EXECUTION VERSION
==============================================================================
STOCKHOLDERS AGREEMENT
dated as of April 2, 2002
by and among
QUEST DIAGNOSTICS INCORPORATED,
QUEST DIAGNOSTICS NEWCO INCORPORATED,
▇▇▇▇▇ INVESTMENT ASSOCIATES VI, L.P.
and
KEP VI, LLC
==============================================================================
Table of Contents
Page
----
Article I
TENDER OF SHARES
SECTION 1.01. Tender of Shares...........................................................................2
Article II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement...........................................................................2
SECTION 2.02. Irrevocable Proxy..........................................................................3
Article III
THE OPTION
SECTION 3.01. Grant of Option............................................................................3
SECTION 3.02. Payment of the Purchase Price..............................................................3
SECTION 3.03. Exercise of Option.........................................................................3
Article IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
SECTION 4.01. Organization, Authority and Qualification of the Stockholders..............................5
SECTION 4.02. No Conflict; Required Filings and Consents.................................................6
SECTION 4.03. Ownership of Shares........................................................................6
SECTION 4.04. Absence of Litigation......................................................................6
SECTION 4.05. Brokers....................................................................................6
Article V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01. Organization, Authority and Qualification..................................................7
SECTION 5.02. No Conflict; Required Filings and Consents.................................................7
Article VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares....................................................8
SECTION 6.02. No Solicitation of Transactions............................................................8
SECTION 6.03. Further Action; Reasonable Best Efforts....................................................8
SECTION 6.04. Information for Offer Documents and Proxy Statement/Prospectus; Disclosure.................8
Article VII REGISTRATION RIGHTS
SECTION 7.01. Registration...............................................................................9
SECTION 7.02. Blackout Periods...........................................................................9
SECTION 7.03. Obligations of Parent.....................................................................10
SECTION 7.04. Expenses of Registration..................................................................11
SECTION 7.05. Indemnification...........................................................................11
SECTION 7.06. Furnish Information.......................................................................13
Article VIII
TERMINATION
SECTION 8.01. Termination...............................................................................14
Article IX
MISCELLANEOUS
SECTION 9.01. Notices...................................................................................15
SECTION 9.02. Severability..............................................................................16
SECTION 9.03. Entire Agreement; Assignment..............................................................16
SECTION 9.04. Parties in Interest.......................................................................17
SECTION 9.05. Specific Performance......................................................................17
SECTION 9.06. Governing Law.............................................................................17
SECTION 9.07. Waiver of Jury Trial......................................................................17
SECTION 9.08. Headings..................................................................................17
SECTION 9.09. Counterparts..............................................................................17
SECTION 9.10. Amendment.................................................................................18
SECTION 9.11. Waiver....................................................................................18
SECTION 9.12. Costs and Expenses of This Agreement and the Merger Agreement.............................18
SECTION 9.13. Affiliate Letters.........................................................................18
SECTION 9.14. Adjustments...............................................................................18
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of April 2, 2002 (this
"Agreement"), among QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation
("Parent"), QUEST DIAGNOSTICS NEWCO INCORPORATED, a Delaware corporation
and a wholly owned subsidiary of Parent ("Purchaser"), ▇▇▇▇▇ INVESTMENT
ASSOCIATES VI, L.P., a Delaware limited partnership ("LP"), and KEP VI,
LLC, a Delaware limited liability company ("LLC" and, together with LP as
stockholders of UNILAB CORPORATION (the "Company"), the "Stockholders"; and
each of LP and LLC, individually, a "Stockholder").
WHEREAS, Parent, Purchaser and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended from
time to time, the "Merger Agreement"; capitalized terms used but not
defined in this Agreement have the meanings attributed to such terms in the
Merger Agreement), pursuant to which (i) Purchaser shall commence a cash
election exchange offer (as such exchange offer may hereafter be amended
from time to time in accordance with the Merger Agreement, the "Offer") to
acquire each issued and outstanding share of common stock, par value $0.01
per share, of the Company ("Common Stock") in exchange for, at the election
of the holder thereof, either (x) a net amount of $26.50 in cash, or (y)
0.3256 of a share of common stock, par value $0.01 per share, of Parent,
all in accordance with and subject to the terms and conditions of the
Merger Agreement; and (ii) following consummation of the Offer, the Company
shall merge with Purchaser (the "Merger");
WHEREAS, each Stockholder is the record or beneficial owner of the
number of shares of Common Stock set forth on Schedule A hereto opposite
such Stockholder's name (all such shares of Common Stock and any shares of
Common Stock hereafter acquired by the Stockholders prior to termination of
this Agreement being, the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent
and Purchaser have required that the Stockholders agree to enter into this
Agreement; and
WHEREAS, the Stockholders wish to induce Parent and Purchaser to
enter into the Merger Agreement and, therefore, the Stockholders are
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
Article I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Each Stockholder agrees to
promptly (and, in any event, not later than two business days prior to the
initial scheduled expiration date of the Offer) tender or cause to be
tendered into the Offer, pursuant to and in accordance with the terms of
the Offer, and not withdraw or cause to be withdrawn (except following the
termination of the Offer in accordance with its terms), all of such
Stockholder's Shares. Each Stockholder acknowledges and agrees that
Purchaser's obligation to accept for exchange or payment shares of Common
Stock in the Offer, including any Shares tendered by a Stockholder, is
subject to the terms and conditions of the Merger Agreement and the Offer.
