VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of February 28, 1999, by and among
GILEAD SCIENCES, INC., a Delaware corporation ("Parent"), and WARBURG, XXXXXX
CAPITAL PARTNERS LIQUIDATING TRUST (the "Trust").
RECITALS
A. Parent, Gazelle Acquisition Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and NeXstar Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), are entering into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement") which provides
(subject to the conditions set forth therein) for the merger of Merger Sub into
the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, the Trust and the Trustees are entering into this Voting Agreement on
behalf of the Trust.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, par value
$.01 per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated, or (ii) the date upon which
the Merger becomes effective.
(c) The Trustees shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if any of the Trustees or the Trust: (i) is the record
owner of such security; or (ii) is the "beneficial owner" (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership, trust or other entity, or (iii) governmental
authority.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common
Stock and all options, warrants and other rights to acquire shares of Company
Common Stock) Owned by the Trust as of the date of this Voting Agreement; and
(ii) all additional securities of the Company (including all additional shares
of Company Common Stock and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which the Trust acquires Ownership
during the period from the date of this Voting Agreement through the Expiration
Date.
(f) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers, distributes or disposes of such
security or any interest in such security; or (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES.
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS VOTING AGREEMENT.
During the period from the date of this Voting Agreement through the Expiration
Date, the Trust shall not cause or permit any Transfer of any of the Subject
Securities to be effected (whether to the beneficiaries of the Trust or to any
other Person or Persons) unless each Person to which any of such Subject
Securities, or any interest in any of such Subject Securities, is or may be
Transferred shall have: (a) executed a counterpart of this Voting Agreement and
a proxy in the form attached hereto as Exhibit A (with such modifications as
Parent may reasonably request); and (b) agreed to hold such Subject Securities
(or interest in such Subject Securities) subject to all of the terms and
provisions of this Voting Agreement.
2.2 NO TRANSFER OF VOTING RIGHTS. The Trust shall ensure that, during the
period from the date of this Voting Agreement through the Expiration Date: (a)
none of the Subject Securities is deposited into a voting trust; and (b) no
proxy is granted, and no voting agreement or similar agreement is entered into,
with respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES.
3.1 VOTING AGREEMENT. During the period from the date of this Voting
Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company, however called,
the Trust shall (unless otherwise directed in writing by Parent) cause all
outstanding shares of Company Common Stock that are Owned by the Trust as
of the record date fixed for such meeting to be voted in favor of the
approval and adoption of the Merger Agreement and the
2
approval of the Merger, and in favor of each of the other actions
contemplated by the Merger Agreement; and
(b) in the event written consents are solicited or otherwise sought
from stockholders of the Company with respect to the approval or adoption
of the Merger Agreement, with respect to the approval of the Merger or with
respect to any of the other actions contemplated by the Merger Agreement,
the Trust shall (unless otherwise directed in writing by Parent) cause to
be validly executed, with respect to all outstanding shares of Company
Common Stock that are Owned by the Trust as of the record date fixed for
the consent to the proposed action, a written consent or written consents
to such proposed action.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement:
(i) the Trust shall deliver to Parent a proxy in the form attached to this
Voting Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) the Trust shall cause to be delivered to Parent an additional proxy (in
the form attached hereto as Exhibit A) executed on behalf of the record owner of
any outstanding shares of Company Common Stock that are owned beneficially
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934),
but not of record, by the Trust.
(b) The Trust shall, at the expense of the Trust, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Parent the power to carry out and give effect
to the provisions of this Voting Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS.
The Trust hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that the Trust or any other Person may have by virtue of the
ownership of any Subject Securities.
SECTION 5. NO SOLICITATION.
During the period from the date of this Voting Agreement through the
Expiration Date, the Trust shall not, nor shall it authorize or permit any
Representative or beneficiary of the Trust to, directly or indirectly: (i)
solicit, initiate or encourage the submission or announcement of any Takeover
Proposal (as defined in the Merger Agreement); (ii) participate in any
discussions or negotiations regarding, or furnish to any Person
3
any information with respect or in response 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 Takeover Proposal; or (iii) induce or
encourage any other stockholder of the Company to vote against, or to fail to
vote in favor of, the approval and adoption of the Merger Agreement, the
approval of the Merger or any of the other Transactions contemplated by the
Merger Agreement. The Trust shall immediately cease and discontinue, and the
Trust shall ensure that any Representative of the Trust immediately cease and
discontinue, any existing discussions with any Person that relate to any
Takeover Proposal. Nothing contained in this Section 5 shall prevent any
Representative of the Trust, when acting solely in his capacity as a director or
officer of the Company, from causing the Company to take the actions specified
in the proviso to the first sentence of Section 4.16 of the Merger Agreement (to
the extent all of the conditions set forth in such proviso have been satisfied).
