
WHEREAS, Stockholder owns beneficially and of record the number of Shares set forth opposite
such Stockholder’s name on Schedule I hereto (such Shares, together with any other shares
of capital stock of the Company acquired (whether beneficially or of record) by Stockholder after
the date hereof and prior to the earlier of the Effective Time and the termination of this
Agreement, including any Shares acquired by means of purchase, dividend or distribution, or issued
upon the exercise of any warrants or options, or the conversion of any convertible securities or
otherwise, being collectively referred to herein as the “Covered Shares”); and
WHEREAS, as a condition to the willingness of Parent and the Purchaser to enter into the
Merger Agreement and as an inducement and in consideration therefor, Stockholder has agreed to
enter into this Agreement and tender and vote his Covered Shares as described herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein and in the Merger Agreement, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION 1. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to Parent and the Purchaser as follows:
(a) Except as set forth on Schedule I hereto, Stockholder (i) is the sole record and
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of, and has good and marketable title to, the Covered Shares set forth opposite such Stockholder’s
name on Schedule I hereto, free and clear of any and all adverse claims, liens, pledges,
options, security interests, proxies, voting trusts or agreements, options, rights, understandings
or arrangements or any other encumbrances whatsoever on title, transfer or exercise of any rights
of a stockholder in respect of such Covered Shares (collectively, “Encumbrances”), other
than as created by this Agreement
or restrictions on transfer under the Securities Act of 1933, as amended; (ii) does not
directly or indirectly own, of record or beneficially, any shares of capital stock of the Company
(or rights to acquire any such shares, whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any combination of the
foregoing) or any securities convertible into or exchangeable or exercisable for such shares, other
than the Covered Shares and Company Options set forth on Schedule I hereto; and (iii) has
the sole right to vote, sole power of disposition, sole power to issue instructions with respect to
the matters set forth in Sections 3, 4, 5, 6 and 11 hereof,
sole power of conversion, sole power to demand appraisal rights and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of such Covered Shares,
with no limitations, qualifications or restrictions on such rights, subject to applicable federal
securities law and the terms of this Agreement.
(b) Stockholder has the legal capacity and all requisite power and authority to execute and
deliver this Agreement and to perform Stockholder’s obligations hereunder and consummate the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by Stockholder and, assuming due authorization, execution and delivery by Parent and the Purchaser,
constitutes a legal, valid and binding obligation of Stockholder enforceable against Stockholder in
accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding in equity or at
law). If Stockholder is married, and any of the Covered Shares or Company Options constitute
community property or spousal approval is otherwise necessary for this Agreement to be legal,
binding and enforceable, this Agreement has been duly authorized, executed and delivered by, and,
assuming due authorization, execution and delivery by Parent and the Purchaser, constitutes the
legal, valid and binding obligation of, Stockholder’s spouse, enforceable against Stockholder’s
spouse in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’
rights generally and general equitable principles (whether considered in a proceeding in equity or
at law).
(c) No filing with, and no permit, authorization, consent or approval of, any Governmental
Entity or any other Person is necessary for the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions contemplated hereby and the
compliance by Stockholder with the provisions hereof. None of the execution and delivery of this
Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby
or compliance by Stockholder with any of the provisions hereof will (i) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise
to any third party right of termination, cancellation, modification or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, permit,
contract, commitment, arrangement, understanding, agreement or other instrument or obligation of
any kind, including, without limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust, to which Stockholder is a party or by which Stockholder or
any of Stockholder’s properties or
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assets may be bound, (ii) violate any judgment, order, writ, injunction, decree or award of
any court, administrative agency or other Governmental Entity that is applicable to Stockholder or
any of Stockholder’s properties or assets, or (iii) constitute a violation by Stockholder of any
Law or regulation of any jurisdiction, in each case, except for any conflict, breach, default or
violation described which would not adversely affect in any material respect the ability of
Stockholder to perform its obligations hereunder or consummate the transactions contemplated
hereby.
(d) There is no suit, claim, action, proceeding, hearing, notice of violation, investigation,
arbitration or demand letter pending or, to the knowledge of Stockholder, threatened against or
affecting Stockholder that, individually or in the aggregate, could reasonably be expected to
impair the ability of Stockholder to perform its obligations hereunder or consummate the
transactions contemplated hereby.
(e) No broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of Stockholder.
