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EXHIBIT 99.3
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
October 3, 2000, by and between Inverness Medical Technology, Inc., a Delaware
corporation ("Parent"), and the undersigned shareholders (each a "Shareholder"
and collectively, the "Shareholders") of Integ Incorporated, a Minnesota
corporation (the "Company"). Capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger Agreement (as
defined below).
RECITALS
A. Parent, the Company and Terrier Acquisition Corp. a Delaware
corporation and a wholly owned subsidiary of Parent ("MergerCo"), have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for the merger (the "Merger") of the Company with
and into MergerCo. Pursuant to the Merger, shares of common stock of the Company
will be converted into common stock of Parent on the basis described in the
Merger Agreement.
B. As of the date hereof, each Shareholder 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 $.01 per share, of the Company (the "Common
Stock") as set forth opposite such Shareholder's name on Schedule I attached
hereto (the "Shares").
C. The Parent desires each Shareholder to agree, and each Shareholder
is willing to agree, not to transfer or otherwise dispose of any of such
Shareholder's Shares, and to vote, or direct the voting of, the Shares in a
manner so as to facilitate consummation of the Merger, as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. AGREEMENT TO RETAIN SHARES. Other than as provided herein, until the
Expiration Date (as defined below), each Shareholder hereby agrees that he, she
or it shall not hereafter (i) sell, tender, transfer, pledge, encumber, assign
or otherwise dispose of (including without limitation, gift) any of the Shares,
(ii) deposit any Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares or grant any proxy, power of attorney or
authorization in or with respect thereto, (iii) enter into any contract, option
or other agreement, arrangement, understanding or undertaking with respect to
the direct or indirect sale, transfer, pledge, encumbrance, assignment or other
disposition of any Shares, (iv) exercise any Company Options or Company Warrants
prior to the Closing date without the consent of Parent, or (v) take any action
that would make any representation or warranty of such Shareholder contained
herein untrue or incorrect or have the effect of preventing or disabling such
Shareholder from performing such Shareholder's obligations under this
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Agreement. As used herein, the term "Expiration Date" shall mean the earlier to
occur of (A) the Effective Time, (B) the date that the Merger Agreement shall be
terminated in accordance with its terms, or (C) upon mutual agreement of the
parties hereto.
Notwithstanding the foregoing, after the date of approval of the Merger
by the Company's shareholders, a Shareholder may, for tax and estate planning
purposes, transfer (i) a de minimis number of Shares in the open market, or (ii)
Shares provided that (A) such transferee under this clause (ii) agrees to be
bound by the provisions of this Agreement, and (B) such transfer will not cause
this Agreement to be governed by, or in violation of, the proxy solicitation
rules or any federal of state securities law. Any transfer of Shares in
violation hereof shall be void AB INITIO.
2. AGREEMENT TO VOTE SHARES. Each Shareholder, at every meeting of the
shareholders of the Company called with respect to any of the following matters
through the Expiration Date, and at every adjournment thereof, and on every
action or approval by written consent of the shareholders of the Company with
respect to any of the following matters, shall vote the 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) any Acquisition Proposal (as such
term is defined in the Merger Agreement) and (y) any action which would 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 that is considered at any such meeting of shareholders or in
such consent, and in connection therewith to execute any documents that are
necessary or appropriate in order to effectuate the foregoing or, at the request
of Parent, to permit Parent to vote such Shares directly.
3. IRREVOCABLE PROXY. By execution of this Agreement, each Shareholder
does hereby appoint and constitute Parent, until the Expiration Date, with full
power of substitution and resubstitution, as each such Shareholder's true and
lawful attorney and irrevocable proxy, to the full extent of the undersigned's
rights with respect to the Shares, to vote each of such Shares solely with
respect to the matters set forth in Section 2 hereof. Each Shareholder intends
this proxy to be irrevocable and coupled with an interest hereafter until the
Expiration Date and hereby revokes any proxy previously granted by such
Shareholder with respect to the Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER. Each
Shareholder, severally and not jointly, hereby represents, warrants and
covenants to Parent as follows:
4.1 DUE AUTHORITY. Such Shareholder has full power, corporate
or otherwise, and authority to execute and deliver this Agreement and to perform
his, her or its obligations hereunder. This Agreement has been duly executed and
delivered by or on behalf of such Shareholder and constitutes a legal, valid and
binding obligation of each Shareholder, enforceable against such Shareholder in
accordance with its terms.
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4.2 NO CONFLICT; CONSENTS.
(a) The execution and delivery of this Agreement by
such Shareholder do not, and the performance by each Shareholder of the
obligations under this Agreement and the compliance by such Shareholder with any
provisions hereof do not and will not, (i) conflict with or violate, or require
any approval under, any law, statute, rule, regulation, order, writ, judgment or
decree applicable to such Shareholder or the Shares, (ii) conflict with or
violate such Shareholder'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 such Shareholder is a party or by which such
Shareholder or the Shares are bound.
(b) The execution and delivery of this Agreement by
each Shareholder do not, and the performance of this Agreement by such
Shareholder will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority by
such Shareholder except for filings under the HSR Act or 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 such
Shareholder of his or her obligations under this Agreement in any material
respect.
(c) No agreement to which any Shareholder is a party
requires consent of any such Shareholder to the execution, delivery or
performance of the Merger Agreement, the Loan Agreement between Parent and the
Company, or any other agreement entered into by the Company in connection
therewith, except for consent in connection with such Shareholder's status as a
director or as a shareholder of the Company.
