Exhibit 99.1
VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement"), dated as of November 9, 2002, between
the undersigned stockholder ("Stockholder") of Hyseq, Inc., a Nevada corporation
("Parent"), and Variagenics, Inc., a Delaware corporation (the "Company").
WHEREAS, concurrently with the execution of this Agreement, the Company,
Parent and Vertical Merger Corp., a wholly-owned subsidiary of Parent ("Merger
Sub"), have entered into an Agreement and Plan of Merger (as the same may be
amended from time to time, the "Merger Agreement"), providing for, inter alia,
the merger (the "Merger") of Merger Sub with and into the Company pursuant to
the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, the Company has requested that Stockholder make certain
representations, warranties, covenants and agreements with respect to the shares
of common stock, par value $0.01 per share (the "Shares"), of Parent
beneficially owned by Stockholder and set forth opposite Stockholder's signature
on the signature page hereto (the "Stockholder Shares"); and
WHEREAS, in order to induce the Company to enter into the Merger
Agreement, Stockholder is willing to make certain representations, warranties,
covenants and agreements with respect to the Stockholder Shares;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Representations of Stockholders. Stockholder represents and warrants to
the Company that (a) Stockholder lawfully owns beneficially (as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) and of record all of the Stockholder Shares free and clear of
all liens, claims, charges, security interests or other encumbrances and, except
pursuant to this Agreement and the Merger Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which Stockholder is a party relating to the pledge, disposition or
voting of any Shares and there are no voting trusts or voting agreements with
respect to the Stockholder Shares, (b) Stockholder does not beneficially own any
Shares other than the Stockholder Shares and does not have any options, warrants
or other rights to acquire any additional Shares or any security exercisable for
or convertible into Shares, and (c) Stockholder has full power and authority to
enter into, execute and deliver this Agreement and to perform fully
Stockholder's obligations hereunder. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Stockholder
in accordance with its terms.
2. Agreement to Vote Shares; Irrevocable Proxy.
(a) Stockholder agrees during the term of this Agreement to vote the
Stockholder Shares and any New Shares (as defined in Section 6 hereof), and to
cause any holder of record of such Shares to vote, (i) in favor of adoption and
approval of the Merger Agreement at every meeting of the stockholders of the
Company at which such matters are considered and at every adjournment or
postponement thereof, (ii) against any action or agreement that could
compete with, prevent, impede, interfere with, attempt to discourage or
adversely affect the Merger or inhibit the timely consummation of the Merger,
(iii) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of Parent under the Merger Agreement and (iv) except for the Merger
and the Merger Agreement, against any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of Parent or its subsidiaries.
(b) Stockholder hereby appoints the Company and any designee of the
Company, and each of them individually, its proxies and attorneys-in-fact, with
full power of substitution and resubstitution, to vote or act by written consent
during the term of this Agreement with respect to the Stockholder Shares and any
New Shares in accordance with Section 2(a). This proxy is given to secure the
performance of the duties of Stockholder under this Agreement. Stockholder shall
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy. The proxy and power of attorney granted
pursuant hereto by Stockholder shall be irrevocable during the term of this
Agreement, shall be deemed to be coupled with an interest sufficient in law to
support an irrevocable proxy and shall revoke any and all prior proxies granted
by Stockholder. The power of attorney granted by Stockholder herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of Stockholder. The proxy and power of attorney granted hereunder
shall terminate upon the termination of this Agreement.
3. No Voting Trusts or Other Arrangements. Stockholder agrees that
Stockholder will not, and will not permit any entity under Stockholder's control
to, deposit any of the Stockholder Shares in a voting trust, grant any proxies
with respect to the Stockholder Shares or subject any of the Stockholder Shares
to any arrangement with respect to the voting of the Stockholder Shares other
than agreements entered into with the Company.