Parent acknowledges and agrees that the ability of Parent or Merger Sub to
purchase shares of Parent Common Stock in the Offer is subject to the terms
and conditions of the Merger Agreement and the Offer. Notwithstanding the
foregoing, under certain circumstances set forth in Section 8.01(a) hereof,
the Stockholders shall be entitled to withdraw Shares tendered into the
Offer. Parent shall give each Stockholder reasonably adequate notice so as
to enable the Stockholders to exercise such rights of withdrawal in a
reasonable manner, including by (i) providing the Stockholders with two
business days notice prior to any anticipated final expiration date of the
Offer, and (ii) arranging for the Offer to expire at midnight on the
applicable expiration date.
Article II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Each Stockholder hereby agrees
that, from and after the date hereof and until the earliest to occur of (x)
the Effective Time, (y) the termination of this Article II pursuant to
Section 8.01(a) and (z) the termination of this Agreement pursuant to
Section 8.01(b)(other than the certain specified Sections identified
therein), at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company,
such Stockholder shall vote (or cause to be voted) all such Stockholder's
Shares (i) in favor of adoption of the Merger Agreement, the Merger and all
the transactions contemplated by the Merger Agreement and this Agreement
and otherwise in such manner as may be necessary to consummate the Merger;
(ii) against any action, proposal, agreement or transaction that would
result in a breach of any covenant, obligation, agreement, representation
or warranty of the Company under the Merger Agreement or of such
Stockholder contained in this Agreement; and (iii) against any action,
agreement, transaction (other than the Merger Agreement or the transactions
contemplated thereby) or proposal (including any proposal relating to a
Competing Transaction) that could reasonably be expected to result in any
of the conditions to the Company's obligations under the Merger Agreement
not being fulfilled or that is intended, or could reasonably be expected,
to impede, interfere, delay, discourage or adversely affect the Merger
Agreement, the Offer, the Merger or this Agreement. Any vote by such
Stockholder that is not in accordance with this Section 2.01 shall be
considered null and void, and the provisions of Section 2.02 shall be
deemed to take immediate effect.
SECTION 2.02. Irrevocable Proxy. If, and only if, a Stockholder
fails to comply with the provisions of Section 2.01, such Stockholder
hereby agrees that such failure shall result, without any further action by
such Stockholder effective as of the date of such failure, in the
constitution and appointment of Parent and each of its executive officers
from and after the date of such determination until the earlier to occur of
(x) the Effective Time, (y) the termination of this Article II pursuant to
Section 8.01(a) and (z) the termination of this Agreement pursuant to
Section 8.01(b) (other than the certain specified Sections identified
therein)(at which point such constitution and appointment shall
automatically be revoked) as such Stockholder's attorney, agent and proxy
(such constitution and appointment, the "Irrevocable Proxy"), with full
power of substitution, to vote and otherwise act with respect to all such
Stockholder's Shares at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed
meeting), and in any action by written consent of the stockholders of the
Company, on the matters and in the manner specified in Section 2.01. THIS
PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST
AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND
BINDING ON ANY PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES
IN BREACH OF THIS AGREEMENT. Each Stockholder hereby revokes all other
proxies and powers of attorney with respect to all such Stockholder's
Shares that may have heretofore been appointed or granted, and no
subsequent proxy or power of attorney shall be given (and if given, shall
not be effective) by such Stockholder with respect thereto. All authority
herein conferred or agreed to be conferred shall survive the death or
incapacity of such Stockholder and any obligation of such Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
successors and assigns of such Stockholder.
Article III
THE OPTION
SECTION 3.01. Grant of Option. Each Stockholder hereby grants to
Parent an irrevocable option (each, an "Option" and, collectively, the
"Options") to purchase all of such Stockholder's Shares at a purchase price
per Share of $26.50 (the "Purchase Price").
SECTION 3.02. Payment of the Purchase Price. The Purchase Price
shall be payable by Parent, at the option of Parent, either (x) in cash or
(y) in a combination of cash and shares of Parent Common Stock in the same
proportions as though such Shares and any other Tendered Cash Election
Shares had been acquired pursuant to and in accordance with the terms of
the Offer, taking into account for this purpose the aggregate number of
Tendered Cash Election Shares in the Offer, including the number of
Stockholder Shares that were Tendered Cash Election Shares.
