Exhibit C
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT, dated as of August 2, 2002 (this "AGREEMENT"), by
and between the stockholder whose name and address is set forth on the signature
page hereto ("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, the Board of Directors of the Corporation has, today, amended the
Corporation's 1996 Stock Incentive Plan (the "Plan") to (i) provide for a
one-time increase of 3,000,000 shares of Common Stock available for issuance
under the Plan, and (ii) increase the number of options which may be granted to
any one person in the aggregate per calendar year to 1,500,000, all as set forth
in the amendment attached hereto as Exhibit A (the "PLAN AMENDMENT");
WHEREAS, the Board of Directors of the Corporation has resolved and
directed that the Plan Amendment shall be subject to approval by the
stockholders of this Corporation at a special meeting to be convened for such
purpose as soon as practicable after the date hereof (the "SPECIAL MEETING");
WHEREAS, the Stockholder, believing the Plan Amendment to be in the best
interests of the Corporation, wishes to approve the Plan Amendment and to
facilitate its approval by the requisite vote of the holders of Common Stock at
the Special Meeting 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 the Plan Amendment and (ii) any other
actions related to (i), and against any proposal or transaction which could
prevent or delay the approval of the Plan Amendment, at the Special Meeting or
any meeting or meetings of the stockholders of the Company, and any adjournment,
postponement or continuation thereof, at which the Plan Amendment or such other
related 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 Xxxxxx
Xxxxxxxx, Xx. 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.
3. COVENANTS OF STOCKHOLDER.
3.1 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.
3.2 AGREEMENT TO RETAIN SHARES PENDING RECORD DATE. The Company has
established the close of business on Monday, August 5, 2002 as the record date
for the Special Meeting (the "RECORD DATE"). Between the date here of and the
close of business on the day after the Record Date, Stockholder shall not sell,
assign, or transfer, or authorize any brokerage firm or nominee holder of the
Shares to sell, assign, or transfer the Shares.
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 by Stockholder after the date hereof or disposed
of by Stockholder after the Record Date.
5. TERMINATION. This Agreement shall terminate on the earlier of (i) the
day after the date of the Special Meeting and any adjournment, postponement or
continuation thereof, at which the Plan Amendment or such other related actions
are submitted for the consideration and vote of the stockholders of the Company
or (ii) if no such meeting shall have taken place before such date, on December
31, 2002.
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.
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.
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]
* * * * * *
[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: *
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Number of Shares of Common Stock held by
Stockholder:
By:
------------------------------- ------------------------
Name:
Title:
Address:
Attention:
Fax Number:
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* Instructions: Each entity or person that is an affiliate of the Stockholder
which holds stock in the Company must execute a separate signature page.
EXHIBIT A
AMENDMENT
TO THE
TRIANGLE PHARMACEUTICALS, INC.
1996 STOCK INCENTIVE PLAN
AUGUST 2, 2002
Pursuant to resolutions of the Board of Directors of Triangle
Pharmaceuticals, Inc. (the "Corporation") dated August 2, 2002, the
Corporation's 1996 Stock Incentive Plan (the "Plan") is hereby amended as
follows:
Article One is hereby amended by adding a sentence at the end of Section
V.A., to read as follows:
"In addition, the maximum number of shares of Common Stock
reserved for issuance under the Plan is increased by 3,000,000 shares
as of August 2, 2002, subject to stockholder approval at a special
meeting of stockholders to be convened for such purpose."
Article One, Section V(B) is hereby amended and restated in its entirety,
to read as follows:
"No one person participating in the Plan may receive options,
separately exercisable stock appreciation rights and direct stock
issuances for more than 1,500,000 shares of Common Stock in the
aggregate per calendar year, beginning with the 2002 calendar year.
Except as provided in this Amendment, the terms and conditions of the Plan
shall remain unchanged.
TRIANGLE PHARMACEUTICALS, INC.
By:
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Name:
Title:
