STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "AGREEMENT"), dated as of October 24, 2001
by and among ▇▇▇▇▇▇ Laboratories, an Illinois corporation ("PARENT"), Rainbow
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("SUB"), Amoco Technology Company, a Delaware corporation (the
"STOCKHOLDER") and BP America Inc., a Delaware corporation ("BP"). Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement (as defined below).
WHEREAS, the Stockholder is, as of the date hereof, the record and
beneficial owner of 6,662,682 shares of common stock, par value $0.001 per share
(the "COMMON STOCK"), of Vysis, Inc., a Delaware corporation (the "COMPANY");
WHEREAS, Parent, Sub and the Company concurrently herewith 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 acquisition of the
Company by Parent by means of a cash tender offer (the "OFFER") for all of the
issued and outstanding shares of Common Stock of the Company and for the
subsequent merger (the "MERGER") of Sub with and into the Company upon the terms
and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Company Board has adopted resolutions approving and
declaring advisable the Merger Agreement, this Agreement and the other
Transactions (such approvals having been made in accordance with the DGCL,
including for purposes of Section 203 thereof); and
WHEREAS, as a condition to the willingness of Parent and Sub to enter
into the Merger Agreement, Parent has requested that the Stockholder and BP
agree and, in order to induce Parent and Sub to enter into the Merger Agreement,
the Stockholder and BP have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Sub of the Merger Agreement, the foregoing premises and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Parent and Sub as follows:
(a) The Stockholder is the record and beneficial owner (as defined
in Rule 13d-3 under the Exchange Act, which meaning will apply for all purposes
of this Agreement) of 6,662,682 shares of Common Stock (as may be adjusted from
time to time pursuant to SECTION 7 hereof, the "SHARES"). Except for the Shares,
the Stockholder does not beneficially own or have any right to acquire any
securities of the Company, nor is the Stockholder subject to any contract or
understanding that obligates it to vote, acquire, or otherwise dispose of or
transfer any interest in the Common Stock of the Company or the Shares or that
restricts its rights in the Shares in any way.
(b) The Stockholder is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all corporate
power and authority required to carry on its business as now conducted.
(c) The execution, delivery and performance by the Stockholder of
this Agreement and the consummation by the Stockholder of the transactions
contemplated hereby are within the corporate power of Stockholder and have been
duly and validly authorized by all necessary corporate action. Assuming that
this Agreement constitutes the valid and binding obligation of Parent, Sub and
BP, this Agreement constitutes the valid and binding agreement of the
Stockholder, enforceable in accordance with its terms subject to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors, rights generally and to the effect of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(d) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract or
understanding of any kind to which the Stockholder is a party or by which it is
bound or to which the Shares are subject, which in each of the foregoing cases
would materially adversely affect Sub, the Purchaser or the transactions
contemplated hereby or by the Merger Agreement. Consummation by the Stockholder
of the transactions contemplated hereby will not violate, or require any
consent, approval or notice under, any provision of any judgment, order, law or
regulation applicable to the Stockholder or the Shares, except for any necessary
filing under the Exchange Act or the HSR Act, or any non-U.S. merger control or
competition laws or any violation or consent, approval or notice the failure of
which to obtain would not materially adversely affect Sub, the Purchaser or the
transactions contemplated hereby or by the Merger Agreement.
(e) The Shares and the certificates representing the Shares are now
and at all times during the term hereof will be held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or any other encumbrances whatsoever ("LIENS"), except for any
Permitted Liens or any arising hereunder. The Stockholder will transfer to Sub
good title to the Shares, free and clear of all Liens.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF BP. BP hereby represents
and warrants to Parent and Sub as follows:
(a) BP is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has all corporate
power and authority required to carry on its business as now conducted.