SECTION 3.03. Exercise of Option. (a) Each of the Options shall
become exercisable by Parent for a ten business day period (the "Option
Exercise Period") commencing on the Initial Exercisability Date. For
purposes of this Agreement, the "Initial Exercisability Date" shall be the
date on which either (1) the Merger Agreement is terminated by Parent or
the Company pursuant to Section 10.01(a), Section 10.01(b) or clause (ii)
of Section 10.01(d), or (2) the Merger Agreement is terminated by Parent or
the Company pursuant to Section 10.01(d)(i) thereof, if (w) in the case of
clauses (1) and (2) of this Section 3.03(a), at the time of termination, no
Parent Share Price Decrease (without giving effect to clause (3) in the
definition thereof) shall have occurred and be continuing, (x) in the case
of clauses (1) and (2) of this Section 3.03(a), at the time of termination,
all of the conditions set forth in Section 2.01(c) of the Merger Agreement
shall have been satisfied, (y) in the case of a termination of the Merger
Agreement pursuant to Section 10.01(d)(i) or Section 10.01(d)(ii) thereof,
at the time of termination, the conditions set forth in paragraphs (c) and
(d) of clause (v) of Annex I shall have been satisfied, and no litigation
of the type described in paragraph (a) of clause (v) of Annex I shall have
been brought by any Governmental Authority on antitrust grounds and remain
pending, and (z) in the case of a termination of the Merger Agreement on
the Termination Date pursuant to Section 10.01(d)(i) or Section
10.01(d)(ii), at the time of termination, the conditions set forth in
clauses (ii), (iii) and (iv) of Annex I of the Merger Agreement shall have
been satisfied. The Options shall be exercisable in whole but not in part,
and in no event shall Parent be permitted to exercise an Option with
respect to a Stockholders' Shares unless Parent concurrently exercises all
Options to purchase the Shares of all Stockholders. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall any
Stockholders' Shares be purchased after the close of business on the 45th
day following the termination of the Merger Agreement (the "Option
Termination Date").
(b) If Parent wishes to exercise the Options during the Option
Exercise Period, Parent shall send a written notice (the "Exercise Notice")
to each Stockholder of its intention to exercise such Stockholder's Option,
specifying the place, and, if then known, the time and the date (the
"Closing Date") of the closing of such purchase (the "Closing"). The
Closing Date shall, subject to satisfaction of the conditions in paragraph
(d), occur on the later of (i) the third business day after the date on
which such Exercise Notice is delivered and (ii) one business day following
the expiration or termination of the waiting period under the HSR Act
applicable to the consummation of the purchase and sale of the Shares
hereunder. For the purposes of this Agreement, the term "business day"
means any day that is not a Saturday, a Sunday or a day on which banks are
not required or authorized by law or executive order to be closed in the
City of New York.
(c) At the Closing, (i) each Stockholder shall deliver to Parent
(or its designee) such Stockholder's Shares by delivery of a certificate or
certificates evidencing such Shares duly endorsed to Parent or accompanied
by stock powers duly executed in favor of Parent, with all necessary stock
transfer stamps affixed, and (ii) Parent shall pay for the Stockholders'
Shares with (a) cash or (b) a combination of cash and shares of Parent
Common Stock in the same proportions as though such Shares and any other
Tendered Cash Election Shares had been acquired pursuant to and in
accordance with the terms of the Offer, taking into account for this
purpose the aggregate number of Tendered Cash Election Shares in the Offer,
including the number of Stockholder Shares that were Tendered Cash Election
Shares, in either case in accordance with the provisions of Sections
3.02(a) and 3.02(b).
(d) The Closing shall be subject to the satisfaction or, in the
case of clause (iv) below, waiver by the Stockholders of each of the
following conditions:
(i) no Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law that is then in effect and
no Order shall have been entered or be in effect, in either case
that has the effect of making the acquisition of the Shares by
Parent illegal or otherwise restricting, preventing or prohibiting
consummation of the purchase and sale of the Shares pursuant to the
exercise of the Options;
(ii) any waiting period under the HSR Act applicable to the
consummation of the purchase and sale of the Shares hereunder shall
have expired or been terminated;
(iii) the approval for listing of any shares of Parent Common
Stock to be issued to Stockholders hereunder on the NYSE, subject to
official notice of issuance; and
(iv) all of the conditions to the Offer set forth in Section
2.01(c) of the Merger Agreement shall have been satisfied.
At the Closing, (i) each Stockholder will deliver good and valid
title to such Stockholder's Shares free and clear of any Liens and, upon
delivery to Parent of such Shares and payment for the Purchase Price
therefor as contemplated herein, Parent will receive good, valid and
marketable title to such Stockholder's Shares free and clear of any Liens,
and (ii) Parent shall deliver to each Stockholder the cash portion of the
Purchase Price to which such Stockholder is entitled pursuant to Section
3.02 by wire transfer in immediately available funds to a bank account to
be designated by such Stockholder in a written notice to Parent at least
two business days prior to the Closing and, with respect to the stock
portion of the Purchase Price, if any, Parent shall deliver to each
Stockholder stock certificates evidencing the shares of Parent Common Stock
to which such Stockholder is entitled pursuant to Section 3.02.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby jointly and severally represents and
warrants to Parent and to Purchaser as follows:
SECTION 4.01. Organization, Authority and Qualification of the
Stockholders. (a) Each Stockholder is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization or
formation and has all necessary power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Each Stockholder is duly licensed or
qualified to do business and is in good standing in each jurisdiction in
which the properties owned or leased by it or the operation of its business
makes such licensing or qualification necessary, except to the extent that
the failure to be so licensed or qualified would not prevent or materially
delay the ability of such Stockholder to carry out its obligations under,
and to consummate the transactions contemplated by, this Agreement. The
execution and delivery of this Agreement by each Stockholder, the
performance by each Stockholder of its obligations hereunder and the
consummation by each Stockholder of the transactions contemplated hereby
have been duly authorized by all requisite action on the part of each
Stockholder. This Agreement has been duly and validly executed and
delivered by each Stockholder and (assuming due authorization, execution
and delivery by Parent and Purchaser) this Agreement constitutes a legal,
valid and binding obligation of each Stockholder enforceable against each
Stockholder in accordance with its terms.
