EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of
this 10th day of February, 2003, by and among New Enterprise Associates ("NEA")
and those certain persons and entities listed on Exhibit A hereto (the
"Shareholders").
WITNESSETH
WHEREAS, NEA and certain other investors are purchasing shares of
Common Stock (the "Common Stock") of Aradigm Corporation (the "Company") and
warrants (the "Warrants") to purchase Common Stock, pursuant to that certain
Securities Purchase Agreement (the "Purchase Agreement") of even date herewith
and the Company is canceling and reissuing certain Common Stock Warrants,
previously issued pursuant to the Securities Purchase Agreement dated December
11, 2001, to NEA and certain other investors, pursuant to that certain Warrant
Repricing Agreement (the "Warrant Agreement") of even date herewith
(collectively, the "Financing");
WHEREAS, each Shareholder is a holder of record and the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) of certain shares of capital stock of the Company; and
WHEREAS, in connection with the consummation of the Financing, and in
order to induce NEA to enter into the Purchase Agreement and the Warrant
Agreement, the Shareholders have agreed to provide for the future voting of
their shares of the Company's capital stock as set forth below.
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 Shareholder Shares. The Shareholders each agree to hold all shares of
voting capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each of the
Shareholders after the date hereof and on or prior to the date of the
Shareholder Meeting (as defined below) (hereinafter collectively referred to as
the "Shareholder Shares") subject to, and to vote the Shareholder Shares in
accordance with, the provisions of this Agreement.
1.2 Purchase Agreement and Financing. At any meeting of shareholders of
the Company, however called (the "Shareholder Meeting"), the Shareholders shall
vote all of their respective Shareholder Shares to be voted in favor of the
approval of the Financing, the execution, delivery and performance by the
Company of the Purchase Agreement, the execution, delivery and performance by
the Company of the Warrant Agreement and the adoption and
approval of the terms thereof and in favor of each of the other actions
contemplated by the Purchase Agreement and the Warrant Agreement and any action
required in furtherance thereof. The foregoing notwithstanding, if the terms of
the Financing, the Purchase Agreement or the Warrant Agreement are materially
changed or amended after the date hereof, no Shareholder shall have any
obligations under the provisions of Section 1.1 or this Section 1.2 if such
Shareholder reasonably believes that such change or amendment is adverse to the
rights or interests of the Company or such Shareholder.
1.3 Successors. The provisions of this Agreement shall be binding upon the
successors in interest to any of the Shareholder Shares.
1.4 Other Rights. Except as provided by this Agreement or any other
agreement entered into in connection with the Financing, each Shareholder shall
exercise the full rights of a holder of capital stock of the Company with
respect to the Shareholder Shares, respectively.
2. TERMINATION.
2.1 This Agreement shall continue in full force and effect from the date
hereof through the earliest of the following dates, on which date it shall
terminate in its entirety:
(a) the Closing Date (as defined in the Purchase Agreement);
(b) the date as of which the parties hereto terminate this Agreement
by written consent of (i) NEA and (ii) a majority in interest of the
Shareholders;
(c) the termination of the Purchase Agreement pursuant to Section 9.1
thereof; or
(d) April 30, 2003.
3. MISCELLANEOUS.
3.1 Ownership. Each Shareholder represents and warrants to NEA that (a)
such Shareholder now owns, or will own upon the Shareholder Meeting, the
Shareholder Shares, free and clear of liens or encumbrances, and has not, prior
to or on the date of this Agreement, executed or delivered any proxy or entered
into any other voting agreement or similar arrangement other than one which has
expired or terminated prior to the date hereof, and (b) such Shareholder has
full power and capacity to execute, deliver and perform this Agreement, which
has been duly executed and delivered by, and evidences the valid and binding
obligation of, such Shareholder enforceable in accordance with its terms.
3.2 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
2
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.
3.3 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
California as such laws apply to agreements among California residents made and
to be performed entirely within the State of California.
3.4 Amendment or Waiver. This Agreement may be amended (or provisions of
this Agreement waived) only by an instrument in writing signed by (i) NEA and
(ii) a majority in the interest of the Shareholders. Any amendment or waiver so
effected shall be binding upon each of the parties hereto and any assignee of
any such party.
3.5 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.
3.6 Transfers to Affiliates. In the event a Shareholder transfers any of
its Shareholder Shares to an affiliate of such Shareholder, such Shareholder
shall cause such affiliate to do all things and execute and deliver all
documents, as may be necessary to have such affiliate execute 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 affiliate were a Shareholder.
3.7 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 Shareholder 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 Shareholder Shares, as the case may be, for purposes of
this Agreement.
