EXHIBIT
10.4


 


VOTING
AGREEMENT


 


This Voting Agreement (“Agreement”) is
entered into as of April 29, 2003, by and among
                                           
(“Stockholder”)
and certain of the investors set forth on Schedule A (the “Investors”) to that
certain Common Stock and Warrant Purchase Agreement of even date herewith (the
“Purchase Agreement”).


 


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, as amended (the “Exchange Act”)) of
certain shares of common stock of Rigel Pharmaceuticals, Inc., a Delaware
corporation (the “Company”).


 


B.                                    The
Company is entering into the Purchase Agreement with the Investors that
provides (subject to the conditions set forth therein) for the sale by the
Company and the purchase by the Investors of (i) an aggregate of 71,874,999
shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (the “Company Common Stock”),
and (ii) Warrants (as defined in the Purchase Agreement).


 


C.                                    In
order to induce the Investors to enter into the Purchase 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)                                  The
term “Closing Date”
shall have the meaning assigned to it in the Purchase Agreement.


 


(b)                                  The
term “Offering”
shall have the meaning assigned to it in the Purchase Agreement.


 


(c)                                  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 Exchange Act) of such security.


 


(d)                                  “Person” shall mean any
(i) individual, (ii) corporation, limited liability company, partnership or
other entity or (iii) governmental authority.


 


(e)                                  “Subject Securities”
shall mean (i) all securities of the Company (including all shares of Company
Common Stock and all options, warrants and other


 

















 


rights to acquire shares of Company Common 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 Common
Stock and all additional options, warrants and other rights to acquire shares
of Company Common 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, (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.


 


(g)                                 “Voting Covenant Expiration Date”
shall mean the earlier of (i) the date upon which the Purchase Agreement is
validly terminated pursuant to Section 9 thereof or (ii) the Closing Date.


 


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                               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.


 


2.3                               Permitted Transfers.  Section 2.1 shall not prohibit a transfer of
Company Common Stock by Stockholder (a) to any member of his immediate family,
or to a trust for the benefit of Stockholder or any member of his immediate
family, (b) upon the death of Stockholder or (c) 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 this sentence 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 Investors, to be bound by the terms
of this Agreement.


 


SECTION 3.                            Voting
of Shares


 


3.1                               Voting Covenant.  Stockholder, solely in Stockholder’s capacity
as a stockholder of the Company, 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, Stockholder shall cause all of the Subject Securities to be voted:


 


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(a)                                  in
favor of the issuance of the Shares and the Warrants in the Offering, in favor
of each of the other actions contemplated by the Purchase Agreement and in
favor of any action in furtherance of any of the foregoing; and


 


(b)                                  against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Investors and/or the Company in the
Purchase Agreement or which could be expected to delay, prevent or adversely
affect the consummation of the transactions contemplated by the Purchase
Agreement (including, but not limited to, any matter submitted to stockholders
that would cause a failure of a closing condition in the Purchase 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)” or “(b)” of the preceding sentence.


 


3.2                               Proxy;
Further Assurances.


 


(a)                                  Contemporaneously
with the execution of this Agreement: 
(i) Stockholder shall deliver to the Investors 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 shares referred to therein (the “Proxy”) and (ii)
Stockholder shall cause to be delivered to the Investors an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record owner of any
outstanding shares of Company Common Stock that are owned beneficially (within
the meaning of Rule 13d-3 under the Exchange Act), 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 Investors the power to carry out and give effect to the
provisions of this Agreement.


 


SECTION
4.                            No
Solicitation


 


Stockholder agrees
that, during the period from the date of this Agreement through the Voting
Covenant Expiration Date, Stockholder shall not take, cause or permit (and
shall use its commercially reasonable efforts to ensure that none of its
officers, directors, agents or representatives takes, causes or permits) any
person to take, directly or indirectly, any of the following actions with any
third party:  (a) solicit, knowingly
encourage, initiate or participate in any negotiations, inquiries or
discussions with respect to any offer or proposal to acquire the business,
assets or capital shares of the Company (excluding non-exclusive licenses
entered into in the ordinary course of business), whether by merger,
consolidation, other business combination, purchase of capital stock, purchase
of assets, license, lease, tender or exchange offer or otherwise (each of the
foregoing, an “Alternative
Proposal”), (b) disclose, in connection with an Alternative
Proposal, any nonpublic information concerning the Company’s business or
properties or afford to any third party access to its properties, books or
records, except in the ordinary course of business and as required by law or
pursuant to a governmental request for information, (c) enter into or execute
any agreement providing for an Alternative Proposal or


 


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(d) make or authorize any
public statement, recommendation or solicitation in support of any Alternative
Proposal or any offer or proposal relating to an Alternative Proposal, other
than with respect to the Offering.


