Exhibit 99.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") dated as of October 17, 2001, by
and among Cytyc Corporation, a Delaware corporation ("CYTYC"), and the persons
listed on Schedule A hereto (collectively, the "Stockholders" and each a
"Stockholder"), each a stockholder of Pro Duct Health, Inc., a Delaware
corporation ("PRO DUCT").
WITNESSETH:
WHEREAS, PRO DUCT, CYTYC and Cytyc Health Corporation, a Delaware
corporation and wholly-owned subsidiary of CYTYC ("SUB"), are entering into an
Agreement and Plan of Merger dated as of October 17, 2001 (the "Merger
Agreement") pursuant to which it is contemplated that PRO DUCT will be merged
with and into SUB (the "Merger") and the holders of PRO DUCT's common stock, par
value $0.0001 per share (the "PRO DUCT Common Stock"), and the holders of PRO
DUCT's preferred stock, par value $0.0001 per share (the "PRO DUCT Preferred
Stock"), will be entitled to receive a combination of shares of CYTYC's Common
Stock, par value $0.01 per share ("CYTYC Common Stock"), and cash, for such
shares of PRO DUCT Common Stock and PRO DUCT Preferred Stock; and
WHEREAS, CYTYC, as a condition to its willingness to enter into the Merger
Agreement, has required the Stockholders to agree to vote all of the shares of
PRO DUCT Common Stock and PRO DUCT Preferred Stock owned by the Stockholders,
together with any additional shares of PRO DUCT Common Stock or PRO DUCT
Preferred Stock hereafter acquired by the Stockholders (by exercise of options
or warrants, by conversion of debentures or otherwise acquired by such
Stockholder) (such specified number of shares, and any additional shares when
and if acquired, being referred to as the "Shares") in favor of the Merger
Agreement and the Merger on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Voting Shares. Each Stockholder hereby agrees that at any meeting of
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the stockholders of PRO DUCT, however called, and in any action by consent of
the stockholders of PRO DUCT in lieu of a meeting, the Stockholder will appear
at the meeting (or otherwise cause the Shares owned by such Stockholder to be
counted as present thereat for purposes of establishing a quorum) and the
Stockholder will vote or consent (or cause to be voted or consented) the Shares
owned by such Stockholder (a) in favor of the Merger; (b) in favor of the Merger
Agreement, as such may be modified or amended from time to time; (c) against any
Acquisition Transaction (as such term is defined in the Merger Agreement) (an
"Acquisition Transaction") other than the Merger, or any other merger, sale or
other business combination between PRO DUCT and any other person or entity or
any other action that would make it impractical for CYTYC to effect a merger or
other business combination of PRO DUCT with
CYTYC or SUB; and (d) against any other action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of PRO DUCT under the Merger Agreement or which would result in any of
PRO DUCT's obligations under the Merger Agreement not being fulfilled.
Notwithstanding anything to the contrary herein, no Stockholder shall be
obligated to vote in favor of the Merger or the Merger Agreement in the event
that any of the terms or conditions of the Merger Agreement are amended or
modified in any respect that (i) has a material adverse effect on the rights or
remedies of such Stockholder or (ii) changes the Consideration (as such term is
defined in the Merger Agreement).
2. Representations and Warranties of the Stockholders. Each Stockholder,
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severally and not jointly, represents and warrants to CYTYC as follows:
(a) Ownership of Shares. That Stockholder is the sole beneficial
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owner of the number of Shares set forth as being owned by that Stockholder on
Schedule A. The Shares set forth opposite that Stockholder's name on Schedule A
constitute all the Shares owned beneficially or of record by that Stockholder.
The Shares owned by that Stockholder are held by that Stockholder, or by a
nominee or custodian for the benefit of that Stockholder, free and clear of all
liens, mortgages, security interests, pledges, charges, encumbrances, adverse
claims or other adverse interests of any kind, except for encumbrances arising
under this Agreement or the agreements pursuant to which the Shares were issued
to that Stockholder or as imposed by law.
