VOTING AGREEMENT
Exhibit 99.1
This Voting Agreement (this “Agreement”) is entered into as of May 28, 2010, by and
between VaxGen, Inc., a Delaware corporation (“Parent”), and
(“Stockholder”).
Recitals
A. Stockholder 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 common stock of diaDexus,
Inc., a Delaware corporation (the “Company”).
B. Parent, Violet Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary
of Parent (“Merger Sub I”), Violet Acquisition LLC, a Delaware limited liability company and
wholly-owned subsidiary of Parent (“Merger Sub II”), and the Company are entering into an Agreement
and Plan of Merger and Reorganization of even date herewith (the “Merger Agreement”) which provides
(subject to the conditions set forth therein) for (i) the merger of Merger Sub I with and into the
Company (“Merger I”), with the Company surviving Merger I and becoming a wholly-owned subsidiary of
Parent and (ii) immediately following the effectiveness of Merger I, a merger of the Company with
and into Merger Sub II in accordance with the applicable provisions of Delaware Law and the
Delaware Limited Liability Company Act, with Merger Sub II surviving the merger (together with
Merger I, the “Merger”). Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings given to them in the Merger Agreement.
C. In the Merger, the outstanding shares of Series F Preferred Stock of the Company are to be
converted into the right to receive shares of common stock of Parent, and, subject to the terms of
the Merger Agreement, the outstanding shares of all other series of Preferred Stock of the Company
and the outstanding shares of common stock of the Company are to be cancelled and extinguished,
without any conversion thereof and without payment therefor.
D. In order to induce Parent to enter into the Merger Agreement, Stockholder is entering into
this Agreement.
Agreement
The parties to this Agreement, intending to be legally bound, agree as follows:
Section 1. Certain Definitions
For purposes of this Agreement:
(a) “Company Capital Stock” shall mean the Company Common Stock and the Company
Preferred Stock.
(b) “Company Common Stock” shall mean the common stock of the Company, par value $0.01
per share.
(c) “Company Preferred Stock” shall mean the Series A Preferred Stock of the Company,
par value $0.01, the Series B Preferred Stock of the Company, par value $0.01 per share, the
Series C Preferred Stock of the Company, par value $0.01 per share, the Series D Preferred
Stock of the Company, par value $0.01 per share, the Series E Preferred Stock of the
Company, par value $0.01 per share, and the Series F Preferred Stock of the Company, par
value $0.01 per share.
(d) Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security
if Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner”
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such
security, regardless of whether Stockholder Owns such security on the date hereof or has
acquired Ownership of such security at any time after the date hereof and regardless of the
manner in which Stockholder has acquired Ownership of such security including, without
limitation, as a result of exercise of stock options, conversion of convertible securities,
exchange of any securities or otherwise.
(e) “Subject Securities” shall mean: (i) all securities of the Company (including all
shares of Company Capital Stock and all options, warrants and other rights to acquire shares
of Company Capital Stock) Owned by Stockholder as of the date of this Agreement; and (ii)
all additional securities of the Company (including all additional shares of Company Capital
Stock and all additional options, warrants and other rights to acquire shares of Company
Capital Stock) of which Stockholder acquires Ownership during the period from the date of
this Agreement through the Voting Covenant Expiration Date.
(f) A Person shall be deemed to have a effected a “Transfer” of a security if such
Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect
to, transfers or disposes of such security or any interest in such security to any Person
other than Parent; (ii) enters into an agreement or commitment contemplating the possible
sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or
disposition of such security or any interest therein to any Person other than Parent; or
(iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such
security.
(g) “Voting Covenant Expiration Date” shall mean the earlier of the date upon which the
Merger Agreement is validly terminated, or the date upon which the Merger is consummated.
Section 2. Transfer of Subject Securities and Voting Rights
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period
from the date of this Agreement through the Voting Covenant Expiration Date, Stockholder shall not,
directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be
effected.
2
2.2 Restriction on Transfer of Voting Rights. During the period from the date of this
Agreement through the Voting Covenant Expiration Date, Stockholder shall ensure that: (a) none of
the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the Subject Securities
(other than in connection with Stockholder’s compliance with Section 3.1 or 3.2 of this Agreement).
During the period from the date of this Agreement through the Voting Covenant Expiration Date,
Stockholder shall not enter into any agreement or understanding with any Person that is
inconsistent with, violates, contravenes, or results in a violation, breach or contravention of,
any of the provisions of this Agreement.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of any Subject Securities
by Stockholder (a) to Parent or any wholly-owned subsidiary of Parent, (b) to any member of
Stockholder’s immediate family, or to a trust for the benefit of Stockholder or any member of
Stockholder’s immediate family, (c) upon the death of Stockholder, or (d) if Stockholder is a
partnership or limited liability company, to one or more partners or members of Stockholder or to
an affiliated corporation under common control with Stockholder; provided, however, that a transfer
referred to in clause (b), (c) or (d) of this sentence shall be permitted only if, as a
precondition to such transfer, the transferee agrees in a writing, satisfactory in form and
substance to Parent, to be bound by the terms of this Agreement and delivers a duly Executed proxy
in the form attached hereto as Exhibit A with respect to such transferred Subject Securities.
Section 3. Voting of Shares
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Voting Covenant Expiration
Date, at any meeting of the stockholders of the Company, however called, and in any written action
by consent of stockholders of the Company, unless otherwise directed in writing by Parent,
Stockholder shall cause the Subject Securities to be voted:
(a) in favor of the Merger, the execution, delivery and performance by the Company of
the Merger Agreement and the adoption and approval of the Merger Agreement and the terms
thereof, in favor of each of the other actions contemplated by the Merger Agreement and in
favor of any action in furtherance of any of the foregoing; and
(b) against approval of any proposal made in opposition to, or in competition with, the
Merger Agreement or the consummation of the Merger, including any Company Acquisition
Proposal or Company Acquisition Transaction.
Prior to the Voting Covenant Expiration Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner inconsistent with clause
“(a)” or “(b)” of the preceding sentence. Except as set forth in Section 3.1, Stockholder shall
not be restricted from voting in favor of, against or abstaining with respect to any matter
presented to the Company stockholders.
3
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Agreement: (i) Stockholder shall
deliver to Parent an irrevocable proxy in the form attached to this Agreement as Exhibit A,
which shall be irrevocable to the fullest extent permitted by law (at all times prior to the
Voting Covenant Expiration Date) with respect to the shares referred to therein (the
“Proxy”); and (ii) Stockholder shall cause to be delivered to Parent an additional proxy (in
the form attached hereto as Exhibit A) executed on behalf of the record owner of any
outstanding shares of Company Capital Stock that are owned beneficially (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Stockholder.
(b) Stockholder shall, at Stockholder’s own expense, perform such further acts and
execute such further proxies and other documents and instruments as may reasonably be
required to vest in Parent the power to carry out and give effect to the provisions of this
Agreement.
Section 4. Waiver of Appraisal Rights
Stockholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived
and to prevent the exercise of, any rights of appraisal, any dissenters’ rights and any similar
rights relating to the Merger or any related transaction that Stockholder or any other Person may
have by virtue of any outstanding shares of Company Capital Stock Owned by Stockholder (“Appraisal
Rights”).
Section 5. No Solicitation
Stockholder agrees that, during the period from the date of this Agreement through the Voting
Covenant Expiration Date, Stockholder shall not, directly or indirectly, and Stockholder shall take
reasonable precautions to ensure that Stockholder’s Representatives do not, directly or indirectly:
(a) solicit, initiate, encourage, induce or facilitate the making, submission or announcement of
any Company Acquisition Proposal or take any action that could reasonably be expected to lead to a
Company Acquisition Proposal; (b) furnish any information regarding the Company or any subsidiary
of the Company to any Person in connection with or in response to a Company Acquisition Proposal or
an inquiry or indication of interest that could lead to a Company Acquisition Proposal; (c) engage
in discussions or negotiations with any Person with respect to any Company Acquisition Proposal;
(d) approve, endorse or recommend any Company Acquisition Proposal; or (e) enter into any letter of
intent or similar document or any agreement or understanding contemplating or otherwise relating to
any Company Acquisition Transaction; provided, however, that the restrictions contained in this
Section 5 shall not apply to a Company Acquisition Proposal or Company Acquisition Transaction
between Company and Parent. Stockholder shall immediately cease and discontinue, and Stockholder
shall ensure that Stockholder’s Representatives immediately cease and discontinue, any existing
discussions with any Person (other than Parent) that relate to any Company Acquisition Proposal.
4
Section 6. Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
6.1 Authorization, etc. Stockholder has the absolute and unrestricted right, power, authority
and capacity to execute and deliver this Agreement and the Proxy and to perform Stockholder’s
obligations hereunder and thereunder. Stockholder has the sole power of disposition, sole power of
conversion, sole power to demand and waive Appraisal Rights, and sole power to vote or otherwise
agree to all of the matters set forth in this Agreement, in each case with respect to all Subject
Securities owned by Stockholder on the date hereof. This Agreement and the Proxy have been duly
executed and delivered by Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with their 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. If Stockholder
is a general or limited partnership, then Stockholder is a partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it was organized. If
Stockholder is a limited liability company, then Stockholder is a limited liability company duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it was
organized.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement and the Proxy by Stockholder do not,
and the performance of this Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which Stockholder or any of Stockholder’s properties is or may be bound or
affected; or (ii) result in or constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other Person (with or without notice or lapse of
time) any right of termination, amendment, acceleration or cancellation of, or result (with
or without notice or lapse of time) in the creation of any encumbrance or restriction on any
of the Subject Securities pursuant to, any contract to which Stockholder is a party or by
which Stockholder’s properties is or may be bound or affected.
(b) The execution and delivery of this Agreement and the Proxy by Stockholder do not,
and the performance of this Agreement and the Proxy by Stockholder will not, require any
consent or approval of any Person.
6.3 Title to Securities. As of the date of this Agreement: (a) Stockholder holds of record
(free and clear of any encumbrances or restrictions) the number of outstanding shares of Company
Capital Stock set forth under the heading “Shares Held of Record” on the signature page hereof; (b)
Stockholder holds (free and clear of any encumbrances or restrictions) the options, warrants and
other rights to acquire shares of Company Capital Stock set forth under the heading “Options and
Other Rights” on the signature page hereof; (c) Stockholder Owns the additional securities of the
Company set forth under the heading “Additional Securities Beneficially Owned” on the signature
page hereof; (d) Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any shares of capital stock or other securities of the Company, other than
the shares and options, warrants and other rights set forth on the signature page hereof; and (e)
Stockholder has not entered into any voting agreement or
given any person any proxy with respect to the Subject Securities other than as set forth in this
Agreement.
5
6.4 Accuracy of Representations. The representations and warranties contained in this
Agreement are accurate in all respects as of the date of this Agreement, will be accurate in all
respects at all times through and including the Voting Covenant Expiration Date and will be
accurate in all respects as of the date of the consummation of the Merger as if made on that date.
Section 7. Additional Covenants of Stockholder
7.1 Further Assurances. From time to time and without additional consideration, Stockholder
shall (at Stockholder’s sole expense) execute and deliver, or cause to be executed and delivered,
such additional transfers, assignments, endorsements, proxies, consents and other instruments, and
shall take such further actions, each as Parent may reasonably request for the purpose of carrying
out and furthering the intent of this Agreement.
7.2 Legends. If requested by Parent, immediately after the execution of this Agreement (and
from time to time upon the acquisition by Stockholder of Ownership of any shares of Company Common
Stock prior to the Voting Covenant Expiration Date), Stockholder shall cause each certificate
evidencing any outstanding shares of Company Common Stock or other securities of the Company Owned
by Stockholder to be surrendered so that the transfer agent for such securities may affix thereto a
legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND VOTING AND OTHER RESTRICTIONS PURSUANT TO THE TERMS AND PROVISIONS OF A VOTING
AGREEMENT DATED AS OF MAY 28, 2010, BY AND BETWEEN VAXGEN, INC. AND THE STOCKHOLDER (AND THE
IRREVOCABLE PROXY EXECUTED IN CONNECTION THEREWITH), AS MAY BE AMENDED FROM TIME TO TIME.
COPIES OF SUCH VOTING AGREEMENT AND IRREVOCABLE PROXY ARE ON DEPOSIT WITH THE COMPANY AND
THE COMPANY WILL FURNISH SUCH COPIES TO THE HOLDER OF THIS CERTIFICATE, WITHOUT CHARGE, UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
Section 8. Miscellaneous
8.1 Survival of Representations, Warranties and Agreements. All representations, warranties,
covenants and agreements made by Stockholder in this Agreement shall survive (a) the consummation
of the Merger, (b) any termination of the Merger Agreement, and (c) the Voting Covenant Expiration
Date.
8.2 Fiduciary Duties. In the event that Stockholder, or an employee or representative of
Stockholder or its Affiliates, is a director on the Board of Directors of the Company (such person,
the “Director”), Parent acknowledges such status, and as such, the Director remains, solely in such
capacity, free to act in accordance with such Director’s fiduciary duties owed to the Company or
its stockholders under applicable Legal Requirements and
nothing herein shall be deemed to restrict or limit any act taken or omitted from being taken as a
director on the Board of Directors of the Company as is reasonably necessary to comply with such
fiduciary duties.
6
8.3 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.
