EXHIBIT 10.2
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT, dated as of August 24, 2001 (this "AGREEMENT"), by
and between _______________________ ("STOCKHOLDER") and Triangle
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, Stockholder owns, as of the date hereof, the number of shares of
the Company's Common Stock, $.001 par value per share (the "COMMON STOCK"), set
forth opposite its name on the signature page hereto (such shares of Common
Stock, together with any shares of Common Stock acquired after the date hereof
and prior to the termination hereof, hereinafter collectively referred to as the
"SHARES");
WHEREAS, concurrently herewith, the Company is entering into one or more
Purchase Agreements (the "PURCHASE AGREEMENT"), which provides for, among other
things, the sale by the Company to one or more investors of shares of Common
Stock having an aggregate purchase price of up to $75,000,000 (the "FINANCING");
WHEREAS, the Purchase Agreement contemplates that the Financing shall
occur in two tranches (the first tranche referred to hereinafter as the "FIRST
TRANCHE"; the second tranche referred to hereinafter as the "SECOND TRANCHE";
and collectively referred to as the "TRANCHES");
WHEREAS, the sale and issuance of the shares of Common Stock in the Second
Tranche may require that the Company's stockholders (i) approve an increase in
the number of authorized shares of the Common Stock and (ii) because the Second
Tranche may result in the issuance of shares of Common Stock greater than twenty
percent (20%) of the outstanding shares of capital stock of the Company, approve
the sale and issuance of the shares of Common Stock in the Second Tranche
pursuant to rules established by the National Association of Security Dealers
(the "NASD");
WHEREAS, it is a condition precedent to closing the First Tranche that the
Company enter into this Agreement with the Stockholder; and
WHEREAS, the Stockholder will benefit from these transactions and,
therefore, the Stockholder desires to facilitate these transactions by entering
into this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, and intending to be
legally bound hereby, the parties agree as follows:
1. AGREEMENT TO VOTE.
1.1 AGREEMENT TO VOTE. Stockholder hereby revokes any and all
previous proxies with respect to the Shares held of record or beneficially by
Stockholder and irrevocably agrees to vote and otherwise act, with respect to
all of the Shares, for (i) the approval of an
amendment to the Company's Certificate of Incorporation in order to increase the
authorized number of shares of Common Stock to a number of shares that the
Company's Board of Directors determines is in the Company's best interest to
facilitate the sale of shares of Common Stock in the Second Tranche, (ii) the
issuance and sale of the shares of Common Stock in the Second Tranche as may be
required by the rules enacted by NASD which are applicable to the Financing and
the Company, and (iii) any other actions related to (i) and (ii), and against
any proposal or transaction which could prevent or delay the consummation of the
transactions contemplated by the Financing, at any meeting or meetings of the
stockholders of the Company, and any adjournment, postponement or continuation
thereof, at which the Financing and other related arrangements or such other
actions are submitted for the consideration and vote of the stockholders of the
Company. The foregoing shall remain in effect with respect to the Shares until
the termination of this Agreement. Stockholder shall execute such additional
documents as the Company may reasonably request to effectuate the foregoing.
1.2 PROXY. Stockholder hereby grants to, and appoints Xxxxx X.
Xxxxxx and R. Xxxxxx Xxxxxx, each of them individually, Stockholder's
irrevocable (until the termination of this Agreement) proxy and attorney-in-fact
(with full power of substitution) to vote the Shares as indicated in Section 1.1
above. Stockholder intends this proxy to be irrevocable (until the termination
of this Agreement) and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to effectuate the
intent of this proxy.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby
represents and warrants as follows:
2.1 OWNERSHIP OF SHARES. Stockholder is the beneficial owner, and
has sole power to vote and dispose of the Shares. On the date hereof, the Shares
constitute all of the outstanding shares of Common Stock owned of record or
beneficially by Stockholder.
2.2 AUTHORITY; BINDING AGREEMENT. Stockholder has the full legal
right, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution and delivery of this Agreement
by Stockholder will not violate any other agreement to which Stockholder is a
party, including, without limitation, any voting agreement, stockholders'
agreement or voting trust. This Agreement has been duly executed and delivered
by Stockholder and constitutes a legal, valid and binding agreement of
Stockholder, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws now or hereafter in effect affecting creditors' rights and remedies
generally or general principles of equity. Neither the execution and delivery of
this Agreement nor the consummation by Stockholder of the transactions
contemplated hereby will (i) violate, or require any consent, approval or notice
under any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to Stockholder or the Shares or (ii) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Stockholder is a party or by which Stockholder is bound.