(b) Power; Binding Agreement. That Stockholder has the legal
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capacity, power and authority to enter into this Agreement and to perform all of
that Stockholder's obligations under this Agreement. The execution and delivery
of this Agreement and the performance of the transactions contemplated hereby by
that Stockholder have been duly and validly authorized by all necessary action
on the part of the Board of Directors or other comparable governing body of that
Stockholder and no other proceedings are necessary to authorize this Agreement
or the performance of the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by that Stockholder will not violate
any other agreement to which that Stockholder is a party, including, without
limitation, any voting agreement, stockholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by that Stockholder
and constitutes a valid and binding obligation of that Stockholder, enforceable
against that Stockholder in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application referring to or affecting enforcement of creditors' rights,
or by general equitable principles.
(c) Consents and Approvals; No Violation. Neither the execution and
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delivery nor the performance of this Agreement by that Stockholder will: (i)
require any consent, approval, authorization or permit of, or filing with or
notification to, any person or entity or any governmental or regulatory
authority; (ii) conflict with, cause a breach or default of (or give rise to a
right of termination, cancellation or acceleration of any obligation or loss of
any benefit under) any note, bond, mortgage, indenture, pledge, security
agreement, credit agreement, guarantee, suretyship arrangement or other
instrument in respect of indebtedness for borrowed money to which that
Stockholder is a party or by which that Stockholder or any of that Stockholder's
assets may be bound; or (iii) violate any court or administrative order, writ or
injunction or process, or any consent decree to which that Stockholder (or its
assets or property)
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is a party or is subject, or any statute, law, rule, regulation, license,
franchise or permit applicable to that Stockholder.
3. Representations and Warranties of CYTYC. CYTYC represents and
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warrants to each Stockholder that:
(a) Power; Binding Agreement. CYTYC has the corporate power and
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authority to enter into this Agreement and to perform all its obligations under
this Agreement. The execution and delivery of this Agreement and the performance
of the transactions contemplated hereby by CYTYC have been duly and validly
authorized by all necessary action on the part of its Board of Directors and no
other proceedings are necessary to authorize this Agreement or the performance
of the transactions contemplated hereby. The execution, delivery and performance
of this Agreement by CYTYC will not violate any other agreement to which CYTYC
is a party. This Agreement has been duly and validly executed and delivered by
CYTYC and constitutes a valid and binding obligation of CYTYC, enforceable
against CYTYC in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application referring to or affecting enforcement of creditors' rights, or by
general equitable principles.
(b) Consents and Approvals; No Violation. Neither the execution and
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delivery nor the performance of this Agreement by CYTYC will: (i) require any
consent, approval, authorization or permit of, or filing with or notification
to, any person or entity or any governmental or regulatory authority; (ii)
conflict with, cause a breach or default of (or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit under) any note, bond, mortgage, indenture, pledge, security agreement,
credit agreement, guarantee, suretyship arrangement or other instrument in
respect of indebtedness for borrowed money to which CYTYC is a party or by which
CYTYC or any of CYTYC's assets may be bound, or; or (iii) violate any court or
administrative order, writ or injunction or process, or any consent decree to
which CYTYC (or its assets or property) is a party or is subject, or any
statute, law, rule, regulation, license, franchise or permit applicable to
CYTYC.
