Exhibit 10.3
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is entered into as of January 31,
2006, by and between Avantogen Limited, a corporation organized under the laws
of Australia ("Parent"), and Bioaccelerate Holdings, Inc., a Nevada corporation
("Stockholder") and stockholder of Innovate Oncology, Inc., a Nevada corporation
(the "Company"). Terms not otherwise defined herein shall have the respective
meanings ascribed to them in the Share Exchange Agreement (as defined below).
RECITALS
A. The execution and delivery of this Agreement by Stockholder is a
material inducement to the willingness of Parent and Newco (as defined in the
Share Exchange Agreement) (Parent and Newco together, "Acquiror") to enter into
that certain Share Exchange Agreement, dated as of the date hereof (as amended,
modified or supplemented pursuant to its terms, the "Share Exchange Agreement"),
by and among Parent, Stockholder, and the Company and, following its formation,
Newco.
B. Stockholder understands and acknowledges that the Company and Acquiror
are entitled to rely on (i) the truth and accuracy of Stockholder's
representations contained herein and (ii) Stockholder's performance of the
obligations set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth in the Share Exchange Agreement and in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Restrictions on Shares.
(a) Stockholder shall not, directly or indirectly, transfer, grant
an option, co-sale right or right of first refusal with respect to, sell,
exchange, pledge, short sell, hedge, or otherwise dispose of or encumber
(collectively, a "Transfer"), the Shares (as such term is defined in Section 4
below) or any New Shares (as such term is defined in Section 1(d) below), or
make any offer or enter into any agreement providing for any of the foregoing,
at any time from the date of this Agreement through and including the Expiration
Date. As used herein, the term "Expiration Date" shall mean the earlier of (i)
immediately after the date and time of the Closing (as defined in the Share
Exchange Agreement) and (ii) the date and time of the valid termination of the
Share Exchange Agreement in accordance with its terms.
(b) Except pursuant to the terms of this Agreement, at any time from
the date of this Agreement through and including the Expiration Date,
Stockholder shall not, directly or indirectly, grant any proxies or powers of
attorney with respect to any of the Shares, deposit any of the Shares into a
voting trust, or enter into a voting agreement or similar arrangement or
commitment with respect to any of the Shares.
(c) At any time from the date of this Agreement through and
including the Expiration Date, Stockholder, in its capacity as a stockholder of
the Company, shall not, directly or indirectly, take any action that would make
any representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of Stockholder, in its capacity as a stockholder
of the Company, to perform its obligations under this Agreement or, in its
capacity as a stockholder of the Company, preventing or delaying the
consummation of any of the transactions contemplated hereby or the transaction
contemplated by the Share Exchange Agreement (collectively, the "Transactions").
(d) Any shares of Company Stock or other securities of the Company
that Stockholder purchases or with respect to which Stockholder otherwise
acquires record or beneficial ownership (as defined in Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended) after the date of this
Agreement through and including the Expiration Date, (collectively, the "New
Shares") shall be subject to the terms and conditions of this Agreement to the
same extent as if they constituted Shares.
2. Agreement to Vote Shares; Delivery of Written Consent.
(a) Prior to the Expiration Date and subject to Section 2(b), at
every meeting of the stockholders of the Company called with respect to any of
the following, and at every adjournment or postponement thereof, and on every
action or approval by written consent or resolution of the stockholders of the
Company with respect to any of the following, (i) in the event that there has
not been a Change of Company Recommendation (as defined in the Share Exchange
Agreement), Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 3 below), the Shares and any
New Shares in favor of approval of the Transactions, the adoption of the Share
Exchange Agreement and any other matter that is contemplated by the Share
Exchange Agreement and any action required in furtherance thereof and
Stockholder shall vote, to the extent not voted by the person(s) appointed under
the Proxy, against any Acquisition Proposal (as defined in the Share Exchange
Agreement) and any other matter that would reasonably be expected to impede,
interfere with, delay, postpone or adversely affect the Transactions. The Proxy
shall not be voted for any other purpose.
(b) Stockholder hereby agrees to deliver to the Company (with a copy
delivered to the Parent) Stockholder's approval of the Transactions by written
consent within two (2) Business Days after the date hereof. The parties each
agree that the agreements contained in this Section 2(b) are an integral part of
this Agreement and the Transactions.
