FORM OF VOTING AGREEMENT
EXHIBIT
99.3
This Voting Agreement (“Agreement”) is entered into as of October 27, 2008, by and
between Clinical Data, Inc., a Delaware corporation (“Parent”), and [ ]
(“Stockholder”).
Recitals
A. Stockholder is a holder of record and/or the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain shares of common stock of Avalon
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) (any such share, together with
the associated rights to purchase any portion of a share of Series C Junior Participating Preferred
Stock, a “Share”).
B. Parent, API Acquisition Sub II, LLC, a Delaware limited liability company and
indirect wholly-owned subsidiary of Parent (“Merger Sub”), and the Company are entering into an
Agreement and Plan of Merger and Reorganization of even date herewith (the “Merger Agreement”)
which provides (subject to the conditions set forth therein) for Parent to acquire the Company by
effecting a merger of Merger Sub into the Company (the “Merger”) in accordance with the Merger
Agreement, pursuant to which, each issued and outstanding Share will be converted into the right to
receive [ ] of a share of Parent Common Stock and a Contingent Value Right. Upon consummation
of the Merger, Merger Sub will cease to exist, and the Company will become an indirect wholly-owned
subsidiary of Parent.
C. Stockholder is entering into this Agreement in order to induce Parent to enter into the
Merger 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 terms “Acquisition Proposal” and “Acquisition Transaction” shall have the respective
meanings assigned to those terms in the Merger Agreement.
(b) “Company Common Stock” shall mean the common stock, par value $0.01 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 Securities Exchange Act of 1934) of such security.
(d) “Person” shall mean any (i) individual, (ii) corporation, limited liability company,
partnership or other entity, or (iii) governmental authority.
1.
(e) “Proxy Expiration Date” shall mean the earlier of (i) the date upon which the Merger
Agreement is terminated, or (ii) the date upon which the Merger becomes effective.
(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) 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) of which
Stockholder acquires Ownership during the period from the date of this Agreement through the Proxy
Expiration Date.
(g) “Subject Shares” shall mean: (i) all shares of Company Common Stock Owned by Stockholder
as of the date of this Agreement; (ii) all additional shares of Company Common Stock of which
Stockholder acquires Ownership during the period from the date of this Agreement through the Proxy
Expiration Date; and (iii) all securities into which any of the shares of Company Common Stock
described in clause “(i)” or clause “(ii)” above are exchanged or converted.
(h) 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.
(i) Capitalized terms used but not otherwise defined in this Agreement have the meanings
assigned to such terms in the Merger 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 Proxy 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 Proxy 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 voting
agreement or similar agreement is entered into, with respect to any of the Subject Securities,
other than a proxy granted to Parent.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by
Stockholder (a) if Stockholder is an individual (i) to any member of Stockholder’s immediate
family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate
family, or (ii) upon the death of Stockholder, or (b) if Stockholder is a partnership or limited
liability company, to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; provided, however, that a transfer referred
2.
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 all of the terms of this Agreement.
SECTION 3. Voting of Shares
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Proxy Expiration Date, at
any meeting of the stockholders of the Company, however called, and in any written action by
consent of stockholders of the Company, unless otherwise directed in writing by Parent, Stockholder
shall cause the Subject Securities to be voted (to the extent such Subject Securities are entitled
to vote):
(a) in favor of the Merger, the execution and delivery by the Company of the Merger Agreement
and the adoption and approval of the Merger Agreement and the terms thereof, in favor of each of
the other actions contemplated by the Merger Agreement and in favor of any action in furtherance of
any of the foregoing;
(b) against any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement; and
(c) against the following actions (other than the Merger and the transactions contemplated or
permitted by the Merger Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any subsidiary of the Company;
(ii) any sale, lease, sublease, license, sublicense or transfer of a material portion of the assets
of the Company or any subsidiary of the Company; (iii) any reorganization, recapitalization,
dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in a
majority of the board of directors of the Company; (v) any amendment to the Company’s certificate
of incorporation or bylaws, which amendment would in any manner frustrate, prevent or nullify the
Merger, the Merger Agreement or any transactions contemplated by the Merger Agreement or change in
any manner the voting rights of any class of the Company’s capital stock; (vi) any material change
in the capitalization of the Company or the Company’s corporate structure; and (vii) any other
action which is intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other transactions contemplated
by the Merger Agreement or this Agreement.
Prior to the Proxy Expiration Date, Stockholder shall not enter into any agreement or understanding
with any Person to vote or give instructions in any manner inconsistent with clause “(a)”, clause
“(b)” or clause “(c)” of the preceding sentence.