4. Additional Covenants of the Stockholders. Each Stockholder, severally
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and not jointly, hereby covenants and agrees that:
(a) the Stockholder will not enter into any transaction or take any
action, other than those actions contemplated by this Agreement, or by inaction
permit any event to occur, that would (i) result in any of the representations
or warranties of the Stockholder herein contained not being true and correct at
and as of the time immediately after the occurrence of such transaction, action
or event; or (ii) have the effect of preventing or disabling the Stockholder
from performing the Stockholder's obligations under this Agreement;
(b) the Stockholder will not grant any proxies or powers of attorney
with respect to any Shares, deposit any Shares into a voting trust or enter into
a voting agreement with respect to such Shares; provided, however, that the
Stockholder may grant proxies to third parties provided that such proxies are
expressly made subject to the terms of this Agreement;
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(c) from and after the date hereof until the termination of this
Agreement, other than under the circumstances contemplated by Section 7 hereof,
the Stockholder will not sell, transfer, pledge, hypothecate, transfer by gift,
or otherwise dispose of in any manner whatsoever, the Shares without notifying
CYTYC in advance and obtaining and delivering to CYTYC any evidence that CYTYC
may reasonably request to evidence the transferee's agreement to be bound by
this Agreement. If any involuntary transfer or other disposition of any of the
Shares shall occur (including, but not limited to, a sale by the Stockholder's
trustee in bankruptcy, or a sale to a purchaser at any creditor's or court
sale), the transferee (which term, as used herein, shall include any and all
subsequent transferees of the initial transferee) shall take and hold such
Shares subject to all of the restrictions, liabilities and rights under this
Agreement, which shall continue in full force and effect;
(d) the Stockholder agrees not to assert any dissenters', appraisal
or similar rights, if any, whether under the Delaware General Corporation Law,
the California Corporations Code or otherwise with respect to the Merger and the
conversion of the PRO DUCT capital stock into shares of CYTYC Common Stock and
cash as provided in the Merger Agreement; and
(e) the Stockholder will execute and deliver any additional documents
reasonably necessary or desirable, in the opinion of CYTYC's or PRO DUCT's
counsel, to implement and effect the provisions of this Agreement.
5. No Solicitation. No Stockholder shall, in that Stockholder's capacity
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as such, directly or indirectly, (a) solicit, initiate, encourage or in any way
facilitate (including by way of furnishing or disclosing nonpublic information)
any inquiries, proposal, negotiation or agreement from any corporation,
partnership, person, group or other entity ("Third-Party Acquiror") concerning
an Acquisition Transaction, (b) negotiate, explore or otherwise engage in
discussion with any Third-Party Acquiror with respect to any Acquisition
Transaction, (c) agree to or endorse an Acquisition Transaction with any person
(other than CYTYC or SUB) or any agreement, arrangement or understanding with
respect to any such Acquisition Transaction or which would require PRO DUCT to
abandon, terminate or fail to consummate the Merger or any other transaction
contemplated by this Agreement, or (d) authorize or permit any person or entity
acting on behalf of that Stockholder to do any of the foregoing. If any
Stockholder receives any inquiry or proposal regarding any Acquisition
Transaction, that Stockholder shall promptly inform CYTYC of that inquiry or
proposal unless CYTYC shall otherwise have already been notified of such inquiry
or proposal.
6. Legending of Certificates; Nominee Shares. Each Stockholder agrees to
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use it reasonable efforts to find and submit to CYTYC contemporaneously with or
promptly following execution of this Agreement (or promptly following receipt of
any additional certificates representing any additional Shares) all certificates
representing the Shares held by such Stockholder so that CYTYC may note thereon
a legend identical or similar in effect to the following legend (together with
any other legend or legends required by applicable state securities laws or
otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED AS OF OCTOBER 17, 2001 BY AND BETWEEN THE REGISTERED HOLDER
HEREOF AND THE OTHER PARTY NAMED THEREIN, A COPY
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OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER OF SUCH CERTIFICATE."
7. Adjustments to Prevent Dilution, Etc. In the event of any change in
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PRO DUCT Common Stock by reason of any reclassification, recapitalization,
reorganization, split-up, combination, exchange of shares or readjustment, or a
stock dividend or other extraordinary distribution thereon, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
8. Stockholder Capacity. No person executing this Agreement who is or
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becomes during the term of this Agreement a director of PRO DUCT makes any
agreement in his or her capacity as a director. Each Stockholder is executing
and delivering this Agreement solely in that Stockholder's capacity as the
record and beneficial owner of that Stockholder's Shares. Notwithstanding
anything to the contrary in this Agreement, no action or inaction by a
representative of any Stockholder in his capacity as a director of PRO DUCT
shall be deemed to contravene Section 5 hereof, as long as the action or
inaction does not contravene Section 5.13 of the Merger Agreement.
9. Termination. This Agreement shall terminate on the Effective Time of
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the Merger (as such term is defined in the Merger Agreement); provided, however,
that this Agreement shall in any event automatically terminate upon the
termination of the Merger Agreement.