(b) The execution, delivery and performance by BP of this Agreement
and the consummation by BP of the transactions contemplated hereby are within
the corporate power of BP and have been duly and validly authorized by all
necessary corporate action. Assuming that this Agreement constitutes the valid
and binding obligation of Parent, Sub and Stockholder, this Agreement
constitutes the valid and binding agreement of BP, enforceable in accordance
with its terms subject to the effect of any applicable bankruptcy,
reorganization,
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insolvency, moratorium or similar laws affecting creditors' rights generally and
to the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Neither the execution and delivery of this Agreement nor the
consummation by BP of the transactions contemplated hereby will result in a
violation of, or a default under, or conflict with, any contract or
understanding of any kind to which BP is a party or by which it is bound or to
which the Shares are subject, which in each of the foregoing cases would
materially adversely affect Sub, the Purchaser or the transactions contemplated
hereby or by the Merger Agreement. Consummation by BP of the transactions
contemplated hereby will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, law or regulation applicable to BP
or the Shares, except for any necessary filing under the Exchange Act, the HSR
Act, any non-U.S. merger control or competition laws or any violation or
consent, approval or notice the failure of which to obtain would not materially
adversely affect Sub, the Purchaser or the transactions contemplated hereby or
by the Merger Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Each of
Parent and Sub hereby, jointly and severally, represents and warrants to the
Stockholder as follows:
(a) Each of Parent and Sub is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate power and authority required to carry on its
business as now conducted.
(b) The execution, delivery and performance by Parent and Sub of
this Agreement and the consummation by Parent and Sub of the transactions
contemplated hereby are within the corporate powers of Parent and Sub and have
been duly and validly authorized by all necessary corporate action. Assuming
that this Agreement constitutes the valid and binding obligation of the
Stockholder and BP, this Agreement constitutes the valid and binding agreement
of each of Parent and Sub, enforceable in accordance with its terms subject to
the effect of any applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws affecting creditors' rights generally and to the effect of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and Sub of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract or understanding of any kind to which either of Parent or Sub is a
party or bound, which in each of the foregoing cases would materially adversely
affect the Stockholder, BP or the transactions contemplated hereby or by the
Merger Agreement. The consummation by each of Parent and Sub of the transactions
contemplated hereby will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, law or regulation applicable to
either Parent or Sub, except for any necessary filing under the Exchange Act,
the HSR Act, or any non-U.S. merger control or competition laws which in each of
the foregoing cases would materially adversely affect the Stockholder, BP or the
transactions contemplated hereby or by the Merger Agreement.
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SECTION 4. PURCHASE AND SALE OF THE SHARES; TERMS OF OFFER.
(a) The Stockholder hereby agrees that it shall tender and sell all
the Shares into the Offer promptly, and in any event no later than the fifth
Business Day following the commencement of the Offer, and that it shall not
withdraw any Shares so tendered so long as the Offer remains outstanding.
(b) Prior to tendering such Shares into the Offer, the Stockholder
shall execute and deliver to Parent an affidavit stating, under penalty of
perjury, the Stockholder's taxpayer identification number and that the
Stockholder is not a foreign person as defined in Section 1445 of the Code and
the treasury regulations thereunder. The Stockholder will receive the same price
per Share received by the other stockholders of the Company in the Offer. Sub's
obligation to accept for payment and pay for the Shares in the Offer is subject
to the terms and conditions of the Offer set forth in the Merger Agreement and
Exhibit A thereto. Parent and Sub agree that in no event shall the Shares be
accepted for payment by Parent, Sub or any Affiliate thereof until the early
termination or expiration of the applicable waiting period under the HSR Act has
occurred.
(c) Parent and Sub hereby agree that without the prior written
consent of the Stockholder, Sub shall not: (i) reduce the number of shares of
Company Common Stock subject to the Offer; (ii) reduce the Offer Price; (iii)
add to the conditions set forth in EXHIBIT A of the Merger Agreement; (iv)
modify the conditions set forth in EXHIBIT A of the Merger Agreement in a manner
adverse to the Stockholder; (v) except as provided in the next sentence, extend
the Offer; (vi) change the form of consideration payable in the Offer; or (vii)
make any other change or modification in any of the terms of the Offer in any
manner that is adverse to the Stockholder. Notwithstanding the foregoing, (A)
Sub shall extend the Offer for one or more periods if at the initial scheduled
expiration date or any subsequent expiration date of the Offer any of the
conditions to Sub's obligation to purchase shares of Company Common Stock are
not satisfied or waived, until such time as such conditions are satisfied or
waived (but not after the Outside Date) and (B) Sub may, without the consent of
the Stockholder, (1) extend the Offer if all of the conditions to the Offer are
satisfied or waived but the number of the Shares validly tendered and not
withdrawn is less than ninety percent (90%) of the Fully Diluted Shares, for an
aggregate period not to exceed twenty (20) Business Days (for all such
extensions); PROVIDED, that Sub shall immediately accept and promptly pay for
all Company Common Stock tendered prior to the date of an extension pursuant to
clause (1) and shall otherwise meet the requirements of Rule 14d-11 under the
Exchange Act in connection with each such extension, and (2) extend the Offer
for any period required by any rule, regulation, interpretation or position of
the SEC or the staff thereof applicable to the Offer.
