Exhibit 10.2
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made and entered into as of April 16,
2004, by and between the stockholder identified on the signature
page hereto (the “ Stockholder ”) and SeraCare
Life Sciences, Inc., a California corporation (“ Buyer
”).
RECITALS
WHEREAS, Buyer and Boston Biomedica Inc., a Massachusetts
corporation (“ Parent ”) are parties to that
certain Asset Purchase Agreement dated as of April 16, 2004 (the
“ Purchase Agreement ”) by and among Buyer,
Parent and BBI Biotech Research Laboratories, Inc., a Massachusetts
corporation. In order to induce Buyer to enter into the Purchase
Agreement, the Stockholder has entered into this Agreement with
Buyer. The Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”)) of such number of shares of
the outstanding Common Stock, $0.01 par value per share, of Parent
as is indicated on the final page of this Agreement (the “
Shares ”).
AGREEMENT
NOW THEREFORE,
for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Agreement to Retain
Shares .
(a) Transfer and
Encumbrance . The Stockholder agrees not to (i) transfer
(which term shall include, without limitation, any sale, exchange,
assignment, gift, pledge, hypothecation or other disposition), or
consent to any transfer of, any or all of the Shares or any New
Shares (as such term is defined in Section 1(b)) or any interest
therein, or otherwise dispose of or create or permit to exist any
lien on such shares; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or
all of such shares or any interest therein; (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such
shares; (iv) deposit such shares into a voting trust or enter into
a voting agreement or arrangement with respect to such shares; or
(v) take any other action that would in any way restrict, limit or
interfere with the performance of the Stockholder’s
obligations hereunder or the transactions contemplated hereby or by
the Purchase Agreement, at any time prior to the Expiration Date.
Buyer acknowledges that the Shares have been pledged by the
Stockholder to (i) Commerce Bank & Trust Company (“
Commerce Bank ”) as collateral security for a loan
from Commerce Bank to the Stockholder (the “ Commerce Bank
Pledge ”); and (ii) Parent as a second in priority lien
subject to the Commerce Bank Pledge as collateral security for a
loan from Parent to the Stockholder (the “ Parent
Pledge ”). Commerce Bank has confirmed, by letter dated
April 15, 2004 to Buyer that Commerce Bank will not take any
actions under the Commerce Bank Pledge to limit, stop or otherwise
interfere with Buyer’s right to vote the Shares hereunder. In
addition, Parent has confirmed by letter dated April 16, 2004 to
Buyer that Parent will not take any actions under the Parent Pledge
to limit, stop or otherwise interfere with Buyer’s right to
vote the Shares hereunder. As used herein, the term “
Expiration Date ” shall mean the earlier to occur of
(i) the Closing (as such term is defined in the Purchase
Agreement), or (ii) the date of termination of the Purchase
Agreement.
(b) New Shares . The
Stockholder agrees that any shares of capital stock of Parent that
the Stockholder purchases or with respect to which the Stockholder
otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date (“ New
Shares ”) shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted
Shares.
2. Agreement to Vote
Shares . Prior to the Expiration Date, at every meeting of
the stockholders of Parent called with respect to any of the
following, and at every adjournment thereof, and on every action or
approval by written consent of the stockholders of Parent with
respect to any of the following, the Stockholder shall vote the
Shares and any New Shares (to the extent such New Shares have
voting rights) (i) in favor of approval of the Purchase Agreement
and any matter necessary to facilitate the consummation of the
Purchase Agreement and all transactions contemplated thereby, and
(ii) against any Acquisition Proposal (as such term is defined in
the Purchase Agreement), or any other action or agreement that
would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Parent under the
Purchase Agreement or which could reasonably be expected to result
in any of the conditions to Parent’s obligations under the
Purchase Agreement not being fulfilled; provided, however, that the
Stockholder shall not be required to vote the Shares and any New
Shares in favor of approval of the matters identified in clause (i)
or against the matters identified in clause (ii) of this Section 2
if (A) a Superior Offer (as such term is defined in the Purchase
Agreement) is made after the date of this Agreement, and (B) in
response to such Superior Offer the Board of Directors of Parent
withholds, withdraws, amends or modifies its recommendation in
favor of the Stockholder Approval Matters (as such term is defined
in the Purchase Agreement) in a manner materially adverse to Buyer
because the Board of Directors of Parent has reasonably concluded
in good faith, after consultation with its outside counsel, that
the failure to withhold, withdraw, amend or modify such
recommendation would violate its fiduciary obligations under
applicable law.