SECTION 4.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each Stockholder do not, and
the performance of this Agreement by each Stockholder shall not, (i)
conflict with or violate the agreement of limited partnership, limited
liability company agreement or equivalent organizational documents, as the
case may be, of such Stockholder, (ii) assuming satisfaction of the
requirements set forth in 4.02(b) below, conflict with or violate any Law
applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected or (iii) result in any breach of, or
constitute a default (or event that 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 a
Lien on any Shares (other than pursuant to this Agreement) pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation of such Stockholder,
except for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or materially delay the ability of such
Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by each
Stockholder do not, and the performance of this Agreement by each
Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with, or notification to, any Governmental Authority,
except (i) for applicable requirements, if any, of the Exchange Act, Blue
Sky Laws and the premerger notification requirements of the HSR Act, and
(ii) where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or
materially delay the ability of such Stockholder to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
SECTION 4.03. Ownership of Shares. As of the date hereof, each
Stockholder is the record or beneficial owner of, and has good title to,
the number of Shares set forth opposite such Stockholder's name on Schedule
A hereto. Except as set forth on Schedule A, such Shares are all the
securities of the Company owned, either of record or beneficially, by such
Stockholder as of the date hereof and such Stockholder does not have any
option or other right to acquire any other securities of the Company. The
Shares owned by such Stockholder are owned free and clear of all Liens,
other than any Liens created by this Agreement. Except as provided in this
Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned
by such Stockholder.
SECTION 4.04. Absence of Litigation. As of the date of this
Agreement, there is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholders, threatened
against either Stockholder, or any property or asset of either Stockholder,
before any Governmental Authority that seeks to delay or prevent the
consummation of the transactions contemplated by this Agreement.
SECTION 4.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of either, or both, of the Stockholders.
Article V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Each of Parent and Purchaser hereby jointly and severally
represent and warrant to the Stockholders as follows:
SECTION 5.01. Organization, Authority and Qualification. Each of
Parent and Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has
all necessary power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions
contemplated hereby. Each of Parent and Purchaser is duly licensed or
qualified to do business and is in good standing in each jurisdiction in
which the properties owned or leased by it or the operation of its business
makes such licensing or qualification necessary, except to the extent that
the failure to be so licensed or qualified would not prevent or materially
delay the ability of Parent or Purchaser to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
The execution and delivery of this Agreement by each of Parent and
Purchaser, the performance by each of Parent and Purchaser of its
obligations hereunder and the consummation by each of Parent and Purchaser
of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of each of Parent and Purchaser. This
Agreement has been duly and validly executed and delivered by each of
Parent and Purchaser and (assuming due authorization, execution and
delivery by each Stockholder) this Agreement constitutes a legal, valid and
binding obligation of each of Parent and Purchaser enforceable against
Parent and Purchaser in accordance with its terms.
SECTION 5.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each of Parent and Purchaser do
not, and the performance of this Agreement by each of Parent and Purchaser
shall not, (i) conflict with or violate the certificate of incorporation
and by-laws of Parent or Purchaser, (ii) assuming satisfaction of the
requirements set forth in Section 5.02(b) below, conflict with or violate
any Law applicable to Parent or Purchaser or by which any property or asset
of Parent or Purchaser is bound or affected or (iii) result in any breach
of, or constitute a default (or event that 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, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation of Parent or Purchaser, except for any
such conflicts, violations, breaches, defaults or other occurrences that
would not prevent or materially delay the ability of Parent or Purchaser to
carry out its obligations under, and to consummate the transactions
contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Purchaser do not, and the performance of this Agreement by each of
Parent and Purchaser shall not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any
Governmental Authority, except (i) for applicable requirements, if any, of
the Securities Act, the Exchange Act, Blue Sky Laws and the premerger
notification requirements of the HSR Act, and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay the ability
of Parent or Purchaser to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement.
Article VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares. Each
Stockholder hereby agrees that, except as contemplated by this Agreement,
such Stockholder shall not (i) sell, transfer, tender (except into the
Offer), pledge, assign, contribute to the capital of any entity,
hypothecate, give or otherwise dispose of, grant a proxy or power of
attorney with respect to (other than the Irrevocable Proxy), deposit into
any voting trust, enter into any voting agreement, or create or permit to
exist any Liens of any nature whatsoever (other than pursuant to this
Agreement) with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing), or (ii) take any action
that would make any representation or warranty of such Stockholder herein
untrue or incorrect in any material respect or have the effect of
preventing or disabling such Stockholder from performing such Stockholder's
obligations hereunder.
