Exhibit 99.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated February 19, 2002, is made and
entered into by and among Cytyc Corporation, a Delaware corporation ("Parent"),
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Cruiser, Inc., a Delaware corporation and wholly-owned subsidiary of Parent
("Merger Sub"), each stockholder who is a signatory hereto (each a
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"Stockholder", and collectively, the "Stockholders") and Digene Corporation, a
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Delaware corporation (the "Company") (being a party solely with respect to
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Section 6 hereof).
W I T N E S S E T H:
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WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Sub and the Company are entering into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to time,
the "Merger Agreement"; capitalized terms used and not defined herein have the
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respective meanings ascribed to them in the Merger Agreement), pursuant to which
Merger Sub will be merged with and into the Company (the "Merger");
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WHEREAS, in furtherance of the Merger, Parent and the Company have
agreed that, within seven (7) days after the execution and delivery of the
Merger Agreement, Merger Sub shall commence a cash and stock tender offer to
purchase all outstanding shares of Company Common Stock (as defined in Section
1), including all of the Shares (as defined in Section 2) owned beneficially by
the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement.
WHEREAS, the Stockholders believe that it is in the best interests of
the Company and its stockholders to induce Parent and Merger Sub 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
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
SECTION 1. Definitions. For purposes of this Agreement:
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(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
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securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
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or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom
such Person would constitute a "group" as within the meanings of Section
13(d)(3) of the Exchange Act.
(b) "Company Common Stock" shall mean at any time the common stock,
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$.01 par value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
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venture, association, trust, unincorporated organization or other entity.
SECTION 2. Tender of Shares.
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(a) Each Stockholder hereby agrees, severally but not jointly, to
validly tender (and not to withdraw) pursuant to and in accordance with the
terms of the Offer, not later than the fifth (5/th/) business day after
commencement of the Offer pursuant to Section 1.1 of the Merger Agreement and
Rule 14d-2 under the Exchange Act, (i) all of the shares of Company Common Stock
Beneficially Owned by such Stockholder on the date hereof (the "Existing
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Shares"), and (ii) any additional shares of Company Common Stock acquired by
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such Stockholder after the date hereof and prior to the termination of the
Offer, whether upon the exercise of options, warrants or rights, the conversion
or exchange of convertible or exchangeable securities, or by means of purchase,
dividend, distribution or otherwise Beneficially Owned by such Stockholder (the
"Additional Shares" and, together with the Existing Shares, the "Shares").
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Schedule I hereto sets forth opposite such Stockholder's name the aggregate
number of Existing Shares and the aggregate number of shares of Company Common
Stock subject to options, warrants or other securities convertible into or
exercisable for shares of Company Common Stock (the "Options") Beneficially
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Owned by such Stockholder on the date hereof. Each Stockholder hereby
acknowledges and agrees that the Merger Sub's obligation to accept for payment
and pay for Shares in the Offer, including the Shares Beneficially Owned by such
Stockholder, is subject to the terms and conditions of the Offer. Each of
Parent and Merger Sub acknowledges and agrees that this Agreement shall not be
binding upon such Stockholder in the event that the Merger Agreement shall be
amended by the parties thereto to lower or change the form of consideration set
forth in the definition of Offer Price (as defined in the Merger Agreement).
(b) Upon full payment by Parent or Merger Sub for Shares tendered, the
transfer by each Stockholder of such Stockholder's Shares to Merger Sub in the
Offer shall pass to and unconditionally vest in Merger Sub good and valid title
to the number of Existing Shares set forth opposite such Stockholder's name on
Schedule I hereto and to any Additional Shares, free and clear of all claims,
liens, restrictions, security interests, pledges, limitations and encumbrances
whatsoever.
(c) Each Stockholder hereby agrees to permit Parent and Merger Sub to
publish and disclose in the Offer Documents and, if Company Stockholder Approval
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC) such Stockholder's identity and ownership of
Company Common Stock and the nature of such Stockholder's commitments,
arrangements and understandings under this Agreement.
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SECTION 3. Provisions Concerning Company Common Stock.
