0000927016-01-503485.txt : 20011112
0000927016-01-503485.hdr.sgml : 20011112
ACCESSION NUMBER: 0000927016-01-503485
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 5
FILED AS OF DATE: 20011105
GROUP MEMBERS: KATE BINGHAM
GROUP MEMBERS: RICHARD COLWELL
GROUP MEMBERS: SCHROEDER INVESTMENT MANAGEMENT LIMITED
GROUP MEMBERS: TOM DANIEL
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: INTERNATIONAL BIOTECHNOLOGY TRUST PLC
CENTRAL INDEX KEY: 0000942257
STANDARD INDUSTRIAL CLASSIFICATION: []
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: FIVE ARROWS HOUSE
STREET 2: ST SWITHINS LN
CITY: LONDON EC4N 8NR
MAIL ADDRESS:
STREET 1: FIVE ARROWS HOUSE
STREET 2: ST SWITHINS LN
CITY: LONDON EC4N 8NR
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: ESSENTIAL THERAPEUTICS INC
CENTRAL INDEX KEY: 0001010915
STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834]
IRS NUMBER: 943186021
STATE OF INCORPORATION: CA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-47911
FILM NUMBER: 1775226
BUSINESS ADDRESS:
STREET 1: 850 MAUDE AVE
CITY: MOUNTAIN VIEW
STATE: CA
ZIP: 94043
BUSINESS PHONE: 4154281550
MAIL ADDRESS:
STREET 1: 850 MAUDE AVE
CITY: MOUNTAIN VIEW
STATE: CA
ZIP: 94043
FORMER COMPANY:
FORMER CONFORMED NAME: MICROCIDE PHARMACEUTICALS INC
DATE OF NAME CHANGE: 19960319
SC 13D
1
dsc13d.txt
SCHEDULE 13D
-----------------------------
OMB APPROVAL
-----------------------------
OMB Number: 3235-0145
Expires: October 31, 2002
Estimated average burden
hours per form ....... 14.90
-----------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Essential Therapeutics, Inc. (formly known as Microcide Pharmaceutials, Inc.)
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock $.001 par value
--------------------------------------------------------------------------------
(Title of Class of Securities)
29669A-20-7
--------------------------------------------------------------------------------
(CUSIP Number)
Stephen Cunningham David W. Tegeler, Esq.
Schroder Investment Management Limited Testa, Hurwitz & Thibeault, LLP
31 Gresham Street 125 High Street
London, EC2V 7QA, England Boston, MA 02110
+44 (0) 20 7658-6000 (617) 248-7000
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 24, 2001
--------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of (S)(S)240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [_]
Note: Schedules filed in paper format shall include a signed original and five
copes of the schedule, including all exhibits. See(S)240.13d-7 for other parties
to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 10 pages
SCHEDULE 13D
--------------------------- -----------------------------
CUSIP NO. 29669A-20-7 Page 2 of 10 Pages
--------------- --- ---
--------------------------- -----------------------------
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
International Biotechnology Trust plc
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
WC
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5 Not Applicable
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,500,000 shares of common stock, $.001 par value per
share ("Common Stock")
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
CO
------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------- -----------------------------
CUSIP NO. 29669A-20-7 Page 3 of 10 Pages
--------------- --- ---
--------------------------- -----------------------------
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Schroder Investment Management Limited
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
AF
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,500,000 shares of common stock
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
CO
------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------- -----------------------------
CUSIP NO. 29669A-20-7 Page 4 of 10 Pages
--------------- --- ---
--------------------------- -----------------------------
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Tom Daniel
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
AF
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,500,000 shares of common stock
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
IN
------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------- -----------------------------
CUSIP NO. 29669A-20-7 Page 5 of 10 Pages
--------------- --- ---
--------------------------- -----------------------------
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Kate Bingham
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
AF
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,500,000 shares of common stock
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
IN
------------------------------------------------------------------------------
SCHEDULE 13D
--------------------------- -----------------------------
CUSIP NO. 29669A-20-7 Page 6 of 10 Pages
--------------- --- ---
--------------------------- -----------------------------
------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Richard Colwell
------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
------------------------------------------------------------------------------
SEC USE ONLY
3
------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
AF
------------------------------------------------------------------------------
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United Kingdom
------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 2,500,000 shares of common stock
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,500,000 shares of Common Stock
------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS) [_]
------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
13%
------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
IN
------------------------------------------------------------------------------
Item 1. Security and Issuer:
This statement relates to the Common Stock, $.001 par value per share
of Essential Therapeutics, Inc. formerly known as Microcide Pharmaceuticals,
Inc., a Delaware corporation (the "Issuer"). The address of the Issuer's
principal executive officers is 1365 Main Street, Waltham, MA 02451.