 


SECTION
5.                            Representations
and Warranties of Stockholder


 


Stockholder hereby
represents and warrants to the Investors 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 (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.


 


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, (ii) if Stockholder is not a natural person,
violate or conflict with the certificate of incorporation, bylaws or other
equivalent organizational documents of Stockholder or (iii) 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 note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation 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.  There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by Stockholder of the
transactions contemplated by this Agreement.


 


(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, approval, authorization or permit of any Person.  Stockholder does not have any understanding
in effect with respect to the voting or transfer of any Subject
Securities.  Stockholder is not required
to make any filing with or notify any governmental or regulatory authority in
connection with this Agreement or the transactions contemplated thereby
pursuant to the requirements of the Hart-Scott-Rodino


 


4

















 


Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder.  If Stockholder is a natural person and is married, and Stockholder’s
Subject Securities constitute community property or otherwise need spousal or
other approval for this Agreement to be legal, valid and binding on
Stockholder, this Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, Stockholder’s spouse,
enforceable against such spouse in accordance with its terms.


 


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 of outstanding shares of Company 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 Company Common 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
and (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.


 


5.4                               Litigation.  There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending or, to the
knowledge of Stockholder or any of Stockholder’s affiliates, threatened before
any agency, administration, court or tribunal, foreign or domestic, against
Stockholder or any of Stockholder’s affiliates or any of their respective
properties or any of their respective officers or directors, in the case of a
corporate entity (in their capacities as such), or any of their respective
partners (in the case of a partnership), that, individually or in the
aggregate, could reasonably be expected to materially delay or impair
Stockholder’s ability to consummate the transactions contemplated by this
Agreement.  There is no judgment, decree
or order against Stockholder or any of Stockholder’s affiliates, or, to the
knowledge of Stockholder or any of Stockholder’s affiliates, any of their
respective directors or officers (in their capacities as such), in the case of
a corporate entity, or any of their respective partners (in the case of a
partnership), that, individually or in the aggregate, could reasonably be
expected to prevent, enjoin, alter or delay any of the transactions
contemplated by this Agreement, or that, individually or in the aggregate,
could reasonably be expected to have an adverse effect on Stockholder’s ability
to consummate the transactions contemplated by this Agreement.


 


5.5                               Accuracy of Representations.  The representations and warranties contained
in this Agreement are accurate in all respects as of the date of this Agreement
and will be accurate in all respects at all times until the termination of this
Agreement.


 


SECTION
6.                            Additional
Covenants of Stockholder


 


6.1                               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
(at Stockholder’s sole expense) take such further actions, as the Investors may
request for the purpose of carrying out and furthering the intent of this
Agreement.


 


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SECTION
7.                            Miscellaneous


 


7.1                               Survival of Representations, Warranties and
Agreements.  All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (a) the Closing Date, (b) any termination of the
Purchase Agreement and/or this Agreement and (c) the Voting Covenant Expiration
Date.


 


7.2                               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.


 


7.3                               Notices.  All notices, requests, consents and other communications
hereunder shall be in writing; shall be mailed (a) if within the domestic
United States, by first-class registered or certified airmail, by nationally
recognized overnight express courier, postage prepaid, or by facsimile or (b)
if delivered to or from outside the United States, by International Federal
Express or facsimile; shall be deemed given: (i) if delivered by first-class
registered or certified mail domestic, three business days after so mailed,
(ii) if delivered by nationally recognized overnight carrier, one business day
after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed or (iv) if delivered by facsimile, upon electric
confirmation of receipt; and shall be delivered as addressed as follows:


 


if to Stockholder:


 


at the address set forth on the signature page hereof; and


 


if to the Investors:


 


[address]


 


7.4                               Severability.  In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.  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 to the fullest extent
permitted by applicable law in an acceptable manner.


 


7.5                               Entire Agreement.  This Agreement, the Proxy and any other
documents delivered by the parties in connection herewith 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.


 


7.6                               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 his heirs, estate, executors
and  personal representatives and his or
its successors and assigns, and shall inure to the benefit of the Investors and
their successors and assigns.