(f) Stockholder has received and reviewed a copy of the Merger Agreement. Stockholder
understands and acknowledges that (i) Parent and the Purchaser are entering into the Merger
Agreement in reliance upon Stockholder’s execution, delivery and performance of this Agreement and
(ii) the actual Offer Price may be less than the initial Offer Price in the event that the
aggregate amount of the Company’s Expenses exceeds or is expected to exceed the Company Expense Cap
as of the Expiration Date as set forth in Section 1.1(c) of the Merger Agreement.
SECTION 2. Representations and Warranties of Parent and the Purchaser. Each of Parent
and the Purchaser hereby, jointly and severally, represents and warrants to Stockholder as follows:
(a) Each of Parent and the Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware, and each of Parent and the Purchaser has all
necessary corporate power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized by all necessary corporate action, and
no other corporate proceedings on the part of Parent or the Purchaser are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly
authorized and validly executed and delivered by Parent and the Purchaser, and assuming execution
and delivery by Stockholder, constitutes a legal, valid and binding obligation of Parent and the
Purchaser, enforceable against Parent and the Purchaser in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
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(c) The execution and delivery of this Agreement and the consummation by Parent and the
Purchaser of the transactions contemplated hereby and the performance by Parent and the Purchaser
of their respective obligations hereunder will not (i) conflict with or violate any provision of
the certificate of incorporation or by-laws of Parent or the Purchaser, (ii) conflict with or
violate, or require any consent, approval, or notice under, any Law applicable to Parent or the
Purchaser or any of their respective properties or assets, or (iii) require any consent or approval
under, violate, conflict with, result in any breach of or any loss of any benefit under, or
constitute a default under, or result in termination or give to others any right of termination,
amendment, acceleration or cancellation of any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which Parent or the Purchaser is a party
or by which Parent or the Purchaser or their respective properties or assets are bound except with
respect to clauses (ii) and (iii) for any conflict, breach, default or violation described which
would not adversely affect in any material respect the ability of Parent or the Purchaser to
perform its obligations hereunder or consummate the transactions contemplated hereby.
SECTION 3. Tender of the Covered Shares.
(a) Unless this Agreement shall have been terminated in accordance with its terms, Stockholder
hereby agrees that he shall tender (and deliver any certificates evidencing or an appropriate
affidavit of lost certificate with respect thereto to the extent such certificates have been lost,
misplaced or destroyed) his Covered Shares, or cause his Covered Shares to be tendered, into the
Offer promptly following, and in any event no later than the tenth (10th) Business Day
following the commencement of the Offer, or if Stockholder has not received the Offer Documents by
such time, within two (2) Business Days following receipt of such documents but in any event prior
to the Expiration Date (the “Tender Date”), free and clear of all Encumbrances. If
Stockholder acquires Covered Shares after the date hereof, including upon the exercise of Company
Options, unless this Agreement shall have been terminated in accordance with its terms, Stockholder
shall tender or cause to be tendered such Covered Shares on or before the Tender Date, or, if
later, on or before the second (2nd) Business Day after such acquisition but in any
event prior to the Expiration Date, free and clear of all Encumbrances. Unless this Agreement
shall have been terminated in accordance with its terms, Stockholder will not withdraw his Covered
Shares, or cause his Covered Shares to be withdrawn, from the Offer at any time.
(b) If the Offer is terminated or withdrawn by the Purchaser, or the Merger Agreement is
terminated prior to the purchase of Covered Shares in the Offer, Parent and the Purchaser shall
promptly return, and shall cause any depository acting on behalf of Parent and the Purchaser to
return, all Covered Shares tendered by Stockholder in the Offer to Stockholder.
SECTION 4. Treatment of the Covered Shares and Company Options.
(a) Prior to the termination of this Agreement, except as otherwise provided herein (including
pursuant to Section 3 hereof), the Merger Agreement and the Offer Documents, Stockholder
shall not directly or indirectly: (a) transfer, assign, sell,
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gift-over, place in trust, pledge, hypothecate, encumber or otherwise dispose (whether by
sale, merger, consolidation, liquidation, dissolution, dividend, distribution, testamentary or
intestate succession, interspousal disposition pursuant to a domestic relations proceeding or
otherwise) of, or consent to or authorize any of the foregoing (“Transfer”) of, any or all
of the Covered Shares or the Company Options or any right, title or interest therein (including,
but not limited to, any right or power to vote to which the holder thereof may be entitled, whether
such right or power is granted by proxy or otherwise); (b) enter into any contract, option or other
agreement, arrangement or understanding with respect to any such Transfer; (c) grant any proxy,
power-of-attorney or other authorization or consent with respect to any of the Covered Shares or
Company Options; (d) deposit any of the Covered Shares or Company Options into a voting trust, or
enter into a voting agreement or arrangement with respect to any of the Covered Shares or Company
Options; or (e) take any other action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect in any respect or in any way restrict, limit or interfere in
any material respect with the performance of Stockholder’s obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement.
