VOTING AGREEMENT
Exhibit 99.1
This Voting Agreement (the “Agreement”) is made and entered into as of November ___, 2005,
between Solexa, Inc., a Delaware corporation (the “Company”), and the undersigned stockholder
(“Holder”) of the Company.
RECITALS
Whereas, Holder is the registered owner of such number of the Company’s common stock,
par value $0.01 per share (the “Common Stock”) and options to purchase such number of shares of
Common Stock as indicated beneath Holder’s signature on the last page of this Agreement (shares of
Common Stock, exclusive of options to purchase Common Stock, indicated as being owned by Holder on
the signature page hereto shall be referred to herein as the “Shares”);
Whereas, the Holder is purchasing shares of Common Stock and warrants to purchase
shares of Common Stock pursuant to that certain Securities Purchase Agreement (the “Purchase
Agreement”) of even date herewith (the “Private Placement”);
Whereas, the obligations in the Purchase Agreement are conditioned upon the execution
and delivery of this Agreement; and
Whereas, in connection with the consummation of the Private Placement, the Company
and Holder have agreed to provide for the voting of the Holder’s Shares and the rights as set forth
below.
Now, Therefore, in consideration of these premises and for other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. New Shares. Holder agrees that any shares of capital stock or interests in shares
or other securities of the Company that Holder purchases or with respect to which Holder otherwise
acquires registered or beneficial ownership after the date hereof and
prior to March 31, 2006 (“New
Shares”) shall be subject to the terms and conditions of this Agreement to the same extent as if
they constituted Shares.
2. Agreement to Vote Shares. Until March 31, 2006, Holder shall, at any meeting
(whether annual or extraordinary and whether or not an adjourned or postponed meeting) of
stockholders of the Company or of any class of stockholders of the Company, however called, or in
connection with any written resolution of the holders of shares or any class of shares in the
capital of the Company, vote the Shares and any New Shares held by Holder in favor of the issuance
of Common Stock and warrants pursuant to the Private Placement and any other transactions
contemplated by the Purchase Agreement. The Holder hereby agrees that he or she will not vote the
Shares and New Shares in favor of the approval of any action the consummation of which would
frustrate the purposes, or prevent or delay the consummation of, the transactions
contemplated by the Purchase Agreement. This Agreement is intended to bind Holder as a holder
of Shares of the Company only with respect to the specific matters set forth herein. Except as set
forth this Section 2, Holder shall not be restricted from voting in favor of, against or abstaining
with respect to any other matter presented to the stockholders of the Company.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement, Holder
agrees to deliver to the Company a proxy in the form attached hereto as Exhibit A (the
“Proxy”), which shall be irrevocable to the fullest extent permitted by law.
4. Representations, Warranties and Covenants of Holder. Holder hereby represents,
warrants and covenants to the Company that Holder (i) is the registered owner and, as set forth on
the signature page, beneficial owner, of the Shares and options to purchase Common Stock, if any,
indicated below Holder’s signature on the signature page to this Agreement, which at the date of
this Agreement and at all times up until March 31, 2006, are, and will be, free and clear of any
liens, claims, options, charges or other encumbrances, and (ii) is not the registered owner of any
shares, options or other securities in, or convertible into, capital stock of the Company, other
than the Shares and the options to purchase Common Stock, if any, indicated below Holder’s
signature on the last page of this Agreement. Holder has the legal capacity, power and authority
to enter into and perform all of Holder’s obligations under this Agreement (including under the
Proxy). This Agreement (including the Proxy) has been duly and validly executed and delivered by
Holder and constitutes a valid and binding agreement of Holder, enforceable against Holder in
accordance with its terms, subject to (a) laws of general application relating to bankruptcy,
insolvency and the relief of debtors and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
5. Further Assurances. Holder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in the Company the power to
carry out and give effect to the provisions of this Agreement.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i)
Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity
as a registered owner of the Shares and, to the extent applicable, any New Shares, (ii) nothing in
this Agreement shall be construed to limit or affect any action or inaction by Holder, or any
officer, partner, member or employee, as applicable, of Holder, serving on the Company’s Board of
Directors acting in such person’s capacity as a director or fiduciary of the Company, and (iii)
Holder shall have no liability to Parent or any its affiliates under this Agreement as a result of
any action or inaction by Holder, or any officer, partner, member or employee, as applicable, of
Holder, serving on the Company’s Board of Directors acting in such person’s capacity as a director
or fiduciary of the Company.
7. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the Company and Holder or their respective successors and assigns. Any
amendment or waiver effected in accordance with this Section 7(a) shall be binding upon the parties
and their respective successors and assigns.