SECTION 6.02. No Solicitation of Transactions. None of the
Stockholders shall, directly or indirectly, through any director, officer,
affiliate, employee, representative, agent or otherwise, (i) solicit,
initiate, endorse, accept or encourage the submission of any Competing
Transaction, or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or
otherwise cooperate in any way with respect to, or participate in, assist,
facilitate, endorse or encourage any proposal that constitutes, or may
reasonably be expected to lead to, a Competing Transaction; provided,
however, that nothing herein shall prevent an officer or director of a
Stockholder from acting in his or her capacity as a director of the
Company, or taking any action in any capacity (including at the direction
of the Company Board), but only in either such case as and to the extent
permitted by Section 8.04(b) of the Merger Agreement. Each Stockholder
shall, and shall direct or cause its directors, officers, employees,
representatives and agents to, and shall use its reasonable efforts to
cause its affiliates to, immediately cease and cause to be terminated any
discussions or negotiations with any parties that may be ongoing with
respect to a Competing Transaction.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon the
terms and subject to the conditions hereof, Parent, Purchaser and each
Stockholder shall use their reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement.
SECTION 6.04. Information for Offer Documents and Proxy
Statement/Prospectus; Disclosure. Each Stockholder covenants and agrees
that none of the information relating to such Stockholder and its
affiliates for inclusion in the Schedule 14D-9, the Offer Documents or, if
applicable, the Proxy Statement/Prospectus or the Merger Registration
Statement that has been furnished to Parent by such Stockholder for
inclusion in such documents will, at (i) the time the Schedule 14D-9 or the
Proxy Statement/Prospectus (or any amendment or supplement thereto) is
first filed with the SEC or mailed to stockholders of the Company, (ii) the
time the Merger Registration Statement is declared effective, or (iii) the
time of the Company Stockholders Meeting (in the case of information
included in the Proxy Statement/Prospectus), contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Nothing
contained herein shall require the Stockholders to furnish information
relating to the Company to Parent for inclusion in the Offer Documents or,
if applicable, the Proxy Statement/Prospectus or Merger Registration
Statement. Each Stockholder agrees to permit Parent and Purchaser to
publish and disclose in the Offer Documents and, if applicable, the Proxy
Statement/Prospectus, the Merger Registration Statement and any related
filings under applicable securities Laws such Stockholder's identity and
ownership of Shares and the nature of its commitments, arrangements and
understandings under this Agreement and any other information regarding
such Stockholder as required by applicable Law.
Article VII
REGISTRATION RIGHTS
SECTION 7.01. Registration. As promptly as practicable (and in any
event within five business days) after the Acceptance Date or, if
applicable, the date on which Parent has purchased the Stockholders' Shares
pursuant to Section 3.01, Parent shall file with the SEC, and thereafter
use its reasonable best efforts to have declared effective as soon as
practicable, a "shelf" Registration Statement on Form S-3 (a "Shelf
Registration Statement") pursuant to Rule 415 promulgated under the
Securities Act covering the resale by the Stockholders of shares of Parent
Common Stock issued to such Stockholders pursuant to the Offer as Stock
Consideration or, if applicable, pursuant to the purchase of the
Stockholder's Shares following the exercise of the Options (the
"Registrable Shares"). Parent shall, subject to customary terms and
conditions (including, without limitation, Section 7.02), use its
reasonable efforts to keep the Shelf Registration Statement continuously
effective from the date that such Shelf Registration Statement is declared
effective until the first anniversary of such effective date (the
"Effectiveness Period"). The plan of distribution contemplated by the Shelf
Registration Statement may include, without limitation, block trades and
hedging transactions executed by, or on behalf of, the Stockholders.
SECTION 7.02. Blackout Periods. Notwithstanding anything to the
contrary contained herein, Parent shall have the right to defer or delay
filing the Shelf Registration Statement for a period of not more than 60
days or suspend sales under the Shelf Registration Statement filed
hereunder or defer the updating of such filed Shelf Registration Statement
and suspend sales thereunder during no more than two periods aggregating
not more than 60 days (each, a "Blackout Period"), in either case in the
event that Parent furnishes to the Stockholders a certificate signed by the
President or Chief Executive Officer of Parent stating that, in the good
faith opinion of such person, such registration or sale would interfere
with any material transaction then being proposed by Parent or would
otherwise require disclosure of any material event that Parent would not
otherwise be required to disclose; provided, however, that Parent shall
extend the Effectiveness Period by the number of days, if any, during which
the registration rights contemplated hereunder are subject to a Blackout
Period.