3. Irrevocable Proxy. Concurrently with the execution and delivery of this
Agreement, Stockholder hereby delivers to Parent a duly executed proxy in the
form attached hereto as Exhibit A (the "Proxy"), which Proxy is coupled with an
interest, and, until the earlier to occur of the Expiration Date and a Change of
Company Recommendation, shall be irrevocable to the fullest extent permitted by
law, with respect to each and every meeting of stockholders of the Company or
action or approval by written resolution or consent of stockholders of the
Company with respect to the matters contemplated by Section 2 covering the total
number of Shares and New Shares in respect of which Stockholder is entitled to
vote at any such meeting or in connection with any such written consent and
which Proxy shall automatically terminate upon the earlier to occur of the
Expiration Date and a Change of Company Recommendation. Upon the execution of
this Agreement by Stockholder, (i) Stockholder hereby revokes any and all prior
proxies (other than the Proxy) given by Stockholder with respect to the subject
matter contemplated by Section 2, and (ii) Stockholder shall not grant any
subsequent proxies with respect to such subject matter, or enter into any
agreement or understanding with any Person to vote or give instructions with
respect to the Shares and New Shares in any manner inconsistent with the terms
of Section 2, until after the earlier to occur of the Expiration Date and a
Change of Company Recommendation.
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4. Representations, Warranties and Covenants of Stockholder. Stockholder
hereby represents, warrants and covenants to Acquiror as follows:
(a) Stockholder is the beneficial or record owner of, or is trustee
of a trust that is the record holder of, and whose beneficiaries are the
beneficial owners of, or exercises voting power over, that number of shares of
Company Stock set forth on the signature page hereto (all such shares owned
beneficially or of record by Stockholder, or over which Stockholder exercises
voting power, on the date hereof, collectively, the "Shares"). As of the date
hereof, the Shares constitute Stockholder's entire interest in the outstanding
shares of Company Stock and Stockholder does not hold any other outstanding
shares of capital stock of the Company or rights to acquire any such capital
stock. No person not a signatory to this Agreement has or will have a beneficial
interest in or a right to acquire or vote any of the Shares or any New Shares.
The Shares are and will be, and New Shares, if any, will be, at all times up
until and including the earlier to occur of the Expiration Date and a Change of
Company Recommendation free and clear of any security interests, liens, claims,
pledges, options, rights of first refusal, co-sale rights, agreements,
limitations on Stockholder's voting rights, charges and other encumbrances of
any nature that could adversely affect the Transactions or the exercise or
fulfillment of the rights and obligations of the Company under the Share
Exchange Agreement or of the parties to this Agreement. Stockholder's principal
residence or place of business is set forth on the signature page hereto.
(b) Stockholder has the full legal right, power and authority to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. The execution, deliver and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the approval of the
Board of Director of the Stockholder, if such approval is necessary, and no
further corporate action on the part of the Stockholder is necessary to
authorize this Agreement or the other agreements, documents, certificates and
instruments required to be delivered hereby or the performance of the
transactions contemplated hereby. This Agreement and the other agreements,
documents, certificates and instruments required to be delivered by the
Stockholder in accordance with the provisions hereof (the "Stockholder
Documents") have been or will be, as applicable, duly executed and delivered by
duly authorized officers of Stockholder and this Agreement constitutes, and the
Stockholder Documents when executed and delivered will constitute, the legal,
valid and binding obligations of Stockholder, enforceable against Stockholder in
accordance with their respective terms.
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(c) The execution and delivery of this Agreement, the performance of
the obligations hereunder and the consummation of the transactions contemplated
hereby do not conflict with, result in a default under or a breach or violation
of, adversely affect the rights and benefits afforded to Stockholder or give any
party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Stockholder under (a) any
Law to which Stockholder or its assets, properties or businesses are subject or
bound, (b) any judgment, order or decree of any Governmental Authority which is
applicable to Stockholder or the assets, properties or businesses of
Stockholder, (c) the Articles of Incorporation or Bylaws, each as amended
through the date hereof (the "Stockholder Charter Documents"), or any securities
issued by Stockholder, or (d) any material contracts, or other agreement,
contract, commitment, arrangement or understanding, oral or written, to which
Stockholder is a party, by which Stockholder or any shareholder of Stockholder
may have rights or by which any of the properties or assets of Stockholder may
be bound or affected, except, with respect to clauses (a), (b) and (d), for any
of the same that has not had and could not reasonably be expected to result in a
Material Adverse Effect on the Company or in a material adverse effect on the
ability of the Stockholder to perform any of its obligations under this
Agreement or the Share Exchange Agreement. Except as aforesaid, no
authorization, approval or consent of, and no registration or filing with, any
Governmental Authority is required in connection with the execution, delivery or
performance of this Agreement or the transactions contemplated hereby by
Stockholder.