8.4 Notices. Any notice or other communication required or permitted to be delivered to
either party under this Agreement shall be in writing and shall be deemed properly delivered, given
and received when delivered (by hand, by registered mail, by courier or express delivery service or
by facsimile) to the address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party shall have specified in
a written notice given to the other party):
if to Stockholder:
at the address set forth on the signature page hereof; and
with a required copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
E-Mail: xxxxxx.xxxxxx@xx.xxx
Facsimile: (000) 000-0000
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
E-Mail: xxxxxx.xxxxxx@xx.xxx
Facsimile: (000) 000-0000
if to Parent:
VaxGen, Inc.
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 00
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
E-Mail: xxxxxx@xxxxxx.xxx
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 00
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
E-Mail: xxxxxx@xxxxxx.xxx
Facsimile: (000) 000-0000
with a required copy (which shall not constitute notice) to:
Xxxxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxx
E-Mail: xxxxxxxx@xxxxxx.xxx
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxx
E-Mail: xxxxxxxx@xxxxxx.xxx
Facsimile: (000) 000-0000
7
8.5 Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction. If the final judgment of a court
of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable,
the parties hereto agree that the court making such determination shall have the power to limit the
term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified. In the event such court does not exercise the power granted
to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term
or provision with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or unenforceable term.
8.6 Entire Agreement. This Agreement, the Proxy and any other documents delivered by the
parties in connection herewith or in connection with the Merger Agreement constitute the entire
agreement between the 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.
8.7 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of
the interests or obligations hereunder may be assigned or delegated by Stockholder, and any
attempted or purported assignment or delegation of any of such interests or obligations shall be
void. Subject to the preceding sentence, this Agreement shall be binding upon Stockholder and
Stockholder’s heirs, estate, executors and personal representatives and Stockholder’s successors
and assigns, and shall inure to the benefit of Parent and its successors and assigns. Without
limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing
in this Agreement is intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.
8.8 Indemnification. Stockholder shall hold harmless and indemnify Parent and Parent’s
affiliates from and against, and shall compensate and reimburse Parent and Parent’s affiliates for,
any loss, damage, claim, liability, fee (including attorneys’ fees), demand, cost or expense
(regardless of whether or not such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered or incurred by Parent or
any of Parent’s affiliates, or to which Parent or any of Parent’s affiliates otherwise becomes
subject, and that arises directly or indirectly from, or relates directly or indirectly to, (a) any
inaccuracy in or breach of any representation or warranty contained in this Agreement, or (b) any
failure on the part of Stockholder to observe, perform or abide by, or any other breach of, any
restriction, covenant, obligation or other provision contained in this Agreement or in the Proxy.
8.9 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement or the Proxy were not performed in accordance with its
specific terms or were otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this Agreement or in
the Proxy, Parent shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of
specific performance to enforce the observance and performance of such covenant or obligation,
and (b) an injunction restraining such breach or threatened breach. Stockholder further agrees
that neither Parent nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy referred to in this
Section 8.9, and Stockholder irrevocably waives any right he or it may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
8
8.10 Non-Exclusivity. The rights and remedies of Parent under this Agreement are not
exclusive of or limited by any other rights or remedies which it may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without
limiting the generality of the foregoing, the rights and remedies of Parent under this Agreement,
and the obligations and liabilities of Stockholder under this Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations. Nothing in this Agreement shall limit any of
Stockholder’s obligations, or the rights or remedies of Parent, under any other agreement between
Parent and Stockholder; and nothing in any such other agreement shall limit any of Stockholder’s
obligations, or any of the rights or remedies of Parent, under this Agreement.
8.11 Governing Law; Venue.
(a) This Agreement and the Proxy shall be construed in accordance with, and governed in
all respects by, the laws of the State of Delaware (without giving effect to principles of
conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Agreement or the Proxy
or the enforcement of any provision of this Agreement or the Proxy may be brought or
otherwise commenced in any state or federal court located in the in the County of San
Francisco, State of California. Stockholder:
(i) expressly and irrevocably consents and submits to the jurisdiction of each
state and federal court located in the in the County of San Francisco, State of
California in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document by U.S.
mail addressed to Stockholder at the address set forth on the signature page hereof
shall constitute effective service of such process, summons, notice or document for
purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the in the County of
San Francisco, State of California shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or otherwise), in any
such legal proceeding commenced in any state or federal court located in the County
of San Francisco, State of California, any claim that Stockholder is not subject
personally to the jurisdiction of such court, that such legal proceeding has been
brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Agreement or the subject matter of this Agreement may not
be enforced in or by such court.
9
Nothing contained in this Section 8.11 shall be deemed to limit or otherwise affect the
right of Parent to commence any legal proceeding or otherwise proceed against Stockholder in
any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY
LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION
OF THIS AGREEMENT OR THE PROXY.
