EXHIBIT 10.2
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.
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IN WITNESS WHEREOF, the parties hereto have executed this VOTING AGREEMENT
as of the date first above written.
COMPANY: INVESTOR:
MICROCIDE PHARMACEUTICALS, INC.
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NAME OF INVESTOR
By: By:
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Name: Name:
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Title: Title:
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Number of Shares:
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Type of Shares:
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