SECTION 5. TRANSFER OF THE SHARES. Prior to the termination of this
Agreement, except as otherwise provided herein, the Stockholder shall not: (a)
sell, pledge or otherwise dispose of or transfer any interest in or encumber
with any Lien any of the Shares; (b) deposit the Shares into a voting trust,
enter into a voting agreement or arrangement with respect to the Shares or grant
any proxy with respect to the Shares; or (c) take any other action with respect
to the Shares that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby. If the Stockholder acquires any additional shares of Common Stock of the
Company prior to the termination of this Agreement,
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any such additional shares shall be deemed Shares and included in the Shares
subject to this Agreement.
SECTION 6. VOTING OF SHARES; GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF
PROXY.
(a) The Stockholder hereby agrees that, during the term of this
Agreement, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the stockholders of the Company, or in
connection with any written consent of the stockholders of the Company, the
Stockholder will appear at the meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Shares: (i) in favor of the
Merger and approval and adoption of the Merger Agreement and any action required
in furtherance thereof; (ii) against any action or agreement that would result
in a breach of any representation, warranty or covenant of the Company in the
Merger Agreement; and (iii) against any action or agreement which would delay,
postpone or attempt to discourage the Merger or the Offer or cause a condition
to the closing of the Merger or the Offer to not be capable of being satisfied.
(b) The Stockholder hereby irrevocably grants to, and appoints,
Parent and any nominee thereof, its proxy and attorney-in-fact (with full power
of substitution) during the term of this Agreement, for and in the name, place
and stead of the Stockholder, to vote the Shares, or grant a consent or approval
in respect of the Shares, in connection with any meeting of the stockholders of
the Company: (i) in favor of the Merger and approval and adoption of the Merger
Agreement and any action required in furtherance thereof; (ii) against any
action or agreement that would result in a breach of any representation,
warranty or covenant of the Company in the Merger Agreement; and (iii) against
any action or agreement which would delay, postpone or attempt to discourage the
Merger or the Offer or cause a condition to the closing of the Merger or the
Offer to not be capable of being satisfied.
(c) The Stockholder represents that any outstanding proxy
heretofore given in respect of the Shares, if any, is revocable and that any
outstanding proxy heretofore given in respect of the Shares has been revoked.
(d) The Stockholder hereby affirms that the irrevocable proxy set
forth in this SECTION 6 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 the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled with
an interest and is intended to be irrevocable in accordance with the
provisions of SECTION 212(e) of the DGCL.
(e) The Stockholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the Merger that the Stockholder may have.
SECTION 7. 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 Common Stock of the Company or
the acquisition of additional shares of Common Stock of the Company by the
Stockholder, the number of Shares shall be adjusted appropriately,
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and this Agreement and the obligations hereunder shall attach to any additional
shares of Common Stock or other securities or rights of the Company issued to or
acquired by the Stockholder.
SECTION 8. CERTAIN OTHER AGREEMENTS.