(b) Stockholder hereby agrees that, upon the Acceptance Time, each unexpired and unexercised
Company Option held by Stockholder, whether or not then exercisable or vested, shall be cancelled,
cease to exist and no longer be exercisable or outstanding, and in exchange therefor, Stockholder
shall be entitled to receive, in consideration of the cancellation of such Company Option and in
settlement therefor, a payment in cash (subject to any applicable withholding or other Taxes
required by applicable Law to be withheld in accordance with Section 2.2(e) of the Merger
Agreement) of an amount equal to the product of (i) the total number of Shares previously subject
to such Company Option and (ii) the excess, if any, of the Merger Consideration over the exercise
price per Share previously subject to such Company Option, such amount to be paid in accordance
with and at the time provided by the Merger Agreement. Stockholder hereby agrees that, upon the
Acceptance Time, he shall not be entitled to receive any payment in consideration of the
cancellation of any Company Options held by him in which the exercise price per Share is equal to
or less than the Merger Consideration.
(c) Section 4(a) shall not prohibit a Transfer of Covered Shares or Company Options by
Stockholder to any member of Stockholder’s immediate family, or to a trust established for the
benefit of Stockholder and/or for the benefit of one or more members of Stockholder’s immediate
family or established for charitable purposes, or upon the death of Stockholder; provided,
however, 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 Parent and the Purchaser, to be bound by the terms of this Agreement and refrain
from any and all Transfers of the Covered Shares or Company Options. Section 4(a) shall
not prohibit the exercise, including cashless exercise, of any Company Options; provided,
however, that the Covered Shares acquired upon such exercise are tendered to the extent
required pursuant to Section 3(a).
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SECTION 5. Covenant to Vote. Prior to the termination of this Agreement in accordance
with its terms, at any meeting of the stockholders of the Company, however called, or at any
adjournment or postponement thereof, or in any other circumstance in which the vote, consent or
other approval of the stockholders of the Company is sought, Stockholder hereby agrees to (A)
appear at each such meeting or otherwise cause all of the Covered Shares to be counted as present
thereat for purposes of calculating a quorum and (B) vote (or cause to be voted) all of the Covered
Shares or grant a consent or approval in respect of the Covered Shares (i) in favor of adopting the
Merger Agreement (for the purpose of this Section 5, as it may be modified or amended from
time to time) and the approval of the Merger and any other transaction pursuant to which Parent
proposes to acquire the Company, whether by tender offer, merger or otherwise, in which
stockholders of the Company would receive consideration per Share equal to or greater than the
consideration to be received by such stockholders in the Offer and the Merger, (ii) in favor of any
adjournment or postponement recommended by the Company with respect to any stockholder meeting with
respect to the Merger Agreement and the Merger, (iii) against any action, agreement or proposal
which would impede, interfere with or prevent the consummation of the Offer or the Merger,
including, but not limited to, any other extraordinary corporate transaction, including, a merger,
acquisition, sale, consolidation, reorganization or liquidation involving the Company and a third
party, or any other proposal of a third party to acquire the Company or all or substantially all of
the assets thereof, (iv) against any reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company (other than the Merger), (v) against any change in the Company
Board (other than in connection with the transactions described in clause (i)), and (vi) against
any proposal, action or agreement that would (1) impede, frustrate, prevent or nullify any
provision of this Agreement, the Merger Agreement, the Offer or the Merger, or (2) result in any of
the conditions set forth in Article 6 or Annex I of the Merger Agreement not being fulfilled or
satisfied. Except as set forth in clauses (i), (ii), (iii), (iv), (v) and (vi) of this Section
5, Stockholder shall not be restricted from voting in favor of, against or abstaining with
respect to any other matters presented to the stockholders of the Company. Prior to the
termination of this Agreement in accordance with its terms, Stockholder shall not commit or agree
to take any action inconsistent with the foregoing.
SECTION 6. Acquisition Proposals; Non-Solicitation.
