Exhibit 99.2
VOTING
AGREEMENT
THIS VOTING AGREEMENT
(this “ Agreement
”) is made and entered into as of June 20, 2005, by and
among Clinical Data, Inc., a Delaware corporation (“
Clinical Data ”), Genaissance
Pharmaceuticals, Inc., a Delaware corporation (the “
Company ”), Randal J. Kirk (“ Kirk
”), RJK, L.L.C., a Virginia limited liability company that is
controlled by Kirk (“ RJK ”), New River
Management II, LP, a Virginia limited partnership that is
controlled by Kirk (“ New River ”), Kirkfield,
L.L.C., a Virginia limited liability company that is controlled by
Kirk (“ Kirkfield ”), Third Security Staff 2001
LLC, a Virginia limited liability company (“ Staff LLC
”), and Zhong Mei, L.L.C., a Virginia limited liability
company (“ Zhong Mei ”, and collectively with
Kirk, RJK, New River, and Staff LLC, the “
Stockholders ”, and each individually, a “
Stockholder ”).
WHEREAS , as of the date hereof, each Stockholder
beneficially owns (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder) the
number of shares of common stock, $0.01 par value (the “
Common Stock ”) of Clinical Data set forth opposite
such Stockholder’s name on Schedule A hereto
(such shares of Clinical Data’s Common Stock, together with
any other shares of Clinical Data’s Common Stock, sole or
shared voting power over which is acquired by such Stockholders
during the period from and including the date hereof through and
including the date on which this Agreement is terminated in
accordance with its terms, collectively, the “ Subject
Common Shares ”);
WHEREAS , Clinical Data and the Company are entering
into an Agreement and Plan of Merger, dated as of the date hereof
(as the same may be amended or supplemented, the “ Merger
Agreement ”) (terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) with respect
to the merger of a subsidiary of Clinical Data with and into the
Company, as a result of which the Company shall become a wholly
owned subsidiary of Clinical Data (the “ Merger
”); and
WHEREAS , as a condition to its willingness to enter
into the Merger Agreement, the Company has required that the
Stockholders enter into this Agreement whereby each Stockholder
commits to cause the Subject Common Shares over which such
Stockholder has sole voting power, and to use its best efforts to
cause the Subject Common Shares over which such Stockholder has
joint voting power, to be voted in favor of the issuance of shares
of Clinical Data’s Common Stock pursuant to the Merger on the
terms and subject to the conditions of this Agreement.
NOW, THEREFORE
, in consideration of the foregoing
and the respective representations, warranties, covenants and
agreements contained in this Agreement and intending to be legally
bound, the parties agree as follows:
ARTICLE I
VOTING MATTERS
Section 1.1
Agreement to Vote
. Each Stockholder hereby
agrees that from and after the date hereof until the termination of
this Agreement, at any duly called meeting of the
stockholders of Clinical Data, and in any action
by written consent of the stockholders of Clinical Data, such
Stockholder shall, if a meeting is held, appear at the meeting and
any adjournment or postponement thereof, in person or by proxy, or
otherwise cause the Subject Common Shares over which such
Stockholder has sole voting power (and use their best efforts to
cause the Subject Common Shares over which such Stockholder has
joint voting power) to be counted as present thereat for purposes
of establishing a quorum, and such Stockholder shall vote or
consent the Subject Common Shares over which such Stockholder has
sole voting power (and cause to be voted or consented the Subject
Common Shares over which such Stockholder has joint voting power),
in person or by proxy, (a) in favor of approving the issuance
of shares of Clinical Data’s Common Stock pursuant to the
Merger and each of the other transactions and other matters
specifically contemplated by the Merger Agreement, (b) in
favor of any proposal to adjourn any such meeting if necessary to
permit further solicitation of proxies in the event there are not
sufficient votes at the time of such meeting to approve the
issuance of shares of Clinical Data’s Common Stock pursuant
to the Merger, (c) against any action or agreement submitted
for approval of the stockholders of Clinical Data that would result
in a breach of any covenant, representation or warranty or any
other obligation or agreement of Clinical Data under the Merger
Agreement or of such Stockholder under this Agreement and
(d) except as otherwise agreed in writing by the Company,
against any action, agreement, transaction or proposal submitted
for approval of the stockholders of Clinical Data that would
reasonably be expected to result in any of the conditions to
Clinical Data’s obligations under the Merger Agreement not
being fulfilled or that is intended, or would reasonably be
expected, to prevent, impede, interfere with, delay or adversely
affect the transactions contemplated by the Merger Agreement.
