Exhibit 99.7
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VOTING AGREEMENT
by and among
EPIMMUNE INC.,
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as the Shareholder Representative,
and the
STOCKHOLDERS OF EPIMMUNE INC.
identified on the signature pages hereto
Dated as of March 15, 2005
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 15, 2005 (this "Agreement"), by
and among EPIMMUNE INC., a Delaware corporation (the "Issuer"), ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Shareholder Representative"), as designated representative of certain
shareholders (the "Principal Company Shareholders") of IDM S.A., a societe
anonyme organized under the laws of France (the "Company"), and the stockholders
(each a "Stockholder") of the Issuer, identified on the signature pages hereto.
WHEREAS, the Issuer and the Principal Company Shareholders are
entering into a Share Exchange Agreement, dated as of the date hereof (as
amended from time to time, the "Share Exchange Agreement"; capitalized terms
used but not defined in this Agreement shall have the meanings ascribed to them
in the Share Exchange Agreement), pursuant to which the Issuer has agreed to
acquire from the Principal Company Shareholders, and the Principal Company
Shareholders have agreed to sell to the Issuer, Company ordinary shares in
exchange for shares of Issuer Common Stock;
WHEREAS, as of the date hereof, the Stockholders are the record and
beneficial owner of the number of shares of Issuer Common Stock set forth
opposite each Stockholder's name in Exhibit A hereto (the "Existing Shares" and,
together with any shares of Issuer Common Stock acquired by Stockholder after
the date hereof, whether upon the exercise of warrants, options, conversion of
convertible securities, or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares, gift, bequest,
inheritance or as a successor in interest in any capacity or otherwise and any
shares into which or for which any or all of the Existing Shares and additional
shares may be changed or exchanged, the "Shares"); and
WHEREAS, in connection with the execution and delivery of the Share
Exchange Agreement and as an inducement to the parties thereto incurring the
obligations set forth therein, the Stockholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01. Voting Agreement. (a) Each Stockholder hereby agrees
that, from and after the date hereof and until the Expiration Date (as defined
in Section 4.01 below) in accordance with its terms, at every meeting of the
stockholders of the Issuer, however called, and at every adjournment thereof,
and in every action by consent of the stockholders of the Issuer, such
Stockholder shall, unless otherwise directed in writing by the Shareholder
Representative, appear at any such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum, and shall vote
or consent (or cause to be voted or consented)
such Stockholder's Shares: (i) in favor of the approval and adoption of the
Share Exchange Agreement and approval of the Issuer Transactions and the other
Transactions contemplated thereby; (ii) except as otherwise agreed to in writing
in advance by the Shareholder Representative, against any action, proposal,
agreement or transaction that is intended or could reasonably be expected to
result in a breach of any covenant, obligation, agreement, representation or
warranty of the Issuer contained in the Share Exchange Agreement; and (iii)
against any action, proposal, agreement or transaction, including, but not
limited to, any Competing Transaction (other than the Share Exchange Agreement),
that could be reasonably expected to result in any of the conditions to the
obligations of the parties under the Share Exchange Agreement not being
fulfilled or that could reasonably be expected to impede, interfere with or
prevent, delay, postpone, discourage or adversely affect the Share Exchange
Agreement or any of the Transactions. Each Stockholder agrees that it will, upon
request by the Shareholder Representative, furnish written confirmation, in form
and substance reasonably acceptable to the Shareholder Representative, of such
Stockholder's vote in accordance with this Section 1.01(a). Each Stockholder
acknowledges receipt and review of a copy of the Share Exchange Agreement.
(b) If a Stockholder fails for any reason to vote such Stockholder's
Shares as required by Section 1.01(a), the holder of the Proxy (as defined in
Section 1.02) shall have the right to vote such Stockholder's Shares at any
meeting of the Issuer's stockholders and in any action by written consent of the
Issuer's stockholders in accordance with Section 1.01(a) and the Proxy. The vote
of a holder of the Proxy shall control in any conflict between a vote of such
Stockholder's Shares by a holder of the Proxy and a vote of such Stockholder's
Shares by such Stockholder with respect to the matters set forth in Section
1.01(a).
(c) Each Stockholder hereby agrees that such Stockholder shall not
enter into any agreement or understanding with any person the effect of which
would be inconsistent with or violative of any provision contained in Section
1.01(a) or (b).
(d) No provision of this Agreement shall limit or otherwise restrict
any Stockholder with respect to any act or omission that such Stockholder may
undertake or authorize in such Stockholder's capacity as a director or officer
of the Issuer.