4. No Proxy Solicitations. Stockholder, solely in Stockholder's capacity
as a stockholder of Parent, agrees that Stockholder will not, and will not
permit any entity under Stockholder's control to, (a) solicit proxies or become
a "participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) in opposition to or competition with the consummation of
the Merger or otherwise encourage or assist any party in taking or planning any
action which could compete with, impede, interfere with or attempt to discourage
the Merger or inhibit the timely consummation of the Merger in accordance with
the terms of the Merger Agreement, (b) directly or indirectly encourage,
initiate or cooperate in a stockholders' vote or action by consent of Parent's
stockholders in opposition to or in competition with the consummation of the
Merger, or (c) become a member of a "group" (as such term is used in Rule 13d-5
under the Exchange Act) with respect to any voting securities of Parent for the
purpose of opposing or competing with the consummation of the Merger; provided,
however, that nothing in this letter agreement shall prevent Stockholder from
taking any action or omitting to take any action solely as a member of the Board
of Directors of Parent (or any committee thereof) or, at the direction of the
Board of Directors of Parent (or any committee thereof), as an officer or
employee of Parent or any of its subsidiaries, in each case, in accordance with
the terms of the Merger Agreement.
2
5. Transfer and Encumbrance. On or after the date hereof and during the
term of this Agreement, Stockholder agrees not to transfer, sell, offer,
exchange, pledge or otherwise dispose of or encumber any of the Stockholder
Shares or New Shares.
6. Additional Purchases. Stockholder agrees that all Shares that
Stockholder purchases, acquires the right to vote or share in the voting of, or
otherwise acquires beneficial ownership of after the execution of this Agreement
("New Shares"), shall be subject to the terms of this Agreement to the same
extent as if they constituted Stockholder Shares.
7. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any such failure,
the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party hereto agrees that it will
not seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such equitable
relief.
8. 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 Parent or any of its subsidiaries, 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.
9. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended or supplemented, and no
provisions hereof may be modified or waived, except by an instrument in writing
signed by all the parties hereto. No waiver of any provisions hereof by any
party shall be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
10. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to the Company:
Variagenics, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: President and Chief Business Officer
Telecopy: (000) 000-0000
3
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000 000-0000
Attn: Xxxxxxx X. Xxxxxx
If to Stockholder, to the address or telecopy number set forth for
Stockholder on the signature page hereof:
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx
11. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the jurisdiction of the courts
of the State of Delaware and the Federal courts of the United States of America
located in the State of Delaware solely in respect of the interpretation and
enforcement of the provisions of this Agreement and in respect of the
transactions contemplated hereby, and hereby waive, and agree not to assert, as
a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Delaware State or Federal court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 9 or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
4
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10(a).
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable
by a court of competent jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or unenforceability and the
remainder of the provision held invalid or unenforceable and the application of
such provision to persons or circumstances, other than the party as to which it
is held invalid, and the remainder of this Agreement, shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of (i)
the Effective Time (as defined in the Merger Agreement), (ii) the date on which
the Merger Agreement is terminated in accordance with Section 8.1(a), 8.1(c) or
8.1(h) thereof, and (iii) the later of (A) the date on which the Merger
Agreement is terminated in accordance with Section 8.1(b), 8.1(d), 8.1(e),
8.1(f) or 8.1(g) thereof, and (B) the date six months after the date hereof.
(e) Each party hereto shall execute and deliver such additional
documents as 'may be necessary or desirable to effect the transactions
contemplated by this Agreement.
(f) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
(g) The obligations of Stockholder set forth in this Agreement shall
not be effective or binding upon Stockholder until after such time as the Merger
Agreement is executed and delivered by the Company, Parent and Merger Sub, and
the parties agree that there is not and has not been any other agreement,
arrangement or understanding between the parties hereto with respect to the
matters set forth herein.
(h) No party to this Agreement may assign any of its right or
obligations under this Agreement without the prior written consent of the other
party hereto. Any assignment contrary to the provisions of this Section 10(h)
shall be null and void.
5
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
VARIAGENICS, INC.
By:
----------------------------------
Name:
Title:
STOCKHOLDER
No. of Shares Beneficially
Beneficially Owned:
-------- ------------------------------------
Name:
Acknowledged and Agreed to:
HYSEQ, INC.
By:
------------------------------------
Name:
Title:
6