3. Irrevocable Proxy; Power of
Attorney . Without limiting the generality of the
foregoing, the Stockholder hereby irrevocably constitutes and
appoints Buyer or its designee as its attorney and proxy, with full
power of substitution and re-substitution to vote the
Stockholder’s Shares and any New Shares (to the extent such
New Shares have voting rights) for and in the name, place and stead
of the Stockholder at any meeting and at any adjournment thereof,
or pursuant to any written consent of stockholders of Parent, in
accordance with the agreements set forth in Section 2 hereof. This
proxy and power of attorney is irrevocable (at all times prior to
the Expiration Date) and coupled with an interest. The Stockholder
hereby revokes all other proxies and power of attorney with respect
to the Shares and/or any New Shares that it may have heretofore
appointed or granted, and no subsequent proxy or power of attorney
shall be granted (and if granted, shall not be effective) by the
Stockholder with respect thereto. Concurrently with the execution
of this Agreement, the Stockholder agrees to deliver to Buyer a
proxy (the form of which is attached hereto as Schedule 1 ,
the “ Proxy ”), covering the total number of
Shares and New Shares beneficially owned or as to which beneficial
ownership is acquired (as such term is defined in Rule 13d-3 under
the Exchange Act) by the Stockholder.
2
4. No Solicitation
.
(a) No Solicitation or
Negotiation . Except as set forth in this Section 4, prior to
the Expiration Date, the Stockholder shall not, nor shall the
Stockholder authorize or permit Parent or any of Parent’s
subsidiaries or any of Parent’s or Parent’s
subsidiaries’ respective directors, officers, employees,
affiliates, investment bankers, attorneys, accountants or other
advisors or representatives (such subsidiaries, directors,
officers, employees, investment bankers, attorneys, accountants,
other advisors and representatives, collectively, “
Stockholder Representatives ”) to directly or
indirectly:
(i) solicit, initiate, encourage or
induce the making, submission or announcement of any Acquisition
Proposal;
(ii) participate in any discussions
or negotiations regarding, or furnish to any person any non-public
information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition
Proposal;
(iii) engage in discussions with any
person with respect to any Acquisition Proposal;
(iv) approve, endorse or recommend
any Acquisition Proposal; or
(v) enter into any letter of intent
or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Acquisition Transaction
(as defined in the Purchase Agreement); provided, however, that
Stockholder may, solely in the Stockholder’s capacity as a
Representative (as such term is defined in the Purchase Agreement)
of Parent, take such actions as may be permitted under Section
6.2(a) of the Purchase Agreement, but only if the conditions set
forth in Section 6.2(a) for such actions have been
satisfied.
The Stockholder agrees that any violation of the
restrictions set forth in this Section 4 by any Stockholder
Representative or any affiliate of the Stockholder or any
Stockholder Representative, whether or not such Person is
purporting to act on behalf of the Stockholder, shall constitute a
breach by the Stockholder of this Section 4.
(b) Notices; Additional
Negotiations . In addition to the obligations of the
Stockholder set forth in paragraph (a) of this Section 4, prior to
the Expiration Date, the Stockholder shall advise Buyer orally and
in writing within 24 hours of the receipt thereof, of any request
received by the Stockholder or any Stockholder Representatives (if
the Stockholder is aware of such request) for nonpublic information
which the Stockholder reasonably believes would lead to an
Acquisition Proposal or of any Acquisition Proposal, or any inquiry
received by the Stockholder or any Stockholder Representatives (if
the Stockholder is aware of such request) with respect to, or which
the Stockholder reasonably believes would le
