Exhibit 4.4
STANDSTILL
AGREEMENT
THIS STANDSTILL AGREEMENT, dated as
of October 18, 2004 (this “ Agreement ”), is
entered into by and between (i) ACLARA BioSciences, Inc., a
Delaware corporation (“ ACLARA ”), and (ii)
Perry Partners L.P., a Delaware limited partnership, Perry Partners
International, Inc., a British Virgin Islands corporation, and Auda
Classics plc (collectively, “ Perry
”).
WHEREAS, ACLARA is a party to that
certain Rights Agreement, dated as of March 16, 2001, with Mellon
Investor Services LLC, a New Jersey limited liability company, as
rights agent (the “ Rights Agent ”), as amended
by the Amendment to the Rights Agreement dated as of May 28, 2004
(the “ First Amendment ”) and by the Second
Amendment to the Rights Agreement dated as of June 11, 2004 (the
“ Second Amendment ”) (as amended by the First
Amendment and the Second Amendment, the “ Rights
Agreement ”);
WHEREAS, Perry has requested, and
ACLARA has agreed, that ACLARA enter into a Third Amendment to the
Rights Agreement (the “ Third Amendment ”), in
the form attached hereto as Exhibit A , with the Rights
Agent; and
WHEREAS, as a condition to entering
into the Third Amendment, each of ACLARA and Perry shall have
entered into this Agreement;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency whereof are hereby acknowledged, the parties hereby
agree as follows:
1. Defined Terms . For
purposes of this Agreement, the following terms have the following
meanings:
“ Affiliate ” and
“ Associate ” shall have the meanings set forth
in the Rights Agreement;
A Person shall be deemed to be the
“ Beneficial Owner ” of, shall be deemed to have
“ Beneficial Ownership ” of and shall be deemed
to “ beneficially own ” any securities which
such Person or any of such Person’s Affiliates or Associates
beneficially owns, directly or indirectly (as determined pursuant
to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on the date of this
Agreement).
“ Board ” means
the Board of Directors of the Company;
“ Common Stock ”
means the common stock, par value $0.001 per share, of the
Company;
“ Company ” means
(a) prior to the consummation of the Transaction, ACLARA and (B)
following the consummation of the Transaction,
ViroLogic.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended;
“ Group ” shall
have the meaning set forth in Rule 13d-5, as in effect on the date
hereof, under the Exchange Act;
“ Merger Agreement
” means that certain Agreement and Plan of Merger and
Reorganization dated as of May 28, 2004 among ViroLogic, Apollo
Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of ViroLogic, Apollo Merger Subsidiary, LLC, a Delaware
limited liability company, and ACLARA.
“ Person ” shall
have the meaning set forth in the Rights Agreement;
“ Securities Act
” means the Securities Act of 1933, as amended;
“ Transaction ”
means the merger of Apollo Acquisition Sub, Inc. with and into
ACLARA in accordance with the Delaware General Corporation Law,
pursuant to the terms of the Merger Agreement.
“ ViroLogic ”
means ViroLogic, Inc., a Delaware corporation.
“ Voting Stock ”
means the Common Stock and any other security or securities the
holders of which are entitled, other than as affected by events of
default or the failure to pay dividends, to vote for the election
of the members of the Board.
2. Additional Purchases . (a)
Perry and its Affiliates and Associates may purchase additional
shares of Voting Stock provided that:
(i) as a result of such additional
purchases, Perry and its Affiliates and Associates, individually or
in the aggregate, are not the Beneficial Owners of more than (A)
25% of the total voting power of the shares of Voting Stock then
outstanding, (B) 25% of the total number of shares of Voting Stock
then outstanding or (C) 25% of the total number of shares of Common
Stock then outstanding; and
(ii) Perry or its Affiliates or
Associates, as the case may be, give notice to the Company on or
prior to the business day immediately following such purchases of
its acquisition of additional shares of Voting Stock, indicating
the number of shares of Voting Stock which Perry and each of its
Affiliates and Associates have acquired.
(b) Notwithstanding any other
provisions of this Section 2, neither Perry nor any of its
Affiliates or Associates may purchase additional shares of Voting
Stock if any of Perry and its Affiliates or Associates are in
default under, or have breached any material provisions of, this
Agreement.