(a) Acquisition Proposals. Stockholder hereby agrees that he will, and will cause his
agents, advisors and other representatives to, immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal. Stockholder shall promptly (and in any event within 24 hours) notify
Parent in the event that Stockholder receives (i) any Acquisition Proposal or indication by any
Person that it is considering making an Acquisition Proposal, (ii) any request for non-public
information relating to the Company or the Company Subsidiary other than requests for information
in the ordinary course of business consistent with past practice and unrelated to an Acquisition
Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition
Proposal. Stockholder shall notify Parent promptly (and in any event within 24 hours) with the
identity of such Person and a copy of such Acquisition Proposal,
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indication, inquiry or request (or, where no such copy is available, a reasonably detailed
description of such Acquisition Proposal, indication, inquiry or request), including any
modifications thereto.
(b) Non-Solicitation. Stockholder shall not, and shall not authorize or permit his
agents, advisors or other representatives to, directly or indirectly: (i) initiate, solicit or
knowingly encourage (including by way of providing information) the submission of any inquiries,
proposals or offers or any other efforts or attempts that constitute, or may reasonably be expected
to lead to, any Acquisition Proposal or engage in any discussions or negotiations with respect
thereto (for the avoidance of doubt, it is understood that the foregoing shall not prohibit
Stockholder or any of his advisors or representatives from making such Person aware of the
restrictions of this Section 6(b) in response to the receipt of an Acquisition Proposal),
or otherwise cooperate with or assist or participate in or knowingly facilitate any such inquiries,
proposals, offers, discussions or negotiations, (ii) approve or recommend, or publicly propose to
approve or recommend, an Acquisition Proposal, (iii) make any public statement or proposal
inconsistent with the Company Board Recommendation, (iv) enter into any merger agreement, letter of
intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange
agreement, option agreement or other similar agreement relating to an Acquisition Proposal or enter
into any agreement or agreement in principle requiring Stockholder to abandon, terminate or fail to
consummate the transactions contemplated hereby or breach his obligations hereunder, or (v)
formally resolve or agree to do any of the foregoing.
(c) No Limitation. It is understood that this Agreement limits the rights of
Stockholder only to the extent that Stockholder is acting in Stockholder’s capacity as a
stockholder of the Company. Nothing in this Agreement shall be construed as preventing
Stockholder, if an officer or director of the Company, from fulfilling the obligations of such
office, but solely in such capacity (including, subject to the limitations contained in Section 5.4
of the Merger Agreement, the performance of obligations required by the fiduciary obligations of
Stockholder acting solely in his capacity as an officer or director).
SECTION 7. Further Assurances. Stockholder shall, upon request of Parent or the
Purchaser, execute and deliver any additional documents and take, or cause to be taken, such
further actions as may reasonably be deemed by Parent or the Purchaser to be necessary or desirable
to carry out the provisions of this Agreement and make effective the transactions contemplated
hereby. Without limiting the foregoing, Stockholder shall execute and deliver to Parent and any of
its designees any additional proxies, including without limitation with respect to additional
Covered Shares not set forth on Schedule I hereto, reasonably requested by Parent in
furtherance of this Agreement.
SECTION 8. Termination. This Agreement, and all rights and obligations of the parties
hereunder, shall terminate on the earliest of: (a) the date on which the Merger Agreement is
terminated in accordance with its terms; (b) the Effective Time; and (c) the delivery of written
notice of termination by Stockholder to Parent, following any amendment to the Merger Agreement
that is materially adverse to
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Stockholder effected without the prior written consent of Stockholder, provided,
however, that (i) nothing herein shall relieve any party from liability for any breach
hereof prior to such termination; and (ii) this Section 8, Section 10 and
Section 15 shall survive any termination of this Agreement; and (iii) if the Merger
Agreement is terminated in accordance with Section 7.1(d) or Section 7.1(e), Sections 4(a),
4(c) and 6(b) shall survive termination of this Agreement until the six-month
anniversary of the date on which the Merger Agreement is so terminated. For purposes of this
Section 8, an amendment to the Merger Agreement that is materially adverse to Stockholder
shall include, without limitation, any amendment, modification, change or waiver of the terms of
the Merger Agreement that results in any decrease in the Offer Price (other than a decrease in the
Offer Price if the Company’s Expenses exceeds or is expected to exceed the Company Expense Cap as
of the Expiration Date as set forth in Section 1.1(c) of the Merger Agreement) or any change in the
form of consideration to be used to purchase Shares.