SECTION 7.03. Obligations of Parent. In connection with using its
reasonable best efforts to effect the registration under the Shelf
Registration Statement of any Registrable Shares, Parent shall, as
expeditiously as possible:
(a) prepare and file with the SEC such amendments and supplements
to the Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares
covered by the Shelf Registration Statement and as may be necessary to keep
such Shelf Registration Statement effective as provided in Sections 7.01
and 7.02, and promptly notify the Stockholders (i) when the Shelf
Registration Statement and the prospectus used in connection therewith has
been filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective; (ii)
of any request by the SEC for amendments or supplements to the Shelf
Registration Statement and the prospectus used in connection therewith or
for additional information; or (iii) of any stop order issued or, to
Parent's knowledge, threatened to be issued by the SEC and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered;
(b) furnish to the Stockholders such numbers of copies of the
Shelf Registration Statement and amendments and supplements thereto and the
prospectus included therein in conformity with the requirements of the
Securities Act, any exhibits filed therewith and such other documents and
information as they may reasonably request;
(c) use all reasonable best efforts to register or qualify the
Registrable Shares covered by the Shelf Registration Statement under such
other securities or Blue Sky Laws of such jurisdiction within the United
States as shall be reasonably appropriate for the distribution of the
Registrable Shares covered by the Shelf Registration Statement; provided,
however, that Parent shall not be required in connection therewith or as a
condition thereto to qualify to do business in or to file a general consent
to service of process in any jurisdiction wherein it would not but for the
requirements of this paragraph (c) be obligated to do so; and provided
further, however, that Parent shall not be required to qualify such
Registrable Shares in any jurisdiction in which the securities regulatory
authority requires that any Stockholder submit any shares of its
Registrable Shares to the terms, provisions and restrictions of any escrow,
lockup or similar agreement(s) for consent to sell Registrable Shares in
such jurisdiction unless such Stockholder agrees to do so;
(d) promptly notify each Stockholder upon becoming aware of the
happening of any event as a result of which the prospectus included in such
Shelf Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and,
at the request of any such Stockholder, promptly prepare and furnish to
such Stockholder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made. In the event Parent shall give such notice, Parent shall extend the
Effectiveness Period by the number of days during the period from and
including the date of the giving of such notice to the date when Parent
shall make available to the Stockholders such supplemented or amended
prospectus; and
(e) enter into customary agreements and take such other actions as
are reasonably required in order to expedite or facilitate the disposition
of the Registrable Shares to be so included in the Shelf Registration
Statement.
SECTION 7.04. Expenses of Registration. All expenses incurred in
connection with the Shelf Registration Statement, including without
limitation all registration, filing and qualification fees, word
processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance), fees of the National
Association of Securities Dealers, Inc. or listing fees, messenger and
delivery expenses, all fees and expenses of complying with state securities
or Blue Sky Laws, and the fees and disbursements of counsel for Parent, but
excluding any brokers' discounts or commissions, shall be paid by Parent.
The Stockholders shall bear and pay the fees and disbursements of their
counsel in connection with any registrations, filings and qualifications
made pursuant to this Agreement.
SECTION 7.05. Indemnification. (a) Parent shall indemnify and hold
harmless each Stockholder, such Stockolder's directors and officers, each
person who participates in the offering of such Registrable Shares, and
each person, if any, who controls such Stockholder, against any losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof) arise
out of or are based on any untrue or alleged untrue statement of any
material fact contained in the Shelf Registration Statement on the
effective date thereof (including any prospectus filed under Rule 424 under
the Securities Act or any amendments or supplements thereto) or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each such
Stockholder, such Stockholder's directors and officers and controlling
persons for any legal or other expenses reasonably incurred by them (but
not in excess of expenses incurred in respect of one counsel for all of
them) in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 7.05(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of Parent (which consent shall
not be unreasonably withheld); provided further, that Parent shall not be
liable to any Stockholder, such Stockholder's directors and officers or
controlling persons in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in connection with the Shelf Registration Statement,
preliminary prospectus, final prospectus or amendments or supplements
thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Stockholder, such Stockholder's directors and officers or controlling
persons.
(b) Each Stockholder jointly and severally shall indemnify and
hold harmless Parent, each of its directors and officers, each person, if
any, who controls Parent within the meaning of the Securities Act, and each
agent and any underwriter for Parent (within the meaning of the Securities
Act) against any losses, claims, damages or liabilities, joint or several,
to which Parent or any such director, officer, controlling person, agent or
underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Shelf
Registration Statement on the effective date thereof (including any
prospectus filed under Rule 424 under the Securities Act or any amendments
or supplements thereto) or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in such Shelf Registration
Statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information
furnished by or on behalf of such Stockholder expressly for use in
connection with such registration; and each such Stockholder shall
reimburse Parent or any such director, officer, controlling person, agent
or underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under this
Section 7.05 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7.05, notify the indemnifying party
in writing of the commencement thereof and the indemnifying party shall
have the right to participate in and assume the defense thereof with
counsel selected by the indemnifying party and reasonably satisfactory to
the indemnified party (unless (i) such indemnified party reasonably objects
to such assumption on the grounds that there may be defenses available to
it which are different from or in addition to those available to such
indemnifying party, (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel or (iii) in the
reasonable opinion of such indemnified party, representation of such
indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding, in which case the indemnified party shall be reimbursed by
the indemnifying party for the reasonable expenses incurred in connection
with retaining separate legal counsel); provided, however, that an
indemnified party shall have the right to retain its own counsel, with all
fees and expenses thereof to be paid by such indemnified party, and to be
apprised of all progress in any proceeding the defense of which has been
assumed by the indemnifying party, it being understood that the
indemnifying party will control such defense. The failure to notify an
indemnifying party promptly of the commencement of any such action shall
not relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party on account of the
indemnity contained in this Section 7.05, unless (and only to the extent)
the indemnifying party was prejudiced by such failure, and in no event
shall such failure relieve the indemnifying party from any other liability
which it may have to such indemnified party. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent
will not be unreasonably withheld), effect any settlement, compromise or
discharge of any claim or pending or threatened proceeding in respect of
which the indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement, compromise or discharge includes an unconditional release of
such indemnified party from all liability arising out of such claim or
proceeding.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by Law, the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of material fact
or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. In no event shall (i) the liability of any
Stockholder pursuant to this paragraph (d) be greater in amount than the
aggregate amount of net proceeds received by such Stockholder upon the sale
of its Shares to Parent in the Offer or hereunder or (ii) the liability of
any indemnifying party be greater in amount than the amount for which such
indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Section 7.05(a)
or 7.05(b) hereof had been available under the circumstances.