Item 2. Identity and Background:
(a) This statement is being filed by the following Reporting Persons:
International Biotechnology Trust plc ("IBT"), Schroder Investment Management
Limited ("SIML"), Tom Daniel ("Daniel"), Kate Bingham ("Bingham") and Richard
Colwell ("Colwell," and collectively with IBT, SIML, Daniel and Bingham, the
"Reporting Persons").
(b) The principal business office of the Reporting Persons is 31 Gresham
Street, London, EC2V 7QA, England.
(c) The jurisdiction of organization for IBT and SIML is the United
Kingdom. Daniel, Bingham and Colwell are citizens of the United Kingdom.
(d) The principal business of IBT is that of a publicly-traded investment
trust company. The principal business of SIML is that of an investment manager.
The principal occupation of Daniel, Bingham and Colwell are their activities on
behalf of SIML and IBT.
(e) During the five years prior to the date hereof, none of the Reporting
Persons have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(f) During the five years prior to the date hereof, none of the Reporting
Persons were a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction as a result of which such person was or is subject to
a judgment, decree or final order enjoining future violations of or prohibiting
or mandating activity subject to Federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration:
On October 24, 2001, IBT acquired 7,500 shares of Series B Convertible
Redeemable Preferred Stock, $.001 par value per share, (the "Preferred Stock")
of the Issuer for a total purchase price of $7,500,000. The Reporting Persons
have the right, at the Reporting Persons' option, at any time, to convert the
shares of Preferred Stock into shares of common stock, $.001 par value, ("Common
Stock") of the Issuer. The shares of Preferred Stock shall convert into shares
of Common Stock at a rate of $3.00 per share for an aggregate of 2,500,000
shares of Common Stock of the Issuer. The Issuer has an obligation to file with
the Securities and Exchange Commission a registration statement on Form S-3
under the Securities Act of 1933, as amended, covering the Common Stock issued
or issuable upon conversion of the shares of Preferred Stock within 30 days of
October 24, 2001.
The working capital or funds available for investment of IBT were the
source of funds for this purchase. No part of the purchase price was or will be
represented by funds or other consideration borrowed or otherwise obtained for
the purpose of acquiring, holding, trading or voting securities.
Item 4. Purpose of Transaction:
IBT acquired the Issuer's securities for investment purposes. Depending on
market conditions, IBT's or SIML's continuing evaluation of the business and
prospects of the Issuer and other factors, IBT may dispose of or acquire
additional securities of the Issuer. As of October 24, 2001, Bingham has joined
the Board of Directors of the Issuer. Except as described herein, none of the
Reporting Persons has any present plans or proposals which relate to or would
result in:
Page 7 of 10 pages
7
(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer:
(a) As of October 24, 2001, IBT was the record owner of 7,500 shares of
Series B Convertible Redeemable Preferred Stock, $.001 par value per share,
which is convertible into 2,500,000 shares of Common Stock of the Issuer within
60 days of the date of this statement. On an as converted basis, IBT owns
2,500,000 shares of Common Stock (the "Record Shares"), or approximately 13% of
the Common Stock of the Issuer, which percentage is calculated based upon
16,707,348 shares of Common Stock known to be outstanding by the Issuer as of a
recent date plus 2,500,000 shares of Common Stock - - the number of shares of
common stock the Reporting Persons have the right to acquire within 60 days of
October 24, 2001. By virtue of the contractual relationship between IBT and
SIML and the affiliate relationships among SIML, Daniel, Bingham and Colwell,
each of SIML, Daniel, Bingham and Colwell may be deemed to own beneficially all
of the Record Shares. Hence, SIML, Daniel, Bingham and Colwell may be deemed to
own 2,500,000 shares of Common Stock of the Issuer. In its capacity as
discretionary investment manager of IBT, SIML may be deemed to own beneficially
2,500,000 shares of Common Stock. In their capacity as members of the
investment committee of Schroder Ventures Life Sciences Advisers (UK) Limited
("SVLSAL") which advises SIML, Daniel and Bingham may be deemed to own
beneficially 2,500,000 shares of Common Stock. In his capacity as fund manager
of IBT, Colwell may be deemed to own beneficially 2,500,000 shares of Common
Stock.