(c) All shares of Voting Stock
acquired pursuant to this Section 2 shall be subject to all of the
terms, covenants and conditions of this Agreement.
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3. Sales and Other Dispositions. (a)
Perry covenants and agrees that it will not, and will cause its
Affiliates and Associates not to, sell, transfer, hypothecate,
pledge or otherwise dispose of any shares of Voting Stock
except:
(i) to the Company; or
(ii) to a Person or Group, which
immediately after the acquisition of such shares would not be the
Beneficial Owner of more than (A) 20% of the total voting power of
shares of Voting Stock then outstanding; or (B) 20% of the total
number of shares of Common Stock then outstanding and which
acknowledges in a writing reasonably satisfactory to the Company
that such Person or Group has received a copy of this Agreement and
agrees to be bound by all of its provisions with respect to the
Voting Stock as if such Person or Group were Perry; provided,
however, that the restrictions contained in this Section 3(a)(ii)
shall not apply with respect to “brokers’
transactions” (as defined in Rule 144(g)) in which Perry, or
its Affiliates or Associates, do not know the identity of the
purchaser of the Voting Stock.
(b) Any purported sale or transfer
of Voting Stock not in compliance with Section 3 of this Agreement
during the term hereof shall be void and of no force or effect and
the Company shall not be required to transfer any Voting Stock to
the new purported owner or recognize it as a stockholder for any
purpose. The Company may place legends on any certificates
representing Voting Stock to the foregoing effect. Perry shall,
within three business days after the execution of this Agreement,
present to the Company certificates for all Voting Stock
beneficially owned by Perry and each of its Affiliates and
Associates to permit the Company to place such legends on such
certificates.
(c) In order to enforce the terms of
this Agreement, the Company may impose stop-transfer instructions
with respect to the Voting Securities beneficially owned by Perry
and its Affiliates and Associates.
4. Representations and
Warranties . (a) ACLARA represents and warrants that it has the
requisite corporate power to enter into this Agreement, that it has
duly authorized, executed and delivered this Agreement and that
this Agreement constitutes the legal, valid and binding obligation
of ACLARA, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors’
rights and, as to enforcement, to general equity
principles.
(b) Perry represents and warrants
that:
(i) it has the requisite corporate
power to enter into this Agreement, that it has duly authorized,
executed and delivered this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and,
as to enforcement, to general equity principles; and
(ii) Schedule 13D/A filed with the
SEC on August 16, 2004 (“Perry Schedule 13D/A”)
accurately sets forth the Beneficial Ownership by Perry and
its
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Affiliates and Associates of all
securities issued by the Company and, as of the date hereof, there
has been no change in such Beneficial Ownership that would require
the filing of an amendment to Schedule 13D filed with the SEC on
April 4, 2004 (except for Perry Schedule 13D/A).
5. Termination of Agreement .
This Agreement shall be in effect for a term of ten years from the
date of this Agreement.
6. Miscellaneous .
(a) Specific Enforcement .
Perry acknowledges and agrees that the Company and its stockholders
would be irreparably injured in the event that any provision of the
Agreement is breached or not performed by Perry in accordance with
its specific terms. Accordingly, it is agreed that the Company
shall be entitled, without the necessity of proving actual damages
or posting a bond, to temporary and permanent injunctive relief
with respect to each and any breach or purported repudiation of
this Agreement by Perry and to specifically enforce strict
adherence to this Agreement and the terms and provisions hereof
against Perry in any action instituted in a court of competent
jurisdiction, in addition to any other remedy which the Company may
be entitled to obtain.
(b) Amendments . Neither this
Agreement nor any term hereof may be changed, waived, discharged or
terminated orally or in writing, except that any term of this
Agreement may be amended by a writing signed by the parties, and
the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively)
by a writing signed by the party against whom such waiver is to be
asserted; provided, however, that, notwithstanding the foregoing,
the obligations of Perry under this Agreement shall not be changed,
waived, discharged or terminated in such a manner as to adversely
affect ViroLogic without the prior written consent of
ViroLogic.
(c) Notices . All notices and
other communications provided for or permitted hereunder shall be
deemed to have been duly given and delivered when delivered by
hand, or when mailed by registered or certified mail, return
receipt requeste
