EXHIBIT 99.2
EXECUTION COPY
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VOTING AGREEMENT
Among
SHAREHOLDERS OF
MEDPLUS, INC. whose names appear on the signature pages hereof
and
QUEST DIAGNOSTICS INCORPORATED
Dated as of April 25, 2001
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VOTING AGREEMENT, dated as of April 25, 2001 (this "Agreement"), among
the Shareholders of MEDPLUS, INC., an Ohio corporation (the "Company"), whose
names appear on the signature pages hereof (each, a "Shareholder" and,
collectively, the "Shareholders"), and QUEST DIAGNOSTICS INCORPORATED, a
Delaware corporation ("Parent").
WHEREAS, simultaneously with the execution of this Agreement, the
Company, Parent and Q-M Merger Sub, Inc., an Ohio corporation and a wholly owned
subsidiary of Parent ("Merger Sub") are entering into an Agreement and Plan of
Merger dated as of the date hereof (the "Merger Agreement"; terms used but not
defined in this Agreement shall have the meanings ascribed to them in the Merger
Agreement), with the Company, which provides, among other things, that the
Merger Sub will merge with and into the Company (the "Merger") and each share of
Company Common Stock and Company Preferred Stock issued and outstanding
immediately prior to the Effective Time, other than (x) Dissenting Shares and
(y) shares cancelled as provided in Section 3.03(b) of the Merger Agreement,
shall be converted into the right to receive $2.00 per share in cash, payable,
without interest, to the Shareholder upon surrender, in the manner provided in
the Merger Agreement, of the Certificate that formerly evidenced the Company
Common Stock or Company Preferred Stock, as the case may be.
WHEREAS, as of the date hereof, each Shareholder is the record and
beneficial owner of the number of shares of common stock, no par value, of the
Company ("Company Common Stock"), and the number of shares of Series A
convertible preferred stock of the Company ("Company Preferred Stock"), set
forth opposite such Shareholder's name in Attachment I hereto (all such Company
Common Stock and Company Preferred Stock and any shares of Company Common Stock
or Company Preferred Stock that may be acquired after the date hereof by the
Shareholders and prior to the termination of this Agreement, whether upon the
exercise or conversion of options, warrants, convertible securities or
otherwise, being referred to herein as the "Owned Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement and incurring the obligations set forth therein, Parent and Merger Sub
have requested that each Shareholder agree, and each Shareholder hereby agrees,
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01. Voting Agreement. Each Shareholder hereby agrees that in
any corporate action of the Company's shareholders taken at any meeting of the
Company's shareholders or by written consent in lieu of a meeting of the
Company's shareholders in
accordance with the General Corporation Law of Ohio (the "Ohio Law"), such
Shareholder will vote, or cause to be voted, all of such Shareholder's Owned
Shares, entitled to vote at such meeting, or, with respect to actions by written
consent in lieu of a meeting, will express (and execute and deliver any
necessary document or instrument with respect thereto) consent or dissent (as
applicable) with respect to all of such Shareholder's Owned Shares: (i) in favor
of the adoption of the Merger Agreement and otherwise in such manner as may be
necessary to consummate the Merger and the other transactions contemplated by
the Merger Agreement, (ii) except as otherwise agreed to in writing in advance
by Parent, against any action, proposal, agreement or transaction that would
result in a breach of any covenant, obligation, agreement, representation or
warranty of the Company contained in the Merger Agreement (whether or not
theretofore terminated) or of the Shareholder contained in this Agreement, and
(iii) against any action, proposal, agreement or transaction (other than the
Merger Agreement) that could result in any of the conditions to the Company's
obligations under the Merger Agreement (whether or not theretofore terminated)
not being fulfilled or that is intended, or could reasonably be expected, to
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the Merger Agreement (whether or not theretofore terminated),
the Merger or this Agreement, including, but not limited to (A) any Acquisition
Proposal, (B) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries, (C) a sale or transfer of assets or capital stock of the Company
or any of its subsidiaries or a reorganization, recapitalization or liquidation
of the Company and its subsidiaries, (D) any change in the management or board
of directors of the Company, except as otherwise agreed to in writing by Parent,
(E) any material change in the present capitalization or dividend policy of the
Company, or (F) any other material change in the Company's corporate structure
or business.