(a) From the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement, the Stockholder shall not
(and the Stockholder will not permit any of its Affiliates, officers, directors
or employees or any investment banker, financial advisor, attorney, accountant
or other representative retained by it or any Affiliate (collectively
"STOCKHOLDER REPRESENTATIVES") to) directly or indirectly: (i) solicit,
initiate, engage in discussions or negotiate with any Person or take any other
action intended or designed to facilitate any inquiry or effort of any Person
(other than Parent) relating to any Alternative Acquisition; (ii) provide
information with respect to the Company or any Company Subsidiary to any Person,
other than Parent, relating to a possible Alternative Acquisition by any Person,
other than Parent; or (iii) enter into any agreement with respect to any
proposal for an Alternative Acquisition Proposal. Notwithstanding the foregoing,
prior to the acceptance for payment of Common Stock of the Company pursuant to
the Offer, the Stockholder may advise the Company Board of receipt by it (or any
Stockholder Representative) of any unsolicited Alternative Acquisition Proposal
or any inquiry indicating that any Person is considering making or wishes to
make an Alternative Acquisition Proposal. Notwithstanding the foregoing, it is
agreed and understood by the parties that the term "Stockholder Representative"
shall not include the Company, any Company Subsidiary or any Company
Representative.
(b) The Stockholder promptly, and in any event within two (2)
Business Days, shall advise Parent in writing of receipt by it (or any
Stockholder Representative) of any Alternative Proposal or any inquiry
indicating that any Person is considering making or wishes to make an
Alternative Acquisition Proposal, identifying such Person, and the financial and
other material terms and conditions of any Alternative Acquisition Proposal or
potential Alternative Acquisition Proposal. The obligations provided for in this
Section 8 shall become effective immediately following the execution and
delivery of this Agreement by the parties hereto.
(c) The Stockholder and BP hereby agree to cease and cause to be
terminated immediately all existing discussions or negotiations conducted by
them or at their behest heretofore with respect to any Alternative Acquisition.
In addition, BP agrees to promptly direct UBS Warburg LLC to cease and cause to
be terminated immediately all existing discussions or negotiations conducted by
it heretofore with respect to any Alternative Acquisition on behalf of BP or its
Affiliates.
(d) Notwithstanding any other provision of this Agreement, the
Stockholder shall be liable to, and shall defend, indemnify and hold harmless,
Parent, Sub, the Company, each Company Subsidiary and their respective officers,
directors and affiliates (the "INDEMNIFIED PARTIES"): (i) for any and all Taxes
of BP and any current or former Affiliate of BP (other than the Company or any
Company Subsidiary) for any taxable period beginning before the Closing Date,
for which the Company or any Company Subsidiary may be liable pursuant to
Treasury Regulation Sec. 1.1502-6 (or any similar provision of state, local or
foreign law), as a transferee or successor, by contract, agreement or otherwise;
(ii) any and all Taxes imposed on or
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with respect to the Company or any Company Subsidiary for any taxable period (or
portion thereof) ending on or before February 10, 1998 (all amounts described in
clauses (i) and (ii) of this SECTION 8(d) being, the "INDEMNIFIED TAXES"); and
(iii) any and all expenses incurred by any Indemnified Party arising from any
Indemnified Taxes (collectively, the "STOCKHOLDER INDEMNIFICATION OBLIGATIONS").
(e) BP hereby irrevocably and unconditionally guarantees any and
all of the Stockholder Indemnification Obligations.
(f) BP hereby agrees that it shall pay any fees, expenses or other
amounts that become due and payable by the Company to UBS Warburg LLC or any
other investment bank or financial advisor engaged by the Company other than
Wachovia Securities (formerly known as First Union Securities) and ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Co. (such entities other than Wachovia Securities and ▇▇▇▇▇▇▇ Sachs & Co., the
"Covered Advisors") as a result of the Transactions (the "Covered Advisor
Liabilities") and shall defend, indemnify and hold harmless the Indemnified
Parties against any claims for such amounts or any liabilities or costs arising
out of or resulting from any claims for such amounts. In the event any Covered
Advisor makes any written claim or demand for the payment of any Covered Advisor
Liabilities (a "Demand"), Parent shall promptly, but in no event more than five
(5) Business Days following such Demand, notify BP of such claim or demand,
PROVIDED, HOWEVER, that Parent's failure to notify BP within such five (5)
Business Day period shall relieve BP of its obligation to pay the Covered
Advisor Liabilities only to the extent that BP is actually prejudiced by such
failure. BP shall have the right to dispute any Demand and defend Parent and the
Company by appropriate proceedings against any Demand and shall have the power
to direct and control such defense. All costs and expenses incurred by BP in
defending such Demand shall be the liability of, and shall be paid by, BP. If
the Company or Parent desires to participate in any such defense, or to employ
separate counsel of its choice, it may do so at its sole cost and expense.
