Exhibit 2.7
VOTING AGREEMENT
T HIS V OTING A GREEMENT ( “Agreement”
) is entered into as of
September 24, 2008, by and between A
RCA BIOPHARMA , I NC . , a
Delaware corporation (the “Company” ),
and
( “Stockholder” ).
R ECITALS
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 N UVELO , I NC . , a
Delaware corporation (the “Parent”
).
B. Parent, Dawn Acquisition Sub, Inc., a Delaware
corporation ( “Merger Sub” ), 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 the merger of the Merger Sub with
and into the Company (the “Merger”
).
C. In the Merger, the outstanding shares of capital
stock of the Company are to be converted into the right to receive
shares of common stock of Parent.
D. In order to induce Company to enter into the
Merger Agreement, Stockholder is entering into this
Agreement.
A GREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
S ECTION 1. C ERTAIN D EFINITIONS
1.1 Specified Terms
. For purposes of this
Agreement:
(a) 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.
(b) “ Subject
Securities ” shall mean: (i) all securities of Parent
(including all shares of Parent Common Stock and all options,
warrants and other rights to acquire shares of Parent Common Stock)
Owned by Stockholder as of the date of this Agreement; and
(ii) all additional securities of Parent (including all
additional shares of Parent Common Stock and all additional
options, warrants and other rights to acquire shares of Parent
Common Stock) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Voting Covenant
Expiration Date.
(c) 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; (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; or (iii) reduces such Person’s beneficial
ownership of, interest in or risk relating to such
security.
(d) “ Voting Covenant
Expiration Date ” shall mean the earlier of the date upon which
the Merger Agreement is terminated, or the date upon which the
Merger is consummated.
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1.2 Other Terms
. Capitalized terms used herein and
not defined shall have the meanings set forth in the Merger
Agreement.
S ECTION 2. T RANSFER OF S UBJECT S ECURITIES AND V OTING R IGHTS
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 Restriction on Transfer of
Voting Rights . Subject
to Section 2.3, 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 a proxy
granted to the Company.
2.3 Permitted
Transfers . Sections 2.1
and 2.2 shall not prohibit a Transfer of Parent Common Stock by
Stockholder (i) pursuant to Rule 144 promulgated under the
Securities Act; (ii) to any member of his immediate family, or
to a trust for the benefit of Stockholder or any member of his
immediate family, or (iii) upon the death of Stockholder, or
(iv) 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 clauses
(ii), (iii) or (iv) of this Section 2.3 shall be
permitted only if, as a precondition to such transfer, the
transferee agrees in a writing, reasonably satisfactory in form and
substance to the Company, to be bound by the terms of this
Agreement.
S ECTION 3. V OTING OF S HARES
3.1 Voting Covenant
. Stockholder hereby agrees that,
prior to the Voting Covenant Expiration Date, at any meeting of the
stockholders of Parent, unless otherwise directed in writing by the
Company, Stockholder shall cause the Subject Securities to be
voted:
(a) in favor of the issuance of the shares of Parent
Common Stock in the Merger; and
(b) in favor of the Charter Amendment;
and
(c) against any action or agreement that would
result in a breach of any representation, warranty, covenant or
obligation of Parent in the Merger Agreement; and
(d) against the following actions (other than the
Merger, actions contemplated by the Merger Agreement, such actions
set forth in Section 4.2 of Parent Disclosure Schedule, or
such actions consented to in writing by the Company): (A) any
extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Parent or any
subsidiary of the Parent; (B) any sale, lease or transfer of a
material amount of assets of Parent or any subsidiary of Parent;
(C) any reorganization, recapitalization, dissolution or
liquidation of Parent or any subsidiary of Parent; (D) any
change in a majority of the board of directors of Parent;
(E) any amendment to Parent’s certificate of
incorporation or bylaws other than the Charter Amendment;
(F) any material change in the capitalization of Parent or the
Parent’s corporate structure; and (G) any other action
which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger
Agreement or this Agreement.
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)”,
“(b)”, “(c)”or “(d)” of the
preceding sentence.
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3.2 Proxy; Further
Assurances .
(a) Contemporaneously with the execution of this
Agreement: (i) Stockholder shall deliver to the Company a
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 securities referred to therein (the “
Proxy ”); and (ii) Stockholder shall cause
to be delivered to the Company an additional proxy (in the form
attached hereto as Exhibit A ) executed on behalf of the
record owner of any outstanding shares of Parent Common 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 his or its own expense,
perform such further acts and execute such further proxies and
other documents and instruments as may reasonably be required to
vest in the Company the power to carry out and give effect to the
provisions of this Agreement.
S ECTION 4. N O S OLICITATION
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 ensure that his or its Representatives do not,
directly or indirectly: (i) solicit, initiate, knowingly
encourage, induce or facilitate the making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry or
take any action that could reasonably be expected to lead to an
Acquisition Proposal or Acquisition Inquiry; (ii) furnish any
nonpublic information regarding Parent or any of its Subsidiaries
to any Person in connection with or in response to an Acquisition
Proposal or an Acquisition Inquiry; (iii) engage in
discussions or negotiations with any Person with respect to any
Acquisition Proposal or Acquisition Inquiry; (iv) approve,
endorse or recommend any Acquisition Proposal or Acquisition
Inquiry; or (v) enter into any letter of intent or similar
document or any Contract contemplating or otherwise relating to any
Acquisition Transaction. Stockholder shall immediately cease and
discontinue, and Stockholder shall ensure that his or its
Representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition Proposal
or Acquisition Inquiry. Notwithstanding the foregoing, if the
Stockholder is an officer of Parent, nothing in this Section 4
shall be interpreted to prohibit the Stockholder from acting in
accordance with instructions given by the Board of Directors of
Parent so long as such actions comply with the Merger
Agreement.
S ECTION 5. R EPRESENTATIONS AND W ARRANTIES OF S TOCKHOLDER
Stockholder hereby represents and
warrants to the Company as follows:
5.1 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 his or its
obligations hereunder and thereunder. 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
(i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) 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.
5.2 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 he or it or any of
his or its properties is or may be bound or affected; or
(ii) result in or constitute (with or without notice or lapse
of
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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 or any of his or its
affiliates or 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.
5.3 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 and type
of outstanding shares of Parent Common 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 Parent Common Stock set forth under the
heading “Options and Other Rights” on the signature
page hereof; (c) Stockholder Owns the additional securities of
Parent set forth under the heading “Additional Securities
Beneficially Owned” on the signature page hereof; and
(d) Stockholder does not directly or indirectly Own any
sh