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3. COVENANT OF STOCKHOLDER. Except as permitted by the terms of this
Agreement or in a manner which would cause the Shares to be voted in accordance
with Section 1 hereof, Stockholder hereby covenants and agrees that prior to the
termination of this Agreement, Stockholder shall not, directly or indirectly
grant any proxies or powers of attorney with respect to any Shares, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Shares, or take and action that would make any representation or warranty of
Stockholder contained herein untrue or incorrect or would result in breach by
Stockholder of its obligations under this Agreement.
4. NOTIFICATIONS. The Stockholder shall, while this Agreement is in
effect, notify the Company promptly, but in no event later than two days, of any
shares of Common Stock acquired or disposed of by Stockholder after the date
hereof.
5. TERMINATION. This Agreement shall terminate on the earlier of (i) the
closing of the sale and issuance of the shares of Common Stock in the Second
Tranche, or (ii) if the sale and issuance of the shares of Common Stock in the
Second Tranche does not occur by the date set forth in the Purchase Agreement or
any extensions thereof, sixty (60) days after such date. This Agreement also
shall terminate with respect to any of the Shares transferred or disposed of by
the Stockholder after the date hereof in a bona fide transaction, as of the date
of transfer or disposition.
6. ACTION IN STOCKHOLDER CAPACITY ONLY. If the Stockholder is an officer
or director of the Company, or if a representative of the Stockholder is an
officer or director of the Company, the Stockholder does not make any agreement
or understanding herein as an officer or director of the Company; rather,
Stockholder signs solely in Stockholder's capacity as a record holder and
beneficial owner of the Shares, and nothing herein shall limit or affect any
actions taken in Stockholder's capacity as an officer or director of the
Company, including without limitation the exercise of such Stockholder's or
representative's duties as an officer or director.
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be delivered
personally or by next-day courier or telecopied (with confirmation of receipt)
to the parties at the addresses specified below (or at such other address for a
party as shall be specified by like notice; provided that notices of a change of
address shall be effective only upon receipt thereof). Any such notice shall be
effective upon receipt, if personally delivered or telecopied or one day after
delivery to a courier for next-day delivery.
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IF TO THE COMPANY:
Triangle Pharmaceuticals, Inc.
0 Xxxxxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attn: R. Xxxxxx Xxxxxx, Esq.
Fax Number: 000-000-0000
WITH A COPY TO:
Smith, Anderson, Blount, Dorsett,
Xxxxxxxx & Xxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax Number: 000-000-0000
IF TO STOCKHOLDER:
To the address set forth on the signature page hereto.
7.2 DEFINITIONS. For purposes of this Agreement:
(a) "beneficially own" with respect to any securities shall mean
having "beneficial ownership" of such securities (as determined pursuant to Rule
13d-3 of the Exchange Act), including pursuant to any agreement, arrangement or
understanding whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities beneficially owned by a Person
shall include securities beneficially owned by all other Persons with such
Person would constitute a "group" as described in Section 13(d)(3) of the
Exchange Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(c) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
7.3 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly referred to herein, constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties or any of them, with respect to the subject matter contained herein.
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7.4 AMENDMENTS. 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.
7.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective personal
representatives, successors and permitted assigns; provided, however, that this
Agreement shall not be binding upon any party to whom the Stockholder transfers
or disposes any Shares in a bona fide transaction.
7.6 GOVERNING LAW. This Agreement, and all matters relating hereto, shall
be governed by, and construed in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflicts of laws thereof.
7.7 INJUNCTIVE RELIEF; JURISDICTION. Stockholder agrees that irreparable
damage would occur and that the Company would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Company shall be entitled to an injunction or
injunctions to prevent breaches by Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of North Carolina or in any North Carolina
state court (collectively, the "COURTS"), this being in addition to any other
remedy to which the Company may be entitled at law or in equity. In addition,
each of the parties hereto (i) irrevocably consents to the submission of such
party to the personal jurisdiction of the Courts in the event that any dispute
arises out of this Agreement or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any of the Courts and
(iii) agrees that such party will not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the Courts.
7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
7.9 SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
[Signatures appear on next page]
* * * * * *
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[SIGNATURE PAGE TO STOCK VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
TRIANGLE PHARMACEUTICALS, INC.
By: __________________________________
Name:
Title:
STOCKHOLDER: _________________________
Number of Shares of Common Stock held by
Stockholder:
By: _________________________________ ________________________________________
Name:
Title:
Address:
Attention:
Fax Number:
