EXHIBIT 99.3
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of May 28, 2004, by
and between VIROLOGIC, INC., a Delaware corporation ("Parent"), and
____________________ ("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act")) of certain shares of common stock of ACLARA BioSciences,
Inc., a Delaware corporation (the "Company").
B. Parent, Apollo Acquisition Sub, Inc., a Delaware corporation ("Merger
Sub I"), Apollo Merger Subsidiary, LLC, a Delaware limited liability company
("Merger Sub II") and the Company are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "Reorganization Agreement")
which provides (subject to the conditions set forth therein) for the merger of
Merger Sub I into the Company ("Merger I") and immediately following the
effectiveness of Merger I, the merger of the Company with and into Merger Sub II
("Merger II," and together with Merger I, the "Transaction").
C. In Merger I, the outstanding shares of common stock of the Company are
to be converted into the right to receive shares of common stock of Parent and
Contingent Value Rights (as defined in the Reorganization Agreement).
D. In order to induce Parent to enter into the Reorganization Agreement,
Stockholder is entering into this Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(A) The term "ACQUISITION PROPOSAL" shall have the meaning assigned
to it in the Reorganization Agreement.
(B) "COMPANY COMMON STOCK" shall mean the common stock, par value
$0.001 per share, of the Company.
(C) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Exchange Act) of such security.
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(D) "PARENT COMMON STOCK" shall mean the common stock, par value
$0.001 per share, of Parent.
(E) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(F) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock, but excluding any
shares Owned by any limited partnership or limited liability company in which
Stockholder is a partner or member, as the case may be) Owned by Stockholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock,
but excluding any shares Owned by any limited partnership or limited liability
company in which Stockholder is a partner or member, as the case may be) of
which Stockholder acquires Ownership during the period from the date of this
Agreement through the Voting Covenant Expiration Date.
(G) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security to any Person other than Parent; (ii) enters into an
agreement or commitment contemplating the possible sale of, pledge of,
encumbrance of, grant of an option with respect to, transfer of or disposition
of such security or any interest therein to any Person other than Parent; or
(iii) reduces such Person's beneficial ownership of, interest in or risk
relating to such security.
(H) "VOTING COVENANT EXPIRATION DATE" shall mean the earliest to
occur of: (a) the date upon which the Reorganization Agreement is validly
terminated; (b) the date upon which Merger I is consummated; and (c) the date
upon which the Board of Directors of the Company validly makes a Change of
Recommendation (as defined in the Reorganization Agreement) pursuant to Section
5.3(d) of the Reorganization Agreement.
SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 RESTRICTION ON TRANSFER OF SUBJECT SECURITIES. Subject to Section 2.3,
during the period from the date of this Agreement through the Voting Covenant
Expiration Date, Stockholder shall not, directly or indirectly, cause or permit
any Transfer of any of the Subject Securities to be effected.
2.2 RESTRICTION ON TRANSFER OF VOTING RIGHTS. During the period from the
date of this Agreement through the Voting Covenant Expiration Date, Stockholder
shall ensure that: (a) none of the Subject Securities is deposited into a voting
trust; and (b) no proxy is granted, and no other voting agreement or similar
agreement is entered into, with respect to any of the Subject Securities.
2.3 PERMITTED TRANSFERS. Section 2.1 shall not prohibit a transfer of
Company Common Stock by Stockholder (i) to any member of his immediate family,
or to a trust for the benefit of Stockholder or any member of his immediate
family, (ii) upon the death of Stockholder, or (iii) if Stockholder is a
partnership or limited liability company, to one or more
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partners or members of Stockholder or to an affiliated corporation under common
control with Stockholder; provided, however, that a transfer referred to in this
sentence shall be permitted only if, as a precondition to such transfer, the
transferee agrees in a writing, reasonably satisfactory in form and substance to
Parent, to be bound by the terms of this Agreement.
SECTION 3. VOTING OF SHARES
3.1 VOTING COVENANT. Stockholder hereby agrees that, prior to the earlier
to occur of the valid termination of the Reorganization Agreement or the
consummation of Merger I, at any meeting of the stockholders of the Company,
however called, unless otherwise directed in writing by Parent, Stockholder
shall cause the Subject Securities to be voted:
(A) in favor of Merger I, the execution and delivery by the Company
of the Reorganization Agreement and the adoption and approval of the
Reorganization Agreement and the terms thereof, in favor of each of the other
actions contemplated by the Reorganization Agreement and in favor of any action
in furtherance of any of the foregoing; and
(B) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Reorganization Agreement; and
(C) against the following actions (other than the Transaction and
the transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company; (B) any sale, lease or transfer of a
material amount of assets of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company; (D) any change in a
majority of the board of directors of the Company; (E) any amendment to the
Company's certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company's corporate structure; and (G) any
other action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or adversely affect the Transaction
or any of the other transactions contemplated by the Reorganization Agreement or
this Agreement.
