EXHIBIT 99.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
June 20, 2005, by and among Clinical Data, Inc., a Delaware corporation
("Clinical Data"), Genaissance Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxx, M.D. (the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder beneficially owns (as such
term is defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder) 659,528
shares of common stock, $0.01 par value (the "Common Stock") of Clinical Data
(such shares of Common Stock, together with any other shares of Clinical Data's
Common Stock, sole or shared voting power over which is acquired by such
Stockholder during the period from and including the date hereof through and
including the date on which this Agreement is terminated in accordance with its
terms, collectively, the "Subject Common Shares");
WHEREAS, Clinical Data and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") (terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) with respect to the merger
of a subsidiary of Clinical Data with and into the Company, as a result of which
the Company shall become a wholly owned subsidiary of Clinical Data (the
"Merger"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has required that the Stockholder enter into this
Agreement whereby the Stockholder commits to cause the Subject Common Shares
over which the Stockholder has sole voting power, and to use his best efforts to
cause the Subject Common Shares over which the Stockholder has joint voting
power, to be voted in favor of the issuance of shares of Clinical Data's Common
Stock pursuant to the Merger on the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained in this
Agreement and intending to be legally bound, the parties agree as follows:
ARTICLE I
VOTING MATTERS
Section 1.1 Agreement to Vote. The Stockholder hereby agrees that from and
after the date hereof until the termination of this Agreement, at any duly
called meeting of the stockholders of Clinical Data, and in any action by
written consent of the stockholders of Clinical Data, the Stockholder shall, if
a meeting is held, appear at the meeting and any adjournment or postponement
thereof, in person or by proxy, or otherwise cause the Subject Common Shares
over which the Stockholder has sole voting power (and use his best efforts to
cause the Subject Common Shares over which the Stockholder has joint voting
power) to be counted as present thereat for purposes of establishing a quorum,
and such Stockholder shall vote or consent the Subject Common Shares over which
the Stockholder has sole voting power (and cause to be voted or consented the
Subject Common Shares over which the Stockholder has joint voting power), in
person or by proxy, (a) in favor of approving the issuance of shares of Clinical
Data's Common Stock pursuant to the Merger and each of the other transactions
and other matters specifically contemplated by the Merger Agreement, (b) in
favor of any proposal to adjourn any such meeting if necessary to permit further
solicitation of proxies in the event there are not sufficient votes at the time
of such meeting to approve the issuance of shares of Clinical Data's Common
Stock pursuant to the Merger, (c) against any action or agreement submitted for
approval of the stockholders of Clinical Data that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
Clinical Data under the Merger Agreement or of the Stockholder under this
Agreement and (d) except as otherwise agreed in writing by the Company, against
any action, agreement, transaction or proposal submitted for approval of the
stockholders of Clinical Data that would reasonably be expected to result in any
of the conditions to Clinical Data's obligations under the Merger Agreement not
being fulfilled or that is intended, or would reasonably be expected, to
prevent, impede, interfere with, delay or adversely affect the transactions
contemplated by the Merger Agreement. Any vote by the Stockholder that is not in
accordance with this Section 1.1 shall be considered null and void. The
Stockholder shall not enter into any agreement or understanding with any person
or entity prior to the termination of this Agreement to vote or give
instructions in a manner inconsistent with clauses (a), (b), (c) or (d) of this
Section 1.1.
Section 1.2 Grant of Irrevocable Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints, the
Company and Xxxxx Xxxxx, in his capacity as Chief Executive Officer of the
Company, and any individual who shall hereafter succeed to any such office of
the Company, the Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Stockholder, to vote the
Subject Common Shares, or grant a consent or approval in respect of the Subject
Common Shares (i) in favor of approving the issuance of shares of Clinical
Data's Common Stock pursuant to the Merger and each of the other transactions
and other matters specifically contemplated by the Merger Agreement, (ii) in
favor of any proposal to adjourn any such meeting if necessary to permit further
solicitation of proxies in the event there are not sufficient votes at the time
of such meeting to approve the issuance of shares of Clinical Data's Common
Stock pursuant to the Merger, (iii) against any action or agreement submitted
for approval of the stockholders of Clinical Data that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of Clinical Data under the Merger Agreement or of the Stockholder under this
Agreement and (iv) except as otherwise agreed in writing by the Company, against
any action, agreement, transaction or proposal submitted for approval of the
stockholders of Clinical Data that would reasonably be expected to result in any
of the conditions to Clinical Data's obligations under the Merger Agreement not
being fulfilled or that is intended, or would reasonably be expected, to
prevent, impede, interfere with, delay or adversely affect the transactions
contemplated by the Merger Agreement.
(b) Stockholder represents that any proxies heretofore given in
respect of the Subject Common Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set forth in
this Section 1.2 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
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the duties of such Stockholder under this Agreement. Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest sufficient in law
to support an irrevocable voting power and may under no circumstances be
revoked. Stockholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with Section
212(e) of the General Corporation Law of the State of Delaware. Notwithstanding
anything herein to the contrary, the parties agree that such irrevocable proxy
shall terminate and be of no further force and effect upon the termination of
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company as follows:
Section 2.1 Authority. The Stockholder has full power and authority to
execute and deliver this Agreement and to perform his obligations hereunder.
This Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes the valid and legally binding obligation of the
Stockholder, enforceable in accordance with its terms and conditions.
Section 2.2 Consent. No consent of any other person, and no notice to,
filing or registration with, or consent, approval or authorization of, any court
or Governmental Entity, regulatory or self-regulatory agency or any other third
party is necessary or is required to be made or obtained by the Stockholder, in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, other than a filing with the Securities
and Exchange Commission to amend the Stockholder's Schedule 13D relating to
Clinical Data. If the Stockholder is married, this Agreement (including the
proxy granted pursuant to Section 1.2) has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Stockholder's spouse, enforceable against such person in accordance with its
terms.
Section 2.3 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any law, rule, regulation, judgment, order or decree to which
the Stockholder is subject, (ii) violate any contract, lease, license,
instrument or other legally binding arrangement or agreement to which the
Stockholder is a party or by which the Stockholder is bound, or (iii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel or require any notice under any agreement, contract, lease, license,
instrument or other legally binding arrangement or agreement to which the
Stockholder is a party or by which he is bound.
Section 2.4 Ownership of Shares. The Stockholder holds of record and owns
beneficially and will hold of record and own beneficially through the date this
Agreement is terminated pursuant to Section 5.1 herein the Subject Common
Shares, free and clear of any restrictions on transfer (other than restrictions
under applicable securities laws), Liens, options, warrants, purchase rights,
contracts, commitments, equities, claims and demands, except as provided in this
Agreement. The Subject Common Shares represent all of the shares of Common Stock
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of Clinical Data owned by the Stockholder, as of the date hereof. The
Stockholder has not appointed or granted any proxy inconsistent with this
Agreement, which appointment or grant is still effective, with respect to the
Subject Common Shares.
Section 2.5 Litigation. There is no litigation, arbitration proceeding,
governmental investigation, citation or action of any kind pending or, to the
knowledge of the Stockholder, proposed or threatened that seeks restraint,
prohibition, damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby or that otherwise might
impair the Subject Common Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholder as follows:
Section 3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly formed and validly existing under the laws of the State of
Delaware and has all requisite power and authority to own its properties and
assets and to carry on its business as now conducted.
Section 3.2 Authority. The Company has all requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and
thereunder. This Agreement has been duly and validly executed and delivered by
the Company and constitutes the valid and legally binding obligation of the
Company, enforceable in accordance with its terms and conditions.
Section 3.3 Consent. No consent of any other person, and no notice to,
filing or registration with, or consent, approval or authorization of, any court
or Governmental Entity, regulatory or self-regulatory agency or any other third
party is necessary or is required to be made or obtained by the Company, in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, other than a filing of Schedule 13D
relating to Clinical Data with the Securities and Exchange Commission.
Section 3.4 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate the organizational documents of the Company or any law, rule,
regulation, judgment, order or decree to which the Company is subject, (ii)
violate any contract, lease, license, instrument or other legally binding
arrangement or agreement to which the Company is a party or by which the Company
is bound, or (iii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel or require any notice under any
agreement, contract, lease, license, instrument or other legally binding
arrangement or agreement to which the Company is a party or by which it is bound
or to which any of its assets is subject.
Section 3.5 Litigation. There is no litigation, arbitration proceeding,
governmental investigation, citation or action of any kind pending or, to the
knowledge of the Company, proposed or threatened that seeks restraint,
prohibition, damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
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ARTICLE IV
COVENANTS OF THE STOCKHOLDER
The Stockholder hereby covenants and agrees as follows:
Section 4.1 Restriction on Transfer of Shares.
(a) The Stockholder shall not, directly or indirectly: (i) offer for
sale, sell (including short sales), transfer, tender, (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), pledge, encumber, assign
or otherwise dispose of (including by gift) or enter into any contract, option,
derivative, hedging or other arrangement or understanding (including any
profit-sharing arrangement) with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of
any or all of the Subject Common Shares or any interest therein (any of the
foregoing, a "Transfer"), except to any affiliate of the Stockholder, provided
that such affiliate agrees in writing to be bound by the terms of this
Agreement, or Transfers which occur by operation of law or with the Company's
prior written consent, (ii) grant any proxies or powers of attorney (other than
pursuant to this Agreement or to an affiliate of the Stockholder that agrees in
writing to be bound by the terms of this Agreement) with respect to the Subject
Common Shares, deposit any of the Subject Common Shares into a voting trust or
enter into any other voting arrangement (other than with an affiliate of the
Stockholder that agrees in writing to be bound by the terms of this Agreement)
or permit to exist any other Lien of any nature whatsoever with respect to the
Subject Common Shares (other than such other Liens created by or arising under
this Agreement or existing by operation of law), or (iii) commit or agree to
take any of the foregoing actions.
Section 4.2 Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Subject Common Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Subject Common Shares shall pass, whether by operation of law or otherwise,
including without limitation the Stockholder's administrators, successors or
receivers.
