Exhibit 99.2
Voting
Agreement
This Voting Agreement (this “
Agreement ”), is made and entered into as of
August 6, 2007, by and between Inverness Medical Innovations,
Inc., a Delaware corporation (“ Parent
”), and the undersigned shareholder (“
Shareholder ”) of HemoSense, Inc., a Delaware
corporation (the “ Company ”).
Recitals
A. Concurrently with the
execution of this Agreement, Parent, Spartan Merger Sub, Inc., a
Delaware corporation and a wholly owned first-tier subsidiary of
Parent (“ Merger Sub ”), and the Company
are entering into an Agreement and Plan of Reorganization (the
“ Merger Agreement ”), pursuant to which
Merger Sub will be merged with and into the Company (the “
Merger ”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Merger
Agreement.
B. Shareholder is the record
holder of such number of outstanding shares of Company Common Stock
as is indicated on the signature pages to this Agreement.
C. As a material inducement to
enter into the Merger Agreement, Parent desires Shareholder to
agree, and Shareholder is willing to agree, to vote the Shares (as
defined in Section 1.1 below) so as to facilitate consummation
of the Merger.
In consideration of the foregoing and
the representations, warranties, covenants and agreements set forth
in this Agreement, the parties agree as follows:
1.
Voting of Shares .
1.1 Shares . The term “
Shares ” shall mean that number of issued and
outstanding shares of Company Common Stock owned of record and
beneficially owned by Shareholder as indicated on the signature
pages to this Agreement. Parent agrees that, except as otherwise
provided in Section 1.4 below, any shares of capital stock of
the Company not indicated on the signature pages to this Agreement
and any shares of capital stock of the Company that Shareholder
purchases or with respect to which Shareholder otherwise acquires
beneficial ownership or over which Shareholder exercises sole
voting power after the date of this Agreement and prior to the
termination of this Agreement pursuant to Section 4 below
shall not be subject to the terms and conditions of this Agreement
and shall not be deemed “Shares” hereunder.
1.2 Agreement to Vote Shares .
Shareholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 4 hereof, at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of the shareholders of the Company, however
called, and in any action by written consent of the shareholders of
the Company, Shareholder shall appear at the meeting or otherwise
cause any and all Shares to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted)
any and all Shares: (i) in favor of the approval of the Merger
and adoption of the Merger Agreement; and (ii) against any
Acquisition Proposal or Superior Offer. Shareholder further agrees
not to enter into any agreement or
understanding with any person or entity the effect of which would
be inconsistent with or violative of any provision contained in
this Section 1.2. Notwithstanding anything to the contrary
contained herein, nothing in this Agreement shall be construed to
limit or restrict Shareholder from acting in Shareholder’s
capacity as a director of the Company or voting in
Shareholder’s sole discretion on any matter other than those
matters referred to in the first sentence of this Section
1.2.
1.3 Irrevocable Proxy .
Concurrently with the execution of this Agreement, Shareholder
agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit I (the “ Proxy ”),
which shall be irrevocable, with respect to the Shares, subject to
the other terms of this Agreement.
1.4 Adjustments Upon Changes in
Capitalization. In the event of any change in the number of
issued and outstanding shares of Company Common Stock by reason of
any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into Company
Common Stock), combination, reorganization, recapitalization or
other like change, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company, 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.
2.
Transfer and Other Restrictions . Shareholder represents,
covenants and agrees that, except for the proxy granted in
Section 1.3 hereof and as contemplated by this Agreement: (i)
Shareholder shall not, directly or indirectly, during the period
commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 4 hereof, offer for sale or
agree to sell, transfer, tender, assign, pledge, hypothecate or
otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to, or consent to, the
offer for sale, sale, transfer, tender, pledge, hypothecation,
encumbrance, assignment or other disposition of, or create any
Encumbrance of any nature whatsoever with respect to, any or all of
the Shares or any interest therein; (ii) Shareholder shall not
grant any proxy or power of attorney, or deposit any Shares into a
voting trust or enter into a voting agreement or other arrangement,
with respect to the voting of Shares (each a “ Voting
Proxy ”) except as provided by this Agreement; and
(iii) Shareholder has not granted, entered into or otherwise
created any Voting Proxy which is currently (or which will
hereafter become) effective, and if any Voting Proxy has been
created, such Voting Proxy is hereby revoked. Notwithstanding the
foregoing, Shareholder may transfer any Shares as a bona fide gift
or gifts, provided that it shall be a condition to such
transfer that each donee thereof executes and delivers to Parent
(A) an agreement with Parent in the form of this Agreement and
(B) an irrevocable proxy in the form attached hereto as
Exhibit I , in each case with respect to any and all Shares
so transferred.
3.
Representations and Warranties of Shareholder . Shareholder
represents and warrants to Parent that:
3.1 Authority; Validity .
Shareholder has all requisite capacity, power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by Shareholder and the consummation by Shareholder of the
transactions contemplated hereby have been duly and validly
authorized by all necessary
- 2 -
action
on the part of Shareholder. This Agreement has been duly executed
and delivered by Shareholder. If this Agreement is being executed
in a representative or fiduciary capacity with respect to
Shareholder, the person signing this Agreement has full power and
authority to enter into and perform this Agreement.
3.2 Non-Contravention . The
execution, delivery and performance of this Agreement does not, and
the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, contravene,
conflict with, or result in any violation of, breach of or default
by (with or without notice or lapse of time, or both) Shareholder
under, or give rise to a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of
any Encumbrance upon any of the properties or assets of Shareholder
under, any provision of (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to
Shareholder or (ii) any judgment, order, decree, statute, law,
ordinance, injunction, rule or regulation applicable to Shareholder
or any of Shareholder’s properties or assets, other than any
such conflicts, violations, defaults, rights, or Encumbrances that,
individually or in the aggregate, would not impair the ability of
Shareholder to perform Shareholder’s obligations hereunder or
prevent, limit or restrict in any respect the consummation of any
of the transactions contemplated hereby. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust
of which Shareholder is settlor or trustee or any other person or
entity, including any Governmental Entity, whose consent, approval,
order or authorization is required by or with respect to
Shareholder for the execution, delivery and performance of this
Agreement by Shareholder or the consummation by Shareholder of the
transactions contemplated hereby.
3.3 Title . Shareholder is the
beneficial owner of the shares of Company Common Stock indicated on
the signature pages hereto, which, on and as of the date hereof,
are free and clear of any Encumbrances that, individually or in the
aggregate, would impair the ability of Shareholder to perform
Shareholder&rsquo
|