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(a) Each Stockholder hereby agrees that during the period commencing
on the date hereof and continuing until the first to occur of the Effective Time
or termination of the Merger Agreement in accordance with its terms, at any
meeting of the holders of Company Common Stock, however called, or in connection
with any written consent of the holders of Company Common Stock, such
Stockholder shall vote (or cause to be voted) the Shares held of record or
Beneficially Owned by such Stockholder, whether issued, heretofore owned or
hereafter acquired, (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; (ii)
except as otherwise agreed to in writing in advance by Parent in its sole
discretion, against any action or agreement on which Company Stockholders are to
vote that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement; and (iii) except as otherwise
agreed to in writing in advance by Parent in its sole discretion, against the
following actions (other than the Merger and the transactions contemplated by
the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or its
subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; (C) (1) any
change in a majority of the persons who constitute the board of directors of the
Company other than as contemplated under Section 1.4 of the Merger Agreement;
(2) any change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or Bylaws; (3) any other material
change in the Company's corporate structure or business; or (4) any other action
which, in the case of each of the matters referred to in clauses C (1), (2), or
(3), is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. Such Stockholder shall
not enter into any agreement or understanding with any person or entity the
effect of which would be inconsistent or violative of the provisions and
agreements contained in this Section 3.
(b) Each Stockholder hereby grants to Parent a proxy to vote the
Shares of such Stockholder solely as to the matters set forth in Section 3(a)
(i) through (iii); provided, however, that without limiting the foregoing, in
any such vote or other action pursuant to such proxy, the Parent shall not in
any event have the right (and such proxy shall not confer the right) to vote
against the Merger; and provided, further, that the proxy granted pursuant to
this Section 3(b) shall irrevocably cease and shall be of no further force or
effect upon the termination of the Merger Agreement, the Offer or this Agreement
in accordance with their respective terms. Each Stockholder intends such proxy
to be irrevocable and coupled with an interest and will take such further action
or execute such other instruments as may be necessary to effectuate the intent
of this proxy and hereby revokes any proxy previously granted by Stockholder
with respect to such Shares.
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SECTION 4. Other Covenants, Representations and Warranties. Each
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Stockholder, severally, but not jointly, hereby represents and warrants to
Parent as follows:
(a) Ownership of Shares and Options. Such Stockholder is either (i)
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the record and Beneficial Owner of, or (ii) the Beneficial Owner but not the
record holder of, the number of Existing Shares and Options set forth opposite
such Stockholder's name on Schedule I hereto. On the date hereof, the Existing
Shares and Options set forth opposite such Stockholder's name on Schedule I
hereto constitute all of the Shares and Options owned of record or Beneficially
Owned by such Stockholder. Except for those Shares for which the Stockholder
shares voting and investment control with another Stockholder, as set forth on
Schedule I, such Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2 and 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and Options
set forth opposite such Stockholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Stockholder has the legal
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capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party. This Agreement has been duly
and validly executed and delivered by such Stockholder and constitutes a valid
and binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such Stockholder is
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such stockholder of the transactions
contemplated hereby.
(c) No Consents. No filing with, and no permit, authorization,
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consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby, except
(i) for applicable requirements, if any, or the Exchange 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
consummation of the transactions contemplated by this Agreement.
(d) No Conflicts. None of the execution and delivery of this
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Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to such Stockholder, (B) result
in a breach of, or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
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Stockholder or any of such Stockholder's properties or assets may be bound, or
(C) to the knowledge of the Stockholder violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to such
Stockholder or any of such Stockholder's properties or assets, except, in the
case of clauses (B) and (C), for violations, breaches or defaults that
individually or in the aggregate would not impair the ability of the Stockholder
to perform such Stockholder's obligations under this Agreement.
(e) No Encumbrances. Except as applicable in connection with the
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transactions contemplated by Section 2 hereof, such Stockholder's Shares and the
certificates representing such Shares and such Stockholder's Options are now,
and at all times during the term hereof will be, held by such Stockholder, or by
a nominee or custodian for the benefit of such Stockholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
(f) No Finder's Fees. No broker, investment banker, financial adviser
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or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder.
(g) No Solicitation. No Stockholder shall, in such Stockholder's
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capacity as such, directly or indirectly, solicit (including by way of
furnishing information) or respond to any inquiries or the making of any
proposal by any person or entity (other than Parent or any affiliate of Parent)
with respect to the Company that constitutes an Acquisition Proposal. If any
Stockholder receives any such inquiry or proposal, then such Stockholder shall
promptly inform Parent of the terms and conditions, if any, of such inquiry or
proposal and the identity of the person making such proposal. Each Stockholder
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(h) Restriction on Transfer, Proxies and Non-Interference. Except as
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applicable in connection with the transactions contemplated by Sections 2 and 3
hereof, no Stockholder shall, directly or indirectly: (i) offer for sale, sell,
transfer, dispose of, tender, loan, pledge, hedge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
disposition, tender, loan, pledge, hedge, encumbrance, assignment or other
disposition of (collectively, "Dispose Of"), any or all of such Stockholder's
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Shares or Options or any interest therein; (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
(i) Waiver of Appraisal Rights. Each Stockholder hereby waives any
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rights of appraisal or rights to dissent from the Merger that such Stockholder
may have.