Each of the Reporting Persons expressly disclaims beneficial ownership of
any shares of Common Stock of the Issuer, except in the case of IBT for the
2,500,000 shares which it holds of record.
(b) Number of Shares as to which each such person has
(i) Sole power to vote or direct the vote:
0 shares for each Reporting Person.
Page 8 of 10 pages
8
(ii) Shared power to vote or direct the vote:
2,500,000 shares for each Reporting Person
(iii) Sole power to dispose or to direct the disposition:
0 shares for each Reporting Person.
(iv) Shared power to dispose or to direct the disposition:
IBT: 2,500,000 shares
SIML: 2,500,000 shares
Richard Colwell: 2,500,000 shares
(c) Except as set forth above, none of the Reporting Persons has effected
any transaction in the Common Stock during the last 60 days.
(d) Except as described in Item 6 below, no other person is known to have
the right to receive or the power to direct the receipt of dividends from, or
any proceeds from the sale of, shares beneficially owned by any of the Reporting
Persons.
(e) Not Applicable.
Item 6. Contracts, arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
Pursuant to a contractual agreement dated as of November 7, 2000, IBT has
engaged SIML to act as its discretionary investment manager. Pursuant to such
agreement, SIML manages the business and assets of IBT, which includes the
authority to make decisions regarding the acquisition or disposition of
portfolio securities by IBT and to exercise any rights (including voting rights)
with respect to such securities. IBT has the right to terminate SIML's
appointment as manager at any time if SIML commits a material breach of its
obligations under the agreement and, if its breach is capable of remedy, fails
to make good the breach within 90 days of receipt of notice from IBT requiring
it to do so. Daniel and Bingham, in their capacity as members of the investment
committee of SVLSAL which advises SIML, have the ability to direct the vote with
respect to the portfolio securities held by IBT. Colwell, in his capacity as
fund manager of IBT, has the ability to direct the vote with respect to the
portfolio securities held by IBT and to make investment decisions regarding the
acquisition or disposition of portfolio securities by IBT.
IBT has entered into a lock-up agreement for a period of 270 days after
October 24, 2001 with regard to one half of all shares of the common stock of
the Issuer issuable upon conversion of the shares of Preferred Stock. In
addition, IBT has entered into a voting agreement whereby IBT has agreed to
provide the Company with a limited irrevocable proxy for the future voting of
its shares.
Item 7. Material to be Filed as Exhibits:
Exhibit 1 - Form of Voting Agreement
Exhibit 2 - Form of Lock-Up Agreement
Exhibit 3 - Agreement regarding filing of joint Schedule 13D
Exhibit 4 - Power of Attorney
Page 9 of 10 pages
9
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 5, 2001 INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By: /s/ Andrew Barker
-------------------------------------
Title: Director
----------------------------------
SCHRODER INVESTMENT MANAGEMENT LIMITED
By: /s/ John Bainbridge
-------------------------------------
Title: Executive Director
----------------------------------
/s/ Tom Daniel
----------------------------------------
Tom Daniel
/s/ Kate Bingham
----------------------------------------
Kate Bingham
/s/ Richard Colwell
----------------------------------------
Richard Colwell
Page 10 of 10 pages
10
EX-99.1
3
dex991.txt
FORM OF VOTING AGREEMENT
Exhibit 1
---------
MICROCIDE PHARMACEUTICALS, INC.