 


6

















 


Without limiting any of the restrictions set forth in Section 2 or
Section 6.1 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 the Investors and their successors and
assigns) any rights or remedies of any nature. 
Notwithstanding the foregoing, any assignment, delegation or attempted
transfer of any rights, interests or obligations under this Agreement by
Stockholder without the prior written consent of the Investors shall be void.


 


7.7                               Indemnification.  Stockholder shall hold harmless and
indemnify the Investors from and against, and shall compensate and reimburse
the Investors 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 the
Investors, or to which the Investors otherwise become 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.


 


7.8                               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, the Investors shall be
entitled (in addition to any other remedy that may be available to them,
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 the Investors 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 7.8, 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.


 


7.9                               Non-Exclusivity.  The rights and remedies of the Investors
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 the Investors 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.


 


7.10                        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


 


7

















 


brought or
otherwise commenced in any state or federal court located in the State of
Delaware.  Stockholder:


 


(i)                                     expressly
and irrevocably consents and submits to the jurisdiction of each state and
federal court located in the State of Delaware in connection with any such
legal proceeding;


 


(ii)                                  agrees
that service of any process, summons, notice or document by U.S. mail addressed
to him or it 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 State of Delaware 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 State of
Delaware, 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.


 


Nothing contained
in this Section 7.10 shall be deemed to limit or otherwise affect the right of
the Investors 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.


 


7.11                        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.


 


7.12                        Headings.  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.


 


7.13                        Pronouns.  All pronouns contained herein, and any
variations thereof, shall be deemed to refer to the masculine, feminine or
neutral, singular or plural, as to the identity of the parties hereto may
require.


 


7.14                        Attorneys’ Fees.  In the event that any suit or action is
instituted under or in relation to this Agreement, including without limitation
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


 


8

















 


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.


 


7.15                        No Waiver.  No failure on the part of the Investors to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of the Investors 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.  The Investors shall not be deemed to have waived any claim
available to the Investors arising out of this Agreement, or any power, right,
privilege or remedy of the Investors 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 the Investors, and
any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.


 


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In Witness Whereof, the Investors
and Stockholder have caused this Agreement to be executed as of the date first
written above.


 


	
   

  	
  [Investors]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Stockholder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  
						



 


 


	
  Shares Held

  of Record

  	
   

  	
  Options and

  Other Rights

  	
   

  	
  Additional Securities

  Beneficially Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Exhibit A


Form of Irrevocable Proxy


 


The undersigned
stockholder (the “Stockholder”)
of Rigel
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), hereby
irrevocably (to the fullest extent permitted by law) appoints and constitutes
[                     ],
[                     ]
and [                     ],
and each of them, the exclusive attorneys and proxies of the Stockholder with
full power of substitution and resubstitution, to the full extent of the
Stockholder’s rights with respect to (i) the outstanding shares of capital
stock of the Company owned of record by the Stockholder as of the date of this
proxy, which shares are specified on the final page of this proxy and (ii) 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
“(i)” and “(ii)” 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 (to the fullest extent permitted by law), is coupled with an
interest and is granted in connection with the Voting Agreement, dated as of
the date hereof, between the Investors and the Stockholder (the “Voting Agreement”),
and is granted in consideration of the Investors entering into the Common Stock
and Warrant Purchase Agreement, dated as of the date hereof, among the Company
and the Investors (the “Purchase
Agreement”).  This proxy
will terminate on the Voting Covenant Expiration Date (as defined in the Voting
Agreement).


 


The attorneys and
proxies named above be, and each of them are, authorized and  empowered by the undersigned, and may
exercise this proxy, to vote the Shares, and to exercise all voting, consent
and similar rights of the undersigned with respect to the Shares until the
Voting Covenant Expiration Date 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:


 


(i)                                     in
favor of issuance of the Shares and the Warrants (as defined in the Purchase
Agreement) in the Offering, in favor of each of the other actions contemplated
by the Purchase Agreement and in favor of any action in furtherance of any of
the foregoing; and


 


(ii)                                  against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Investors and/or the Company in the
Purchase Agreement or which could be expected to delay, prevent or adversely
affect the consummation of the transactions contemplated by the Purchase Agreement
(including, but not limited to, any matter submitted to stockholders that would
cause a failure of a closing condition in the Purchase Agreement).


 


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.


 


A-1

















 


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).


 


In case any
provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.


 


Dated: 
[                     ],
2003


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name

  



 


A-2