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(j) Reliance by Parent. Such Stockholder understands and acknowledges
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that Parent and Merger Sub are entering into the Merger Agreement in reliance
upon such Stockholder's execution and delivery of this Agreement.
(k) Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
SECTION 5. Representations and Warranties of Parent and Merger Sub.
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Each of Parent and Merger Sub hereby represents and warrants to the Stockholders
as follows:
(a) Organization, Standing and Corporate Power. Parent is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Parent and Merger Sub has the corporate power and authority to enter
into perform all of their respective obligations under this Agreement.
(b) Power: Binding Agreement. The execution, delivery and performance
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of this Agreement has been duly authorized by all necessary corporate action on
the part of each of Parent and Merger Sub. This Agreement has been duly and
validly executed and delivered by each of Parent and Merger Sub constitutes a
valid and binding agreement of each of them, enforceable against each of them in
accordance with its terms.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
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consent or approval of, any state or federal public body or authority is
necessary for execution of this Agreement by Parent or Merger Sub and the
consummation by Parent or Merger Sub of the transactions contemplated hereby
(other than filings that Parent and Merger Sub may be required to make under the
Exchange Act) and (ii) none of the execution and delivery of this Agreement by
Parent or Merger Sub, the consummation by Parent or Merger Sub of the
transactions contemplated hereby or compliance by Parent or Merger Sub with any
of the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to Parent or Merger Sub, (B)
result in a breach of, or constitute (with or without notice or lapse of time or
both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Parent or Merger Sub is a party or by which
Parent or Merger Sub or any of their respective properties or assets may be
bound, or (C) to the knowledge of Parent or Merger Sub, violate any order, writ
injunction, decree, judgment, order, statute, rule or regulation applicable to
Parent or Merger Sub, or any of their respective properties or assets, except,
in the case of clauses (B) and (C), for violations, breaches or defaults that
individually or in the aggregate could not impair the ability
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of Parent or Merger Sub to perform their respective obligations under this
Agreement or the Merger Agreement.
SECTION 6. Stop Transfer. Each Stockholder agrees with, and covenants to,
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Parent that such Stockholder shall not request that the Company, and the Company
agrees that it will not, register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Stockholder's
Shares, unless such transfer is made in compliance with this Agreement
(including, without limitation, the provisions of Section 2 hereof). In the
event of a stock dividend or distribution, or any change in the Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
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and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged.
SECTION 7. Additional Restrictions. Each Stockholder agrees that, during
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the period commencing immediately upon the Effective Time and ending at 5:00
p.m. on the 90/th/ day after the Effective Time (the "Lock-Up Period"), such
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Stockholder shall not, directly or indirectly, Dispose Of any shares of Parent
Common Stock Beneficially Owned by such Stockholder at any time or from time to
time during the Lock-Up Period (the "90-Day Lock-Up"); provided, however, that
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the 90-Day Lock-Up shall not apply to any shares of Parent Common Stock issued
or issuable upon the exercise of any Company Options assumed by Parent pursuant
to the Merger. Each Stockholder agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of shares of Parent Common Stock except in compliance with the
foregoing restrictions.
SECTION 8. Termination. This Agreement shall terminate, and no party shall
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have any rights or obligations hereunder and this Agreement shall become null
and void and have no further effect upon the earlier to occur of (i) such date
and time as the Merger Agreement shall have been validly terminated pursuant to
Article VIII thereof and (ii) except with respect to Section 7, which shall
continue in effect after the Effective Time in accordance with its terms, the
Effective Time ( the "Expiration Date"). Nothing in this Section 8 shall relieve
any party of liability for any willful breach of this Agreement. Parent and
Merger Sub acknowledge that, in the event of termination of this Agreement in
accordance with its terms, the Stockholders shall no longer have the obligation
to tender, and may withdraw, their Shares. Except as otherwise provided herein,
the covenants and agreements contained in Sections 2, 3, 4, and 5 shall
terminate upon the termination of the Merger Agreement in accordance with its
terms.