4.3 OWNERSHIP OF SHARES. Each Shareholder (i) is the
beneficial owner of the Shares set forth on SCHEDULE I, 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, (ii) does not beneficially own any shares of capital stock of the
Company other than the Shares and (iii) has sole voting power and sole power to
issue instructions with respect to the matters set forth in Sections 1 and 2
hereof, sole power of disposition, sole power of conversion and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares with no limitations, qualifications or restrictions
on such rights, subject to applicable securities laws and the terms of this
Agreement and the Merger Agreement.
4.4 NO SOLICITATIONS. Hereafter until the Expiration Date,
each Shareholder shall not, nor, to the extent applicable to such Shareholder,
permit any of its affiliates to, nor shall it authorize any partner, officer,
director, advisor or representative of, such Shareholder
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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, (ii) enter into any agreement with respect to an
Acquisition 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 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
shareholders' vote or action by consent of the Company's shareholders with
respect to an Acquisition Proposal, or (v) become a member of a "group" (as 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.
5. NO FINDER'S FEES. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of each Shareholder.
6. FURTHER ASSURANCES. From time to time, at the Parent's request and
without further consideration, each Shareholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
7. INTENTIONALLY OMITTED.
8. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
9. STOP TRANSFER. The Shareholders shall not request that the Company
register the transfer of any certificate or uncertificated interest representing
any of the Shares, unless such transfer is made in compliance with this
Agreement.
10. MISCELLANEOUS.
10.1 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.
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10.2 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.
10.3 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.
10.4 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 Minnesota, 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.
10.5 NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or sent if delivered personally or sent
by cable, telegram, telecopier or telex or sent by prepaid overnight carrier to
the parties at the following addresses:
(a) if to Parent:
200 Prospect Street
Waltham, Massachusetts 02453
Attn: Chief Executive Officer
Telecopy No.: (781) 647-3939
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attn: Stephen W. Carr, P.C.
Scott F. Duggan, Esq.
Telecopy No.: (617) 523-1231
(b) If to Shareholder:
To the address for notice set forth on the
last page hereof;
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with a copy to:
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
Attn: Kenneth L. Cutler
Telecopier No.: (612) 340-8738
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.
10.6 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
jurisdiction of the courts of the State of Minnesota and of the United States of
America located in such state (the "Minnesota Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby and waive any objection to the laying of venue of any such litigation in
the Minnesota Courts and agree not to plead or claim in any Minnesota Court that
such litigation brought therein has been brought in any inconvenient forum.
10.7 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.
10.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
10.9 EFFECT OF HEADINGS. The section headings herein are for
convenience of reference only and shall not limit or affect the meaning hereof.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date and year first above written.
INVERNESS MEDICAL
TECHNOLOGY, INC.
By: /s/ Ron Zwanziger
------------------------------
Name: Ron Zwanziger
Title: Chief Executive Officer
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
MEDICAL INNOVATION FUND
By: /s/ Timothy I. Maudlin
-----------------------------------
Name: Timothy I. Maudlin
Title: General Partner of
Medical Innovation Partners,
its General Partner
Shareholder's Address for Notice:
6450 City West Parkway
Suite 508
Eden Prairie, MN 55344
MEDICAL INNOVATION FUND II
By: /s/ Timothy I. Maudlin
-----------------------------------
Name: Timothy I. Maudlin
Title: General Partner of
Medical Innovation Partners II,
its General Partner
Shareholder's Address for Notice:
6450 City West Parkway
Suite 508
Eden Prairie, MN 55344
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/s/ S.L. Critzer
-------------------------------
Susan L. Critzer
/s/ Mark B. Knudson
-------------------------------
Mark B. Knudson, Ph.D.
/s/ Robert B. Nickoloff
-------------------------------
Robert B. Nickoloff
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/s/ Susan Knudson
-------------------------------
Susan Knudson
KNUDSON FAMILY LIMITED
PARTNERSHIP
By: /s/ Mark B. Knudson
-------------------------------
Name: Mark B. Knudson, Ph.D.
Title: President
MEDICAL INNOVATION PARTNERS
By: /s/ Timothy I. Maudlin
-------------------------------
Name: Timothy I. Maudlin
Title: General Partner
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MEDICAL INNOVATION PARTNERS II
By: /s/ Timothy I. Maudlin
-------------------------------
Name: Timothy I. Maudlin
Title: General Partner
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By: /s/ Frank Bennett
-------------------------------
Name: Frank Bennett
By: /s/ Winston Wallin
-------------------------------
Name: Winston Wallin
By: /s/ Walter Sembrowich
-------------------------------
Name: Walter Sembrowich
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SCHEDULE I
<TABLE>
<CAPTION>
Number of Shares of Common Stock
Name of Shareholders of Target Beneficially Owned
-------------------- --------------------------------
<S> <C>
Susan L. Critzer 76,060
Mark B. Knudson 170,802
Susan Knudson 25,000
Knudson Family Limited Partnership 54,000
Robert Nickoloff 57,187
Medical Innovation Fund 532,927
Medical Innovation Fund II 486,161
Medical Innovation Partners 1,750
Medical Innovation Partners II 1,500
Frank Bennett 40,985
Winston Wallin 50,000
Walter Sembrowich 20,000
Total 1,516,372
Total
</TABLE>