Prior to the earlier to occur of the valid termination of the Reorganization
Agreement or the consummation of Merger I, Stockholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in any
manner inconsistent with clause "(a)", "(b)", or "(c)" of the preceding
sentence.
3.2 PROXY; FURTHER ASSURANCES.
(A) Contemporaneously with the execution of this Agreement,
Stockholder shall deliver to Parent a proxy in the form attached to this
Agreement as Exhibit A with respect to the shares referred to therein (the
"Proxy").
(B) Stockholder shall, at his or its own expense, perform such
further acts and execute such further proxies and other documents and
instruments as may reasonably be required to vest in Parent the power to carry
out and give effect to the provisions of this Agreement.
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SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Transaction or any
related transaction that Stockholder or any other Person may have by virtue of
any outstanding shares of Company Common Stock Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this Agreement
through the Voting Covenant Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his or its representatives do not,
directly or indirectly: (i) solicit, initiate, encourage, induce or facilitate
the making, submission or announcement of any Acquisition Proposal or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any subsidiary of the
Company to any Person in connection with or in response to an Acquisition
Proposal or an inquiry or indication of interest that could lead to an
Acquisition Proposal; (iii) engage in discussions or negotiations 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 agreement or understanding contemplating or otherwise
relating to any Acquisition Proposal. Stockholder shall immediately cease and
discontinue, and Stockholder shall ensure that his or its representatives
immediately cease and discontinue, any existing discussions with any Person that
relate to any Acquisition Proposal.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform his or its obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies. If Stockholder is a general or limited
partnership, then Stockholder is a partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized. If Stockholder is a limited liability company, then Stockholder is a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it was organized.
6.2 NO CONFLICTS OR CONSENTS.
(A) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Stockholder or by which he or it or any
of his or its properties is or may be bound or affected; or
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(ii) result in or constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other Person (with or without notice
or lapse of time) any right of termination, amendment, acceleration or
cancellation of, or result (with or without notice or lapse of time) in the
creation of any encumbrance or restriction on any of the Subject Securities
pursuant to, any contract to which Stockholder is a party or by which
Stockholder or any of his or its affiliates or properties is or may be bound or
affected.
(B) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not, require any consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Agreement: (a) Stockholder
holds of record (free and clear of any encumbrances or restrictions, except such
as may exist under applicable securities laws) the number of outstanding shares
of Company Common Stock set forth under the heading "Shares Held of Record" on
the signature page hereof; (b) Stockholder holds (free and clear of any
encumbrances or restrictions, except such as may exist under applicable
securities laws or under the terms of the applicable securities) the options,
warrants and other rights to acquire shares of Company Common Stock set forth
under the heading "Options and Other Rights" on the signature page hereof; (c)
Stockholder Owns the additional securities of the Company set forth under the
heading "Additional Securities Beneficially Owned" on the signature page hereof;
and (d) Stockholder does not directly or indirectly Own any shares of capital
stock or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Voting
Covenant Expiration Date and will be accurate in all respects as of the date of
the consummation of the Merger I as if made on that date.
SECTION 7. NO AGREEMENT AS DIRECTOR, OFFICER OR EMPLOYEE
Stockholder makes no agreement or understanding in this Agreement in
Stockholder's capacity as a director, officer or employee of the Company, and
nothing in this Agreement will limit or affect any actions or omissions taken by
Stockholder in Stockholder's capacity as a director, officer or employee,
including in exercising rights under the Merger Agreement, and no such actions
or omissions shall be deemed a breach of this Agreement.
SECTION 8. ADDITIONAL COVENANTS OF STOCKHOLDER
8.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Parent may
reasonably request for the purpose of carrying out and furthering the intent of
this Agreement.
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SECTION 9. MISCELLANEOUS
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (i) the consummation of the Transaction, (ii) any
termination of the Reorganization Agreement, and (iii) the Voting Covenant
Expiration Date.
9.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
9.3 NOTICES. Any notice or other communication required or permitted to be
delivered to either party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other party):
if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
ViroLogic, Inc.
000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
9.4 SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
9.5 ENTIRE AGREEMENT. This Agreement, the Proxy and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of
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any provision of this Agreement shall be binding upon either party unless made
in writing and signed by both parties.
9.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and his
heirs, estate, executors and personal representatives and his or its successors
and assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
Section 8.1 or elsewhere in this Agreement, this Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
9.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the Proxy
were not performed in accordance with its specific terms or were otherwise
breached. Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant or obligation contained in this Agreement
or in the Proxy, Parent shall be entitled (in addition to any other remedy that
may be available to it, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither Parent
nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 9.7, and Stockholder irrevocably waives any right he
or it may have to require the obtaining, furnishing or posting of any such bond
or similar instrument.
