Exhibit II
Agreement and Irrevocable Proxy by ▇▇▇▇▇▇ ▇. ▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated
May 7, 1998.
AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") dated as of May 7, 1998,
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the "▇▇▇▇") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
WHEREAS, concurrently with the execution and delivery of this Agreement,
Lexicon Genetics Incorporated (the "Company") is entering into that certain
Series A Preferred Stock Purchase Agreement (the "Purchase Agreement"), pursuant
to which the Company will issue and sell up to 4,244,644 shares of its Series A
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), to a group
of investors led by the funds managed by Patricof & Company Ventures, Inc. and
Apax Partners & Co. Ventures Ltd. (the "Investors"); and
WHEREAS, ▇▇▇▇ holds shares of the Company's common stock, par value $0.001
per share (the "Common Stock"); and
WHEREAS, ▇▇▇▇ and the Company's other stockholders are parties to that
certain Stockholders Agreement dated September 14, 1995, and will, together with
the Investors, be party to that certain Amended and Restated Stockholders
Agreement (the "Stockholders Agreement") dated of even date herewith and to that
certain Amended and Restated Registration Rights Agreement dated of even date
herewith (the "Registration Rights Agreement"); and
WHEREAS, as a condition to their willingness to enter into the Purchase
Agreement, the Investors have requested that ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ an irrevocable
proxy (the "Proxy") with respect to the shares of Common Stock owned by ▇▇▇▇, on
the terms and subject to the conditions hereof.
NOW, THEREFORE, in order to induce the Investors to enter into the Purchase
Agreement and in consideration of the representations, warranties, covenants and
agreements set forth herein and in the Purchase Agreement (including the
benefits that the parties expect to derive from the Purchase Agreement), and for
other good and valuable consideration, the receipt and sufficiency of all of
which are hereby acknowledged by the parties, the parties agree as follows:
1. ▇▇▇▇ hereby revokes all previous proxies granted with respect to any
shares of the Company's Common Stock owned by the ▇▇▇▇.
2. ▇▇▇▇ hereby irrevocably makes, constitutes and appoints ▇▇▇▇▇▇,
individually, as his true and lawful proxy and attorney-in-fact, with full power
of substitution, for, on behalf of, and in the name, place and stead of ▇▇▇▇, to
attend any and all meetings of the stockholders of the Company and any
adjournments or postponements thereof, to execute any and all written consents
of stockholders of the Company, and to vote all shares of Company Common Stock
and all shares of any other class of capital stock of the Company presently or
at any future time
owned beneficially or of record by ▇▇▇▇, including any and all securities having
voting rights issued or issuable in respect thereof, which ▇▇▇▇ is entitled to
vote (all of the foregoing being collectively referred to as the "Shares"), and
to represent and otherwise act as ▇▇▇▇ could act, in the same manner and with
the same effect as if ▇▇▇▇ were personally present, at any annual, special or
other meeting of the stockholders of the Company, and at any adjournment or
postponement thereof (a "Meeting"), or pursuant to any written consent in lieu
of meeting or otherwise; provided, however, that the Proxy hereby granted to
▇▇▇▇▇▇ shall be exercisable by ▇▇▇▇▇▇ solely in the event of (i) ▇▇▇▇'▇
incapacity (mental, physical or otherwise) to give any such vote or consent, or
(ii) ▇▇▇▇'▇ death. ▇▇▇▇▇▇ is hereby authorized to vote the Shares in accordance
with the terms of this Agreement.
3. ▇▇▇▇ hereby covenants and agrees that ▇▇▇▇ will not, and will not agree
to, directly or indirectly, sell, transfer, assign, pledge, hypothecate, cause
to be redeemed or otherwise dispose of any of the Shares, or grant any proxy,
power-of-attorney or other authorization or interest in or with respect to any
of the Shares, or deposit any of the Shares into a voting trust or enter into a
voting agreement (except for the Stockholders Agreement) or arrangement with
respect to any of the Shares unless and until ▇▇▇▇ shall have taken all actions
(including, without limitation, the endorsement of a legend on the certificates
evidencing such Shares) reasonably necessary to ensure that such Shares shall at
all times be subject to all the restrictions, covenants and limitation imposed
by this Agreement.
4. ▇▇▇▇ represents and warrants to ▇▇▇▇▇▇ that, except as disclosed in
Schedule 1 attached hereto:
(a) ▇▇▇▇ has full power and authority to enter into this Agreement and
to grant the Proxy, and to perform ▇▇▇▇'▇ obligations hereunder;
(b) this Agreement has been duly executed and delivered by and
constitutes a valid and binding obligation of ▇▇▇▇;
(c) as of the date hereof, the Shares consist of that number of shares
of Company Common Stock owned of record by ▇▇▇▇ which is set forth opposite
the name of ▇▇▇▇ on the signature page hereof;
(d) the Shares are all of the securities of the Company owned of
record by ▇▇▇▇ on the date hereof;
(e) ▇▇▇▇ owns the Shares free and clear of all liens, charges, claims,
encumbrances and security interests of any nature whatsoever;
(f) ▇▇▇▇ has the present power and right to vote all of the Shares;
(g) except as provided herein, ▇▇▇▇ has not (i) granted any proxy,
power-of-attorney or other authorization or interest with respect to any of
such Shares, (ii) deposited any of the Shares into a voting trust or (iii)
entered into any voting agreement or other arrangement with respect to the
voting of any of the Shares other than the Stockholders Agreement; and
(h) the execution and delivery of this Agreement by ▇▇▇▇ and the
consummation by ▇▇▇▇ of the transactions contemplated hereby do not require
the consent, approval or authorization of, or filing with, any person or
public authority.