SECTION 1.02. Irrevocable Proxy. Each Shareholder hereby irrevocably
grants to and appoints Parent, and each of its officers, as such Shareholder's
proxy and attorney-in-fact pursuant to and in accordance with the requisite
provisions of the Ohio Law, with full power of substitution to vote all of such
Shareholder's Owned Shares at any meeting of the Company's shareholders (whether
annual or special and whether or not an adjourned or postponed meeting) or with
respect to any action by written consent in lieu of a meeting of the Company's
shareholders by executing the written consent (or any other documents or
instrument related thereto) with respect to all Owned Shares of such Shareholder
and delivering the same to the Company in the manner required by the requisite
provisions of the Ohio Law, on the matters and in the manner specified in
Section 1.01 (the "Irrevocable Proxy"). THIS PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND ARE COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A SHAREHOLDER
MAY TRANSFER ANY OF SUCH SHAREHOLDER'S OWNED SHARES IN BREACH OF THIS AGREEMENT.
Each Shareholder hereby revokes all other proxies and powers of attorney with
respect to the Owned Shares that may have heretofore been appointed or granted,
and no subsequent proxy or power of attorney shall be given or written consent
executed (and if given or executed, shall not be effective) by any Shareholder
with respect thereto. All authority herein conferred or agreed to be conferred
shall survive the death or incapacity of any Shareholder, and the termination of
the Irrevocable Proxy and any obligation of each Shareholder under this
Agreement shall be binding
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upon the heirs, personal representatives, successors and assigns of such
Shareholder. Each Shareholder represents that any proxies heretofore given in
respect of the Owned Shares are not irrevocable, and that any such proxies are
hereby revoked. Each Shareholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon each Shareholder's execution
and delivery of this Agreement. Each Shareholder hereby affirms that the
Irrevocable Proxy set forth in this Section 1.02 is given in connection with the
execution of the Merger Agreement, and that such Irrevocable Proxy is given to
secure the performance of the duties of such Shareholder under this Agreement
and in connection with the Merger Agreement. Each Shareholder hereby ratifies
and confirms all that the Irrevocable Proxy may lawfully do or cause to be done
by virtue hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and warrant to Parent as follows:
SECTION 2.01. Corporate Organization. Each Shareholder that is a
corporation, limited liability company, partnership or trust is duly
incorporated, organized or formed (as the case may be), validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
organization or formation and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as it is now being
conducted.
SECTION 2.02. Authority Relative to this Agreement. Each Shareholder
has all necessary power and authority and legal capacity to execute and deliver
this Agreement and to perform such Shareholder's obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by each Shareholder that is a corporation, limited liability
company, partnership or trust and the consummation by such Shareholder of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate or other requisite action, and no other proceedings on the
part of such Shareholder are necessary to authorize this Agreement or consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each Shareholder and, assuming due authorization,
execution and delivery by Parent, constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
SECTION 2.03. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by such Shareholder do not, and the
performance of this Agreement by such Shareholder will not, (i) if applicable,
conflict with or violate the Certificate of Incorporation or By-laws or other
organizational documents of such Shareholder, (ii) conflict with or violate any
Law applicable to such Shareholder or by which any property or asset of such
Shareholder is bound or affected, or (iii) result in any breach of, or
constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the
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creation of any Encumbrance on any property or asset of such Shareholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation, except, with
respect to clauses (ii) and (iii), for any such conflicts, violations, breaches,
defaults or other occurrences which would not prevent or delay consummation of
the transactions contemplated hereby or otherwise prevent such Shareholder from
performing its, his or her obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Shareholder do
not, and the performance of this Agreement by such Shareholder will not, require
any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of the transactions
contemplated hereby, or otherwise prevent such Shareholder from performing its,
his or her obligations under this Agreement.
