VOTING AGREEMENT
This
VOTING AGREEMENT, dated as of _______, 2005 (the “Agreement”) is by and between
the undersigned stockholder (the “Stockholder”) of the Company (as hereinafter
defined) and Sirna Therapeutics, Inc., a Delaware corporation (“Company”).
WHEREAS,
as of the date hereof, the Stockholder owns of record and beneficially (as
determined in accordance with Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) the number of shares of capital stock of
the
Company set forth on the signature page hereto (such shares, or any other
voting
or equity of securities of the Company hereafter acquired by the Stockholder
prior to the termination of this Agreement, being referred to herein
collectively as the “Shares”);
WHEREAS,
the Company, the Stockholder and certain other investors (the “Investors”) in
the Company have entered into certain Securities Purchase Agreements, each
dated
as of ________, 2005 (collectively, the “Purchase Agreements”), pursuant to
which, upon the terms and subject to the conditions thereof, the Investors
will
purchase shares of common stock of Company and warrants to purchase shares
of
common stock of the Company (the “PIPE Transaction”); and
WHEREAS,
as a condition to the willingness of Company to enter into the PIPE Transaction,
Company has required that the Stockholder agree, and in order to induce Company
to enter into the PIPE Transaction, the Stockholder is willing to agree to
vote
in favor of the PIPE Transaction upon the terms and subject to the conditions
set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
Section
1. Voting
of Shares.
(a) Voting.
The
Stockholder covenants and agrees that until the termination of this Agreement
in
accordance with the terms hereof, at any meeting of the stockholders of the
Company, however called with respect to any of the following, and in any
action
by written consent of the stockholders of the Company with respect to any
of the
following, the Stockholder will vote, or cause to be voted, all of his, her
or
its respective Shares (i) in favor of any matter that could reasonably be
expected to facilitate the PIPE Transaction, and (ii) against any matter
that
could reasonably be expected to hinder, impede or delay the consummation
of the
PIPE Transaction.
(b) Irrevocable
Proxy.
(i) The
Stockholder hereby irrevocably grants to and appoints, and hereby authorizes
and
empowers, Company, and any individual designated in writing by it, and each
of
them individually, as the Stockholder’s sole and exclusive proxy and
attorney-in-fact (with full power of substitution and resubstitution), for
and
in the Stockholder’s name, place and stead, to vote and exercise all voting and
related rights (to the fullest extent that the Stockholder is entitled to
do so)
with respect to his, her or its Shares at any meeting of the stockholders
of the
Company called, and in every written consent in lieu of such meeting, with
respect to any of the matters specified in, and in accordance and consistent
with, this Section 1. The Stockholder may vote the Shares on all other matters
not contemplated by this Section 1.
(ii) The
Stockholder understands and acknowledges that Company is entering into the
PIPE
Transaction in reliance upon the Stockholder’s execution and delivery of this
Agreement. The Stockholder hereby affirms that the irrevocable proxy set
forth
in this Section 1(b) constitutes an inducement for Company to enter into
the
PIPE Transaction, is given in connection with the execution of the Purchase
Agreement between the Stockholder and the Company dated as of the date hereof,
and is given to secure the performance of the duties of the Stockholder under
this Purchase Agreement. Except as otherwise provided for herein, the
Stockholder hereby (i) affirms that the irrevocable proxy is coupled with
an
interest and may under no circumstances be revoked, (ii) ratifies
and
confirms all that the proxies appointed hereunder may lawfully do or cause
to be
done by virtue hereof and (iii) affirms that such irrevocable proxy is executed
and intended to be irrevocable in accordance with the provisions of Section
212(e) of the Delaware General Corporation Law.
(iii) Upon
the
execution of this Agreement by the Stockholder, the Stockholder hereby revokes
any and all prior proxies or powers of attorney given by the Stockholder
with
respect to the Shares. The Stockholder acknowledges and agrees that no
subsequent proxies with respect to such Shares shall be given, and if given,
shall not be effective. All authority conferred herein shall survive the
death
or incapacity of the Stockholder and any obligation of the Stockholder hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the Stockholder. Notwithstanding any other provisions of this
Agreement, the irrevocable proxy granted hereunder shall automatically terminate
upon the Expiration Date (as defined in Section 4).
Section
2. Transfer
of Shares.
(a) Until
the
consummation of the PIPE Transactions or unless the transferee agrees to
be
bound by the terms of this Agreement, the Stockholder covenants and agrees
that
the Stockholder will not directly or indirectly, (i) sell, assign, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of
law),
pledge, encumber or otherwise dispose of any of the Shares, (ii) deposit
any of
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement or (iii) enter into any
contract, option or other arrangement or undertaking with respect to the
direct
or indirect sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law) or other disposition of any
Shares.
(b) The
Company shall not recognize the transfer of any Shares in violation of the
transfer restrictions set forth in Section 2(a) of this Agreement.
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Section
3. Representations
and Warranties of the Stockholder.
The
Stockholder hereby represents and warrants to the Company with respect to
the
Stockholder and its, his or her ownership of the Shares as follows:
(a) Ownership
of Shares.
The
Stockholder owns of record and beneficially all of the Shares set forth on
the
signature page hereto and has good and marketable title to such Shares, free
and
clear of any claims, liens, encumbrances and security interests whatsoever,
other than liens under applicable law or as expressly provided in this
Agreement. The Stockholder owns no equity interest in the Company other than
the
Shares as set forth on the signature page hereto. The Stockholder has sole
voting power (or shared voting power solely with its affiliates), without
restrictions, with respect to all of the Shares.