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of this
______ day of _________________, 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:
1.
(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.
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.
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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
4.
In Witness Whereof, the parties hereto have executed this Voting Agreement
as of the date first above written.
COMPANY: INVESTOR:
Microcide Pharmaceuticals, Inc. [Name of Investor]
By:____________________________ By:________________________________
Name:__________________________ Name:______________________________
Title:_________________________ Title:_____________________________
Number of Shares:__________________
Type of Shares:____________________
EX-99.2
4
dex992.txt
FORM OF LOCK UP AGREEMENT
Exhibit 2
LOCK-UP AGREEMENT
__________ __, 2001
Microcide Pharmaceuticals, Inc.
________________________________
________________________________
Attention:______________________
Ladies and Gentlemen:
Microcide Pharmaceuticals, Inc., a Delaware corporation, (the "Company"),
and ____________ (the "Investor"), have entered into a Subscription Agreement
dated as of _________ __, 2001 (the "Subscription Agreement"), providing for the
purchase of _______ shares (the "Shares") of the Company's Series B Convertible
Redeemable Preferred Stock ("Company Preferred Stock") by the Investor (the
"Investment").
Pursuant to the Subscription Agreement, the Investor hereby agrees that,
without the prior written consent of the Company, it will not, during the period
commencing on the date hereof and ending on ______ __, 2002 [insert date 270
days after the closing date of the Investment], (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, one half of all shares
of Common Stock of the Company issuable upon conversion of the Shares or (2)
enter into any swap, hedge or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of one half of
all shares of Common Stock of the Company issuable upon conversion of the
Shares, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Company Preferred Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to transactions
relating to shares of Common Stock of the Company or other securities in each
case acquired in open market transactions.
The undersigned confirms that the agreements of the undersigned are
irrevocable and shall be binding on the undersigned's legal representatives,
successors and assigns. The undersigned agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent against the
transfer of securities of the Company held by the undersigned except in
compliance with the terms and conditions of this Agreement.
Very truly yours,
_______________________
(Name of Investor)
By:____________________
Print Name:____________
Title:_________________
EX-99.3
5
dex993.txt
AGREEMENT REGARDING FILING OF JOINT SCHEDULE 13D
Exhibit 3
---------
Pursuant to Rule 13d-1(f)(1) under the Securities Exchange Act of 1934, the
undersigned hereby agree that only one statement containing the information
required by Schedule 13D need be filed with respect to the ownership by each of
the undersigned of shares of stock of Microcide Pharmaceuticals, Inc.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original.
Executed this 5th day of November, 2001.
INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By: /s/ Andrew Barker
------------------------
Title: Director
------------------------
SCHRODER INVESTMENT MANAGEMENT LIMITED
By: /s/ John Bainbridge
------------------------
Title: Executive Director
------------------------
/s/ Tom Daniel
-------------------------------
Tom Daniel
/s/ Kate Bingham
-------------------------------
Kate Bingham
/s/ Richard Colwell
-------------------------------
Richard Colwell
EX-99.4
6
dex994.txt
POWER OF ATTORNEY
Exhibit 4
---------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each and any of Tom Daniel, Kate
Bingham or Richard Colwell, acting singly, his or her true and lawful attorney-
in-fact and agent, with full power of substitution and resubstitution, for him
or her and in his or her name, place and stead, in any and all capacities (until
revoked in writing) to sign any and all instruments, certificates and documents
required to be executed on behalf of himself or herself pursuant to sections 13
and 16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any and all regulations promulgated thereunder, and to file the same, with
all exhibits thereto, and any other documents in connection therewith, with the
Securities and Exchange Commission, and with any other entity when and if such
is mandated by the Exchange Act or by the By-laws of the National Association of
Securities Dealers, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
fully to all intents and purposes as he might or could do in person thereby
ratifying and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of the 5th day of
November, 2001.
/s/ Tom Daniel
------------------------
Tom Daniel
/s/ Kate Bingham
------------------------
Kate Bingham
/s/ Richard Colwell
------------------------
Richard Colwell