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(b) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to principles of
conflicts of law.
(c) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(e) Notices. Any notice or other communication required or permitted to be delivered
to any party under this Agreement shall be in writing and shall be deemed properly delivered, given
and received (i) when delivered by hand; (ii) on the day sent by facsimile, provided that the
sender has received confirmation of transmission as of or prior to 5:00 p.m. local time of the
recipient, on such day; (iii) the first Business Day after sent by facsimile (to the extent that
(A) the sender has received confirmation of transmission after 5:00 p.m. local time of the
recipient on the day sent by facsimile, or (B) notice is sent on a day that is not a Business Day);
or (iv) the third Business Day after sent by registered mail or by courier or express delivery
service, in each case to the address or facsimile number set forth on the signature page to this
Agreement beneath the name of such party, or to such other address or facsimile number as such
party shall have specified in a written notice given to the other party hereto.
(f) Severability. If one or more provisions of this Agreement are held to be invalid
or unenforceable under the applicable law of any jurisdiction, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed by each party as
close as possible to that under the provision rendered unenforceable. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i)
such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be
valid and enforceable in accordance with its terms. Each provision of this Agreement is separable
from any other provisions of this Agreement, and each part of each provision of this Agreement is
severable from every other part of such provision.
(g) Specific Performance. Each of the parties hereto recognizes and acknowledges that
a breach of any covenants or agreements contained in this Agreement will cause the Company to
sustain damages for which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach the Company shall
be entitled to the remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which they may be entitled, at law or
in equity.
(h) Entire Agreement. This Agreement, the Proxy, and any other documents delivered by
the parties in connection herewith constitute the entire agreement between the
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parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings between the parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon either party unless made in
writing and signed by both parties.
[signature page follows]
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The parties have caused this Agreement to be duly executed on the date first above written.
| COMPANY | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: Solexa, Inc. | ||||
| 00000 Xxxxxxxxxx Xxxxxxxxx | ||||
| Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Chief Executive Officer | ||||
| Facsimile No.: 650.670.9303 | ||||
Signature Page to Voting Agreement
| HOLDER | ||||
| By: | ||||
| Name | ||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
Common Stock of the Company held of record:
|
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Options to Purchase Common Stock of the Company: |
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Additional Securities of the Company Beneficially Owned: |
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Signature Page to Voting Agreement
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE SHARES OF
The undersigned stockholder (“Holder”) of Solexa, Inc, a Delaware corporation (the “Company”),
hereby irrevocably (to the fullest extent permitted under the laws of Delaware) appoints the Chief
Executive Officer and each of the other members of the Board of Directors of the Company, and each
of them, as the sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest
extent that the undersigned is entitled to do so) with respect to all of the capital stock of the
Company that now are or hereafter may be owned of record by and/or registered in the name of the
undersigned, and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the “Shares”) in accordance with the
terms of this Proxy, the Shares and that certain Voting Agreement of even date herewith, by and
between Company and the undersigned (the “Voting Agreement”). The shares of, and/or options over,
the common stock of the Company owned by the undersigned stockholder of the Company as of the date
of this Proxy are listed beneath the undersigned’s signature on the final page of this Proxy. Upon
the undersigned’s execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares until March 31, 2006. Terms used herein and not defined herein
shall have the meaning set forth in the Voting Agreement.
This Proxy is coupled with an interest, is irrevocable (to the fullest extent permitted by
law), is granted pursuant to the Voting Agreement and is granted in consideration of the Company
entering into that certain Securities Purchase Agreement, of even date herewith, among the Company
and the individuals and entities identified on the signature pages thereto (the “Purchase
Agreement”).
The attorneys and proxies named above, and each of them, are hereby further authorized and
empowered by the undersigned, at any time prior to March 31, 2006, to act as the undersigned’s
attorney and proxy to vote the Shares in favor of the issuance of Common Stock and warrants
pursuant to the Purchase Agreement and any other transactions contemplated by the Purchase
Agreement, and to exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written resolutions), at
every annual, extraordinary or adjourned meeting of the stockholders or any class of stockholders
of the Company and in every written resolution in lieu of any such meeting.
This Proxy and all acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
Any obligation of the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned.
This Proxy is irrevocable to the fullest extent permitted by law.
[signature page follows]
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Dated: November ___, 2005 |
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Common Stock of the Company held of record:
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Options to Purchase Common Stock of the Company: |
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Additional Securities of the Company Beneficially Owned: |
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Signature Page to Irrevocable Proxy
