Exhibit 10.2
FORM OF
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February ___, 2003 (the "AGREEMENT"), by and
among the undersigned investors whose names appear on the signature pages hereto
(collectively, the "INVESTORS"), and the undersigned stockholders of Ribozyme
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), whose names
appear on the signature page hereto (each, a "STOCKHOLDER").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Investors and the Company are entering into a Common Stock and
Warrant Purchase Agreement (the "STOCK PURCHASE AGREEMENT"), which provides,
among other things, upon the terms and subject to the conditions set forth
therein, for the purchase by the Investors of shares of common stock, par value
$0.001 per share, of the Company ("COMPANY COMMON STOCK"), at a price per share
provided therein (the "FINANCING");
WHEREAS, as of the date hereof, each Stockholder beneficially owns (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) the
number of shares of Company Common Stock set forth below each Stockholder's name
on the signature page hereto (all such shares of Company Common Stock so owned
and which may hereafter be acquired by Stockholder prior to the termination of
this Agreement, whether upon the exercise of options, warrants or other right to
acquire shares, conversion of debt or by means of purchase, dividend,
distribution or otherwise, and other than any such shares which have been
transferred in accordance with the terms hereof, being referred to herein as
Stockholder's "SHARES"); and
WHEREAS, as a condition and inducement to each of the Investors to enter
into the Stock Purchase Agreement and consummate the Financing, the Investors
have required that Stockholder agree, and each Stockholder has agreed (solely in
his, her or its capacity as such, but not in any other capacity, including as
director or officer of the Company), to vote his, her or its Shares or, if
applicable, either sign and deliver or withhold its, his or her consent in
accordance with this Agreement;
NOW, THEREFORE, to induce each of the Investors to enter into the Stock
Purchase Agreement and to consummate the Financing and in consideration of the
representations, warranties, covenants and agreements contained herein and in
the Stock Purchase Agreement, and intending to be legally bound hereby, each of
the Investors and each Stockholder (solely in his, her or its capacity as such,
but not in any other capacity, including as director or officer of the Company)
hereby agree as follows:
ARTICLE 1
TRANSFER AND VOTING OF SHARES;
AND OTHER COVENANTS OF THE STOCKHOLDERS
Section 1.1 VOTING OF SHARES. From the date hereof until the termination of
this Agreement pursuant to SECTION 3.2 (the "TERM"), at any meeting of the
Stockholders of the Company, however called, and in any solicitation of written
consent of the Stockholders of the Company, each Stockholder shall:
(a) Vote its, his or her Shares in favor of or, in the case of a
solicitation of written consent of the Stockholders of the Company, sign and
deliver to the Company its, his or her consent to (i) the Financing and the
Stock Purchase Agreement (as amended from time to time in accordance with the
terms thereof), including the offer, sale and issuance of Company Common Stock
thereunder, and (ii) any other matter reasonably necessary to consummate any
other transactions contemplated by the Stock Purchase Agreement which is
considered at any such meeting of Stockholders or in any such consent.
(b) Vote its, his or her Shares against or, in the case of a
solicitation of written consent of the Stockholders of the Company, withhold its
consent from any Alternative Proposal (as defined in the Stock Purchase
Agreement) and against any other action which is intended or which could
reasonably be expected to impede, interfere with, delay, postpone or materially
and adversely affect any of the transactions contemplated by the Stock Purchase
Agreement, including the Financing, or the likelihood of such transactions being
consummated.
Section 1.2 NO INCONSISTENT ARRANGEMENTS. Except as contemplated by this
Agreement, Stockholder shall not during the Term: (A) transfer (which term shall
include, without limitation, any sale, assignment, gift, pledge, hypothecation
or other disposition), or consent to any transfer of, any or all of
Stockholder's Shares or any interest therein, or create or permit to exist any
Encumbrance (as defined below) on such Shares, unless (i) the Stockholder first
delivers written notice to the Investors of the intended transfer and the
identity of the Person to whom such Stockholder intends to transfer the Shares
or interests therein, and such Person is reasonably acceptable to the Investors,
and (ii) each Person to which any such Shares or interests therein are
transferred will have executed and delivered (1) a counterpart of this
Agreement, and (2) a written instrument reasonably acceptable to the Investors
pursuant to which such Person agrees to hold such Shares subject to all of the
terms and conditions set forth in this Agreement; (B) enter into any contract,
option or other agreement with respect to any transfer of any or all of such
Shares or any interest therein; (C) grant any proxy, power-of-attorney or other
authorization in or with respect to such Shares; (D) deposit such Shares into a
voting trust or enter into a voting agreement or arrangement with respect to
such Shares; or (E) take any other action in his, her or its capacity as a
Stockholder of the Company that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby, by the Stock Purchase Agreement.