(e) The parties hereto agree that it would not be just and
equitable if contribution pursuant to Section 7.05(d) were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 7.06. Furnish Information. It shall be a condition
precedent to the obligations of Parent to take any action pursuant to this
Article VII that the Stockholders shall furnish to Parent such information
regarding themselves and the intended method of disposition of such
securities as Parent shall reasonably request and as shall be required in
connection with the action to be taken by Parent; provided that Parent and
the Stockholders hereby acknowledge and agree that, unless otherwise
expressly agreed to in writing by the Stockholders, for all purposes of
this Agreement the only information furnished or to be furnished to Parent
for use in any registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement hereunder are
statements specifically relating to (a) transactions between such
Stockholders and their respective affiliates, on the one hand, and Parent,
on the other hand, (b) the beneficial ownership of shares of Common Stock
by such Stockholders and their respective affiliates and (c) the name and
address of such Stockholders. If any additional information about the
Stockholders or the plan of distribution (other than for an underwritten
offering) is required by Law to be disclosed in any such document, then the
Stockholders shall promptly furnish to Parent such information for
disclosure upon request by Parent.
Article VIII
TERMINATION
SECTION 8.01. Termination. (a) Each of the Stockholder's
obligations under Section 1.01 and Article II hereof shall terminate upon
the occurrence of a Parent Share Price Decrease (as defined in Section
8.01(c) below); provided, however, that each Stockholder's obligation under
Section 1.01 to tender and not withdraw its Shares pursuant to the Offer
shall terminate prior to such time upon the expiration or termination of,
or the acceptance for payment of shares of Common Stock pursuant to, the
Offer.
(b) Except with respect to Article IX hereof which shall survive
the termination of this Agreement and remain in full force and effect
thereafter, all of the provisions of 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 force or effect upon the
earlier to occur of (1) the Effective Time and (2) the termination of the
Merger Agreement; provided, however, that (A) in the case of clause (2) of
this Section 8.01(b), the provisions of Article III shall survive the
termination of this Agreement and remain in full force and effect until the
Option Termination Date, (B) in the case of clause (2) of this Section
8.01(b), Sections 4.01, 4.02(a)(i), 4.03 and 4.05 and the provisions of
Article V (other than Sections 5.02(a)(ii), (a)(iii) and 5.02(b)) hereof
shall survive the termination of this Agreement and remain in full force
and effect subject to the penultimate sentence of this paragraph, (C)(i) in
the case of clause (2) of this Section 8.01(b), the provisions of Section
6.01 shall survive the termination of this Agreement and remain in full
force and effect until the Option Termination Date, and (ii) in the case of
clauses (1) and (2) of this Section 8.01(b), the provisions of Section 6.03
shall survive such termination and remain in full force and effect until
the Option Termination Date, unless the Shares are purchased by Parent
pursuant to the exercise of the Options, in which case Section 6.03 shall
survive indefinitely, and (D) in the case of clauses (1) and (2) of this
Section 8.01(b), the provisions of Article VII shall survive the
termination of this Agreement and remain in full force and effect (x) if
the Shares are not purchased by Parent either pursuant to the Offer or
through the exercise of the Options, until the Option Termination Date or
(y) if the Shares are purchased by Parent pursuant to the Offer or through
the exercise of the Options, until the obligations of the parties
thereunder have been complied with. Notwithstanding anything to the
contrary contained in Section 8.01, the representations and warranties of
the parties contained in Articles IV and V of this Agreement (i) shall
terminate upon acceptance for payment of the Shares in the Offer, and (ii)
shall not survive the purchase of Shares by Parent through the exercise of
the Options except, in the case of this clause (ii), for those provisions
set forth in clause (B) of the previous sentence, which shall survive for a
period of three years following the Closing. Nothing contained in this
Section 8.01(b) shall relieve any party of any liability for any willful or
intentional breach of this Agreement.
