CYPROS PHARMACEUTICAL CORPORATION
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of August 4, 1999 by and between
CYPROS PHARMACEUTICAL CORPORATION, a California corporation ("Parent"), and
__________ ("Stockholder").
RECITALS
A. Parent, CYPROS ACQUISITION CORPORATION, a Delaware corporation and
a wholly owned subsidiary of Parent ("Merger Sub") and RIBOGENE, INC., a
Delaware corporation ("Company"), are entering into an Agreement and Plan of
Reorganization of even date herewith (as amended from time to time, the "Merger
Agreement"; capitalized terms used but not otherwise defined in this Voting
Agreement have the meanings assigned to such terms in the Merger Agreement),
which provides (subject to the conditions set forth therein) for the merger of
Merger Sub with and into the Company (the "Merger").
B. Stockholder is the record and beneficial owner of that number of
shares of Common Stock, Preferred Stock and other securities of the Company set
forth on the signature page hereof.
C. As a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that Stockholder agree, and in order to
induce Parent to enter into the Merger Agreement and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Stockholder has agreed to enter into this Voting Agreement with regard to the
Subject Shares (as defined herein).
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. NO TRANSFER OF SUBJECT SHARES.
1.1 SUBJECT SHARES. "Subject Shares" shall mean: (i) all securities
of the Company (including shares of Company Common Stock and all options,
warrants and other rights to acquire shares of Company Common Stock) Owned by
Stockholder as of the date of this 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 Stockholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date (as defined in
Section 1.2(b)). For purposes of this Agreement, Stockholder shall be deemed to
"Own" or to have acquired "Ownership" of a security if Stockholder: (i) is the
record owner of such security; or (ii) is the "beneficial owner" (within the
meaning of Rule 13d-3 under the Exchange Act) of such security.
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1.2 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SHARES.
(a) Stockholder hereby covenants and agrees that, prior to the
Expiration Date, Stockholder will not, directly or indirectly, (i) offer, sell,
offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise dispose of or transfer (or announce any offer, sale, offer of sale,
contract of sale or grant of any option to purchase or other disposition or
transfer of) any Subject Shares to any Person other than Parent or Parent's
designee, (ii) create or permit to exist any Encumbrance with respect to any of
the Subject Shares, (iii) reduce his, her or its beneficial ownership of,
interest in or risk relating to any of the Subject Shares or (iv) commit or
agree to do any of the foregoing.
(b) As used in this Voting Agreement, the term "Expiration
Date" shall mean the earlier of the date upon which the Merger Agreement is
validly terminated or the date upon which the Merger becomes effective.
1.3 NO TRANSFER OF VOTING RIGHTS. Stockholder covenants and agrees
that, prior to the Expiration Date, Stockholder will not deposit any of the
Subject Shares into a voting trust or grant another proxy (except as provided
herein) or enter into a voting agreement with respect to any of the Subject
Shares.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 VOTING AGREEMENT. Stockholder hereby agrees that, prior to the
Expiration Date, at any meeting of the stockholders of the Company, however
called, and in any written action by consent of stockholders of the Company,
unless otherwise directed in writing by Parent, Stockholder shall vote the
Subject Shares:
(a) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and in favor of each of the other actions contemplated by the Merger
Agreement and any action required in furtherance hereof and thereof;
(b) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of Company in the
Merger Agreement; and
(c) against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (i) any Company
Acquisition Transaction; (ii) any change in a majority of the board of directors
of the Company; (iii) any amendment to the Company's certificate of
incorporation and bylaws; (iv) any material change in the capitalization of the
Company or the Company's corporate structure; or (v) any other action which is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement or this Voting Agreement.
Prior to the Expiration Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(a)", "(b)" or "(c)" of this Section 2.1.
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2.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting
Agreement, Stockholder shall deliver to Parent a proxy in the form attached
hereto as Exhibit A, which shall be irrevocable to the fullest extent permitted
by law prior to the Expiration Date and which shall be coupled with an interest,
with respect to the Subject Shares (the "Proxy").
(b) Stockholder shall 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 3. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby waives any rights of appraisal and any dissenters'
rights that Stockholder may have in connection with the Merger.