SECTION 2.04. Title to the Owned Shares. As of the date hereof, such
Shareholder is the record or beneficial owner of the number of shares of Company
Common Stock and Company Preferred Stock set forth opposite such Shareholder's
name (or, if applicable, other record holder's name) in Attachment I hereto and
such shares are all the securities of the Company that are owned, either of
record or beneficially, by such Shareholder and are validly issued, fully paid
and nonassessable, and owned by such Shareholder free and clear of all
Encumbrances, other than any Encumbrances created by this Agreement. Except as
provided in this Agreement with respect to the Irrevocable Proxy, such
Shareholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Owned Shares of such Shareholder.
SECTION 2.05. Absence of Litigation. There is no Action pending or, to
the knowledge of such Shareholder or any of such Shareholder's affiliates,
threatened against such Shareholder or any of such Shareholder's affiliates or
any of their respective properties or any of their respective officers or
directors (in their capacities as such), in the case of a corporate entity,
before any Governmental Authority that, individually or in the aggregate, would
reasonably be expected to prevent, alter, delay or impair such Shareholder's
ability to consummate the transactions contemplated by this Agreement, or
otherwise prevent such Shareholder from performing it, his or her obligations
under this Agreement. There is no Governmental Order or any continuing order of,
consent, decree, settlement agreement or other similar agreement with, or, to
the knowledge of such Shareholder or any of such Shareholder's affiliates,
continuing investigation by, any Governmental Authority against such Shareholder
or any of such Shareholder's affiliates, or, to the knowledge of such
Shareholder or any of such Shareholder's affiliates, any of their respective
directors or officers (in their capacities as such), in the case of a corporate
entity, or any of their respective partners (in the case of a partnership) or
any of their respective trustees (in the case of a trust) that would prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement,
or that would reasonably be expected to have a material adverse effect on such
Shareholder's ability to consummate the transactions contemplated by this
Agreement.
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SECTION 2.06. Absence of Claims. Each Shareholder has no knowledge of
any causes of action or other claims that could have been or in the future might
be asserted by such Shareholder against the Company or any of its predecessors,
successors, assigns, directors, employees, agents or representatives arising out
of facts or circumstances occurring at any time on or prior to the date hereof
and in any way relating to any duty or obligation of the Company or any
Shareholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Shareholder as follows:
SECTION 3.01. Corporate Organization. Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so incorporated, existing or in good
standing or to have such power or authority would not prevent or delay
consummation of the transactions contemplated hereby, or otherwise prevent
Parent from performing its obligations under this Agreement.
SECTION 3.02. Authority Relative to This Agreement. Parent has all
necessary power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Parent and
the consummation by Parent of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of Parent are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Parent and, assuming due
authorization, execution and delivery by the Shareholders, constitutes a legal,
valid and binding obligation of Parent, enforceable against Parent in accordance
with its terms.
SECTION 3.03. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Parent do not, and the performance
of this Agreement by Parent will not, (i) conflict with or violate the
Certificate of Incorporation or By-laws of Parent, (ii) conflict with or violate
any Law applicable to Parent or by which any property or asset of Parent is
bound or affected, or (iii) result in any breach of, or constitute a default (or
an event which, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any Encumbrance on any property or
asset of Parent pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation,
except, with respect to clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
delay consummation of the transactions
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contemplated hereby or otherwise prevent either Parent from performing its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent do
not, and the performance of this Agreement by Parent will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of the transactions
contemplated hereby, or otherwise prevent Parent from performing their
obligations under this Agreement.
ARTICLE IV
COVENANTS
SECTION 4.01. Delivery of Certificates. On the Closing Date, each
Shareholder agrees to deliver, and in the case of Owned Shares held in a 401(k)
plan, use its, his or her reasonable best efforts to cause to be delivered, to
Parent the original certificates representing such Shareholder's Owned Shares,
together with a duly executed letter of transmittal in the form and substance
contemplated by the Merger Agreement.