Section 1.3 PROXY.
(a) Stockholder hereby revokes any and all prior proxies or powers of
attorney in respect of any of Stockholder's Shares and constitutes and appoints
Xxxxxxx Xxxxxxxxx ("Xxxxxxxxx") and Xxxxx Xxxxxx ("Niedel"), each of them with
full power of substitution and resubstitution, at any time during the Term, and
each of them and both of them as Stockholder's true and lawful attorneys and
proxies (its "PROXY"), for and in its, his or her name, place and xxxxx, to
demand that the Secretary of the Company call a special meeting of the
Stockholders of the Company for the purpose of considering any matter referred
to in SECTION 1.1 (if permitted under the Company's certificate of incorporation
or bylaws) and to vote each of such Shares as its Proxy, at every annual,
special, adjourned or postponed meeting of the Stockholders of the Company, and
to sign its, his or her name (as Stockholder) to any consent as provided in
SECTION 1.1. THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
(b) Each of the Investors, jointly and severally, will indemnify and
hold harmless each of Xxxxxxxxx and Niedel, and any substitutes of either of
them, as Proxy hereunder, against and with respect to any and all claims, suits,
actions, proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities and legal and other expenses
(including legal fees and expenses of attorneys) as and when incurred arising
out of or based upon any act, omission, alleged act or alleged omission by
either of them or both of them taken in accordance with their duties as Proxy
under this Agreement, or any other cause, in any case in connection with the
acceptance of or the performance or non-performance by either of them or both of
them, or their agents, of any of their duties as Proxy in accordance with this
Agreement.
Section 1.4 STOP TRANSFER. Each Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of Stockholder's Shares, unless such
transfer is made in compliance with this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Investors as
follows:
Section 2.1 DUE AUTHORIZATION, ETC. Stockholder has all requisite power and
authority, or capacity, as applicable, to execute, deliver and perform this
Agreement, to appoint Xxxxxxxxx and Niedel as Stockholder's Proxy and to
consummate the transactions contemplated hereby. If Stockholder is not a natural
person, the execution, delivery and performance of this Agreement, the
appointment of Xxxxxxxxx and Niedel as Stockholder's Proxy and the consummation
of the other transactions contemplated hereby have been duly authorized by all
necessary action on the part of Stockholder, and no authorization or approval of
or other action by the Company or any other Person is necessary for the
validity, effectiveness and enforceability of this Agreement. 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
Stockholder in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for such remedy may
be brought. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement of the consummation by
Stockholder of the transactions contemplated hereby.
Section 2.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not, (i) conflict
with or violate any trust agreement or other similar documents relating to any
trust of which Stockholder is trustee, (ii) conflict with or violate any law
applicable to Stockholder or by which Stockholder or any of Stockholder's
properties is bound or affected, 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, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on
Stockholder's 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 any of
Stockholder's Shares is bound or affected, except, in the case of CLAUSES (II)
AND (III), for any such breaches, defaults or other occurrences that would not
prevent or materially delay the performance by Stockholder of Stockholder's
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Stockholder does
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 Entity (as defined in the Stock Purchase Agreement), except
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or materially delay
the performance by Stockholder of Stockholder's obligations under this
Agreement.
Section 2.3 TITLE TO SHARES. Stockholder is the sole beneficial owner of
its Shares, free and clear of any pledge, lien, security interest, mortgage,
charge, claim, equity, option, proxy, voting restriction, voting trust or
agreement, understanding, arrangement, right of first refusal, limitation on
disposition, adverse claim of ownership or use or encumbrance of any kind
("ENCUMBRANCES"), other than restrictions imposed by the securities laws or
pursuant to this Agreement and the Stock Purchase Agreement.
Section 2.4 NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
Stockholder, on behalf of itself and its affiliates, hereby acknowledges that it
is not entitled to receive any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby or by the Stock Purchase Agreement.
ARTICLE 3
MISCELLANEOUS
Section 3.1 DEFINITIONS. Each capitalized term used but not otherwise
defined in this Agreement has the meaning ascribed to such term in the Stock
Purchase Agreement.
Section 3.2 TERMINATION. This Agreement shall terminate and be of no
further force and effect (a) by the written mutual consent of the parties hereto
or (b) automatically and without any required action of the parties hereto upon
the earlier to occur of the Closing and the valid termination of the Stock
Purchase Agreement in accordance with its terms. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
Section 3.3 FURTHER ASSURANCE. The rights and obligations of Stockholder
contained herein are separate from and shall not affect any rights and
obligations, including any applicable fiduciary duties, that Stockholder may
have under applicable law in such Stockholder's capacity as an officer or
director of the Company. Any such rights and obligations, including any
applicable fiduciary duties, that Stockholder may have under applicable law in
any such other capacity shall not affect the rights and obligations of
Stockholder contained herein.