SECTION 9. Stockholder Capacity. No person executing this Agreement who is
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or becomes during the term hereof a director of the Company makes any agreement
or understanding herein in his or her capacity as such director. Each
Stockholder signs solely in such Stockholder's capacity as the record and
Beneficial Owner of, or the trustee of a trust whose beneficiaries are the
Beneficial Owners of, such Stockholder's Shares and Options. In the case of any
Stockholder who is a director of the Company, no provision of this Agreement,
including Section 4(g) hereof, shall prevent, or interfere with such
Stockholder's performance of such
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Stockholder's obligations, if any, solely in such Stockholder's capacity as a
director of the Company, including, without limitation, the fulfillment of such
Stockholder's fiduciary duties.
SECTION 10. Confidentiality. The Stockholders recognize that successful
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consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder hereby agrees
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than such Stockholder's counsel and advisors, if any) without
the prior written consent of Parent, except for filings required pursuant to the
Exchange Act and the rules and regulations thereunder or disclosures such
Stockholder's counsel advises are necessary in order to fulfill such
Stockholder's obligations imposed by law, in which event such Stockholder shall
give notice of such disclosure to Parent as promptly as practicable so as to
enable Parent to seek a protective order from a court of competent jurisdiction
with respect thereto.
SECTION 11. Miscellaneous.
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(a) Entire Agreement. This Agreement and the Merger Agreement
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constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Each Stockholder agrees that this Agreement and
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the obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholders' heirs, guardians, administrators or successors.
Notwithstanding the foregoing or any transfer of Shares or Options, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
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law or otherwise without the prior written consent of the other party, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
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changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more Stockholders, except upon the execution and delivery of a
written agreement executed by the parties hereto; provided that Schedule I
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hereto may be supplemented by Parent by adding the name and other relevant
information concerning any stockholder of the Company who agrees to be bound by
the terms of this Agreement without the agreement of any other party hereto, and
thereafter such added stockholder shall be treated as a "Stockholder" for all
purposes of this Agreement.
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(e) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholder: At the addresses set forth on Schedule I hereto
Copies to: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent: Cytyc Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
copies to: ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Company: Digene Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
copies to: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any
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provision of this Agreement will be interpreted in such manner as to be
effective and valid under
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applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
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acknowledges that (i) Parent will be irreparably damaged if for any reason any
Stockholder failed to tender, and not to withdraw, such Stockholder's Shares in
the Offer in accordance with this Agreement and (ii) a breach by the other party
of any covenants or agreements contained in this Agreement, in each case, will
cause the non-breaching party to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
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under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
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power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
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be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby irrevocably submits to the
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exclusive jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and agrees
that any such action, suit or proceeding shall be brought only in such court
(and waives any objection based on forum non conveniens or any other objection
--------------------
to venue therein); provided, however, that such consent to jurisdiction is
-----------------
solely for the purpose referred to in this paragraph (l) and shall not be deemed
to be a general submission to the jurisdiction of said court or in the State of
Delaware other than for such
10
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(m) Descriptive Headings. The descriptive headings used herein are
---------------------
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts,
-------------
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
11
IN WITNESS WHEREOF, each of the parties hereto has caused this
Stockholders Agreement to be executed as of the date first written above in
their individual capacity or by their respective officers thereunto duly
authorized, as applicable.
CYTYC CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CRUISER, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
DIGENE CORPORATION
(Solely with respect to Section 6)
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:President
STOCKHOLDERS:
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇▇ McG. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ McG. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
ARMONK PARTNERS
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Partner
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
----------------------
Name and Address of Number of Beneficially Number of Beneficially
Stockholder/1/ Owned Existing Shares Owned Options
--------------- --------------------- -------------
▇▇▇▇ ▇▇▇▇▇/1/ 4,643,212 363,347
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇/2/ 4,411,739 263,347
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D. 0 10,000
▇▇▇▇ ▇. ▇▇▇▇▇▇ 0 10,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 0 30,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 5,149 30,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. 16,672 115,285
▇▇▇▇▇▇ McG. ▇▇▇▇▇▇ 16,000 142,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 500 0
▇▇▇▇ ▇▇▇▇▇ 0 15,000
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 0 14,333
▇▇▇▇▇ ▇. ▇▇▇▇▇ 0 16,666
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D. 0 136,000
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0 101,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 0 97,518
▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 8,334
Armonk Partners 4,371,401 0
Aggregate Number of Existing Shares: 4,721,871
________________
/1/ The address for each Stockholder is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
/2/ Includes 4,371,401 shares owned by Armonk Partners as to which the
Stockholder shares voting and investment power as a general partner.