SECTION 9. Waiver of Appraisal, Dissenter’s Rights and Other Claims. Stockholder
hereby (a) waives and agrees not to exercise or assert any rights of appraisal or rights to dissent
from the Merger that Stockholder may have with respect to the Covered Shares and (b) agrees not to
commence or participate in, and agrees to take all actions necessary to opt out of any class in any
class action with respect to, any claim, derivative or otherwise, against Parent, the Purchaser,
the Company or any of their respective successors relating to the negotiation, execution or
delivery of this Agreement or the Merger Agreement or the consummation of the Offer or the Merger,
including any claim (i) challenging the validity of, seeking to enjoin the operation of, any
provision of this Agreement or the Merger Agreement or (ii) alleging a breach of any fiduciary duty
of any person in connection with this Agreement or the Merger Agreement or the transactions
contemplated hereby or thereby.
SECTION 10. Expenses. All fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 11. Stop Transfer Order; Legend. Stockholder hereby agrees that it will not
request that the Company register the Transfer of any certificate or uncertificated interest
representing any of the Covered Shares, unless such Transfer is made in compliance with this
Agreement. In furtherance of this Agreement, concurrently herewith, Stockholder shall, and hereby
does authorize the Company or its counsel to, notify the Company’s transfer agent that there is a
stop transfer order with respect to all of the Covered Shares (and that this Agreement places
limits on the voting and transfer of such shares). The parties hereto agree that such stop
transfer order shall be removed and shall be of no further force and effect upon termination of
this Agreement.
SECTION 12. Communications. Stockholder hereby (a) consents to and authorizes the
publication and disclosure by Parent of (i) Stockholder’s identity and holding of the Covered
Shares, (ii) the nature of Stockholder’s commitments, arrangements and understandings under this
Agreement, and (iii) any other information regarding Stockholder, in each case, in any announcement
or disclosure required by applicable Law or by the SEC or other Governmental Entity in connection
with the Offer
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or the Merger or any other transactions contemplated by the Merger Agreement; provided
that, in the case of disclosure pursuant to clause (iii), Parent shall provide Stockholder and his
counsel reasonable opportunity to review and comment thereon, and Parent shall give reasonable
consideration to any such comments, and (b) agrees as promptly as practicable to give to Parent any
information it may reasonably require for the preparation of such disclosure documents and to
notify Parent of any required corrections with respect to any written information supplied by him
specifically for use in any such disclosure document. Unless required by applicable Law,
Stockholder shall not make any press release, public announcement or other communication with
respect to the business or affairs of the Company, Parent or the Purchaser, including this
Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without
the prior written consent of Parent.
SECTION 13. Additional Owned Shares. Stockholder hereby agrees, while this Agreement
is in effect, to notify Parent promptly in writing of the number and description of any additional
Covered Shares not set forth opposite such Stockholder’s name on Schedule I hereto.
SECTION 14. Certain Events. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the Company affecting
the Covered Shares or the acquisition of additional Covered Shares not set forth on Schedule
I hereto, (a) the type and number of Covered Shares shall be adjusted appropriately, and (b)
notwithstanding the provisions of Section 15(l), this Agreement and the obligations
hereunder shall automatically attach to any additional Covered Shares or other securities or rights
of the Company issued to or acquired by Stockholder and Schedule I hereto shall be deemed
to be amended accordingly without any further action on the part of any party hereto.
SECTION 15. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed) or sent by a
nationally recognized overnight courier service, such as FedEx (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):
If to Stockholder, at the address set forth on Schedule I hereto:
with a copy to:
Microfluidics International Corporation
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000.000.0000
Attention: Xxxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000.000.0000
Attention: Xxxxxxx X. Xxxxxxx
and
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxxx
Email: xxxxxxxxx@xxxxx.xxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxxx
Email: xxxxxxxxx@xxxxx.xxx
If to Parent or the Purchaser, to:
IDEX Corporation
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: General Counsel
Email: xxxxxxx@xxxxxxxx.xxx
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: General Counsel
Email: xxxxxxx@xxxxxxxx.xxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxxx
Email: xxxx.xxxxxxxx@xx.xxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxxx
Email: xxxx.xxxxxxxx@xx.xxx
and
Xxxxxxx Xxxx LLP
Xxx X & X Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel: 716 -848-1277
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Email: xxxxxxxx@xxxxxxxxxxx.xxx
Xxx X & X Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel: 716 -848-1277
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Email: xxxxxxxx@xxxxxxxxxxx.xxx
(b) Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. As
used in this Agreement, the words “include” and “including,” and variations thereof, shall not be
deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without
limitation.” Except as otherwise indicated, all references in this Agreement to “Sections” and
“Schedules” are intended to refer to Sections of this Agreement and Schedules to this Agreement.
