Exhibit 10.1
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made and entered into as of April 16,
2004, by and between the stockholders set forth on the signature
pages hereto (each a “ Stockholder ” and
collectively, the “ Stockholders ”) and SeraCare
Life Sciences, Inc., a California corporation (“ Buyer
”).
RECITALS
WHEREAS, Buyer and Boston Biomedica, Inc., a
Massachusetts corporation (“ Parent ”) are
parties to that certain Asset Purchase Agreement dated as of April
16, 2004 (the “ Purchase Agreement ”) by and
among Buyer, Parent and BBI Biotech Research Laboratories, Inc., a
Massachusetts corporation. In order to induce Buyer to enter into
the Purchase Agreement, the Stockholders have entered into this
Agreement with Buyer. Each Stockholder is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”)) of such number
of shares of the outstanding Common Stock, $0.01 par value per
share, of Parent as is indicated on the final page of this
Agreement (the “ Shares ”).
AGREEMENT
NOW THEREFORE,
for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Agreement to Retain
Shares .
(a) Transfer and
Encumbrance . Each Stockholder agrees not to (i) transfer
(which term shall include, without limitation, any sale, exchange,
assignment, gift, pledge, hypothecation or other disposition), or
consent to any transfer of, any or all of the Shares or any New
Shares (as such term is defined in Section 1(b)) or any interest
therein, or otherwise dispose of or create or permit to exist any
lien on such shares; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or
all of such shares or any interest therein; (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such
shares; (iv) deposit such shares into a voting trust or enter into
a voting agreement or arrangement with respect to such shares; or
(v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder’s
obligations hereunder or the transactions contemplated hereby or by
the Purchase Agreement, at any time prior to the Expiration Date.
As used herein, the term “ Expiration Date ”
shall mean the earlier to occur of (i) the Closing (as such term is
defined in the Purchase Agreement), or (ii) the date of termination
of the Purchase Agreement.
(b) New Shares . Each
Stockholder agrees that any shares of capital stock of Parent that
such Stockholder purchases or with respect to which such
Stockholder otherwise acquires beneficial ownership after the date
of this Agreement and prior to the Expiration Date (“ New
Shares ”) shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted
Shares.
2. Agreement to Vote
Shares . Prior to the Expiration Date, at every meeting of
the stockholders of Parent called with respect to any of the
following, and at every adjournment thereof, and on every action or
approval by written consent of the stockholders of Parent with
respect to any of the following, each Stockholder shall vote the
Shares and any New Shares (to the extent such New Shares have
voting rights) (i) in favor of approval of the Purchase Agreement
and any matter necessary to facilitate the consummation of the
Purchase Agreement and all transactions contemplated thereby, and
(ii) against any Acquisition Proposal (as such term is defined in
the Purchase Agreement), or any other action or agreement that
would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Parent under the
Purchase Agreement or which could reasonably be expected to result
in any of the conditions to Parent’s obligations under the
Purchase Agreement not being fulfilled; provided, however, that
such Stockholder shall not be required to vote the Shares and any
New Shares in favor of approval of the matters identified in clause
(i) or against the matters identified in clause (ii) of this
Section 2 if (A) a Superior Offer (as such term is defined in the
Purchase Agreement) is made after the date of this Agreement, and
(B) in response to such Superior Offer the Board of Directors of
Parent withholds, withdraws, amends or modifies its recommendation
in favor of the Stockholder Approval Matters (as such term is
defined in the Purchase Agreement) in a manner materially adverse
to Buyer because the Board of Directors of Parent has reasonably
concluded in good faith, after consultation with its outside
counsel, that the failure to withhold, withdraw, amend or modify
such recommendation would violate its fiduciary obligations under
applicable law.
3. Irrevocable Proxy; Power of
Attorney . Without limiting the generality of the
foregoing, each Stockholder hereby irrevocably constitutes and
appoints Buyer or its designee as its attorney and proxy, with full
power of substitution and re-substitution to vote such
Stockholder’s Shares and any New Shares (to the extent such
New Shares have voting rights) for and in the name, place and stead
of such Stockholder at any meeting and at any adjournment thereof,
or pursuant to any written consent of stockholders of Parent, in
accordance with the agreements set forth in Section 2 hereof.
Subject to the provisions of Section 8 below, this proxy and power
of attorney is irrevocable (at all times prior to the Expiration
Date) and coupled with an interest. Each Stockholder hereby revokes
all other proxies and power of attorney with respect to the Shares
and/or any New Shares that it may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be
granted (and if granted, shall not be effective) by such
Stockholder with respect thereto. Concurrently with the execution
of this Agreement, each Stockholder agrees to deliver to Buyer a
proxy (the form of which is attached hereto as Schedule 1 ,
the “ Proxy ”), covering the total number of
Shares and New Shares beneficially owned or as to which beneficial
ownership is acquired (as such term is defined in Rule 13d-3 under
the Exchange Act) by such Stockholder.
4. No Solicitation
.