SECTION 1.02. Irrevocable Proxy. Concurrently with the execution of
this Agreement, each Stockholder has delivered to the Shareholder Representative
a proxy in the form attached as Exhibit B hereto (the "Proxy"), which such
Stockholder agrees at all times prior to the Expiration Date shall be
irrevocable to the fullest extent permissible by law, with respect to the
Shares.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby severally represents and warrants to the
Shareholder Representative as follows:
SECTION 2.01. Organization, Qualification. (a) Such Stockholder, if it
is an individual, has all legal capacity to enter into this Agreement and to
deliver the Proxy, to carry out his or her obligations hereunder and to
consummate the transactions contemplated hereby.
(b) Such Stockholder, if it is a corporation or other legal entity, is
duly organized, validly existing and, if applicable, in good standing under the
Laws of the jurisdiction of its incorporation or formation and has the requisite
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or, if
applicable, in good standing or to have such power, authority and governmental
approvals would not, individually or in the aggregate, prevent or materially
delay consummation of the transactions contemplated by this Agreement or
otherwise prevent or materially delay such Stockholder from performing its
obligations under this Agreement.
(c) Such Stockholder, if it is a corporation or other legal entity, is
not in violation of any of the provisions of its certificate of incorporation,
by-laws or equivalent organizational documents.
SECTION 2.02. Authority Relative to this Agreement. Such Stockholder
has all necessary power and authority to execute and deliver this Agreement and
the Proxy, to perform such Stockholder's obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement and the Proxy have been
duly and validly executed and delivered by such Stockholder and constitute
legal, valid and binding obligations of such Stockholder, enforceable against
such Stockholder in accordance with their terms.
SECTION 2.03. No Conflict. (a) The execution and delivery of this
Agreement and the Proxy by such Stockholder do not, and the performance of this
Agreement and the Proxy by such Stockholder shall not, (i) conflict with or
violate the certificate of incorporation or by-laws or equivalent organizational
documents of such Stockholder (if such Stockholder is a corporation or other
legal entity), (ii) assuming satisfaction of the requirements set forth in
Section 2.03(b) below, conflict with or violate the terms of any trust
agreements or equivalent organizational documents of such Stockholder (if such
Stockholder is a trust), (iii) conflict with or violate any Law applicable to
such Stockholder or by which the Shares owned by such Stockholder are bound or
affected or (iv) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares owned by
such Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other
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instrument or obligation to which such Stockholder is a party or by which such
Stockholder or the Shares owned by such Stockholder are bound or affected,
except for any such conflicts, violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate, prevent or
materially delay consummation of the transactions contemplated by this Agreement
and the Proxy or otherwise prevent or materially delay such Stockholder from
performing its obligations under this Agreement and the Proxy.
(b) The execution and delivery of this Agreement and the Proxy by such
Stockholder does not, and the performance of this Agreement and the Proxy by
such Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Authority on the
part of such Stockholder, except (i) for applicable requirements, if any, of the
Exchange Act and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not,
individually or in the aggregate, prevent or materially delay consummation of
the transactions contemplated by this Agreement and the Proxy or otherwise
prevent such Stockholder from performing its material obligations under this
Agreement and the Proxy.
SECTION 2.04. Title to the Shares. As of the date hereof, such
Stockholder is the record and beneficial owner of the number of Shares set forth
opposite such Stockholder's name in Exhibit A hereto. Except as set forth on
Exhibit A, such Shares are all the securities of the Issuer owned, now and, at
all times during the term hereof will be, either of record or beneficially, by
such Stockholder. The Shares owned by such Stockholder are now and, at all times
during the term hereof will be, owned free and clear of all Liens, other than
any Liens created by this Agreement. Except as provided in this Agreement, such
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares owned by such Stockholder.
ARTICLE III
COVENANTS OF STOCKHOLDERS
SECTION 3.01. Restrictions on Transfers of Shares(a) . (a) Each
Stockholder hereby agrees that, during the period from the date of this
Agreement through the Expiration Date, such Stockholder shall not sell,
transfer, tender, assign, pledge, encumber, contribute to the capital of any
entity, hypothecate, give or otherwise dispose of, grant a proxy or power of
attorney with respect to, deposit into any voting trust or enter into a voting
arrangement or agreement, or create or permit to exist any Liens of any nature
whatsoever with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action that
would make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or adversely
affecting such Stockholder from performing such Stockholder's obligations
hereunder or (iii) initiate, solicit or encourage any person to take actions
that could reasonably be expected to lead to the occurrence of any of the
foregoing.
