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Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
December ___, 2006 (this " Agreemen t"), by and among each
of the shareholders identified in Schedule I hereto (each of
the foregoing, a "Shareholder " and, collectively, the "
Shareholders ") and Luminex Corporation, a Delaware
corporation (" Parent ").
WHEREAS, concurrently with the
execution of this Agreement, Parent and Tm Bioscience Corporation,
a corporation existing under the laws of the Province of Ontario
("TMB" or the " Company "), are entering into a Merger
Agreement, dated as of the date hereof (as amended, supplemented,
restated or otherwise modified from time to time, the " Merger
Agreement ") pursuant to which, among other things, Parent
proposes to acquire (the "Arrangement" ) all of the
outstanding common shares in the capital of the Company (the "
Common Shares ") by way of a Plan of Arrangement under the
Business Corporations Act (Ontario).
WHEREAS, as of the date hereof,
each Shareholder Beneficially Owns the number of Common Shares set
forth opposite such Shareholder’s name on
Schedule I hereto.
WHEREAS, as a condition and
inducement to Parent entering into the Merger Agreement, Parent has
required that the Shareholders agree, and the Shareholders have
agreed, to enter into this agreement and abide by the covenants and
obligations with respect to the Covered Shares set forth
herein.
NOW THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Capitalized
Terms . For the purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective means
ascribed to them in the Merger Agreement
Section 1.02 Other
Definitions . The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below.
(a) " Beneficial
Ownershi p" by a person of any securities includes ownership by
any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or
shares (i) voting power which includes the power to vote, or
to direct the voting of, such security; and/or (ii) investment
power which includes the power to dispose, or to direct the
disposition, of such security, and shall include "beneficial
ownership" as defined in the Securities Act; provided that for
purposes of determining Beneficial Ownership, a person shall be
deemed to be the Beneficial Owner of any securities which such
person has, at any time during the term of this Agreement, the
right to acquire upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise (irrespective of whether
the right to acquire such securities is exercisable immediately or
only after the passage of time, including the passage of time in
excess of 60 days, the satisfaction of any conditions, the
occurrence of any event or any combination of the foregoing). The
terms " Beneficially Own " and " Beneficially Owned "
shall have a correlative meaning.
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(b) " control "
(including the terms " controlled by " and " under common
control with "), with respect to the relationship between or
among two or more persons, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
affairs or management of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or any other
means.
(c) " Covered Shares "
means, with respect to any Shareholder, such Shareholder’s
Existing Shares, together with any Common Shares or other voting
share capital of the Company and any securities convertible into or
exercisable or exchangeable for Common Shares or other voting share
capital of the Company, in each case that such Shareholder acquires
Beneficial Ownership of on or after the date hereof
(d) " Encumbrance "
means any security interest, pledge, mortgage, lien (statutory or
other), charge, option to purchase, lease or other right to acquire
any interest or any claim, restriction, covenant, title defect,
hypothecation, assignment, deposit arrangement or other encumbrance
of any kind or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention
agreement), excluding restrictions under securities laws.
(e) " Existing Shares
" means, with respect to each Shareholder, the number of Common
Shares Beneficially Owned (and except as may be set forth on
Schedule I hereto, owned of record) by such
Shareholder, as set forth opposite such Shareholder’s name on
Schedule I hereto.
(f) " person " means
any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity, or any
group comprised of two or more of the foregoing.
(g) " Representatives
" means the officers, directors, employees, agents, advisors and
Affiliates of a person.
(h) " Transfe r"
means, directly or indirectly, to sell, transfer, assign, pledge,
encumber, hypothecate or similarly dispose of (by merger (including
by conversion into securities or other consideration), by tendering
into any tender or exchange offer, by testamentary disposition, by
operation of law or otherwise), or to enter into any contract,
option or other arrangement or understanding with respect to the
voting of or sale, transfer, assignment, pledge, encumbrance,
hypothecation or similar disposition of (by merger, by tendering
into any tender or exchange offer, by testamentary disposition, by
operation of law or otherwise).