SECTION 4.02. No Disposition or Encumbrance of Owned Shares. Each
Shareholder hereby agrees that, except as contemplated by this Agreement and the
Merger Agreement, such Shareholder shall not (a) sell, transfer, tender, assign,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, grant a proxy or power of attorney with respect to, deposit into any trust
or enter into a voting agreement or arrangement, or create or permit to exist
any Encumbrances of any nature whatsoever with respect to, any of the Owned
Shares or any interest therein (or agree or consent to, or offer to do, any of
the foregoing), (b) take any action that would make any representation or
warranty of such Shareholder herein untrue or incorrect or have the effect of
preventing or disabling such Shareholder from performing such Shareholder's
obligations hereunder or delaying the performance of such Shareholder's
obligations hereunder, or (c) directly or indirectly, initiate, solicit or
encourage any person to take actions that could reasonably be expected to lead
to the occurrence of any of the foregoing.
SECTION 4.03. No Solicitation of Transactions. (a) Each Shareholder
shall not, and shall cause its shareholders, members, partners, affiliates,
officers, directors, trustees, employees, agents, advisors or other
representatives (including, without limitation, any financial advisor, attorney
or accountant retained by it) (the "Shareholder Representatives") not to,
directly or indirectly, between the date of this Agreement and the date of
termination of the Merger Agreement, take any action to solicit, initiate or
encourage or facilitate the making of any proposal or offer (including, without
limitation, any proposal or offer to its shareholders or other shareholders of
the Company) that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or potential Acquisition Proposal, or any inquiry with
respect thereto, or in connection with any Acquisition Proposal or potential
Acquisition Proposal, disclose any
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nonpublic information relating to the Company or the Company Subsidiaries or
afford access to the properties, books or records of the Company or the Company
Subsidiaries to any person that has made, or to such person's knowledge, is
considering making an Acquisition Proposal. Any violation of the foregoing
restrictions by any of the Shareholder Representatives, whether or not such
person is so authorized and whether or not any such person is purporting to act
on behalf of any of the Shareholders or otherwise shall be deemed to be a breach
of this Agreement by the applicable Shareholder.
(b) Upon receiving an Acquisition Proposal, each Shareholder shall
promptly (and in no event later than 24 hours after receipt of any Acquisition
Proposal) notify Parent, after receipt of any Acquisition Proposal or any
amendment or change in any previously received Acquisition Proposal, or any
request for nonpublic information relating to the Company or any Company
Subsidiary or for access to the properties, books or records of the Company or
Company any Company Subsidiary by any person that has made, or to such party's
knowledge may be considering making, an Acquisition Proposal, and shall promptly
provide copies of any proposals, indications of interest, draft agreements and
correspondence relating to such Acquisition Proposal. Each Shareholder shall,
and shall cause its respective Shareholder Representatives to, immediately cease
and cause to be terminated, all discussions and negotiations, if any, that have
taken place prior to the date hereof with any persons with respect to any
Acquisition Proposal and shall request the return or destruction of all
confidential information provided to any such person.
(c) Each Shareholder agrees that it shall take the necessary steps
promptly to inform its respective Shareholder Representatives of the obligations
undertaken in this Section 4.03.
