Exhibit 99.3
VOTING
AGREEMENT
THIS VOTING AGREEMENT
(this “ Agreement
”) is made and entered into as of June 20, 2005, by and
among Genaissance Pharmaceuticals, Inc., a Delaware
corporation (the “ Company ”), Clinical
Data, Inc., a Delaware corporation (“ Clinical
Data ”), and RAM Trading, Ltd., a Cayman Islands exempted
company (the “ Stockholder ”).
WHEREAS , as of the date hereof, the 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) all of
the outstanding shares of Series A Preferred Stock, $0.001 par
value (the “ Company Series A Preferred Stock
”) of the Company (such shares of Series A Preferred
Stock, together with any other shares of the Company Series A
Preferred Stock, sole or shared voting power over which is acquired
by such Stockholder 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 Preferred 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 an acquisition 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”);
WHEREAS , as a condition to its willingness to enter
into the Merger Agreement, Clinical Data has required that the
Stockholder enter into this Agreement whereby the Stockholder
commits to cause the Subject Preferred Shares over which the
Stockholder has sole voting power, and to use its best efforts to
cause the Subject Preferred Shares over which the Stockholder has
joint voting power, to be voted in favor of the Merger on the terms
and subject to the conditions of this Agreement; and
WHEREAS , as a condition to its willingness to enter
into this Agreement, the Stockholder has required that Clinical
Data also enter into this Agreement whereby Clinical Data commits
to cause the Merger Agreement to provide that all of the shares of
the Company Series A Preferred Stock owned by the Stockholder
will convert into that number of shares of the Series A
Preferred Stock, $.01 par value per share (the “ Clinical
Data Series A Preferred Stock ”), of Clinical Data
calculated in accordance with the terms of Exhibit C to
the Merger Agreement with such rights, preferences and privileges
as set forth therein, and with such other rights, including
registration rights as may be agreed upon by Clinical Data and the
Stockholder.
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
. The Stockholder hereby
agrees that, provided that Clinical Data is in compliance with
Section 2.1 of this Agreement, from and after the date hereof
until the termination of this Agreement, at any duly called meeting
of the stockholders of the Company, and in any action by written
consent of the stockholders of the Company, the 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 Preferred Shares over which the Stockholder has sole voting
power (and use its best efforts to cause the Subject Preferred
Shares over which the 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 Preferred
Shares over which the Stockholder has sole voting power (and cause
to be voted or consented the Subject Preferred Shares over which
the Stockholder has joint voting power), in person or by proxy,
(a) in favor of approving the Merger Agreement, 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 Merger Agreement,
(c) against any action or agreement submitted for approval of
the stockholders of the Company that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of the
Stockholder under this Agreement and (d) except as otherwise
agreed in writing by Clinical Data, against any action, agreement,
transaction or proposal submitted for approval of the stockholders
of the Company that would reasonably be expected to result in any
of the conditions to the Company’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 the Stockholder that is not in
accordance with this Section 1.1 shall be considered null and
void. The 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)
The Stockholder hereby irrevocably
grants to, and appoints, Clinical Data and Israel Stein, M.D., in
his capacity as Chief Executive Officer of Clinical Data, and any
individual who shall hereafter succeed to any such office of
Clinical Data, the Stockholder’s proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and
stead of Stockholder, to vote the Subject Preferred Shares, or
grant a consent or approval in respect of the Subject Preferred
Shares (i) in favor of approving the Merger Agreement, 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 Merger
Agreement, (iii) against any action or agreement
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submitted for approval of the stockholders of
the Company that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or of the Stockholder under
this Agreement and (iv) except as otherwise agreed in writing
by Clinical Data, against any action, agreement, transaction or
proposal submitted for approval of the stockholders of the Company
that would reasonably be expected to result in any of the
conditions to the Company’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)
Stockholder represents that any
proxies heretofore given in respect of the Subject Preferred Shares
are not irrevocable, and that any such proxies are hereby
revoked.
(c)
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. 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. 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
COVENANTS OF CLINICAL
DATA
Section 2.1
Agreement to Provide Conversion
Ratio . Clinical
Data hereby agrees that Clinical Data shall cause the Merger
Agreement to provide that all of the shares of the Company
Series A Preferred Stock owned by the Stockholder will convert
into that number of shares of Clinical Data Series A Preferred
Stock calculated in accordance with the terms of
Exhibit C to the Merger Agreement with such rights,
preferences and privileges as set forth therein, and with such
other rights, including registration rights as may be agreed upon
by Clinical Data and the Stockholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents
and warrants to Clinical Data as follows:
Section 3.1
Organization, Good Standing and
Qualification . The
Stockholder is an exempted company duly formed, validly existing
and in good standing under the laws of the Cayman Islands and has
all requisite corporate power and authority to own its properties
and assets and to carry on its business as now
conducted.
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Section 3.2
Authority . The 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 the Stockholder and constitutes
the valid and legally binding obligation of the Stockholder,
enforceable in accordance with its terms and conditions.
Section 3.3
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 the 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 the
Company.
Section 3.4
Noncontravention
. Neither the execution and
the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate the
organizational documents of the Stockholder or any law, rule,
regulation, judgment, order or decree to which the Stockholder is
subject, (ii) violate any contract, lease, license, instrument
or other legally binding arrangement or agreement to which the
Stockholder is a party or by which the 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 the
Stockholder is a party or by which it is bound or to which any of
its assets is subject.
Section 3.5
Ownership of Shares
. The Stockholder holds of
record and owns beneficially