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(b) Each Stockholder hereby agrees that: (i) during the period between
the Closing and the date six months after the Closing, such Stockholder shall
not sell, transfer, tender, assign, pledge, encumber, contribute to the capital
of any entity, hypothecate, give or otherwise dispose of, grant a proxy or power
of attorney with respect to, deposit into any voting trust or enter into a
voting arrangement or agreement, or create or permit to exist any Liens of any
nature whatsoever (a "Transfer") with respect to, any of such Stockholder's
Shares (or agree or consent to, or offer to do, any of the foregoing); and (ii)
during the period between the date six months after the Closing and the date one
year after the Closing, (A) such Stockholder shall not Transfer in the
aggregate, more than fifty percent (50%) of the shares of Issuer Common Stock
owned by such person as of the Closing and (B) such Stockholder agrees not to
sell during any single trading day more than the number of shares of Issuer
Common Stock equal to fifteen percent (15%) of the average daily trading volume
of shares of Issuer Common Stock, as reported by Nasdaq, during the five days
prior to such date; provided, however, that the restrictions set forth in this
Section 3.01(b) shall not prohibit or restrict Transfers of shares of Issuer
Common Stock to family members or affiliates of such Stockholder (or to entities
or trusts formed by or for the benefit of such Stockholder or family members or
affiliates of such Stockholder) that are not made in open market transactions
and if the transferee agrees in writing to be bound by the restrictions of this
Section 3.01(b) or if the Issuer consents to such Transfer. Notwithstanding the
foregoing, if the Stockholder is an employee of the Issuer or the Company upon
the consummation of the Transactions, upon the subsequent termination of the
Stockholder's employment by the Issuer or the Company, as the case may be,
without cause, such Stockholder's resignation for good reason (as "cause" and
"good reason" are defined in such Stockholder's employment agreement with the
Issuer or the Company, as the case may be) or the death of the Stockholder, the
provisions of this Section 3.01(b) shall cease to apply to such Stockholder
effective as of the date of such Stockholder's employment termination,
resignation or death, as applicable.
SECTION 3.02. Disclosure. Each Stockholder hereby agrees to permit the
Issuer and the Shareholder Representative to publish and disclose in the Proxy
Statement and in any press release or other disclosure document in which the
Issuer or the Company reasonably determines in its good faith judgment that such
disclosure is required by law, including the rules and regulations of the SEC,
or appropriate, in connection with the Share Exchange and any transactions
related thereto, such Stockholder's identity and ownership of the Issuer Common
Stock and the nature of such Stockholder's commitments, arrangements and
understandings under this Agreement.
ARTICLE IV
TERMINATION
SECTION 4.01. Termination. This Agreement and all rights and
obligations of the parties hereunder shall terminate upon the earlier to occur
of (a) the Closing and (b) such date and time as the Share Exchange Agreement
shall have been terminated pursuant to the terms thereof (such earlier date and
time being the "Expiration Date"); provided, however, that no such termination
shall relieve any party of liability for any breach of this Agreement prior to
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termination and provided further that, subject to the occurrence of the Closing,
the agreements set forth in Article III hereof and this Article IV shall survive
the Closing.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendment. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto.
SECTION 5.02. Waiver. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 5.03. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
facsimile or email or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 5.03):
(a) if to a Stockholder, to the address set forth after such
Stockholder's name on the signature pages;
(b) if to the Shareholder Representative:
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Facsimile No.: ▇▇▇-▇-▇▇-▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Shearman & Sterling LLP
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Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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(c) If to the Issuer:
Epimmune Inc.
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
SECTION 5.04. 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 so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. 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 in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 5.05. Further Assurances. The Stockholders, the Shareholder
Representative and the Issuer will execute and deliver all such further
documents and instruments and take all such further action as may be necessary
in order to consummate the transactions contemplated hereby.
SECTION 5.06. Assignment. This Agreement shall not be assigned by
operation of Law or otherwise.
SECTION 5.07. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 5.08. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
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.
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SECTION 5.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State, excluding (to the
greatest extent a Delaware court would permit) any rule of law that would cause
the application of the laws of any jurisdiction other than the State of
Delaware. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined exclusively in any Delaware Chancery
Court or Federal court located in the State of Delaware. The parties hereto
hereby (a) submit to the jurisdiction of any Delaware Chancery Court or Federal
court located in the State of Delaware for the purpose of any Action arising out
of or relating to this Agreement brought by any party hereto, and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the Transactions may not be enforced in or by any of the
above-named courts.
SECTION 5.10. Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
SECTION 5.11. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 5.12. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 5.13. Beneficial Owner. In this Agreement, "beneficial owner"
has the meaning ascribed to that term in Rule 13d-3(a) of the Exchange Act, and
"beneficially owned" has a consequent meaning.
SECTION 5.14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY ACTIONS OR PROCEEDINGS DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE
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TRANSACTIONS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.14.
SECTION 5.15. 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).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EPIMMUNE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President, Chief Executive Officer
and Director
▇▇▇▇▇▇ ▇▇▇▇▇,
as Shareholder Representative
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
STOCKHOLDERS:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. DE VAERE
/s/ ▇▇▇▇▇▇ ▇. De Vaere
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. is signing as an
individual and as trustee of the ▇▇▇▇▇▇
family trusts and children's trust
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