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Agreement: (i) Stockholder shall deliver to
Parent a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to
the fullest extent permitted by law (at all times prior to the Proxy Expiration Date) with respect
to the shares referred to therein (the “Proxy”); and (ii) Stockholder shall cause to be delivered
to Parent an additional proxy (in the form attached hereto as Exhibit A) executed
3.
on behalf of the record owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not
of record, by Stockholder.
(b) Stockholder shall, at Stockholder’s 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.
(c) Stockholder shall not enter into any tender, voting or other such agreement, or grant a
proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this
Agreement or otherwise take any other action with respect to the Subject Shares that would in any
way restrict, limit or interfere with the performance of Stockholder’s obligations hereunder or the
transactions contemplated hereby.
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 Merger or any related transaction that Stockholder may have by virtue of, or
with respect to, any 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 Proxy
Expiration Date, Stockholder shall not, directly or indirectly, and Stockholder shall ensure that
Stockholder’s Representatives (as defined in the Merger Agreement) do not, directly or indirectly:
(a) solicit, initiate, knowingly 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; (b) furnish any nonpublic information regarding either of the
Acquired Corporations (as defined in the Merger Agreement) 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; (c) engage in discussions or negotiations with any Person with respect to any
Acquisition Proposal; (d) approve, endorse or recommend any Acquisition Proposal; or (e) enter into
any letter of intent or similar document or any Contract (as defined in the Merger Agreement)
contemplating or otherwise relating to any Acquisition Transaction. Stockholder shall immediately
cease and discontinue, and Stockholder shall ensure that Stockholder’s Representatives immediately
cease and discontinue, any existing discussions with any Person that relate to any Acquisition
Proposal. Notwithstanding the foregoing, if Stockholder is an officer of the Company, nothing in
this Section 5 shall be interpreted to prohibit Stockholder from acting in accordance with
instructions given by the Board of Directors of the Company so long as such actions comply with the
Merger Agreement.
SECTION 6.Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
4.
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 Stockholder’s
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 (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies. If Stockholder is
a corporation, then Stockholder is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was organized. 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
Stockholder or any of Stockholder’s properties is or may be bound or affected; or (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 Stockholder’s 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. The execution and delivery of any additional proxy pursuant to Section
3.2(a)(ii) with respect to any shares of Company Common Stock that are owned beneficially but not
of record by Stockholder do not, and the performance of any such additional proxy will not, require
any consent or approval of any Person.
(c) Exhibit B identifies each Contract under which Stockholder or any affiliate of Stockholder
has or may acquire any right against any of the Acquired Corporations. Except as disclosed on
Exhibit B, neither Stockholder nor any affiliate of Stockholder shall have any rights or claims
under any such Contract against the Company, Parent or any other Person after the Effective Time.
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) 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) 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
5.
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, and will be accurate in
all respects at all times through and including the Proxy Expiration Date as if made as of any such
time or date.
SECTION 7. Additional Covenants of Stockholder
7.1 Stockholder Information. Stockholder hereby agrees to permit Parent and Merger Sub to
publish and disclose, if required under applicable law, in any publicly-filed documents relating to
the Merger and, if approval of the stockholders of the Company is required under the terms of the
DGCL or other applicable law, the Form S-4, Stockholder’s identity and ownership of shares of
Company Common Stock and the nature of Stockholder’s commitments, arrangements and understandings
under this Agreement.
7.2 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 request for the
purpose of carrying out and furthering the intent of this Agreement.
7.3 Legends. If requested by Parent, immediately after the execution of this Agreement (and
from time to time upon the acquisition by Stockholder of Ownership of any shares of Company Common
Stock prior to the Proxy Expiration Date), Stockholder shall cause each certificate evidencing any
outstanding shares of Company Common Stock or other securities of the Company Owned by Stockholder
to be surrendered so that the transfer agent for such securities may affix thereto a legend in the
following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF A
VOTING AGREEMENT DATED AS OF OCTOBER 27, 2008 AS IT MAY BE AMENDED, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. Miscellaneous
8.1 Survival of Representations, Warranties and Agreements. All representations, warranties,
covenants and agreements made by Stockholder in this Agreement shall survive the Proxy Expiration
Date, provided that Sections 2, 3, 5 and 7 of this Agreement shall not survive the Proxy Expiration
Date.
6.
8.2 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.
8.3 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 received at the address or facsimile telephone number set forth beneath the name
of such party below (or at 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:
Clinical Data, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, EVP and Chief Legal Officer
Facsimile No.: (000) 000-0000
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, EVP and Chief Legal Officer
Facsimile No.: (000) 000-0000
8.4 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.