Any vote by such Stockholder that is not in accordance with this
Section 1.1 shall be considered null and void. Such
Stockholder shall not enter into any agreement or understanding
with any person or entity prior to the termination of this
Agreement to vote or give instructions in a manner inconsistent
with clauses (a), (b), (c) or (d) of this
Section 1.1.
Section 1.2
Grant of Irrevocable
Proxy .
(a)
Each Stockholder hereby irrevocably
grants to, and appoints, the Company and Kevin Rakin, in his
capacity as Chief Executive Officer of the Company, and any
individual who shall hereafter succeed to any such office of the
Company, such Stockholder’s proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead
of such Stockholder, to vote the Subject Common Shares, or grant a
consent or approval in respect of the Subject Common Shares
(i) in favor of approving the issuance of shares of Clinical
Data’s Common Stock pursuant to the Merger and each of the
other transactions and other matters specifically contemplated by
the Merger Agreement, (ii) in favor of any proposal to adjourn
any such meeting if necessary to permit further solicitation of
proxies in the event there are not sufficient votes at the time of
such meeting to approve the issuance of shares of Clinical
Data’s Common Stock pursuant to the Merger,
(iii) against any action or agreement submitted for approval
of the stockholders of Clinical Data that would result in a breach
of any covenant, representation or warranty or any other obligation
or agreement of Clinical Data under the Merger Agreement or of such
Stockholder under this Agreement and (iv) except as otherwise
agreed in writing by the Company, against any action, agreement,
transaction or proposal submitted for approval of the stockholders
of Clinical Data that would reasonably be expected to result in any
of the conditions to Clinical Data’s obligations under the
Merger Agreement not
being fulfilled or that is intended, or would
reasonably be expected, to prevent, impede, interfere with, delay
or adversely affect the transactions contemplated by the Merger
Agreement.
(b)
Each Stockholder represents that any
proxies heretofore given in respect of the Subject Common Shares
are not irrevocable, and that any such proxies are hereby
revoked.
(c)
Each Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 1.2 is given
in connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the
duties of such Stockholder under this Agreement. Each
Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest sufficient in law to support an
irrevocable voting power and may under no circumstances be
revoked. Each Stockholder hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with
Section 212(e) of the General Corporation Law of the
State of Delaware. Notwithstanding anything herein to the
contrary, the parties agree that such irrevocable proxy shall
terminate and be of no further force and effect upon the
termination of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each of the Stockholders hereby
severally represents and warrants to the Company as follows with
respect to itself only:
Section 2.1
Organization, Good Standing and
Qualification . If
such Stockholder is a business organization, such Stockholder has
been duly formed, validly existing and in good standing under the
laws of the Commonwealth of Virginia and has all requisite power
and authority to own its properties and assets and to carry on its
business as now conducted. If such Stockholder is a natural
person, such Stockholder has the capacity to enter into this
Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated by this Agreement.
Section 2.2
Authority . Each Stockholder has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes
the valid and legally binding obligation of such Stockholder,
enforceable in accordance with its terms and conditions.
Section 2.3
Consent . No consent of any other person, and no
notice to, filing or registration with, or consent, approval or
authorization of, any court or Governmental Entity, regulatory or
self-regulatory agency or any other third party is necessary or is
required to be made or obtained by such Stockholder, in connection
with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, other than a
filing with the Securities and Exchange Commission to amend the
Stockholder’s Schedule 13D relating to Clinical
Data. Stockholder represents that his spouse has no
beneficial interest in the Subject Common Shares.
Section 2.4
Noncontravention
. Neither the execution and
the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any law,
rule, regulation, judgment, order or decree to which such
Stockholder is subject, (ii) violate any contract, lease,
license, instrument or other legally binding arrangement or
agreement to which such Stockholder is a party or by which such
Stockholder is bound, or (iii) conflict with, result in a
breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify
or cancel or require any notice under any agreement, contract,
lease, license, instrument or other legally binding arrangement or
agreement to which such Stockholder is a party or by which it is
bound.
Section 2.5
Ownership of Shares
. Except as set forth on
Schedule A hereto, such Stockholder holds of record and
owns beneficially and will hold of record and own beneficially
through the date this Agreement is terminated pursuant to
Section 5.1 herein the Subject Common Shares, free and clear
of any restrictions on transfer (other than restrictions under
applicable securities laws), Liens, options, warrants, purchase
rights, contracts, commitments, equities, claims and demands,
except as provided in this Agreement. Schedule A
hereto lists all of the shares of Common Stock that such
Stockholder owns beneficially, as of the date hereof. Such
Stockholder has not appointed or granted any proxy inconsistent
with this Agreement, which