Parent and each of its Affiliates shall cooperate with BP and its counsel in the
defense of any Demand. Neither Parent nor any of its Affiliates shall make
payment on, or otherwise settle, a Demand without the consent of BP. Parent
shall give BP and its counsel access to the relevant business records and other
documents of the Company, and shall permit them to consult with the employees
and counsel of the Company and any of its Affiliates (during normal business
hours and without undue disruption to the Company's Business) as may be
reasonably necessary in connection with the foregoing.
SECTION 9. FURTHER ASSURANCES; STOCKHOLDER CAPACITY. (a) With respect
to each party's respective obligations under this Agreement, the Stockholder and
BP shall, upon request of Parent or Sub, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by Parent or
Sub to be necessary to carry out the provisions hereof and to vest the power to
vote the Shares as contemplated by SECTION 6 hereof in Parent.
(b) Nothing in this Agreement shall be construed to prohibit any
person from taking any action solely in his or her capacity as a member of the
Company Board to the extent specifically permitted by the Merger Agreement.
SECTION 10. TERMINATION. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate upon the earlier of: (a) the date upon
which the Offer is
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terminated without the purchase of shares of Common Stock thereunder in
accordance with its terms; (b) the termination of the Merger Agreement in
accordance with its terms; or (c) the Effective Time; PROVIDED, HOWEVER, that
whether or not the Merger is consummated, the provisions set forth in
SECTIONS 11 and 12 shall survive any termination of this Agreement; and
PROVIDED, FURTHER, that the provisions set forth in SECTIONS 8(b), 8(c),
8(d), 8(e) and 8(f) shall survive following the Effective Time if the Merger
is consummated.
SECTION 11. EXPENSES. Except as otherwise provided herein, all fees and
expenses incurred by any one party hereto shall be borne by the party incurring
such fees and expenses.
SECTION 12. MISCELLANEOUS.
(a) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
following addresses (or at such other address for a party as shall be specified
by like notice):
(A) if to Parent or Sub, to:
▇▇▇▇▇▇ Laboratories
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇-▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Vice President,
Diagnostic Operations
with a copy to:
▇▇▇▇▇▇ Laboratories
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇-▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Vice President,
Secretary and General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇
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and
(B) if to the Stockholder or BP, to:
BP America Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Mergers and Acquisitions
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
(b) 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.
(c) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall be considered
one and the same agreement.
(d) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written or oral,
among the parties hereto with respect to the subject matter hereof.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
(f) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by operation of
law or otherwise by any of the parties without the prior written consent of the
other parties. Any purported assignment without such consent shall be void,
except that Sub may assign, in its sole discretion, any of or all of its rights,
interests and obligations under this Agreement to Parent or to one or more
direct or indirect wholly owned Subsidiaries of Parent or a combination thereof,
but no such assignment shall relieve Sub or any of its obligations under this
Agreement. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
(g) If any term, provision, covenant or restriction herein is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against public policy, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
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(h) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement is not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any Delaware state court or any federal court
located in the State of Delaware, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto: (i) consents to submit itself to the personal jurisdiction of any
Delaware state court or any federal court located in the State of Delaware in
the event any dispute arises out of this Agreement; (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court; (iii) agrees that it will not bring any action
relating to this Agreement in any court other than any Delaware state court or
any federal court sitting in the State of Delaware; and (iv) waives any right to
trial by jury with respect to any action related to or arising out of this
Agreement.
(i) 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.
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IN WITNESS WHEREOF, Parent, Sub, the Stockholder and BP have caused
this Agreement to be duly executed and delivered as of the date first written
above.
▇▇▇▇▇▇ LABORATORIES
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Medical Products
RAINBOW ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
AMOCO TECHNOLOGY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
BP AMERICA INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
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