SECTION 4. NO SOLICITATION
Stockholder covenants and agrees that, during the period commencing on
the date of this Voting Agreement and ending on the Expiration Date, Stockholder
shall not, directly or indirectly, and shall not authorize or permit any
Representative of Stockholder, directly of indirectly, to: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Company Acquisition Proposal or take any action that could reasonably be
expected to lead to a Company Acquisition Proposal; (ii) furnish any information
regarding Company or any Company Subsidiary to any Person in connection with or
in response to any inquiry relating to any Company Acquisition Proposal; (iii)
engage in discussions or negotiations with any Person with respect to any
Company Acquisition Proposal; (iv) approve, endorse or recommend any Company
Acquisition Proposal; or (v) enter into any letter of intent or similar document
or any Contract contemplating or otherwise relating to any Company Acquisition
Transaction. The foregoing provision shall not prevent Stockholder from acting
in accordance with Stockholder's fiduciary duties as a director or officer of
Company, provided Stockholder complies with the provisions of Section 4.3(a) of
the Merger Agreement. Stockholder shall immediately cease and cause to be
terminated any existing discussions with any Person that relate to any Company
Acquisition Proposal.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
5.1 DUE AUTHORIZATION, ETC.. Stockholder has all requisite power and
capacity to execute and deliver this Voting Agreement and to perform his, her or
its obligations hereunder. This Voting Agreement has been duly executed and
delivered by Stockholder and constitutes a legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms.
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5.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement by
Stockholder do not, and the performance of this Voting Agreement by Stockholder
will not: (i) conflict with or violate any order, decree or judgment applicable
to Stockholder or by which he or any of his properties is bound or affected; or
(ii) result in any breach of or constitute a default (with notice or lapse of
time, or both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance on
the Subject Shares pursuant to, any Contract to which Stockholder is a party or
by which Stockholder or any of his properties is bound or affected.
(b) The execution and delivery of this Voting Agreement by
Stockholder do not, and the performance of this Voting Agreement by Stockholder
will not, require any Consent of any Person.
5.3 TITLE TO SUBJECT SHARES. As of the date hereof, Stockholder Owns
in the aggregate (including shares owned of record and shares owned
beneficially) the number of issued and outstanding shares of Company Common
Stock set forth below Stockholder's name on the signature page hereof, and the
number of options, warrants and other rights to acquire shares of Company Common
Stock set forth below Stockholder's name on the signature page hereof, and does
not directly or indirectly Own, any shares of capital stock of the Company, or
any option, warrant or other right to acquire any shares of capital stock of the
Company, other than the shares and options, warrants and other rights set forth
below Stockholder's name on the signature page hereof.
5.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement and will be accurate in all respects at all times
through the Expiration Date, as if made on that date.
SECTION 6. COVENANTS OF STOCKHOLDER
6.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder will execute and deliver, or cause to be executed and
delivered, such additional or further arrangements, proxies, consents and other
instruments as Parent may reasonably request for the purpose of effectively
carrying out and furthering the intent of this Voting Agreement.
6.2 LEGEND. After the execution of this Voting Agreement and upon
Parent's request, Stockholder shall instruct Company to cause each certificate
of Stockholder evidencing the Subject Shares to bear a legend in the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR
DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THE VOTING AGREEMENT DATED AS OF
AUGUST ____, 1999, AS IT MAY BE AMENDED, EXECUTED BY
THE REGISTERED HOLDER OF THIS CERTIFICATE, A COPY OF
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WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
OF THE ISSUER.
SECTION 7. MISCELLANEOUS
7.1 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties contained in this Voting Agreement or in any
certificate delivered pursuant to this Voting Agreement shall survive the
Merger.
7.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to Parent, Stockholder shall hold harmless and
indemnify Parent from and against any damages suffered or incurred by Parent and
that arise from any breach of any representation, warranty, covenant or
obligation of Stockholder contained herein.
7.3 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.