(c) A "Parent Share Price Decrease" shall occur if (1) during the
five trading days ending on the second trading day prior to the then
scheduled expiration date of the Offer (the "Measuring Period"), the
average closing trading price for a share of Parent Common Stock (as
reported in the Wall Street Journal or, if not reported thereby, by any
other authoritative source) (the "Parent Post-Announcement Average Share
Price") shall be less than 50% of the Parent Pre-Announcement Average Share
Price (a "50% Parent Share Price Decrease"), (2) at the time of
determination, if any, of the occurrence of a 50% Parent Share Price
Decrease, the Parent Share Price Decrease Percentage (as defined below) is
25% greater than the Index Share Price Decrease Percentage (as defined
below), if any, and (3) at the time of such determination, all of the
conditions to the Offer (other than the Minimum Condition) have been
satisfied or, to the extent permitted, waived by Parent. For purposes of
this Section 8.01, the "Index Company" means the company identified on
Schedule B attached hereto; the "Index Post-Announcement Average Share
Price" means the weighted average closing trading price for shares of
common stock of the Index Company (as reported in the Wall Street Journal
or, if not reported thereby, by any other authoritative source) during the
Measuring Period; the "Index Pre-Announcement Average Share Price" means
the weighted average closing trading price for shares of common stock of
the Index Company (as reported in the Wall Street Journal or, if not
reported thereby, by any other authoritative source) for the five trading
days immediately preceding the date of this Agreement; the "Index Share
Price Decrease Percentage" means the quotient, expressed as a percentage,
of (i) the excess of the Index Pre-Announcement Average Share Price over
the Index Post-Announcement Average Share Price, if positive (and zero, if
such amount is negative), divided by (ii) the Index Pre-Announcement
Average Share Price; the "Parent Pre-Announcement Average Share Price"
means the average closing trading price for a share of Parent Common Stock
(as reported in the Wall Street Journal or, if not reported thereby, by any
other authoritative source) for the five trading days immediately preceding
the date of this Agreement; and, the "Parent Share Price Decrease
Percentage" means the quotient, expressed as a percentage, of (i) the
excess of the Parent Pre-Announcement Average Share Price over the Parent
Post-Announcement Average Share Price, if positive (and zero, if such
amount is negative), divided by (ii) the Parent Pre-Announcement Average
Share Price.
Article IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, 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 9.01):
if to the Stockholders:
▇▇▇▇▇ & Company, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq.
with a copy to:
Unilab Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to Parent or Purchaser:
Quest Diagnostics Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇
SECTION 9.02. 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 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 hereby and by
the Merger Agreement are 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 such transactions be consummated as
originally contemplated to the fullest extent possible.
SECTION 9.03. Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to
the subject matter hereof. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent and Purchaser may assign
all or any of their rights and obligations hereunder to any wholly owned
subsidiary of Parent, provided that no such assignment shall relieve Parent
or Purchaser of its obligations hereunder.
SECTION 9.04. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and, except as
set forth in Section 9.10 hereof, 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.
SECTION 9.05. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were 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 9.06. Governing Law. 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
(other than those provisions set forth herein that are required to be
governed by the General Corporation Law of the State of Delaware). All
actions and proceedings arising out of or relating to this Agreement shall
be heard and determined exclusively in any New York state or federal court
sitting in the Borough of Manhattan of The City of New York. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any state or
federal court sitting in the Borough of Manhattan of The City of New York
for the purpose of any action arising out of or relating to this Agreement
brought by any party hereto, and (b) irrevocably waive, and agree not to
assert by way of motion, defense, or otherwise, in any such action, any
claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment
or execution, that the action is brought in an inconvenient forum, that the
venue of the action is improper, or that this Agreement may not be enforced
in or by any of the above-named courts.
SECTION 9.07. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable Law any right
it may have to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this Agreement. Each
of the parties hereto (a) certifies that 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
that foregoing waiver and (b) acknowledges that it and the others hereto
have been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this Section 9.07.
SECTION 9.08. 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 9.09. 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 shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
SECTION 9.10. Amendment. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto.
Notwithstanding the foregoing, the provisions of this Agreement shall not
be amended without the prior written consent of the Company.
SECTION 9.11. Waiver. Any party to this Agreement may (i) extend
the time for the performance of any obligation or other act of any other
party hereto, (ii) waive any inaccuracy in the representations and
warranties of another party contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement of another
party contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be
bound thereby.
SECTION 9.12. Costs and Expenses of This Agreement and the Merger
Agreement. All costs and expenses of the parties hereto, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses, whether or not the Closing shall have occurred.
SECTION 9.13. Affiliate Letters. Each Stockholder agrees to
execute an affiliate letter, as soon as practicable after the date hereof,
in the form attached to the Merger Agreement as Exhibit A.
SECTION 9.14. Adjustments. (a) In the event (i) of any increase or
decrease or other change in the Shares by reason of stock dividend, stock
split, recapitalizations, combinations, exchanges of shares or the like or
(ii) that a Stockholder becomes the beneficial owner of any additional
shares of Common Stock or other securities of the Company, then the terms
of this Agreement shall apply to the shares of capital stock and other
securities of the Company held by the Stockholders immediately following
the effectiveness of the events described in clause (i), or such
Stockholder becoming the beneficial owner thereof pursuant to clause (ii).
(b) Each Stockholder hereby agrees to promptly notify Parent and
Purchaser of the number of any new Shares or other securities acquired by
such Stockholder, if any, after the date hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
QUEST DIAGNOSTICS INCORPORATED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
QUEST DIAGNOSTICS NEWCO
INCORPORATED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇ INVESTMENT ASSOCIATES VI,
L.P.
By: ▇▇▇▇▇ ▇▇ VI, LLC, its General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
KEP VI, LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
Acknowledged and Agreed
(with respect to Article II)
UNILAB CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & C.E.O.