10. Miscellaneous.
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(a) No Waiver. The failure of any party to exercise any right, power
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or remedy under this Agreement or otherwise available in respect of this
Agreement at law or in equity, or to insist upon compliance by any other party
with that party's obligations under this Agreement, shall not constitute a
waiver of any right to exercise any such or other right, power or remedy or to
demand such compliance.
(b) Notices. All notices and other communications hereunder shall be
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in writing and shall be delivered personally or by next-day courier to the
parties at the addresses specified below (or at such other address for a party
as shall be specified by like notice; provided that notices of a change of
address shall be effective only upon receipt thereof). Any such notice shall be
effective upon receipt, if personally delivered, or one day after delivery to a
courier for next-day delivery.
(i) if to CYTYC, to:
Cytyc Corporation
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: President
(ii) if to Stockholder, to:
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(c) Descriptive Headings; Interpretation. The headings contained in
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this Agreement are for reference purposes only and shall not affect in way the
meaning or interpretation of this Agreement. References in this Agreement to
Sections and Schedules mean a Section or Schedule of this Agreement unless
otherwise indicated. The terms "beneficially own" and "beneficial owner" with
respect to any securities shall have the same meaning as in, and shall be
determined in accordance with, Rule 13d-3 under the Securities Exchange Act of
1934, as amended.
(d) Entire Agreement; Assignment. This Agreement (including the
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exhibits and other documents and instruments referred to herein), together with
the Merger Agreement and any Affiliate Agreement (as defined in the Merger
Agreement) signed by such Stockholder, constitute the entire agreement and
supersede all other prior agreements and understandings, both written and oral,
among the parties or any of them, with respect to the subject matter hereof.
Except as otherwise expressly provided herein, this Agreement is not intended to
confer upon any person not a party hereto any rights or remedies hereunder.
Except as otherwise expressly provided herein, this Agreement shall not be
assigned by operation of law or otherwise; provided that CYTYC may assign its
rights and obligations hereunder to a direct or indirect subsidiary of CYTYC,
but no such assignment shall relieve CYTYC of its obligations hereunder.
(e) Liability after Transfer. Each Stockholder agrees that,
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notwithstanding any transfer of that Stockholder's Shares in accordance with
Section 4(d) hereof, that Stockholder shall remain liable for the performance of
that Stockholder's obligations under this Agreement.
(f) Injunctive Relief, Remedies Cumulative.
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(i) The Stockholders acknowledge that CYTYC will be irreparably
harmed and that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of the Stockholders that are contained in this
Agreement. It is accordingly agreed that, in addition to any other remedies that
may be available to CYTYC upon the breach by any Stockholder of such covenants
and agreements, CYTYC shall have the right to obtain injunctive relief to
restrain any breach or threatened breach of such covenants or agreements or
otherwise to obtain specific performance of any of such covenants or agreements.
(ii) No remedy conferred upon or reserved to any party herein is
intended to be exclusive of any other remedy and every remedy shall be
cumulative and in addition to every other remedy herein or now or hereafter
existing at law, in equity or by statute.
(g) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware without giving effect to
the provisions thereof relating to conflicts of laws.
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(h) Effect of Partial Invalidity. Whenever possible, each provision
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of this Agreement shall be construed in such a manner as to be effective and
valid under applicable law. If any provision of this Agreement or the
application thereof to any party or circumstance shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective to the extent
of such prohibition without invalidating the remainder of such provision or any
other provisions of this Agreement or the application of such provision to the
other party or to other circumstances.
(i) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of
the date first above written.
CYTYC CORPORATION THE STOCKHOLDERS
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Brentwood Associates IX, LP
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Title: President and Chief Executive
Officer /s/ WPG Enterprise Fund III, LP
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/s/ WP&G Venture Associates IV, LP
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/s/ Three Arch Partners II, LP
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/s/ IVP VII, LP
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SCHEDULE A
Investor
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Brentwood Associates IX, LP
WPG Enterprise Fund III, LP
WP&G Venture Associates IV, LP
Three Arch Partners II, LP
IVP VII, LP