(b) Power,
Binding Agreement.
The
Stockholder has the legal capacity and all requisite power and authority
to
enter into and perform all of its, his or her obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
Section
4. Termination.
This
Agreement shall terminate upon the Expiration Date; provided, however, that
no
such termination shall relieve any party of liability for a willful breach
hereof prior to termination. As used herein, “Expiration Date” shall mean the
earlier to occur of (i) the consummation of the PIPE Transactions, (ii) the
one
(1) year anniversary of the date hereof, and (iii) the date the Purchase
Agreement is terminated in accordance with the terms thereof.
Section
5. Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of
the
terms hereof, in addition to any other remedy at law or in equity.
Section
6. Additional
Documents.
Stockholders hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Company and
the
Stockholder, as the case may be, to carry out the intent of this
Agreement.
Section
7. Miscellaneous.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and
understandings, both written and oral, between the parties with respect thereto.
This Agreement may not be amended, modified or rescinded except by an instrument
in writing signed by each of the parties hereto.
(b) Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law, or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and
effect.
Upon such determination that any term or other provision is invalid, illegal
or
incapable of being enforced, the parties hereto shall negotiate in good faith
to
modify this Agreement so as to effect the original intent of the parties
as
closely as possible to the fullest extent permitted by applicable law in
a
mutually acceptable manner in order that the terms of this Agreement remain
as
originally contemplated to the fullest extent possible.
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(c) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware without giving effect to any choice or conflict
of
law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of laws of any jurisdictions
other than those of the State of Delaware.
(d) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument. This Agreement may be executed by facsimile signature.
(e) Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within the United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or electronic mail, or (B) if
delivered from outside the United States, by International Federal Express
(or
other recognized international express courier) or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail,
three
business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express (or other recognized international express
courier), two business days after so mailed, or (iv) if delivered by facsimile
or electronic mail, upon electronic confirmation of receipt and shall be
delivered as addressed as follows:
if
to the
Company, to:
Sirna
Therapeutics, Inc.
000
Xxxxx
Xxxxxx
Xxxxx
0000
Xxx
Xxxxxxxxx, XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx Xxxxxxxx
Email:
XxxxxxxxX@xxxxx.xxx
if
to the
Stockholder, at its address as shown on the books of the Company.
(f) Assignment.
This
Agreement shall not be assigned by operation of law or otherwise; provided,
however,
that
Company may assign any or all of its rights and obligations under this Agreement
to any wholly-owned subsidiary of Company, but no such assignment shall relieve
Company of its obligations hereunder if such assignee does not perform such
obligations.
(g) Legal
Counsel.
Stockholder acknowledges that he, she or it has been advised to, and has
had the
opportunity to consult with his, her or its personal attorney prior to entering
into this Agreement. Stockholder further acknowledges that attorneys for
the
Company represent the Company and do not represent Stockholder or any of
the
stockholders of the Company in connection with the this Agreement or any
of the
transactions contemplated hereby.
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(h) Agreement
Negotiated.
Stockholder acknowledges that he, she or it has been advised to, and has
had the
opportunity to, consult with his, her or its personal attorney prior to entering
into this Agreement. As a consequence, Stockholder does not believe or intend
that any laws or rules relating to the interpretation of contracts against
the
drafter of any particular clause should be applied in this case and therefore
waive its effects.
(i) Interpretation.
When
reference is made in this Agreement to an Article or a Section, such reference
shall be to an Article or Section of this Agreement, unless otherwise
indicated.
The headings contained in this Agreement are for convenience of reference
only
and shall not affect in any way the meaning or interpretation of this Agreement.
The language used in this Agreement shall be deemed to be the language chosen
by
the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party. Whenever the context may
require, any pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural, and vice versa. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules
and
regulations promulgated thereunder, unless the context requires otherwise.
Whenever the
words
“include,”“includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.”
No
summary of this Agreement prepared by the parties shall affect in any way
the
meaning or interpretation of this Agreement.
(j) Submission
to Jurisdiction.
Each of
the parties to this Agreement (i) submits to the jurisdiction of any
state
or federal court sitting in New York, New York in any action or proceeding
arising out of or relating to this Agreement
or any of the transactions contemplated by this Agreement, (ii) agrees
that
all claims in
respect of such action or proceeding may be heard and determined in any such
court, and (iii) agrees not to bring any action or proceeding arising
out
of or
relating to this Agreement or any of the transactions contemplated by this
Agreement in any other court. Each of the parties hereto waives any defense
of
inconvenient forum to the maintenance of any action or proceeding so brought
and
waives any bond, surety or other security that might be required of any other
party with respect thereto. Any party hereto may make service on another
party
by sending or delivering a copy of the process to the party to be served
at the
address and in the manner provided for the giving of notices in
Section 7(e). Nothing in this Section 7(j), however, shall affect
the right
of any party to serve legal process in any other manner permitted by
law.
(k) WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO
TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE COMPANY OR THE
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
OF
THIS AGREEMENT.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be
signed individually or by its respective duly authorized officer as of the
date
first written above.
SIRNA
THERAPEUTICS, INC.
By:
__________________________________
Name:
________________________________
Title:
_________________________________
STOCKHOLDER:
By:
__________________________________
Name:
________________________________
Title:
_________________________________
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Stock
Certificate
Number
|
Number
of Shares of Common Stock Represented Thereby
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