Exhibit 99.3
VOTING AGREEMENT
T HIS V OTING A GREEMENT (“Agreement”) is entered into as of
May 28, 2004, by and between ACLARA B IO S CIENCES , I NC ., a
Delaware corporation (the “Company”), and
(“Stockholder”).
R ECITALS
A. Stockholder is a holder of record and the
“beneficial owner” (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended, (the
“Exchange Act”)) of certain shares of common stock of
ViroLogic, Inc., a Delaware corporation
(“Parent”).
B. Parent, Apollo Acquisition Sub, Inc., a Delaware
corporation (“Merger Sub I”), Apollo Merger Subsidiary,
LLC, a Delaware limited liability company (“Merger Sub
II”) and the Company are entering into an Agreement and Plan
of Merger and Reorganization of even date herewith (the
“Reorganization Agreement”) which provides (subject to
the conditions set forth therein) for the merger of Merger Sub I
into the Company (“Merger I”) and immediately following
the effectiveness of Merger I, the merger of the Company with and
into Merger Sub II (“Merger II,” and together with
Merger I, the “Transaction”).
C. In order to induce the Company to enter into the
Reorganization Agreement, Stockholder is entering into this
Agreement.
A GREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
SECTION 1. C ERTAIN D EFINITIONS
For purposes of this
Agreement:
(a) The term “Acquisition
Proposal” shall have the meaning assigned to it in
the Reorganization Agreement.
(b) Stockholder shall be deemed to “
Own ” or to have acquired “
Ownership ” of a security if Stockholder: (i)
is the record owner of such security; or (ii) is the
“beneficial owner” (within the meaning of Rule 13d-3
under the Exchange Act) of such security.
(c) “Parent Common Stock”
shall mean the common stock, par value $0.001 per share, of
Parent.
(d) “Person” shall mean
any (i) individual, (ii) corporation, limited liability company,
partnership or other entity, or (iii) governmental
authority.
(e) “Subject Securities”
shall mean: (i) all securities of Parent (including all shares of
Parent Common Stock and all options, warrants and other rights to
acquire shares of Parent Common Stock, but excluding any shares
Owned by any limited partnership or limited liability company in
which Stockholder is a partner or member, as the case may be) Owned
by Stockholder as of the date of this Agreement; and (ii) all
additional securities of Parent (including all additional shares of
Parent Common Stock and all additional options, warrants and other
rights to acquire shares of Parent Common Stock, but excluding any
shares Owned by any limited partnership or limited liability
company in which Stockholder is a partner or member, as the case
may be) of which Stockholder acquires Ownership during the period
from the date of this Agreement through the Voting Covenant
Expiration Date.
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(f) 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 the Company;
(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 the Company; or (iii)
reduces such Person’s beneficial ownership of, interest in or
risk relating to such security.
(g) “Voting Covenant Expiration
Date” shall mean the earliest to occur of: (a) the
date upon which the Reorganization Agreement is validly terminated;
(b) the date upon which Merger I is consummated; and (c) the date
upon which the Board of Directors of Parent validly makes a Change
of Recommendation (as defined in the Reorganization Agreement)
pursuant to Section 5.3(d) of the Reorganization
Agreement.
SECTION 2. T RANSFER OF S UBJECT S ECURITIES AND V OTING R IGHTS
2.1 Restriction on Transfer of
Subject Securities .
Subject to Section 2.3, during the period from the date of this
Agreement through the Voting Covenant Expiration Date, Stockholder
shall not, directly or indirectly, cause or permit any Transfer of
any of the Subject Securities to be effected.
2.2 Restriction on Transfer of
Voting Rights . During
the period from the date of this Agreement through the Voting
Covenant Expiration Date, Stockholder shall ensure that: (a) none
of the Subject Securities is deposited into a voting trust; and (b)
no proxy is granted, and no other voting agreement or similar
agreement is entered into, with respect to any of the Subject
Securities.
2.3 Permitted
Transfers . Section 2.1
shall not prohibit a transfer of Parent Common Stock by Stockholder
(i) to any member of his immediate family, or to a trust for the
benefit of Stockholder or any member of his immediate family, (ii)
upon the death of Stockholder, or (iii) if Stockholder is a
partnership or limited liability company, to one or more partners
or members of Stockholder or to an affiliated corporation under
common control with Stockholder; provided, however, that a
transfer referred to in this sentence shall be permitted only if,
as a precondition to such transfer, the transferee agrees in a
writing, reasonably satisfactory in form and substance to the
Company, to be bound by the terms of this Agreement.