8.12 Counterparts. This Agreement may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
8.13 Captions. The captions contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection
with the construction or interpretation of this Agreement.
8.14 Attorneys’ Fees. If any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought against Stockholder, the
prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be entitled).
8.15 Amendment; Waiver. This Agreement may not be amended, changed, supplemented or otherwise
modified or terminated, except upon the execution and delivery of a written agreement executed by
the parties hereto. No failure on the part of Parent to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of Parent in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
Parent shall not be deemed to have waived any claim available to Parent arising out of this
Agreement, or any power, right, privilege or remedy of Parent under this Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is given.
8.16 Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include the feminine
and neuter genders; the feminine gender shall include the masculine and neuter genders; and
the neuter gender shall include masculine and feminine genders.
10
(b) The parties agree that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be applied in the construction or
interpretation of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this
Agreement.
11
In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.
| VaxGen, Inc. | ||||
| By: | ||||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
[Signature Page to Voting Agreement]
| Stockholder | ||||||
| Name: | ||||||
| Address: | ||||||
| Facsimile: | ||||||
| Shares Held of Record: Common Stock: |
||||||
| Preferred Stock: | ||||||
Series A |
||||||
Series B |
||||||
Series C |
||||||
Series D |
||||||
Series E |
||||||
Series F |
||||||
| Options and Other Rights: | ||||||
| Additional Securities |
||||||
| Beneficially Owned: |
||||||
[Signature Page to Voting Agreement]
Exhibit A
Form Of Irrevocable Proxy
Form Of Irrevocable Proxy
The
undersigned stockholder (the “Stockholder”) of diaDexus Inc., a Delaware
corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes
, and VaxGen, Inc.,
a Delaware corporation (“Parent”), and each
of them, the attorneys-in-fact and proxies of the Stockholder with full power of substitution and
resubstitution, to the full extent of the Stockholder’s rights with respect to (a) the outstanding
shares of capital stock of the Company owned of record or beneficially by the Stockholder as of the
date of this proxy, which shares are specified on the final page of this proxy, and (b) any and all
other shares of capital stock of the Company which the Stockholder may acquire on or after the date
hereof. (The shares of the capital stock of the Company referred to in clauses “(a)” and “(b)” of
the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the
execution hereof, all prior proxies given by the Stockholder with respect to any of the Shares are
hereby revoked, and the Stockholder agrees that no subsequent proxies will be given with respect to
any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in connection with the
Voting Agreement, dated as of the date hereof, between Parent and the Stockholder (the “Voting
Agreement”), and is granted in consideration of Parent entering into the Agreement and Plan of
Merger and Reorganization, dated as of the date hereof, among Parent, Violet Acquisition
Corporation, Violet Acquisition LLC, the Company and Xxxx X. Xxxxx, as the Company Stockholder’s
Agent (the “Merger Agreement”). This proxy will terminate on the Voting Covenant Expiration Date
(as defined in the Voting Agreement).
The attorneys-in-fact and proxies named above will be empowered, and may exercise this proxy,
to vote the Shares at any time until the earlier to occur of the valid termination of the Merger
Agreement or the effective time of the merger contemplated thereby (the “Merger”) at any meeting of
the stockholders of the Company, however called, and in connection with any written action by
consent of stockholders of the Company:
(a) in favor of the Merger, the execution, delivery and performance by the Company of
the Merger Agreement and the adoption and approval of the Merger Agreement and the terms
thereof, in favor of each of the other actions contemplated by the Merger Agreement and in
favor of any action in furtherance of any of the foregoing; and
(b) against approval of any proposal made in opposition to, or in competition with, the
Merger Agreement or the consummation of the Merger, including any Company Acquisition
Proposal or Company Acquisition Transaction.
The Stockholder may vote the Shares on all other matters not referred to in this proxy, and
the attorneys and proxies named above may not exercise this proxy with respect to such other
matters.
This proxy shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Stockholder (including any transferee of any of the Shares).
A-1
Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the Stockholder agrees that the
court making such determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified.
In the event such court does not exercise the power granted to it in the prior sentence, the
Stockholder agrees to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the economic, business and
other purposes of such invalid or unenforceable term.
Dated: ____________, 2010
| Name: | ||||||
| Shares Held of Record: Common Stock: |
||||||
| Preferred Stock: | ||||||
Series A |
||||||
Series B |
||||||
Series C |
||||||
Series D |
||||||
Series E |
||||||
Series F |
||||||
| Options and Other Rights: | ||||||
|
Additional Securities Beneficially Owned: |
||||||
A-2
