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"), Cruiser, Inc., a Delaware corporation and wholly-owned subsidiary
of Parent ("Merger Sub"), each stockholder who is a signatory hereto (each a
"Stockholder", and collectively, the "Stockholders") and Digene Corporation, a
Delaware corporation (the "Company") (being a party solely with respect to
Section 6 hereof).
W I T N E S S E T H:
- - - - - - - - - -
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 respective meanings ascribed to them in the Merger Agreement),
pursuant to which Merger Sub will be merged with and into the Company (the
"Merger");
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:
(a) "Beneficially Own" or "Beneficial Ownership" with
respect to any 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 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, $.01 par value, of the Company.
(c) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
SECTION 2. Tender of Shares.
(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 (5th) 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
Shares"), and (ii) any additional shares of Company Common Stock acquired by
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"). 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 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.
(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 Stockholder, severally, but not jointly, hereby represents and warrants
to Parent as follows:
(a) Ownership of Shares and Options. Such Stockholder
is either (i) 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 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, 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 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 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 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 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 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 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 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 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 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. Each of Parent and Merger Sub hereby represents and warrants to the
Stockholders as follows:
(a) Organization, Standing and Corporate Power. Parent
is a 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 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, 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, 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 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 the period commencing immediately upon the Effective Time and
ending at 5:00 p.m. on the 90th day after the Effective Time (the "Lock-Up
Period"), such 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 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 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 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 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.
(a) Entire Agreement. This Agreement and the Merger
Agreement 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 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 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, 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 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 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 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 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 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, 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 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 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 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
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
STOCKHOLDERS:
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇▇ McG. ▇▇▇▇▇▇
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▇▇▇▇▇▇ McG. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
ARMONK PARTNERS
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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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
------------------- ---------------------- ----------------------
▇▇▇▇ ▇▇▇▇▇(2) 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.