SECTION 3. V OTING OF S HARES
3.1 Voting Covenant
. Stockholder hereby agrees that,
prior to the earlier to occur of the valid termination of the
Reorganization Agreement or the consummation of Merger I, at any
meeting of the stockholders of Parent, however called, unless
otherwise directed in writing by the Company, Stockholder shall
cause the Subject Securities to be voted:
(a) in favor of the Charter Amendment and the Share
Issuance (each as defined in the Reorganization Agreement) and in
favor of any action in furtherance of any of the foregoing;
and
(b) against any action or agreement that would
result in a breach of any representation, warranty, covenant or
obligation of Parent in the Reorganization Agreement;
and
(c) against the following actions (other than the
Transaction and the transactions contemplated by the Reorganization
Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving
Parent; (B) any sale, lease or transfer of a material amount of
assets of Parent; (C) any reorganization, recapitalization,
dissolution or liquidation of Parent; (D) any change in a majority
of the board of directors of Parent; (E) any amendment to
Parent’s certificate of incorporation or bylaws; (F) any
material change in the capitalization of Parent or Parent’s
corporate structure; and (G) any other action which is intended, or
could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Transaction or any of
the other transactions contemplated by the Reorganization Agreement
or this Agreement.
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Prior to the earlier to occur of the valid
termination of the Reorganization Agreement or the consummation of
Merger I, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any
manner inconsistent with clause “(a)”,
“(b)”, or “(c)” of the preceding
sentence.
3.2 Proxy; Further
Assurances.
(a) Contemporaneously with the execution of this
Agreement, Stockholder shall deliver to the Company a proxy in the
form attached to this Agreement as Exhibit A with respect to the
shares referred to therein (the “Proxy”).
(b) Stockholder shall, at his or its own expense,
perform such further acts and execute such further proxies and
other documents and instruments as may reasonably be required to
vest in the Company the power to carry out and give effect to the
provisions of this Agreement.
SECTION 4. W AIVER OF A PPRAISAL R IGHTS
Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to
prevent the exercise of, any rights of appraisal, any
dissenters’ rights and any similar rights relating to the
Transaction or any related transaction that Stockholder or any
other Person may have by virtue of any outstanding shares of Parent
Common Stock Owned by Stockholder.
SECTION 5. N O S OLICITATION
Stockholder agrees that, during the
period from the date of this Agreement through the Voting Covenant
Expiration Date, Stockholder shall not, directly or indirectly, and
Stockholder shall ensure that his or its representatives do not,
directly or indirectly: (i) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be
expected to lead to an Acquisition Proposal; (ii) furnish any
information regarding Parent or any subsidiary of Parent to any
Person in connection with or in response to an Acquisition Proposal
or an inquiry or indication of interest that could lead to an
Acquisition Proposal; (iii) engage in discussions or negotiations
with any Person with respect to any Acquisition Proposal; (iv)
approve, endorse or recommend any Acquisition Proposal; or (v)
enter into any letter of intent or similar document or any
agreement or understanding contemplating or otherwise relating to
any Acquisition Proposal. Stockholder shall immediately cease and
discontinue, and Stockholder shall ensure that his or its
representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition
Proposal.
SECTION 6. R EPRESENTATIONS AND W ARRANTIES OF S TOCKHOLDER
Stockholder hereby represents and
warrants to the Company as follows:
6.1 Authorization, etc
. Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Agreement and the Proxy and to perform his or its
obligations hereunder and thereunder. This Agreement and the Proxy
have been duly executed and delivered by Stockholder and constitute
legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and
the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies. If
Stockholder is a general or limited partnership, then Stockholder
is a partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was
organized. If Stockholder is a limited liability company, then
Stockholder is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it was organized.
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6.2 No Conflicts or
Consents.
(a) The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of this
Agreement and the Proxy by Stockholder will not: (i) conflict with
or violate any law, rule, regulation, order, decree or judgment
applicable to Stockholder or by which he or it or any of his or its
properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without
notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice
or lapse of time) in the creation of any encumbrance or restriction
on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his or its
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of this
Agreement and the Proxy by Stockholder will not, require any
consent or approval of any Person.
6.3 Title to
Securities . As of the
date of this Agreement: (a) Stockholder holds of record (free and
clear of any encumbrances or restrictions, except such as may exist
under applicable securities laws) the number of outstanding shares
of Parent Common Stock set forth under the heading “Shares
Held of Record” on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions, except
such as may exist under applicable securities laws or under the
terms of the applicable securities) the options, warrants and other
rights to acquire shares of Parent Common Stock set forth under the
heading “