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEES.
The Trust hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. There are no trustees of the Trust other than
Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxxxx and Xxxxxxx Xxxxxxx. The Trustee executing
this Voting Agreement on behalf of the Trust has all necessary power and
authority, under the trust agreement for the Trust and otherwise, to by the
Trust by his sole signature and to cause the Trust to enter into this Voting
Agreement and to perform its obligations hereunder, and no action or consent on
the part of either of the other Trustees of the Trust, any of the beneficiaries
of the Trust or any other Person is necessary to permit the Trust to enter into
this Voting Agreement or to perform its obligations hereunder. This Voting
Agreement and the Proxy constitute legal, valid and binding obligations of the
Trust enforceable against the Trust in accordance with their terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Voting Agreement and the Proxy
by the Trust do not, and the performance of this Voting Agreement and the Proxy
by the Trust will not: (i) conflict with or violate (A) any agreement or other
instrument to which the Trust is a party or by which the Trust or any of the
Subject Securities is bound or (B) any law, rule, regulation, order, decree or
judgment applicable to the Trust or by which the Trust or any of the Trust's
properties is or may be bound or affected; or (ii) result in or constitute (with
or without notice or lapse of time) any breach of or default under, or give to
any other Person (with or without notice
4
or lapse of time) any right of termination, amendment, acceleration or
cancellation of, or result (with or without notice or lapse of time) in the
creation of any encumbrance or restriction on any of the Subject Securities
pursuant to, the Trust Agreement for the Trust or any contract to which the
Trust is a party or by which the Trust or any of the Trust's affiliates or
properties is or may be bound or affected, except in the case of clause (i) or
(ii) above where any of such events would not have a material adverse effect on
the Trust or otherwise impair the Trust's ability to satisfy its obligations
hereunder.
(b) The execution and delivery of this Voting Agreement and the Proxy
by the Trust does not, and the performance of this Voting Agreement and the
Proxy by the Trust will not, require any consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
the Trust holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) the Trust
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) the Trust
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
the Trust does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights specified on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all material respects as of
the date of this Voting Agreement, will be accurate in all material respects at
all times through the Expiration Date and will be accurate in all material
respects as of the date of the consummation of the Merger as if made on that
date.
SECTION 7. ADDITIONAL COVENANTS OF THE TRUSTEES.
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, the Trust shall (at the expense of the Trust) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at the expense of the Trust) take such further actions, as Parent may
5
reasonably request for the purpose of carrying out and furthering the intent of
this Voting Agreement.
7.2 LEGEND. Immediately after the execution of this Voting Agreement (and
from time to time upon the acquisition by the Trust of Ownership of any shares
of Company Common Stock prior to the Expiration Date), the Trust shall ensure
that each certificate evidencing any outstanding shares of Company Common Stock
or other securities of the Company Owned by the Trust and which are in
certificated form bears a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH
THE PROVISIONS OF THE VOTING AGREEMENT DATED AS OF FEBRUARY 28, 1999, AMONG
GILEAD SCIENCES, INC., AND THE WARBURG, XXXXXX CAPITAL PARTNERS LIQUIDATING
TRUST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF
GILEAD SCIENCES, INC.
SECTION 8. MISCELLANEOUS.
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations, warranties, covenants and obligations of the Trust contained in
this Voting Agreement shall survive the Expiration Date.
8.2 INDEMNIFICATION. The Trust shall hold harmless and indemnify Parent
and Parent's affiliates from and against, and shall compensate and reimburse
Parent and Parent's affiliates for, any loss, damage, claim, liability, fee
(including attorneys' fees), demand, cost or expense (regardless of whether or
not such loss, damage, claim, liability, fee, demand, cost or expense relates to
a third-party claim) that is directly or indirectly suffered or incurred by
Parent or any of Parent's affiliates, or to which Parent or any of Parent's
affiliates otherwise becomes subject, and that arises directly or indirectly
from, or relates directly or indirectly to, (a) any inaccuracy in or breach of
any representation or warranty contained in this Voting Agreement, or (b) any
failure on the part of any of the Trust to observe, perform or abide by, or any
other breach of, any restriction, covenant, obligation or other provision
contained in this Voting Agreement or in the Proxy.