SECTION 4.04. Confidentiality; Non-Solicitation of Employees. (a) Each
Shareholder agrees to, and shall cause its, his or her Shareholder
Representatives to: (i) treat and hold as confidential (and not disclose or
provide access to any person to) all information relating to trade secrets,
processes, patent and trademark applications, confidential Intellectual
Property, services, product or service development, price, customer and supplier
lists, pricing and marketing plans, policies and strategies, details of client
and consultant contracts, operations methods, product development techniques,
business acquisition plans, new personnel acquisition plans and all other
confidential or proprietary information with respect to the Company and each
Company Subsidiary, (ii) in the event that such Shareholder or any such
Shareholder Representative becomes legally compelled to disclose any such
information, provide Parent with prompt written notice of such requirement so
that Parent or any of its affiliates may seek a protective order or other remedy
or waive compliance with this Section 4.04(a), (iii) in the event that such
protective order or other remedy is not obtained, or Parent waives compliance
with this Section 4.04(a), furnish only that portion of such confidential
information which is legally required to be provided and exercise its best
efforts to obtain assurances that confidential treatment will be accorded such
information, and (iv) promptly furnish (prior to, at or as soon as practicable
following the Closing) to Parent any and all copies (in whatever form or medium)
of all such confidential information then in the possession of such Shareholder
or any of its, his or her Shareholder Representatives destroy any and all
additional copies then in the possession of such Shareholder or any of its, his
or her Shareholder Representatives of such information and of
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any analyses, compilations, studies or other documents prepared, in whole or in
part, on the basis thereof; provided, however, that this sentence shall not
apply to any information that, at the time of disclosure, is available publicly
and was not disclosed in breach of this Agreement by such Shareholder, its, his
or her Shareholder Representatives; and provided further that, with respect to
Intellectual Property, specific information shall not be deemed to be within the
foregoing exception merely because it is embraced in general disclosures in the
public domain. In addition, with respect to Intellectual Property, any
combination of features shall not be deemed to be within the foregoing exception
merely because the individual features are in the public domain, unless the
combination itself and its principle of operation are in the public domain. Such
Shareholder agrees and acknowledges that remedies at law for any breach of its
obligations under this Section 4.04(a) are inadequate and that, in addition
thereto, Parent shall be entitled to seek equitable relief, including injunction
and specific performance, in the event of any such breach.
(b) For a period of one year following the later to occur of (i) the
Effective Time, or (ii) if applicable, termination of employment with the
Company, any Company Subsidiary or the Surviving Corporation, each Shareholder
shall not directly or indirectly, solicit, induce or encourage any employee of
the Company or any of its affiliates to leave such employment and become an
employee of any entity of which such Shareholder is an affiliate. The parties
agree that a remedy at law for any breach of any obligation under this Section
4.04(b) will be inadequate and that, in addition to any other rights and
remedies to which Parent or Merger Sub may be entitled hereunder, at law or in
equity, Parent or Merger Sub shall be entitled to injunctive relief and
reimbursement for all reasonable attorney's fees and other expenses incurred in
connection with the enforcement hereof. In the event this Section 4.04(b) is
held to be in any respect an unreasonable restriction upon any Shareholder by
any court having competent jurisdiction, the court so holding may effect such
change as may be necessary to render this Section 4.04(b) enforceable by such
court. As so modified, this Section 4.04(b) will continue in full force and
effect. Such decision by a court of competent jurisdiction shall not invalidate
this Agreement, but this Agreement shall be interpreted, construed and enforced
as not containing such invalidated provision.
SECTION 4.05. Waiver of Certain Rights. (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ hereby
waives any rights that he may have, and releases the Company from any
obligation, with respect to any issuance of options to acquire shares of capital
stock of the Company pursuant to the employment agreement dated October 31,
1995, between ▇▇. ▇▇▇▇▇▇▇ and the Company.
(b) Each Significant Shareholder entitled to receive non-cash dividends
on Owned Shares from the Company hereby waives any rights that it, he or she may
have to receive such non-cash dividends, and hereby agrees to receive cash
dividend payments from the Company in lieu thereof.
(c) Each Significant Shareholder who holds warrants issued by the
Company shall not exercise such warrants until the earlier of (i) the Effective
Time or (ii) the termination of the Merger Agreement, and shall agree to receive
the consideration for cancellation and conversion of such warrants as set forth
in Section 3.07 of the Merger Agreement.