Unless otherwise specifically provided for herein, the term “or” shall not be deemed to be
exclusive. The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar
import,
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when used in this Agreement, shall refer to this Agreement as a whole and not any particular
section in which such words appear. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. No provision of this Agreement shall be interpreted
for or against any party hereto because that party or its legal representatives drafted the
provision.
(c) Counterparts. This Agreement may be executed 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.
(d) Entire Agreement. This Agreement (together with the Merger Agreement and any
other documents and instruments referred to herein and therein) constitute the entire agreement
among the parties with respect to the subject matter hereof and thereof and supersede all other
prior agreements, representations and understandings, both written and oral, among the parties or
any of them with respect to the subject matter hereof and thereof.
(e) Governing Law. This Agreement, and all matters arising hereunder or in connection
herewith, shall be governed by and construed in accordance with the Laws of the State of Delaware,
without regard to Laws that may be applicable under conflicts of Laws principles (whether of the
State of Delaware or any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of Delaware.
(f) Consent to Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware
Court of Chancery or, if such court shall not have jurisdiction, any federal court located in the
State of Delaware or other Delaware state court, in any action or proceeding arising out of or
relating to this Agreement or the agreements delivered in connection herewith or the transactions
contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto,
and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such
action or proceeding except in such courts, (ii) agrees that any claim in respect of any such
action or proceeding may be heard and determined in any such court, (iii) waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any such action or proceeding in any such court, and (iv) waives, to the
fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in Section
15(a). Nothing in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by Law.
(g) WAIVER OF TRIAL BY JURY. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY
11
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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 EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 15(g).
(h) Assignment. The Agreement shall not be assigned by any party by operation of Law
or otherwise without the prior written consent of the other parties, provided that Parent
and the Purchaser may assign any of their respective rights and obligations to any direct or
indirect Subsidiary of Parent, but no such assignment shall relieve Parent or the Purchaser, as the
case may be, of its obligations hereunder.
(i) Parties in Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and its successors and permitted assigns, and 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.
(j) Severability of Provisions. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by 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 by this Agreement is not
affected in any manner 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 an acceptable manner to the end that the transactions are fulfilled to the extent
possible.
(k) Specific Performance. The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed that Parent and the
Purchaser shall be entitled, without the securing or posting of any bond or other undertaking, to
an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which they are entitled at Law or in equity. In any
action for
12
specific performance, Stockholder will waive the defense of adequacy of a remedy at Law.
(l) Amendment. No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by such party.
(m) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon
execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with
respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the
Covered Shares shall remain vested in and belong to Stockholder, and Parent shall have no authority
to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct Stockholder in the voting of
any of the Covered Shares, except as otherwise provided herein.
(n) Remedies. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at Law or in equity shall be cumulative and not alternative,
and the exercise of any such right, power or remedy by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such party.
(o) No Waiver. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at Law or in equity, or to
insist upon compliance by any other party hereto with such party’s obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of such party’s right to exercise any such or other right, power or remedy or to
demand such compliance.
[Signature pages follow.]
13
IN WITNESS WHEREOF, Parent, the Purchaser and Stockholder have caused this Agreement to be
duly executed and delivered as of the date first written above.
IDEX CORPORATION |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
Vice President — General Counsel and Secretary | ||||
NANO MERGER SUB, INC. |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
President | ||||
Signature page to Tender and Support Agreement
STOCKHOLDER: |
||||
/s/ Xxxxxxxx Xxxxxxxxx | ||||
Xxxxxxxx Xxxxxxxxx | ||||
I am the spouse of Stockholder. On behalf of
myself, my heirs, legatees, and assigns, I hereby join in
and consent to the terms of this Agreement and agree to
the tender into the Offer of the shares of common stock of
Microfluidics International Corporation registered in the
name of my spouse or otherwise registered, which my spouse
agrees to tender pursuant to this Agreement. |
||||
/s/ Xxxxx Xxxxxxxxx | ||||
Xxxxx Xxxxxxxxx | ||||
Signature page to Tender and Support Agreement
SCHEDULE I
Name and Contact Information for Stockholder | Covered Shares | Company Options | ||||||
Xxxxxxxx Xxxxxxxxx 00 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
1,697,805 | 0 |