EXHIBIT 1
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MICROCIDE PHARMACEUTICALS, INC.
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of this
______ day of _________________, 2001, by and between Microcide Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), and ____________ (the "Investor").
Witnesseth
Whereas, the Investor is purchasing shares of the Company's Series B
Convertible Redeemable Preferred Stock (the "Preferred Stock"), pursuant to that
certain Subscription Agreement (the "Subscription Agreement") of even date
herewith (the "Financing"); and
Whereas, in connection with the consummation of the Financing, the Investor
has agreed to provide the Company with a limited irrevocable proxy for the
future voting of their Investor Shares.
Now, Therefore, in consideration of these premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Voting.
1.1 Investor Shares.
(a) The Investor agrees to hold all shares of Preferred Stock
registered in its name or beneficially owned by it as of the date hereof
(hereinafter collectively referred to as the "Investor Shares") subject to the
provisions of this Agreement.
(b) The Investor represents and warrants that he, she or it is the
beneficial owner of the number and type of Investor Shares set forth on the
signature page hereto as of the date hereof, does not beneficially own any other
shares of capital stock of the Company and has full power and authority to make,
enter into and carry out the terms of this Agreement and to grant the proxy
described herein.
1.2 Proxy.
(a) The Investor hereby irrevocably constitutes and appoints the
Chairman of the Board of Directors of the Company (in his or her capacity as
such on behalf of the Company) such Investor's sole and exclusive, true and
lawful proxy, attorney-in-fact and agent, with full power of substitution and
resubstitution for such person and in such person's name, to vote all of the
Investor Shares at every meeting of the stockholders of the Company, or by
written consent without a meeting, for the sole purpose of voting the Investor
Shares in the following manner:
1.
(i) to vote "for" the election of directors of the Company any
person nominated by the Board of Directors other than those persons to be
elected to the Board of Directors by the holders of the Preferred Stock as a
separate class pursuant to Section 12(c)(1) of the Certificate of Designations
for the Preferred Stock (the "Certificate of Designations");
(ii) not to vote "for" the election of a director of the
Company any person that has not been nominated by the Board of Directors other
than those persons to be elected to the Board of Directors by the holders of the
Preferred Stock as a separate class pursuant to Section 12(c)(1) of the
Certificate of Designations; or
(iii) to vote "for" any proposal to remove as a director of the
Company any director (other than those directors elected to the Board of
Directors by the holders of Preferred Stock as a separate class pursuant to
Section 12(c)(1) of the Certificate of Designations), provided, that such
proposal has been made, sponsored and submitted by, or at the direction of, the
Board of Directors.
(b) The Investor retains all other voting rights with respect to the
Investor Shares except as set forth in Section 1.2(a).
(c) The proxy and power of attorney granted herein is irrevocable and
coupled with an interest. The Investor agrees not to take any actions contrary
to the proxy granted herein or any other term or provision of this Agreement.
The Investor agrees to execute and deliver any additional documents necessary or
desirable, in the reasonable opinion of the Company, to carry out the intent of
this Agreement.
1.3 Successors. The provisions of this Agreement shall be binding upon
the successors in interest to, and to any transferee of, any of the shares of
Preferred Stock. The Investor shall not sell, exchange, transfer, pledge or
otherwise dispose, and the Company shall not permit the sale, exchange,
transfer, pledge or other disposition, of any of the shares of Preferred Stock
unless and until the person to whom such security is to be transferred shall
have executed a written agreement, substantially in the form of this Agreement,
pursuant to which such person becomes a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person were the Investor. Until
the delivery by a transferee of such a written agreement, the Company shall not
be obligated to transfer such shares of Preferred Stock on its books and
records, nor shall the Company be required to issue any new certificates
representing such shares.
1.4 Other Rights. Except as provided by this Agreement or any other
agreement entered into in connection with the Financing, the Investor shall
exercise the full rights of a holder of capital stock of the Company with
respect to the Investor Shares.
2.
2. Termination. This Agreement shall continue in full force and effect from
the date hereof through earlier of: (a) ten years from the date hereof and (b)
the date on which the Investor no longer holds any shares of Preferred Stock.
3. Miscellaneous.
3.1 Specific Performance. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
3.2 Governing Law. This Agreement, and the rights of the parties hereto,
shall be governed by and construed in accordance with the laws of the State of
Delaware as such laws apply to agreements among Delaware residents made and to
be performed entirely within the State of Delaware.
3.3 Amendment or Waiver. This Agreement may be amended (or provisions of
this Agreement waived) only by an instrument in writing signed by the Company
and the Investor. Any amendment or waiver so effected shall be binding upon the
Company, each of the parties hereto and any assignee of any such party.
3.4 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
3.5 Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
3.6 Additional Shares. In the event that subsequent to the date of this
Agreement any shares or other securities are issued on, or in exchange for, any
of the Investor Shares by reason of any stock dividend, stock split, combination
of shares, reclassification or the like, such shares or securities shall be
deemed to be included in the definition of Investor Shares for purposes of this
Agreement.
3.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
3.
3.8 Waiver. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.9 Attorney's Fees. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
3.10 Notices. Any notices required in connection with this Agreement
shall be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified, (b) when sent by confirmed electronic mail
or facsimile if sent during normal business hours of the recipient; if not, then
on the next business day, (c) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written notification of receipt. All notices shall be
addressed to the holder appearing on the books of the Company or at such address
as such party may designate by ten (10) days advance written notice to the other
parties hereto.
3.11 Entire Agreement. This Agreement, along with the Subscription
Agreement and each of the Annexes thereto, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
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4.
In Witness Whereof, the parties hereto have executed this Voting Agreement
as of the date first above written.
COMPANY: INVESTOR:
Microcide Pharmaceuticals, Inc. [Name of Investor]
By: _____________________________ By: _____________________________
Name: ___________________________ Name: ___________________________
Title: __________________________ Title: __________________________
Number of Shares: _______________
Type of Shares: _________________
VOTING AGREEMENT