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SECTION 4.06. Further Action; Reasonable Best Efforts. Upon the terms
and subject to the conditions hereof and, with respect to Parent, the Merger
Agreement, each of the parties hereto shall use its reasonable best efforts to
take, or cause to be taken, all appropriate action and do, or cause to be done,
all things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective this Agreement, and obtain from Governmental
Authorities and third parties any consents, licenses, permits, waivers,
approvals, authorizations or orders as are necessary for the consummation of the
transactions contemplated by this Agreement.
ARTICLE V
TERMINATION
SECTION 5.01. Termination. The Shareholders' obligations under this
Agreement shall terminate, and no party shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no further
effect (i) upon consummation of the Merger in accordance with the terms and
conditions of the Merger Agreement (except for the provisions contained in
Sections 4.04, 4.05, 4.06 and Article VI of this Agreement which shall survive
the termination of this Agreement pursuant to this clause (i))) or (ii) from the
180th day following the termination of the Merger Agreement (other than the
Shareholders' obligations under Article I of this Agreement which shall
terminate immediately following the termination of the Merger Agreement). Any
termination of this Agreement pursuant to this Section 5.01 shall not relieve
any party of liability for any breach of this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may not be amended except (a)
by an instrument in writing signed by each of the parties hereto, or (b) by a
waiver in accordance with Section 6.02.
SECTION 6.02. Waiver. Any party hereto may (a) extend the time for the
performance of any obligation or other act of any other party hereto, (b) waive
any inaccuracy in the representations and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any agreement
or condition contained herein. Any such extension or waiver shall be valid only
if set forth in an instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition of this Agreement.
SECTION 6.03. Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses (including, without limitation, all fees and
disbursements of
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counsel, accountants, financial advisors, experts and consultants to a party
hereto and its affiliates) incurred by a party hereto or on his, her or its
behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement and the transactions
contemplated hereby and all other matters related to the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses, whether or not the Merger or any transaction contemplated by this
Agreement is consummated.
SECTION 6.04. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by overnight courier service, by telecopy or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6.04):
(a) if to the Shareholders:
c/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners Fund, LP
and Strategic Associates, LP
HLM Management Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Camden Parnters, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o The Keys Irrevocable Trust and
The Keys Plus Irrevocable Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇▇ & Shohl LLP
1900 Chemed Center
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & Shohl LLP
1900 Chemed Center
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
c/o ▇▇▇▇▇▇ ▇. Present II
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & Shohl LLP
1900 Chemed Center
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
(b) if to Parent:
Quest Diagnostics Corporation
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: General Counsel
with a copy to:
Shearman & Sterling
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇, Esq.
SECTION 6.05. Third-Party Beneficiaries. Nothing in this Agreement
shall be construed as giving any person other than the parties hereto any legal
or equitable right, remedy or claim under or with respect to this Agreement.
SECTION 6.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law
or public policy, all other terms, 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 materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
SECTION 6.07. Assignment; Binding Effect. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except that Parent may assign this
Agreement or any of their rights, interests and obligations hereunder to any
affiliate of Parent without the consent of the Shareholders. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
SECTION 6.08. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 6.09. Governing Law; Jurisdiction. (a) Except to the extent
that the Irrevocable Proxy may be mandatorily required to be governed by the
laws of the State of Ohio, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any New
York State court or federal court of the United States of America sitting in The
City of New York, and any appellate court
12
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal 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 of the parties
hereto irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State or federal court sitting in The
City of New York. Each of the parties hereto hereby irrevocably 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.
SECTION 6.10. Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement.
SECTION 6.11. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 6.12. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6.13. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with
respect thereto.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ STRATEGIC
PARTNERS FUND, LP
By:
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Name:
Title:
STRATEGIC ASSOCIATES, LP
By:
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Name:
Title:
THE KEYS IRREVOCABLE TRUST
By:
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Name:
Title:
THE KEYS PLUS IRREVOCABLE TRUST
By:
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Name:
Title:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. PRESENT II
QUEST DIAGNOSTICS CORPORATION
By:
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Name:
Title: