Exhibit 99.3
FORM OF VOTING AGREEMENT
MICROCIDE PHARMACEUTICALS, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of
this 24th day of October, 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:
(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. 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.
3.8 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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:_________________