7.4 NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) when delivered by
hand, or (b) two business days after sent by registered mail or, by courier or
express delivery service or by facsimile 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 parties hereto):
if to Stockholder:
at the address set forth below Stockholder's
signature on the signature page hereto;
if to Parent:
CYPROS PHARMACEUTICAL CORPORATION
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attention: X. Xxxxxxxxxx Xxxxxxxx, Jr., Esq.
Facsimile: (000) 000-0000
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7.5 SEVERABILITY. Any term or provision of this Voting Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Voting Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Voting Agreement in any
other jurisdiction. If any provision of this Voting Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
7.6 ENTIRE AGREEMENT. This Voting Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
and supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and thereof. This
Voting Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same instrument
7.7 ASSIGNABILITY. This Voting Agreement shall be binding upon, and
shall be enforceable by and inure solely to the benefit of, the parties hereto
and their respective successors and assigns; PROVIDED, HOWEVER, that neither
this Voting Agreement nor any portion hereof shall be assignable (whether by
operation of law or otherwise and including, for this purpose, a change in
control as an assignment) by the Stockholder. Nothing in this Voting Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Voting
Agreement.
7.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that Parent shall be entitled to
an injunction or injunctions to prevent breaches of this Voting Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which Parent is entitled at law or in equity.
7.9 APPLICABLE LAW; JURISDICTION. This Voting Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. In any action between the parties
arising out of or relating to this Voting Agreement or any of the transactions
contemplated by this Voting Agreement: (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 California; (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
Southern District of California; (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 7.4.
7.10 ATTORNEY'S FEES. In any action at law or suit in equity to
enforce this Voting Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive a
reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
7.11 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the 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 hereto 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.
(e) The bold-faced headings 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.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
CYPROS PHARMACEUTICAL CORPORATION
By:
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Name:
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Title:
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STOCKHOLDER
Name:
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Address:
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Facsimile:
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Number of issued and outstanding
shares of Company Common Stock owned
of record as of the date of this
Voting Agreement:
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Number of additional issued and
outstanding shares of Company Common
Stock owned beneficially (but not of
record) as of the date of this Voting
Agreement:
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Number of options, warrants and other
rights to acquire shares of Company
Common Stock owned of record as of the
date of this Voting Agreement:
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Number of additional options, warrants
and other rights to acquire shares of
Company Common Stock owned
beneficially (but not of record) as of
the date of this Voting Agreement:
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[Signature page to Voting Agreement]
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned stockholder of RiboGene, Inc., a Delaware corporation
("Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx and Cypros
Pharmaceutical Corporation, a California corporation ("Parent"), and each of
them, the attorneys and proxies of the undersigned with respect to (i) the
shares of capital stock of Company owned 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 Company which the undersigned may
acquire after the date hereof. (The shares of the capital stock of 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 no subsequent proxies will be given with respect to any of the
Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with 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 Reorganization,
dated as of the date hereof, among Parent, Cypros Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Parent, and the Company (the
"Merger Agreement"). Unless otherwise indicated, capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Merger Agreement.
Each attorney and proxy named above will be empowered, and may exercise
this proxy at any meeting of the stockholders of the Company, however called, or
in any written action by consent of stockholders of the Company, to vote the
Shares at any time prior to the Expiration Date (as defined in the Voting
Agreement):
1. in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the adoption and approval of the terms thereof and
in favor of each of the other actions contemplated by the Merger Agreement and
any action required in furtherance hereof and thereof;
2. against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of Company in the Merger
Agreement; and
3. against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any Company Acquisition
Transaction; (ii) any change in a majority of the board of directors of the
Company; (iii) any amendment to the Company's certificate of incorporation; (iv)
any material change in the capitalization of the Company or the Company's
corporate structure; or (v) any other action which is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Merger or any of the other transactions contemplated by
the Merger Agreement or the Voting Agreement.
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The Stockholder may vote the Shares on all other matters.
Any obligation of the Stockholder hereunder shall be binding upon the
heirs, successors and assigns of the Stockholder (including any transferee of
any of the Shares).
This proxy shall terminate upon the Expiration Date (as defined in the Voting
Agreement).
Dated: August ____, 1999
STOCKHOLDER
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Name:
Number of Shares of Company Common
Stock owned of record or beneficially
as of the date of this proxy:
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