Exhibit 2.2(i)
VOTING
AGREEMENT
This VOTING AGREEMENT,
dated as of April 12, 2007 (this “ Agreement ”),
is by and between QIAGEN North American Holdings, Inc., a
California corporation (“ Parent ”), and
See the Counterpart Signature Pages (“
Stockholder ”). Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Merger
Agreement (as defined below).
WHEREAS
, concurrently
herewith, Parent, Electra Merger Sub, Inc., a Nevada corporation
and wholly owned subsidiary of Parent (“ Merger Sub
”), and eGene, Inc., a Nevada corporation (the “
Company ”), are entering into an Agreement and Plan of
Merger (the “ Merger Agreement ”), pursuant to
which (and subject to the terms and conditions set forth therein)
Merger Sub will merge with and into the Company (the “
Merger ”), and each issued and outstanding share of
common stock, par value $0.001 per share, of the Company (“
Company Common Stock ”), will be converted into the
right to receive consideration pursuant to Section 1.7(a) of the
Merger Agreement;
WHEREAS
, Stockholder
beneficially owns See the Counterpart Signature Pages
shares of Company Common Stock (the “ Owned Shares
” and, together with any Shares of Company Common Stock of
which Stockholder acquires beneficial ownership after the date
hereof and prior to the termination hereof, whether upon exercise
of options, warrants, conversion of other convertible securities or
otherwise, are collectively referred to herein as the “
Covered Shares ”);
WHEREAS
, in order to induce
Parent to enter into the Merger Agreement and proceed with the
Merger, Parent and Stockholder are entering into this Agreement;
and
WHEREAS
, Stockholder
acknowledges that Parent is entering into the Merger Agreement in
reliance on the representations, warranties, covenants and other
agreements of Stockholder set forth in this Agreement and would not
enter into the Merger Agreement if Stockholder did not enter into
this Agreement.
NOW,
THEREFORE ,
in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, Parent and Stockholder hereby agree as follows:
1. Agreement to
Vote .
(a) Prior to any
termination of this Agreement, Stockholder hereby agrees that it
shall, and shall cause any other holder of record of any Covered
Shares to, at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or
postponed meeting), however called, (i) when a meeting is held,
appear at such meeting or otherwise cause the Covered Shares to be
counted as present thereat for the purpose of establishing a
quorum, (ii) vote (or caused to be voted) in person or by proxy all
Covered Shares in favor of the Merger and any other matters
necessary for consummation of the transactions contemplated by the
Merger Agreement and (iii) vote (or cause to be voted) all Covered
Shares against (A) any proposal for any recapitalization,
reorganization, liquidation, merger, sale of assets or other
business combination between the Company and any other person
(other than the Merger) and (B) any other action that could
reasonably be expected to, impede, interfere with, delay, postpone
or adversely affect the Merger or any of the of the transactions
contemplated by the Merger Agreement or by this Agreement or result
in a breach in any material respect of any covenant, representation
or warranty or other obligation or agreement of the Company under
the Merger Agreement.
(b) STOCKHOLDER HEREBY
GRANTS TO, AND APPOINTS, PARENT, THE PRESIDENT OF PARENT AND THE
TREASURER OF PARENT, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF
PARENT, AND ANY OTHER DESIGNEE OF PARENT, AND EACH OF THEM
INDIVIDUALLY, THE STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION
DATE, AS DEFINED BELOW) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE THE COVERED SHARES AS INDICATED IN CLAUSE
(a) OF THIS SECTION 1. STOCKHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE, AS DEFINED BELOW) AND
COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND
EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY STOCKHOLDER WITH RESPECT TO THE COVERED
SHARES.
(c) Except as set forth
in clause (a) of this Section 1, Stockholder shall not be
restricted from voting in favor of, against or abstaining with
respect to any matter presented to the stockholders of the Company.
In addition, nothing in this Agreement shall give Parent or any of
its officers or designees the right to vote any Covered Shares in
connection with the election of directors.
2. No Inconsistent
Agreements . Stockholder hereby covenants and agrees
that, except as contemplated by this Agreement, it (a) has not
entered into, and shall not enter at any time while this Agreement
remains in effect, any voting agreement or voting trust with
respect to the Owned Shares and (b) has not granted, and shall not
grant at any time while this Agreement remains in effect, a proxy
or power of attorney with respect to the Covered Shares, in either
case, which is inconsistent with its obligations pursuant to this
Agreement.
3. Purchase
Option . Stockholder hereby grants to Parent an option
(the “ Purchase Option ”) to purchase all or a
portion of its Covered Shares at a purchase price of $1.36 per
share (the “ Option Price ”), which Purchase
Option shall be exercisable commencing on the Termination Date (as
defined below) and ending 30 days thereafter. Parent may exercise
such Purchase Option, in whole or in part, at any time during such
30-day period by delivering to the Stockholder a notice of exercise
together with a certified or bond cashier’s check for the
amount of the Option Price multiplied by the number of Covered
Shares that Parent has so indicated in its notice of
exercise.
4. Termination .
This Agreement shall terminate upon the earliest of (a) the
Effective Time, (b) the termination of the Merger Agreement in
accordance with its terms, and (c) written notice of termination of
this Agreement by Parent to Stockholder, such earliest date being
referred to herein as the “ Termination Date ”;
provided, however, that no such termination shall have any effect
on the Purchase Option which shall survive such termination in
accordance with its terms.
5. Representations
and Warranties .
(a) Representations and
Warranties of Parent. Parent hereby represents and warrants to
Stockholder as follows:
(i) Valid
Existence . Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State
of California and has the requisite corporate power and authority
to carry on its business as it is now being conducted.
(ii) Authority
Relative to This Agreement . Parent has all necessary
corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and
performance of
this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action,
and no other corporate proceedings on the part of Parent are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly authorized, executed and delivered by Parent and, assuming
due authorization, execution and delivery by Stockholder,
constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms.
(iii) No
Conflicts . Except for the applicable requirements of the
Securities Exchange Act of 1934, as amended, (the “
Exchange Act ”), no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority
is necessary on the part of Parent for the execution and delivery
of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby.
(b) Representations
and Warranties of Stockholder. Stockholder hereby
represents and warrants to Parent as follows:
(i) Ownership of
Securities . As of the date of this Agreement, (A)
Stockholder beneficially owns the Owned Shares, (B) Stockholder is
the sole record holder of See the Counterpart Signature
Pages Shares of Company Common Stock (all of which Shares
are included in the Owned Shares), free and clear of Liens (other
than Liens created by this Agreement or in connection with the
arrangements set forth on Schedule I attached to this
Agreement), (C) Stockholder has sole voting power and sole power of
disposition with respect to all Owned Shares, with no restrictions
(other than those created by this Agreement or in connection with
the arrangements set forth on Schedule I attached to this
Agreement), subject to applicable federal securities laws on their
rights of disposition pertaining thereto, and (D) Stockholder
beneficially owns See the Counterpart Signature Pages
shares of Company Common Stock issuable upon the exercise of
currently exercisable stock options (collectively, the “
Stock Options ”). Stockholder has not appointed
or granted any proxy which is still in effect with respect to the
Owned Shares. As used in this Agreement, the terms
“beneficial owner”, “beneficial ownership”,
“beneficially owns” or “owns beneficially”,
with respect to any securities, refer to the beneficial ownership
of such securities as determined under Rule 13d-3(a) of the
Exchange Act.
(ii) Existence,
Power; Binding Agreement . If Stockholder is an entity,
Stockholder is duly organized, formed or created, validly existing
and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby, and all necessary
corporate or othe