5. The terms and provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the provisions thereof relating to conflicts of law.
6. The terms and provisions of this Agreement shall be binding on, inure to
the benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties. This Agreement and the rights
hereunder may not be assigned or transferred by ▇▇▇▇▇▇, except with the prior
written consent of ▇▇▇▇.
7. This Agreement shall terminate on (i) the distribution of such Shares to
a donee or purchaser during ▇▇▇▇'▇ lifetime, or (ii) the distribution of such
Shares to the heirs or devisees of ▇▇▇▇ following ▇▇▇▇'▇ death; provided,
however, that this Agreement shall remain in full force and effect with respect
to any of the Shares not distributed as described in either of the foregoing
subsections.
8. ▇▇▇▇ acknowledges that the Investors will enter into the Purchase
Agreement in reliance on this Agreement, including the Proxy, and that the Proxy
is granted in consideration for the execution and delivery of the Purchase
Agreement by the Investors. ▇▇▇▇ AGREES THAT THE PROXY AND ALL OTHER POWER AND
AUTHORITY INTENDED TO BE CONFERRED HEREBY IS COUPLED WITH AN INTEREST SUFFICIENT
IN LAW TO SUPPORT AN IRREVOCABLE POWER AND, EXCEPT AS PROVIDED IN PARAGRAPH 7
ABOVE, SHALL NOT BE REVOCABLE OR TERMINATED BY ANY ACT OF ▇▇▇▇, BY LACK OF
APPROPRIATE POWER OR AUTHORITY OR BY THE OCCURRENCE OF ANY OTHER EVENT OR
EVENTS. ALL POWER AND AUTHORITY HEREBY SHALL NOT BE TERMINATED BY ANY ACT OF
▇▇▇▇ OR BY OPERATION OF LAW, BY LACK OF APPROPRIATE POWER OR AUTHORITY, OR BY
THE OCCURRENCE OF ANY OTHER EVENT OR EVENTS AND SHALL BE BINDING UPON ALL
BENEFICIARIES, HEIRS AT LAW, LEGATEES, DISTRIBUTEES, SUCCESSORS, ASSIGNS AND
LEGAL REPRESENTATIVES OF ▇▇▇▇ (AS PROVIDED ABOVE). IF AFTER THE EXECUTION OF
THIS AGREEMENT, ▇▇▇▇ SHALL CEASE TO HAVE APPROPRIATE POWER OR AUTHORITY, OR IF
ANY OTHER SUCH EVENT OR EVENTS SHALL OCCUR, ▇▇▇▇▇▇ IS NEVERTHELESS AUTHORIZED
AND DIRECTED TO VOTE THE SHARES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT
AS IF SUCH LACK OF APPROPRIATE POWER OR AUTHORITY OR OTHER EVENT OR EVENTS HAD
NOT OCCURRED AND REGARDLESS OF NOTICE THEREOF.
9. The parties acknowledge and agree that performance of their respective
obligations hereunder will confer a unique benefit on the other and that a
failure of performance will result in irreparable harm to the other and will not
be compensated by money damages. The parties therefore agree that this
Agreement, including the Proxy, shall be specifically enforceable and that
specific enforcement and injunctive relief shall be a remedy properly available
to each party for any breach of any agreement, covenant or representation of the
other party hereunder.
10. ▇▇▇▇ will, upon request, execute and deliver any additional documents
and take such further actions as may reasonably be deemed by the Investors or
▇▇▇▇▇▇ to be necessary or desirable to complete the Proxy granted herein or to
carry out the provisions hereof.
11. If any term, provision, covenant or restriction of this Agreement, or
the application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
or the application thereof to any other circumstance, shall remain in full force
and effect, shall not in any way be affected, impaired or invalidated and shall
be enforced to the fullest extent permitted by law.
12. This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof.
13. This Agreement may not be changed, amended or modified orally, but only
by an agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
14. The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular paragraph or
other subdivision. No provision of this Agreement shall be interpreted or
construed against either party solely because that party or its legal
representative drafted such provision.
15. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same document.
IN WITNESS WHEREOF, ▇▇▇▇ and ▇▇▇▇▇▇ have duly executed this Agreement or
caused this Agreement to be duly executed as of the date first written above.
Number of Shares:
5,230,000 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SCHEDULE 1
Amended and Restated Stockholders Agreement dated May 7, 1998, among the
Company's stockholders.