ARTICLE II
VOTING
Section 2.01 Agreement to
Vote . Each Shareholder hereby irrevocably and unconditionally
agrees that during the term of this Agreement, at the TMB Meeting
and at any other meeting of the Shareholders of the Company,
however called, including any adjournment or postponement thereof,
such Shareholder shall, in each case to the fullest extent that the
Covered Shares are entitled to vote thereon:
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(a) appear at each such
meeting or otherwise cause the Covered Shares as to which such
Shareholder controls the right to vote to be counted as present
thereat for purposes of calculating a quorum; and
(b) vote (or cause to be
voted), in person or by proxy, all of the Covered Shares as to
which such Shareholder controls the right to vote (i) in favor
of the approval and adoption of the Arrangement; (ii) against
any action or agreement that is in opposition to, or competitive or
inconsistent with, the Arrangement or that would result in a breach
of any covenant, representation or warranty or any other obligation
or agreement of the Company contained in the Merger Agreement, or
of such Shareholder contained in this Agreement; and
(iii) against any TMB Acquisition Proposal and against any
other action, agreement or transaction that is prohibited by the
Merger Agreement or that would otherwise interfere with, delay,
postpone, discourage, frustrate the purposes of or adversely affect
the Arrangement or the other transactions contemplated by the
Merger Agreement or this Agreement or the performance by the
Company of its obligations under the Merger Agreement or by such
Shareholder of its obligations under this Agreement, including:
(A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company
or its Subsidiaries (other than the Arrangement); (B) a sale,
lease or transfer of a material amount of assets of the Company or
any of its Subsidiaries or any reorganization, recapitalization or
liquidation of the Company or any of its Subsidiaries; (C) an
election of new members to the board of directors of the Company,
other than nominees to the board of directors of the Company in
office on the date of this Agreement; (D) any change in the
present capitalization or dividend policy of the Company or any
amendment or other change to the Company’s certificate of
incorporation or bylaws, except if approved by Parent; or
(E) any other change in the Company’s corporate
structure.
Section 2.02 No
Inconsistent Agreements . Each Shareholder hereby covenants and
agrees that, except for this Agreement, such Shareholder
(a) has not entered into, and shall not enter into at any time
while this Agreement remains in effect, any voting agreement or
voting trust with respect to the Covered Shares, (b) has not
granted, and shall not grant at any time while this Agreement
remains in effect, a proxy, consent or power of attorney with
respect to the Covered Shares and (c) has not taken and shall
not knowingly take any action that would make any representation or
warranty of such Shareholder contained herein untrue or incorrect
or have the effect of preventing or disabling such Shareholder from
performing any of its obligations under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH
SHAREHOLDER
Each Shareholder hereby represents
and warrants severally (and not jointly and severally), to Parent
as follows:
Section 3.01 Organization;
Authorization; Validity of Agreement; Necessary Action . Each
Shareholder that is not an individual is duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Each Shareholder has full power
and capacity to execute and deliver this Agreement, to perform such
Shareholder’s obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by
such Shareholder of this Agreement, the performance by it of its
obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly and validly
authorized by such Shareholder and no other actions or
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proceedings on the part of such Shareholder or any shareholder
thereof are necessary to authorize the execution and delivery by it
of this Agreement, the performance by it of its obligations
hereunder or the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by such Shareholder and, assuming this Agreement
constitutes a valid and binding obligation of the other parties
hereto, constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
Section 3.02 Ownership
. Schedule I sets forth, opposite each
Shareholder’s name, the number of Common Shares over which
such Shareholder has beneficial ownership as of the date hereof.
Each Shareholder’s Existing Shares are, and all of the
Covered Shares owned by such Shareholder from the date hereof
through and on the Closing Date will be, Beneficially Owned by such
Shareholder. As of the date hereof, such Shareholder’s
Existing Shares constitute all of the Common Shares Beneficially
Owned or owned of record by such Shareholder. Other than in
connection with the Company’s stock option or other incentive
plans, no Shareholder nor any Affiliate of a Shareholder owns or
holds any right to acquire any additional shares of any class of
capital stock of the Company or other securities of the Company or
any interest therein or any voting rights with respect to any
securities of the Company.
Section 3.03 No
Violation . The execution and delivery of this Agreement by
each Shareholder does not, and the performance by such Shareholder
of its obligations under this Agreement will not, (i) conflict
with or violate the certificate of incorporation, bylaws or other
comparable governing documents, as applicable, of such Shareholder,
(ii) conflict with or violate any law, ordinance or regulation
of any Governmental Entity applicable to the Shareholder or by
which any of its assets or properties is bound, or
(iii) conflict with, result in any breach of or constitute a
default (or an 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 any Encumb
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