8.3 INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of the
Trust set forth in this Voting Agreement shall be construed as independent of
any other agreement or arrangement between the Trust, on the one hand, and the
Company or Parent, on the other. The existence of any claim or cause of action
by the Trust or the Trustees against the Company or Parent shall not constitute
a defense to the enforcement of any of such covenants or obligations against the
Trust.
6
8.4 SPECIFIC PERFORMANCE. The Trust agrees that in the event of any
breach or threatened breach by the Trust of any covenant, obligation or other
provision contained in this Voting Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to Parent) to: (a) a decree
or order of specific performance or mandamus to enforce the observance and
performance of such covenant, obligation or other provision; and (b) an
injunction restraining such breach or threatened breach. The Trust further
agrees that neither Parent nor any other person or entity shall be required to
obtain, furnish or post any bond or similar instrument in connection with or as
a condition to obtaining any remedy referred to in this Section 8.4, and the
Trust irrevocably waives any right the Trust may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
8.5 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any of
the rights or remedies of Parent under the Merger Agreement, or any of the
rights or remedies of Parent or any of the obligations of the Trust under any
agreement between the Trust and Parent or any certificate or instrument executed
on behalf of the Trust in favor of Parent; and nothing in the Merger Agreement
or in any other agreement, certificate or instrument shall limit any of the
rights or remedies of Parent or any of the obligations of the Trust under this
Voting Agreement.
8.6 NOTICES. Any notice or other communication required or permitted to
be delivered to the Trust or Parent under this Voting Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
party):
IF TO PARENT:
Gilead Sciences, Inc
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
IF TO THE TRUST OR THE TRUSTEES:
Warburg, Xxxxxx Capital Partners Liquidating Trust
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxxxx Xxxxxxx, Trustee
Fax: (000) 000-0000
8.7 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any
7
circumstances to be invalid or unenforceable in any jurisdiction, then (a) such
provision or part thereof shall, with respect to such circumstances and in such
jurisdiction, be deemed amended to conform to applicable laws so as to be valid
and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
Voting Agreement. Each provision of this Voting Agreement is separable from
every other provision of this Voting Agreement, and each part of each provision
of this Voting Agreement is separable from every other part of such provision.
8.8 APPLICABLE LAW; JURISDICTION. THIS VOTING AGREEMENT IS MADE UNDER,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF DELAWARE
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between the parties
hereto, whether arising out of this Voting Agreement or otherwise: (a) each of
the parties irrevocably and unconditionally consents and submits to the
exclusive jurisdiction and venue of the state and federal courts located in the
State of Delaware; (b) if any such action is commenced in a state court, then,
subject to applicable law, no party shall object to the removal of such action
to any federal court located in the State of Delaware; (c) each of the parties
irrevocably waives the right to trial by jury; and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the address at which such party is to
receive notice in accordance with Section 8.6.
8.9 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
arising out of this Voting Agreement, or any power, right, privilege or remedy
under this Voting Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of Parent; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
8
8.10 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against the Trust or the Trustees (or any of them),
the prevailing party shall be entitled to recover reasonable attorneys' fees,
costs and disbursements (in addition to any other relief to which the prevailing
party may be entitled).
8.11 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.12 FURTHER ASSURANCES. The Trust shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Voting Agreement.
8.13 ENTIRE AGREEMENT. This Voting Agreement and any Affilate Agreement or
Registration Rights Agreement between the Trust and Parent collectively set
forth the entire understanding of Parent and the Trust relating to the subject
matter hereof and thereof and supersede all other prior agreements and
understandings between Parent and the Trust relating to the subject matter
hereof and thereof.
8.14 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of the Trust under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of the
obligations of the Trust or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and the Trust; and nothing in any such
Affiliate Agreement shall limit any of the obligations of the Trust, or any of
the rights or remedies of Parent, under this Voting Agreement.