5. Representations, Warranties and Covenants of Parent. Parent hereby
represents, warrants and covenants to Stockholder as follows:
(a) Parent has the full legal right, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the unanimous
approval of the Board of Directors of Parent, if such approval is necessary, and
no other corporate action on the part of Parent will be necessary to authorize
this Agreement or the other agreements, documents, certificates and instruments
required to be delivered hereby or the performance of the transactions
contemplated hereby. This Agreement and the other agreements, documents,
certificates and instruments required to be delivered by Parent in accordance
with the provisions hereof (the "Parent Documents") will be duly executed and
delivered by Parent by duly authorized officers and this Agreement constitutes,
and the Parent Documents when executed and delivered will constitute, the legal,
valid and binding obligations of Parent, enforceable against Parent in
accordance with their respective terms.
(b) The execution and delivery of this Agreement, the performance of
the obligations hereunder and the consummation of the transactions contemplated
hereby do not conflict with, result in a default under or a breach or violation
of, adversely affect the rights and benefits afforded to Parent or give any
party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Parent under (a) any Law
to which Parent or its assets, properties or businesses are subject or bound,
(b) any judgment, order or decree of any Governmental Authority which is
applicable to Parent or the assets, properties or businesses of Parent, (c) the
charter or bylaws of Parent or any securities issued by Parent, or (d) any
material contracts, or other agreement, contract, commitment, arrangement or
understanding, oral or written, to which Parent is a party, by which Parent or
any shareholder of Parent may have rights or by which any of the properties or
assets of Parent may be bound or affected, except with respect to clauses (a),
(b) and (d), for any of the same that has not had or will not have a Material
Adverse Effect (as defined in the Share Exchange Agreement) on Parent or in a
material adverse effect on the ability of Parent to perform its obligations
under this Agreement or the Share Exchange Agreement. Except as aforesaid, no
authorization, approval or consent of, and no registration or filing with, any
Governmental Authority is required in connection with the execution, delivery or
performance of this Agreement or the transactions contemplated hereby by Parent.
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6. Disclosure of the Transaction; Press Releases. Except as may be
required by Law or by any listing agreement with, or the policies of the OTC
Bulletin Board, Stockholder shall hold any information regarding this Agreement
and the Transactions in strict confidence and shall not divulge any such
information to any third person (except Stockholders, officers, directors,
employees, legal counsel, advisors and representatives) until the Company and/or
Parent have publicly disclosed the Transactions. Neither Stockholder, nor any of
its affiliates shall issue or cause the publication of any press release or
other public announcement with respect to this Agreement, the Transactions or
the Share Exchange Agreement except after making reasonable efforts to consult
with the Acquiror to the extent practicable.
7. Appraisal Rights. Stockholder agrees not to exercise any rights of
appraisal or any dissenters' rights that Stockholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Transactions.
8. Capacity. The parties hereto acknowledge and agree that this Agreement
and the Proxy are entered into by Stockholder in Stockholder's capacity as a
stockholder of the Company and shall not be construed to have any effect,
obligation, restriction, limitation or liability on Stockholder, or (if
applicable) Stockholder's officers, directors, employees, agents or
representatives, in any other manner or capacity, including without limitation,
in any capacity as an officer, director, employee, agent or representative of
the Company. Without limiting the foregoing, the parties hereto acknowledge and
agree that any vote by Stockholder in approval of the Transactions, the adoption
of the Share Exchange Agreement and any other matter that is contemplated by the
Share Exchange Agreement, or by any persons appointed by Proxy with respect to
any or all of such matters, shall not constitute the actual or deemed approval
by Stockholder of any agreement or matter contemplated by the Share Exchange
Agreement that affects Stockholder in its capacity other than as a shareholder
of the Company.
9. Termination. For clarification, this Agreement and the Proxy delivered
in connection herewith shall automatically terminate and shall have no further
force or effect as of the earlier to occur of the Expiration Date and a Change
of Company Recommendation.
10. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when given to Acquiror or Stockholder, as
applicable, pursuant to the Notice provisions of the Share Exchange Agreement
(Section 11.7).