8.5 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 any provision of this
Agreement shall be binding upon either party unless made in writing and signed by both parties.
8.6 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
Stockholder’s heirs, estate, executors and personal representatives and
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Stockholder’s 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
7.1 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.
8.7 Indemnification. Stockholder shall hold harmless and indemnify Parent and Parent’s
affiliates from and against, and shall compensate and reimburse Parent and Parent’s affiliates for,
any loss, damage, claim, liability, fee (including attorneys’ fees), demand, cost or expense
(regardless of whether or not such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered or incurred by Parent or
any of Parent’s affiliates, or to which Parent or any of Parent’s affiliates otherwise becomes
subject, and that arises directly or indirectly from, or relates directly or indirectly to, (a) any
inaccuracy in or breach of any representation or warranty contained in this Agreement, or (b) any
failure on the part of Stockholder to observe, perform or abide by, or any other breach of, any
restriction, covenant, obligation or other provision contained in this Agreement or in the Proxy.
8.8 Independence of Obligations. The covenants and obligations of Stockholder set forth in
this Agreement shall be construed as independent of any other agreement or arrangement between
Stockholder, on the one hand, and the Company or Parent, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Parent shall not constitute a defense to
the enforcement of any of such covenants or obligations against Stockholder.
8.9 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 8.8, 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.
8.10 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.
8.11 Governing Law; Jurisdiction; Waiver of Jury Trial.
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(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. In any action between the parties arising out of or relating to this
Agreement or any of the transactions contemplated by this Agreement each of the parties irrevocably
and unconditionally consents and submits to the jurisdiction and venue of the state and federal
courts located in the State of Delaware.
(b) 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.
8.12 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.
8.13 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.
8.14 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).
8.15 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 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.
8.16 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.
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(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.
8.17 No Limitation on Actions of Stockholder as Director or Officer. In the event Stockholder
is an officer or director of the Company, Stockholder shall not be deemed to make any agreement or
understanding in this Agreement in Stockholder’s capacity as a director or officer. Stockholder is
entering into this Agreement solely in his or her capacity as the record holder and/or beneficial
owner of the Stockholder’s Subject Securities, and nothing herein shall limit or affect any actions
taken (or omissions to take any action) by Stockholder in his or her capacity as a director or
officer of the Company.
[Remainder of page intentionally left blank]
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In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.
Clinical Data, Inc. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Stockholder | ||||||||
Signature | ||||||||
Printed Name | ||||||||
Address: | ||||||||
Facsimile: | ||||||||
Additional Securities | ||||
Shares Held of Record
|
Options and Other Rights | Beneficially Owned | ||
Signature Page to Irrevocable Proxy
Exhibit A
Form Of Irrevocable Proxy
Form Of Irrevocable Proxy
The undersigned stockholder (the “Stockholder”) of Avalon Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes [ ], [
; ] and Clinical Data,
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 irrevocable, is coupled with an interest and is granted in connection with, and
as security for, 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, API
Acquisition Sub II, LLC, an indirect wholly-owned subsidiary of Parent, and the Company (the
“Merger Agreement”). This proxy will terminate on the Proxy Expiration Date (as defined in the
Voting Agreement).
The attorneys and proxies named above will be empowered, and may exercise this proxy, to vote
the Shares at any time until the earlier to occur of (i) the Proxy Expiration Date, (ii) the
termination of the Merger Agreement or (iii) the effective time of the merger contemplated thereby
(the “Merger”) 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 the Merger, the execution and delivery by the Company of the Merger Agreement
and the adoption and approval of the Merger Agreement and the terms thereof, in favor of each of
the other actions contemplated by the Merger 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 Merger Agreement; and
(iii) against the following actions (other than the Merger and the other transactions
contemplated or permitted by the Merger Agreement): (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the Company or any
subsidiary of the Company; (B) any sale, lease, sublease, license, sublicense or transfer of a
material portion of the assets of the Company or any subsidiary of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary 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, which amendment would in any
manner frustrate, prevent or nullify the Merger, the Merger Agreement
A-1
or any transactions contemplated by the Merger Agreement or change in any manner the voting
rights of any class of the Company’s capital stock; (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 Merger or any of the other transactions contemplated by the Merger Agreement or the
Voting 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
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.
Dated: October 27, 2008
Stockholder | ||
Signature | ||
Printed Name | ||
Number of shares of common stock of the Company owned of record as of the date of this proxy: | ||
Signature Page to Irrevocable Proxy
Exhibit B
Certain Contracts
Certain Contracts
B-1