8.15 AMENDMENTS. This Voting Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and the Trust.
8.16 ASSIGNMENT; BINDING EFFECT. Neither this Voting Agreement nor any of
the interests or obligations hereunder may be assigned or delegated by the Trust
and any attempted or purported assignment or delegation of any of such interests
or
9
obligations shall be void. Subject to the preceding sentence, this Voting
Agreement shall be binding upon the Trust, its Representatives, and their
respective successors and assigns, and shall inure to the benefit of Parent and
its successors and assigns. Without limiting any of the restrictions set forth
in Section 2 or elsewhere in this Voting Agreement, this Voting Agreement shall
be binding upon any Person to whom any Subject Securities are Transferred prior
to the termination of this Agreement. Nothing in this Voting Agreement is
intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.
8.17 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
8.18 TERMINATION.
(a) This Voting Agreement shall automatically terminate on the
Expiration Date; PROVIDED, HOWEVER, that the termination of this Voting
Agreement shall not relieve the Trust from any liability for any previous breach
of this Voting Agreement.
(b) If the Parent Share Value (as defined in the Merger Agreement) is
less than the Specified Price (as defined below), then, immediately prior to the
Special Meeting (as defined in the Merger Agreement), (i) the Trust shall be
entitled to revoke the Proxy, and (ii) the obligations of the Trust under
Sections 3.1 and 3.2(a)(ii) shall terminate; PROVIDED, HOWEVER, that (1) the
termination of such obligations shall not relieve the Trust from any liability
for any previous breach of any of such obligations, and (2) the obligations of
the Trust under Sections 5 and 8 shall remain in full force and effect until
this Voting Agreement is otherwise terminated pursuant to Section 8.18(a). The
Specified Price shall be $27.00; PROVIDED, HOWEVER, that in the event the
outstanding Parent Shares (as defined in the Merger Agreement) shall be changed
into a different number of shares by reason of any stock dividend, subdivision,
reclassification, split-up, combination or the like, the Specified Price shall
be appropriately adjusted.
8.19 COUNTERPARTS. This Voting Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
8.20 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the
10
plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; the feminine gender shall include the masculine and neuter
genders; and the neuter gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
11
IN WITNESS WHEREOF, Parent and the Trustees on behalf of the Trust have
caused this Voting Agreement to be executed as of the date first written above.
GILEAD SCIENCES, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------
WARBURG, XXXXXX CAPITAL PARTNERS
LIQUIDATING TRUST
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Xxxxxxx Xxxxxxx, Trustee
SHARES HELD ADDITIONAL SECURITIES
OF RECORD OPTIONS AND OTHER RIGHTS BENEFICIALLY OWNED
----------- ------------------------ ---------------------
3,600,792 0
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of NeXstar Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxx X. Xxxxxx, Xxxx X. Xxxxx and Gilead
Sciences, Inc., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of the Shares are hereby revoked, and the
undersigned agrees that no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest, is granted in
connection with the execution and delivery of the Voting Agreement, dated as of
the date hereof, between Parent and the undersigned (the "Voting Agreement") and
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, Gazelle Acquisition Sub, Inc.
and the Company (the "Merger Agreement"); PROVIDED, HOWEVER, that the
undersigned may revoke this proxy under the circumstances specified in Section
8.18(b) of the Voting Agreement.
The attorneys and proxies named above (and their successors) will be
empowered, and may exercise this proxy, to vote the Shares at any meeting of the
stockholders of the Company, however called, or in connection with any
solicitation of written consents from stockholders of the Company, in favor of
the approval and adoption of the Merger Agreement and the approval of the merger
contemplated thereby, and in favor of each of the other actions contemplated by
the Merger Agreement. The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the representatives, successors and
assigns of the undersigned (including any transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held under
any circumstances to be invalid or unenforceable in any jurisdiction, then (a)
such provision or
2
part thereof shall, with respect to such circumstances and in such jurisdiction,
be deemed amended to conform to applicable laws so as to be valid and
enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of
3
the remainder of such provision or the validity or enforceability of any other
provision of this proxy. Each provision of this proxy is separable from every
other provision of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
This proxy shall terminate upon the sooner to occur of the valid termination of
the Voting Agreement and the valid revocation of this proxy pursuant to Section
8.18(b)(i).
Dated: February 28,1999
Warburg, Xxxxxx Capital Partners
Liquidating Trust
By: Xxxxxxx Xxxxxxx
-----------------------------
Xxxxxxx Xxxxxxx, Trustee
Number of shares of common stock of the
Company owned of record as of the date of
this proxy:
3,600,792
---------------------------------
1
