EXHIBIT 99.1
FORM OF VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
July 17, 2002, by and between Harvard Bioscience, Inc., a Delaware corporation
("Parent"), and the undersigned stockholder (the "Stockholder") of Genomic
Solutions Inc., a Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company
and HAG Acq. Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Mergerco"), have entered into an Agreement and Plan of Merger (the
"Merger Agreement") which provides for the merger (the "Merger") of Company with
and into Mergerco. Pursuant to the Merger, shares of common stock of the Company
will be converted into common stock of Parent and cash on the basis described in
the Merger Agreement.
B. The Stockholder is the record holder and 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,
par value $.001 per share, of the Company as is indicated on the final page
of this Agreement (the "Shares").
C. Parent desires, as a condition to entering into the Merger Agreement,
the Stockholder to agree, and the Stockholder is willing to agree, not to
transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of the Company acquired hereunder and prior to the Expiration Date
(as defined in Section 1.1 below, except as otherwise permitted hereby), and to
vote the Shares and any other such shares of capital stock of the Company in a
manner so as to facilitate consummation of the Merger, as provided herein.
NOW, THEREFORE, intending to be legally bound and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Other than as provided herein, until the
Expiration Date, Stockholder shall not hereafter (a) sell, tender, transfer,
pledge, encumber, assign or otherwise dispose of any of the Shares or New Shares
(as defined in Section 1.2 below), (b) deposit any Shares or New Shares into a
voting trust or enter into a voting agreement or arrangement with respect to
such Shares or New Shares or grant any proxy or power of attorney with respect
thereto, (c) enter into any contract, option or other arrangement or undertaking
with respect to the direct or indirect sale, transfer, pledge, encumbrance,
assignment or other disposition of any Shares or New Shares, or (d) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling
Stockholder from performing Stockholder's obligations under this Agreement. As
used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time (as defined in the Merger Agreement);
and (ii) such date and time as the Merger Agreement shall be terminated pursuant
to Article IX thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution 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. During the term hereof, at every meeting of
the stockholders of the Company called with respect to any of the following
matters, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of the Company with respect to any of the
following matters, Stockholder, in his, her or its capacity as such, shall vote
the Shares and any New Shares: (i) in favor of approval of the Merger Agreement
and the Merger and any matter necessary for consummation of the Merger; (ii)
against (x) approval of any Acquisition Proposal (including, without limitation,
any Superior Proposal) (each as defined in the Merger Agreement) and (y) any
proposal for any action or agreement 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 which could result in any of the
conditions of the Company's obligations under the Merger Agreement not being
fulfilled, and (z) any action which could reasonably be expected to impede,
interfere with, delay, postpone or materially adversely affect consummation of
the transactions contemplated by the Merger Agreement; and (iii) in favor of any
other matter necessary for consummation of the transactions contemplated by the
Merger Agreement which is considered at any such meeting of stockholders or in
such consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing or, at the request
of Parent, to permit Parent to vote such Shares and New Shares directly.
3. IRREVOCABLE PROXY. By execution of this Agreement, Stockholder does
hereby appoint and constitute Parent, until the Expiration Date, with full power
of substitution and resubstitution, as Stockholder's true and lawful attorney
and irrevocable proxy, to the full extent of the undersigned's rights with
respect to the Shares and any New Shares, to vote each of such Shares and New
Shares solely with respect to the matters set forth in Section 2 hereof.
Stockholder intends this proxy to be irrevocable and coupled with an interest
hereafter until the Expiration Date and hereby revokes any proxy previously
granted by Stockholder with respect to the Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to Parent as follows:
4.1 DUE AUTHORITY. Stockholder has full power, corporate or otherwise,
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly executed and delivered by or
on behalf of Stockholder and constitutes a legal, valid and binding obligation
of Stockholder, enforceable against
2
Stockholder in accordance with its terms. The Stockholder has not granted any
proxies relating to, transferred any intrests in or otherwise granted any rights
with respect to, the Shares.
4.2 NO CONFLICT; CONSENTS. (a) The execution and delivery of this
Agreement by Stockholder do not, and the performance by Stockholder of the
obligations under this Agreement and the compliance by Stockholder with any
provisions hereof do not and will not, (i) conflict with or violate any law,
statute, rule, regulation, order, writ, judgment or decree applicable to
Stockholder or the Shares, (ii) conflict with or violate Stockholder's charter,
bylaws, partnership agreement or other organizational documents, if applicable,
or (iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Shares pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Stockholder is a party or
by which Stockholder or the Shares are bound.