Section 4.3 Legend. Each certificate representing Subject Common Shares
shall bear the following legend on the face thereof, if so requested in writing
by the Company:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON VOTING, TRANSFER AND CERTAIN OTHER LIMITATIONS SET FORTH IN THAT
CERTAIN VOTING AGREEMENT DATED AS OF JUNE 20, 2005 BY AND AMONG Clinical Data,
Inc., a Delaware corporation, Genaissance Pharmaceuticals, Inc., a Delaware
corporation and Xxxxxx X. Xxxxx, M.D., AS THE SAME MAY BE AMENDED FROM TIME TO
TIME."
If so requested in writing by the Company, the Stockholder will cause
all of his Subject Common Shares to be delivered to Clinical Data for the
purpose of applying such legend (if not so endorsed upon issuance). Clinical
Data shall return to the delivering party, as promptly as possible, any
securities so delivered. The delivery of such securities by the delivering party
shall not in any way affect such party's rights with respect to such securities.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall automatically terminate, and
neither the Company nor the Stockholder shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no further
effect, upon the earliest to occur of (a) the mutual consent of all of the
parties hereto, (b) the Effective Time and (c) the date of termination of the
Merger Agreement in accordance with its terms; provided that any such
termination shall not relieve any party from liability for any intentional
breach of this Agreement (which includes, without limitation, the making of any
representation or warranty by a party in this Agreement that the party knew was
not true and accurate when made).
Section 5.2 Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement shall survive the termination
of this Agreement. This Section 5.2 shall not limit any covenant or agreement of
the parties contained herein which by its terms contemplates performance after
the termination of this Agreement.
Section 5.3 Notices. Any notices or other communications required or
permitted under, or otherwise in connection with this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person or
on receipt after dispatch by first class mail, postage prepaid, addressed, or on
receipt if transmitted by national overnight courier, in each case as follows:
If to the Stockholder, to: With a copy to:
Xxxxxx X. Xxxxx, M.D. XxXxxxxxx Will & Xxxxx LLP
Clinical Data, Inc. 00 Xxxxx Xxxxxx
0 Xxxxxxx Xxxxxxxxx Xxxxxx, XX 00000
Xxxxxxxxxx, XX 00000 Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to the Company: With a copy to:
Genaissance Xxxxxx Xxxxxx Xxxxxxxxx
Pharmaceuticals, Inc. Xxxx and Xxxx LLP
Five Science Park 00 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to Clinical Data: With a copy to:
Clinical Data, Inc. XxXxxxxxx Will & Xxxxx LLP
0 Xxxxxxx Xxxxxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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Section 5.4 Expenses. All costs and expenses (including legal fees)
incurred in connection with this Agreement shall be paid by the party incurring
such expenses.
Section 5.5 Headings. 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.
Section 5.6 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
Section 5.7 Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 5.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other parties, and any attempt to make any such
assignment without such consent shall be null and void, except any assignment in
connection with any Transfer of the Subject Common Shares permitted by this
Agreement.
Section 5.9 Binding Effect. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors and
assigns.
Section 5.10 Mutual Drafting. This Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing this Agreement to be drafted.
Section 5.11 Governing Law; Consent to Jurisdiction; Waiver of Trial by
Jury.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Chancery Court of the State of Delaware in any action or proceeding arising out
of or relating to this Agreement or the agreements delivered in connection
herewith or the transactions contemplated hereby or thereby or for recognition
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or enforcement of any judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (i) agrees not to commence any such action or
proceeding except in such court, (ii) agrees that any claim in respect of any
such action or proceeding may be heard and determined in such court, (iii)
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
action or proceeding in such court, and (iv) waives, to the fullest extent
permitted by laws, the defense of an inconvenient forum to the maintenance of
such action or proceeding in such court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by laws. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 5.3. Nothing in this
Agreement shall affect the right of any party to this Agreement to serve process
in any other manner permitted by laws.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT MAY INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (II) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (III)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.11(c).
Section 5.12 Amendment: Waiver. No provision of this Agreement may be
waived unless in writing signed by all of the parties to this Agreement, and the
waiver of any one provision of this Agreement shall not be deemed to be a waiver
of any other provision. This Agreement may be amended, supplemented or otherwise
modified only by a written agreement executed by all of the parties to this
Agreement.
Section 5.13 Stop Transfer Order. In furtherance of this Agreement, the
Stockholder shall and does hereby authorize and request that Clinical Data
instruct its transfer agent to enter a stop transfer order, consistent with the
terms of this Agreement and subject to such transfers as may be permitted by the
express terms hereof, with respect to all of the Subject Common Shares
beneficially owned by the Stockholder. Clinical Data hereby agrees to the
restriction on the Transfer of shares of Common Stock provided for in this
Agreement and agrees not to recognize, or authorize or permit any affiliate or
agent to recognize, any Transfer in breach of this Agreement.
Section 5.14 Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
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Section 5.15 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to seek specific performance of the terms hereof
in addition to any other remedies at law or in equity.
Section 5.16 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
CLINICAL DATA, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx, M.D.
Title: Chief Executive Officer
GENAISSANCE PHARMACEUTICALS, INC.
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
STOCKHOLDER
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, M.D.