Section 3.4 CERTAIN EVENTS. Stockholder agrees that this Agreement and
Stockholder's obligations hereunder shall attach to Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including, without limitation, Stockholder's heirs, guardians, administrators,
or successors. Notwithstanding any transfer of Shares, the transferor shall
remain liable for the performance of all its obligations under this Agreement.
Section 3.5 NO WAIVER. The failure of any party hereto to exercise any
right, power, or remedy provided under this agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 3.6 SPECIFIC PERFORMANCE. Stockholder acknowledges that if
Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to each of the
Investors for which money damages would not be an adequate remedy. In such
event, Stockholder agrees that each of the Investors shall have the right, in
addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if any of the Investors should institute an action or
proceeding seeking specific enforcement of the provisions hereof, Stockholder
hereby waives the claim or defense that each of the Investors, as the case may
be, has an adequate remedy at law and hereby agrees not to assert in any such
action or proceeding the claim or defense that such a remedy at law exists.
Stockholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any such equitable relief.
Section 3.7 NOTICE. 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 (a) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (b) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(x) If to the Investors:
The address set forth next to such Investor's name on the signature
pages hereto.
With a copy (which shall not constitute notice) to:
O'Melveny & Xxxxx, LLP
000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq. and
Xxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(y) If to Stockholder, at the address set forth below Stockholder's name
on the signature page hereto.
With copies (which shall not constitute notice) to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Section 3.8 EXPENSES. Except as otherwise expressly set forth herein, all
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses; PROVIDED that the Company may pay such fees, costs and
expenses of Stockholder.
Section 3.9 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 3.10 SEVERABILITY. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the invalid, void or unenforceable term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction or other authority declares that
any term or provision hereof is invalid, void or unenforceable, the parties
agree that the court making such determination shall have the power to and
shall, subject to the discretion of such court, reduce the scope, duration, area
or applicability of the term or provision, to delete specific words or phrases,
or to replace any invalid, void or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.
Section 3.11 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement, including the documents and the instruments referred to herein and
therein, constitute the entire agreement and supersede all prior agreements,
negotiations, arrangements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and thereof. Nothing in this
Agreement shall be construed to give any person other than the parties to this
Agreement or their respective successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
Section 3.12 ASSIGNMENT. Neither this Agreement not any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written content of
the other parties, except that each of the Investors may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
of its Affiliates and such assignment shall not relieve any of the Investors of
any obligation under this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
Section 3.13 GOVERNING LAW; FORUM; INJUNCTIVE RELIEF. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW
OF ANY JURISDICTION. The parties agree that irreparable damage would occur 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 parties shall be entitled to an injunction or
injunctions to prevent breaches 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 Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery of the State of Delaware of and for the
County of New Castle in the event any dispute arises out of this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from such court and (c) agrees that it will
not bring any action relating to this Agreement in any court other than the
Court of Chancery of the State of Delaware of and for the County of New Castle.
Section 3.14 AMENDMENT. Subject to applicable law, this Agreement may not
be amended, modified and supplemented in any and all respects other than by
written agreement of the parties hereto.
Section 3.15 WAIVER. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
Section 3.16 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the Investors and Stockholder have caused this
Agreement to be executed as of the date first written above.
STOCKHOLDER:
Signature: __________________________________
Name: _______________________________________
Address: ____________________________________
Telephone: __________________________________
Facsimile No. _______________________________
E-mail Address ______________________________
Share beneficially owned:
__________ shares of Company Common Stock
__________ shares of Company Common Stock issuable upon the exercise of
outstanding options, warrants or other rights
SIGNATURE PAGE TO VOTING AGREEMENT
IN WITNESS WHEREOF, each of the Investors and Stockholder have caused this
Agreement to be executed as of the date first written above.
"INVESTORS"
[____________________________]
By: [_______________________]
By: _________________________________
Name: [______________________]
Title: [_____________________]
Address:
Telephone:
Facsimile:
"INVESTORS"
[____________________________]
By: [_______________________]
By: _________________________________
Name: [______________________]
Title: [_____________________]
Address:
Telephone:
Facsimile:
SIGNATURE PAGE TO VOTING AGREEMENT
IN WITNESS WHEREOF, each of the Investors and Stockholder have caused this
Agreement to be executed as of the date first written above.
"INVESTORS"
[____________________________]
By: [_______________________]
By: _________________________________
Name: [______________________]
Title: [_____________________]
Address:
Telephone:
Facsimile:
SIGNATURE PAGE TO VOTING AGREEMENT