(a) No Solicitation or
Negotiation . Except as set forth in this Section 4, prior to
the Expiration Date, none of the Stockholders shall, directly or
indirectly:
(i) solicit, initiate, encourage or
induce the making, submission or announcement of any Acquisition
Proposal;
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(ii) participate in any discussions
or negotiations regarding, or furnish to any person any non-public
information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition
Proposal;
(iii) engage in discussions with any
person with respect to any Acquisition Proposal;
(iv) approve, endorse or recommend
any Acquisition Proposal; or
(v) enter into any letter of intent
or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Acquisition Transaction
(as defined in the Purchase Agreement); provided, however, that a
Stockholder may, solely in the Stockholder’s capacity as a
Representative (as such term is defined in the Purchase Agreement)
of Parent, take such actions as may be permitted under Section
6.2(a) of the Purchase Agreement, but only if the conditions set
forth in Section 6.2(a) for such actions have been
satisfied.
(b) Notices; Additional
Negotiations . In addition to the obligations of the
Stockholders set forth in paragraph (a) of this Section 4, prior to
the Expiration Date, each Stockholder shall advise Buyer orally and
in writing within 24 hours of the receipt thereof, of any request
received by such Stockholder for nonpublic information which such
Stockholder reasonably believes would lead to an Acquisition
Proposal or of any Acquisition Proposal, or any inquiry received by
such Stockholder with respect to, or which such Stockholder
reasonably believes would lead to any Acquisition Proposal, the
material terms and conditions of such request, Acquisition Proposal
or inquiry, and the identity of the person or group making any such
request, Acquisition Proposal or inquiry. Each Stockholder will
keep Buyer informed (orally and in writing) on a current basis and
in all material respects of the status and details (including
material amendments or proposed amendments) of any such request,
Acquisition Proposal or inquiry.
(c) Cessation of Ongoing
Discussions . Each Stockholder shall cease immediately any and
all existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any Acquisition
Proposal.
(d) Notwithstanding anything to the
contrary stated herein, this Section 4 shall not apply to any of
the Stockholders in their respective capacity as either an officer
or director of Parent and any actions undertaken or omissions by a
Stockholder in any such capacity shall be governed exclusively by
the Purchase Agreement.
5. Representations, Warranties
and Covenants of the Stockholder . Each Stockholder hereby
represents, warrants and covenants to Buyer that (i) such
Stockholder is the beneficial owner of the Shares, which at the
date of this Agreement and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges
or other encumbrances (except pursuant to marital property laws)
that would interfere with the voting of the Shares in accordance
with this Agreement or the granting of any proxy with respect
thereto; (ii) such Stockholder does not beneficially own any shares
of capital stock of Parent other than
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the Shares; (iii) such Stockholder has full
power and authority to make, enter into and carry out the terms of
this Agreement and the Proxy; and (iv) the execution and delivery
of this Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action, if any, on the part of such
Stockholder.
6. Additional
Documents . Each Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable
to carry out the purpose and intent of this Agreement.
7. Consent and Waiver
. Each Stockholder hereby gives any consents or waivers that are
reasonably required for the consummation of the Purchase Agreement
under the terms of any agreement to which such Stockholder is a
party or pursuant to any rights such Stockholder may
have.
8. Termination . This
Agreement and each of the Proxies delivered in connection herewith
shall terminate and shall have no further force or effect as of the
Expiration Date; provided, however, that no such termination of
this Agreement or the Proxies shall relieve the Stockholders from
any liability for any breach of this Agreement or the Proxies prior
to their respective termination. Notwithstanding any other
provision of this Agreement, the Stockholders, acting unanimously,
may terminate this Agreement and any Proxy and be released from all
obligations to vote their respective Shares, in accordance with the
provisions of this Agreement or to have their respective Shares
voted in accordance with any Proxy in the event the Purchase
Agreement is materially amended or modified. For purposes of this
Section 8, an extension of the terminate date set forth in Section
11.1(b) of the Purchase Agreement shall not be deemed to be a
material amendment or modification of the Purchase
Agreement.
9. Miscellaneous
.
(a) Amendments and
Waivers . Any term of this Agreement may be amended or
waived with the written consent of the parties or their respective
successors and assigns. Any amendment or waiver effected in
accordance with this Section 9(a) shall be binding upon the parties
and their respective successors and assigns.
(b) Governing Law .
This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the
Commonwealth of Massachusetts, without giving effect to principles
of conflicts of law. Each of the parties to this Agreement consents
to the exclusive jurisdiction and venue of the state and federal
courts located in or for the State of Delaware in connection with
any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon
it in any manner authorized by the laws of the State of Delaware
for such persons and waives and covenants not to assert or plead
any objection which it might otherwise have to such jurisdiction
and such process.
(c) Counterparts .
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one instrument.
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(d) Titles and
Subtitles . The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) Notices . All
notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy,
electronic or digital transmission method; the day after it is
sent, if sent for next day delivery to a domestic address by
recognized overnight delivery service ( e . g .,
Federal Express); and upon receipt, if sent by certified or
registered mail, return receipt requested. In each case notice
shall be sent to:
If to Buyer, addressed
to:
SeraCare Life Science,
Inc.
1935 Avenida del Oro, Suite
F
Oceanside, CA 92056
Attention: President
Facsimile: (760)
806-8933
With a copy to:
O’Melveny & Myers
LLP
114 Pacific, Suite 100
Irvine, CA 92618-3318
Attention: Andor D. Terner,
Esq.
Facsimile: (949)
737-2300
If to a Stockholder, to the address
for such Stockholder set forth o