3.8 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.
3.9 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.
3.10 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
3.11 Notices. Any notices required in connection with this Agreement shall
be in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) 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, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(iv) 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.
3.12 Entire Agreement. This Agreement and the Exhibits hereto, along with
the Purchase Agreement and each of the Exhibits 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
3.13 Massachusetts Business Trusts. A copy of the Agreement and
Declaration of Trust of each Purchaser that is a fund or series investment
company (each, a "Fund") organized as a Massachusetts business trust (each, a
"Trust") is on file with the Secretary of the Commonwealth of Massachusetts.
NEA and the other Shareholders acknowledge and agree that this Agreement is not
executed on behalf of or binding upon any of the trustees, officers, directors
or shareholders of a Trust individually, but is binding upon the applicable
Fund and its assets and property. NEA agrees that no trustee, officer, director
or shareholder of a Trust or the applicable Fund may be held personally liable
or responsible for any obligations of a Fund arising out of this Agreement.
With respect to all obligations of the Fund arising out of this Agreement, NEA
shall look for payment or satisfaction of any claim solely to the assets and
property of the Fund. NEA is expressly put on notice that the rights and
obligations of each series of shares of a Trust under its Agreement and
Declaration of Trust are separate and distinct from those of any and all other
series.
[THIS SPACE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have executed this VOTING
AGREEMENT as of the date first above written.
NEW ENTERPRISE ASSOCIATES:
New Enterprise Associates 10, Limited Partnership
By: NEA Partners 10, Limited Partnership
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx, III
--------------------------------------
Name: Xxxxxx X. Trainer III
Administrative General Partner &
Chief Operating Officer
Title: General Partner
5
NOVO NORDISK A/S
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx, Senior Vice President
Protein Delivery Systems, Management
Title:
-------------------------------------------
STATE STREET RESEARCH AURORA FUND, A SERIES OF
STATE STREET RESEARCH CAPITAL TRUST
BY: STATE STREET RESEARCH & MANAGEMENT COMPANY, AS
INVESTMENT ADVISER
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Director
STATE STREET RESEARCH AURORA PORTFOLIO, A SERIES
OF METROPOLITAN SERIES FUND, INC.
BY: STATE STREET RESEARCH & MANAGEMENT COMPANY, AS
INVESTMENT SUB-ADVISER
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Director
0
XXXXX XXXXXX RESEARCH HEALTH SCIENCES FUND, A
SERIES OF THE STATE STREET RESEARCH FINANCIAL
TRUST
By: /s/ illegible
Title: Vice President
MPM BIOEQUITIES MASTER FUND LP
By: /s/ Xxxx xxx Xxxxxx
Name: Xxxx xxx Xxxxxx
Title: Managing Member
DOMAIN PUBLIC EQUITY PARTNERS, L.P.
BY: DOMAIN PUBLIC EQUITY ASSOCIATES, LLC
By: Its General Partner
Name: /s/ Xxxxxx Xxxxxxx
Title: Managing Member
CAMDEN PARTNERS STRATEGIC FUND II-A, L.P.
BY: CAMDEN PARTNERS STRATEGIC II, LLC, ITS
GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
7
URSUS OFFSHORE LTD.
By: /s/ illegible
Title: Managing Director
[NAME OF SHAREHOLDER]
By: /s/ Xxxxxxx Xxxx Xxxxxxxx
Name: Xxxxxxx Xxxx Xxxxxxxx
8
EXHIBIT A
LIST OF SHAREHOLDERS
Common Stock
Number of and Preferred
Number of Shares of Stock Combined
Shares of Preferred Voting Power
Beneficial Owner Common Stock Stock Percentage*
------------------------------------------ ------------ --------- --------------
New Enterprise Associates 10, 2,489,585 1,033,057 16.9%
Limited Partnership
Novo Nordisk Pharmaceuticals, Inc. 7,868,369 20.1
State Street Research Aurora Fund 1,282,500 3.3
State Street Research Aurora Portfolio 295,900 0.8
State Street Research Health Sciences Fund 288,100 0.7
MPM BioEquities Master Fund LP 206,611 2.1
Domain Public Equity Partners, LP 128,000 154,958 1.9
Camden Partners Strategic Fund II-A, 141,600 1.4
LP
Ursus Offshore Limited 198,900 0.5
Xxxxxxx Xxxxxxxx 300,212 .8
Total 48.5
* Applicable percentages are based on 31,157,612 shares of Common Stock and
2,001,236 shares of Preferred Stock (convertible at any time into
8,004,944 shares of Common Stock) outstanding on January 31, 2003.