9.8 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
Nothing in this Agreement shall limit any of Stockholder's obligations, or the
rights or remedies of Parent, under any Affiliate Agreement between Parent and
Stockholder; and nothing in any such Affiliate Agreement shall limit any of
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Agreement.
9.9 GOVERNING LAW; VENUE.
(A) This Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
(B) Any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this Agreement or
the Proxy may be brought or
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otherwise commenced in any state or federal court located in the State of
Delaware. Stockholder:
(I) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of Delaware in
connection with any such legal proceeding;
(II) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him or it at the address set forth on the
signature page hereof shall constitute effective service of such process,
summons, notice or document for purposes of any such legal proceeding;
(III) agrees that each state and federal court located in the
State of Delaware shall be deemed to be a convenient forum; and
(IV) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or federal court
located in the State of Delaware, any claim that Stockholder is not subject
personally to the jurisdiction of such court, that such legal proceeding has
been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Agreement or the subject matter of this Agreement may not
be enforced in or by such court.
Nothing contained in this Section 9.9 shall be deemed to limit or
otherwise affect the right of Parent to commence any legal proceeding or
otherwise proceed against Stockholder in any other forum or jurisdiction.
(C) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR
THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
9.10 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
9.11 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
9.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Stockholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
9.13 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or
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remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Parent shall not be deemed to have waived any
claim available to Parent arising out of this Agreement, or any power, right,
privilege or remedy of Parent under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
9.14 CONSTRUCTION.
(A) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
masculine and feminine genders.
(B) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(C) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(D) Except as otherwise indicated, all references in this Agreement
to "Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to
be executed as of the date first written above.
VIROLOGIC, INC.
By:
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STOCKHOLDER
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Name:
Address:
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Facsimile:
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Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned
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EXHIBIT A
FORM OF PROXY
The undersigned stockholder (the "Stockholder") of ACLARA BIOSCIENCES,
INC., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes Xxxxxxx X. Xxxxx, Xxxxx X.
Xxxxx and VIROLOGIC, INC., a Delaware corporation ("Parent"), and each of them,
the attorneys and proxies of the Stockholder with full power of substitution and
resubstitution, to the full extent of the Stockholder's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the Stockholder as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the Stockholder may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the Stockholder
with respect to any of the Shares are hereby revoked, and the Stockholder agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is granted in connection with the Voting Agreement, dated as of
the date hereof, between Parent and the Stockholder (the "Voting Agreement"),
and is granted in consideration of Parent entering into the Agreement and Plan
of Merger and Reorganization, dated as of the date hereof, among Parent, Apollo
Acquisition Sub, Inc., Apollo Merger Subsidiary, LLC and the Company (the
"Reorganization Agreement") which provides (subject to the conditions set forth
therein) for the merger of Merger Sub I into the Company ("Merger I") and
immediately following the effectiveness of Merger I, the merger of the Company
with and into Merger Sub II ("Merger II," and together with Merger I, the
"Transaction"). This proxy will terminate on the Voting Covenant Expiration Date
(as defined in the Voting Agreement).
Until the earliest to occur of (a) the date upon which the Reorganization
Agreement is validly terminated; (b) the date upon which Merger I is
consummated; and (c) the date upon which the Board of Directors of the Company
validly makes a Change of Recommendation (as defined in the Reorganization
Agreement) pursuant to Section 5.3(d) of the Reorganization Agreement, the
attorneys and proxies named above will be empowered, and may exercise this
proxy, to vote the Shares at any time at any meeting of the stockholders of the
Company, however called, and in connection with any written action by consent of
stockholders of the Company:
(i) in favor of Merger I, the execution and delivery by the Company
of the Reorganization Agreement and the adoption and approval of the
Reorganization Agreement and the terms thereof, in favor of each of the
other actions contemplated by the Reorganization Agreement and in favor of
any action in furtherance of any of the foregoing; and
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in
the Reorganization Agreement; and
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(iii) against the following actions (other than the Transaction and
the other transactions contemplated by the Reorganization Agreement): (A)
any extraordinary corporate transaction, such as a merger, consolidation
or other business combination involving the Company; (B) any sale, lease
or transfer of a material amount of assets of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the
Company; (D) any change in a majority of the board of directors of the
Company; (E) any amendment to the Company's certificate of incorporation
or bylaws; (F) any material change in the capitalization of the Company or
the Company's corporate structure; and (G) any other action which is
intended, or could reasonably be expected to impede, interfere with,
delay, postpone, discourage or adversely affect the Transaction or any of
the other transactions contemplated by the Reorganization Agreement.
The Stockholder may vote the Shares on all other matters not referred to
in this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
Any term or provision of this proxy that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Stockholder agrees that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this proxy shall be enforceable as so modified. In the event such court does not
exercise the power granted to it in the prior sentence, the Stockholder agrees
to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
Dated: May 28, 2004
Name
Number of shares of common stock of
the Company owned of record as of the
date of this proxy:
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