(b) The execution and delivery of this Agreement by Stockholder do
not, and the performance of this Agreement by Stockholder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority by Stockholder except for
applicable requirements, if any, of the Exchange Act, and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not prevent or delay the performance
by Stockholder of his or her obligations under this Agreement in any material
respect.
4.3 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof are, and at all times up until the
Expiration Date will be, free and clear of any liens, claims, options, charges,
proxies or voting restrictions or other encumbrances (except such encumbrances,
proxies and voting restrictions as are created in this Agreement) and (ii) does
not beneficially own any shares of capital stock of the Company other than the
Shares.
4.4 NO SOLICITATIONS. Hereafter until the Expiration Date, Stockholder
shall not, nor, to the extent applicable to Stockholder, shall it permit any of
its affiliates to, nor shall it authorize any partner, officer, director,
advisor or representative of, Stockholder or any of its affiliates to, (i)
solicit, initiate or knowingly encourage the submission of, any inquiries,
proposals or offers from any person relating to an Acquisition Proposal
(including,without limitation, any Superior Proposal), (ii) enter into any
agreement with respect to an Acquisition Proposal (including, without
limitation, any Superior Proposal), (iii) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Acquisition Proposal
(including,without limitation, any Superior Proposal) or otherwise encourage or
assist any party in taking or planning any action that would compete with,
restrain or otherwise serve to interfere with or inhibit the timely consummation
of the Merger in accordance with the terms of the Merger Agreement, (iv)
initiate a stockholders' vote or action by consent of the Company's stockholders
with respect to an Acquisition Proposal (including,without limitation, any
Superior Proposal), or (v) become a member of a "group" (as
3
such term is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of the Company that takes any action in support of an
Acquisition Proposal (including,without limitation, any Superior Proposal);
provided, that Stockholder may take any such actions otherwise prohibited by
this Section 4.4, to the extent the Company is permitted to engage in such
actions pursuant to Section 7.1 of the Merger Agreement.
5. NO LIMITATION ON DISCRETION AS DIRECTOR. Notwithstanding anything herein
to the contrary, the covenants and agreements set forth herein shall not prevent
Stockholder or its representatives or designees who are serving on the Board of
Directors of the Company from exercising its or their duties and obligations as
a Director of the Company or otherwise taking any action, subject to the
applicable provisions of the Merger Agreement, while acting in such capacity as
a director of the Company (it being understood that this Agreement shall apply
to Stockholder solely in Stockholder's capacity as a stockholder of the
Company).
6. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Parent to carry out the intent of the Agreement.
7. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
8. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
9. MISCELLANEOUS.
9.1 SEVERABILITY. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
9.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
party without the prior written consent of the other.
4
9.3 AMENDMENTS AND MODIFICATIONS. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
9.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to any such remedy are hereby waived.
9.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile (with confirmation of receipt), or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as follows:
If to Parent: Harvard Bioscience, Inc.
84 October Hill Road
Holliston, MA 01347
Attention: President
Fax No.: (508) 429-8478
with a copy to: Goodwin Procter LLP
Exchange Place
Boston, MA 02109
Attention: H. David Henken, P.C.
Fax No.: (617) 523-1231
If to the Stockholder: To the address for notice set forth
on the last page hereof
with a copy to: ___________________________
___________________________
___________________________
___________________________
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective upon receipt.
9.6 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
Delaware without regard to its rules of conflict of laws. The parties hereto
hereby irrevocably and unconditionally consent to and submit to the exclusive
jurisdiction of the courts of the State of
5
Delaware and of the United States of America located in such state (the
"Delaware Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agree not to commence
any litigation relating thereto except in such courts), waive any objection to
the laying of venue of any such litigation in the Delaware Courts and agree not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in any inconvenient forum.
9.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
9.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
9.10 NO AGREEMENT UNTIL EXECUTED. Irrespective of negotiations among
the parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties hereto unless and until (i) the Board of
Directors of the Company has approved, for purposes of Section 203 of the
Delaware General Corporation Law and any applicable provision of the Company's
Articles of Incorporation, the possible acquisition of the Shares by Parent
pursuant to this Agreement, (ii) the Merger Agreement is executed by all parties
thereto, and (iii) this Agreement is executed by all parties hereto.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
PARENT:
By:_______________________________________
Name:
Title:
STOCKHOLDER:
By:_______________________________________
Name:
Title:
Stockholder's Address for Notice:
-----------------------------------
-----------------------------------
-----------------------------------
Shares beneficially owned:
__________ shares of Common Stock of
Company
7