Exhibit 2.6
VOTING AGREEMENT
T HIS V OTING A GREEMENT ( “Agreement”
) is entered into as of
September 24, 2008, by and between Nuvelo, Inc., a Delaware
corporation ( “Parent” ), 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) of certain shares of
capital stock of ARCA biopharma, Inc., a Delaware corporation (the
“Company” ).
B. Parent, Dawn Acquisition Sub, Inc., a Delaware
corporation ( “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 the merger of the Merger Sub with
and into the Company (the “Merger”
).
C. In the Merger, the outstanding shares of capital
stock of the Company are to be converted into the right to receive
shares of common stock of Parent.
D. In order to induce Parent to enter into the
Merger Agreement, Stockholder is entering into this
Agreement.
A GREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
S ECTION 1. C ERTAIN D EFINITIONS
1.1 Specified Terms
. For purposes of this
Agreement:
(a) 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.
(b) “ Subject
Securities ” shall mean: (i) all securities of the
Company (including all shares of Company Capital Stock and all
options, warrants and other rights to acquire shares of Company
Capital 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 Capital Stock and all
additional options, warrants and other rights to acquire shares of
Company Capital Stock) of which Stockholder acquires Ownership
during the period from the date of this Agreement through the
Voting Covenant Expiration Date.
(c) 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.
(d) “ Voting Covenant
Expiration Date ” shall mean the earlier of the date upon which
the Merger Agreement is terminated, or the date upon which the
Merger is consummated[; provided that the Voting Covenant
Expiration Date shall not be later than March 31, 2009 (unless
the failure of the Merger to occur is a result of a breach of this
Agreement by the Stockholder)].
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1.2 Other Terms
. Capitalized terms used herein and
not defined shall have the meanings set forth in the Merger
Agreement.
S ECTION 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 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 Company 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 Parent, to be bound by the
terms of this Agreement.
S ECTION 3. V OTING OF S HARES
3.1 Voting Covenant
. Stockholder hereby agrees that,
prior to the Voting Covenant 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 (a
“Stockholder Consent” ), unless otherwise
directed in writing by Parent, Stockholder shall cause the Subject
Securities to be voted:
(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; and
(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 by the Merger Agreement,
such actions set forth in Section 4.2 of the Company
Disclosure Schedule, or such actions consented to in writing by
Parent): (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
or transfer of a material amount of 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 or any transactions contemplated by
the Merger Agreement or change in any manner the voting rights of
any class of Company 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 this
Agreement.
Prior to the Voting Covenant
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)”,
“(b)”, or “(c)” of the preceding
sentence.
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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 Voting Covenant Expiration Date) with respect to the
securities 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 on behalf of the record owner of any
outstanding shares of Company Capital 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 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 Parent the power to carry out and give effect to the
provisions of this Agreement.
(c) In the event that the Company shall solicit a
Stockholder Consent, Stockholder shall take all actions required of
it pursuant to this Agreement, including without limitation
Section 3.1, as soon as reasonably practicable following
receipt of any such solicitation and in no event later than the
later of (i) seventy-two (72) hours after the Form S-4
Registration is declared effective; or (ii) twenty-four
(24) hours after the receipt of such solicitation (the “
Consent Deadline ”); provided, however, that
Stockholder’s failure to take all actions required of it
pursuant to this Agreement prior to the Consent Deadline shall not
be deemed a breach of this Agreement in the event that the Company
shall have obtained the Required Company Stockholder Vote within
the time period specified in Section 5.2(a) of the Merger
Agreement; and provided, further that the foregoing
limitation shall in no way be deemed to limit Stockholder
obligations under this Section 3.2 to take all actions
required of it pursuant to this Agreement as soon as reasonably
practicable following receipt of any such solicitation or
Stockholder’s liability for breach of such obligation or any
other obligation pursuant to this Agreement.
S ECTION 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
Merger or any related transaction that Stockholder may have by
virtue of any outstanding shares of Company Capital Stock Owned by
Stockholder.
S ECTION 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, knowingly
encourage, induce or facilitate the making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry or
take any action that could reasonably be expected to lead to an
Acquisition Proposal or Acquisition Inquiry; (ii) furnish any
nonpublic information regarding the Company or any of its
Subsidiaries to any Person in connection with or in response to an
Acquisition Proposal or an Acquisition Inquiry; (iii) engage
in discussions or negotiations with any Person with respect to any
Acquisition Proposal or Acquisition Inquiry; (iv) approve,
endorse or recommend any Acquisition Proposal or Acquisition
Inquiry; or (v) enter into any letter of intent or similar
document or any Contract contemplating or otherwise relating to any
Acquisition Transaction. 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
or Acquisition Inquiry. Notwithstanding the foregoing, if the
Stockholder is an officer of the Company, nothing in this
Section 5 shall be interpreted to prohibit the 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.
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S ECTION 6. R EPRESENTATIONS AND W ARRANTIES OF S TOCKHOLDER
Stockholder hereby represents and
warrants to Parent 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.]
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