(b) Interpretation. When a reference is made in this Agreement to
Sections or Exhibits, such reference shall be to a Section of or an Exhibit to
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The phrases "the date of this Agreement", "the date
hereof", and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to the date first above written.
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(c) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Acquiror will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein or in the Proxy. Therefore, it is agreed that, in
addition to any other remedies that may be available to Acquiror upon any such
violation of this Agreement or the Proxy, Acquiror shall have the right to
enforce such covenants and agreements and the Proxy by specific performance,
injunctive relief or by any other means available to Acquiror at law or in
equity.
(d) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument.
(e) Entire Agreement. This Agreement and the documents and
instruments and other agreements specifically referred to herein or delivered
pursuant hereto (including, without limitation, the Proxy) sets forth the entire
understanding of the parties relating to the subject matter of this Agreement
and cancels and supersedes all agreements, arrangements and understanding
relating thereto made prior to or on the date hereof, written or oral, between
the parties to this Agreement.
(f) Successors and Assigns. This Agreement and the rights of the
parties hereunder may not be assigned by the Shareholder (except by operation of
law or as expressly stated hereunder) and shall be binding upon and shall inure
to the benefit of the parties hereto.
(g) Reformation and Severability. In case any provision of this
Agreement shall be held to be invalid, illegal or unenforceable, it shall, to
the extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the parties, and if
such modification is not possible, such provision shall be severed from this
Agreement, and in either case the validity, legality and enforceability of the
remaining provisions of this Agreement and the future application of such
provision shall not in any way be affected or impaired thereby.
(h) Remedies Cumulative. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
(i) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts entirely negotiated, executed and performed within that State without
giving effect to the conflict of law principles thereof.
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(j) Jurisdiction and Venue.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself, herself or himself and its, hers or his
property, to the nonexclusive jurisdiction of any New York state court or U.S.
federal court sitting in New York, New York, and any appellate court therefrom,
in any suit, action or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereunder, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such suit, action or proceeding may be heard and determined in any such New York
state court or U.S. federal court. Each of the parties hereto agrees that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(ii) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it or he may legally and
effectively do so, any objection that it or he may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereunder in any New York state
court or U.S. federal court sitting in New York, New York. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such suit, action or proceeding
in any such court.
(k) Representation by Counsel. Each party to this Agreement
represents and warrants that such party has been represented by counsel in the
negotiation, drafting and execution of this Agreement. Accordingly, no provision
of this Agreement shall be construed against any party on the grounds that party
drafted the provision or caused it to be drafted.
(l) Additional Documents, Etc. Stockholder shall execute and deliver
any additional documents necessary or desirable, in the reasonable opinion of
Acquiror, to carry out the purpose and intent of this Agreement. Without
limiting the generality or effect of the foregoing or any other obligation of
Stockholder hereunder, Stockholder hereby authorizes Acquiror to deliver a copy
of this Agreement to the Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed as of the date first above written.
AVANTOGEN LIMITED
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
BIOACCELERATE HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
----------------------------------------
(Print Address)
----------------------------------------
(Print Address)
----------------------------------------
(Print Telephone Number)
Shares beneficially owned on the date hereof:
_________ shares of Company Stock, which represents approximately ____% of the
outstanding Company Stock as of the date hereof.
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EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
The undersigned stockholder of Innovate Oncology, Inc., a Nevada
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by applicable law) appoints Avantogen Limited, a corporation organized under the
laws of Australia ("Parent"), and each of them, or any other designee of Parent,
as the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and
related rights (including, without limitation, the power to execute and deliver
written consents pursuant to the General Corporation Law of the State of Nevada)
to the fullest extent that the undersigned is entitled to do so with respect to
all of the shares of capital stock of the Company that now are or hereafter may
be record or beneficially owned by the undersigned, and any and all other shares
or securities of the Company issued or issuable in respect thereof on or after
the date hereof (collectively, the "Shares" and all Shares acquired after the
date hereof, collectively, the "New Shares") in accordance with the terms of
this Irrevocable Proxy until the earlier to occur of the "Expiration Date" and a
"Change of Company Recommendation" (as such terms are defined). The Shares
record or beneficially owned by the undersigned stockholder of the Company as of
the date of this Irrevocable Proxy are listed on the final page of this
Irrevocable Proxy. Upon the undersigned's execution of this Irrevocable Proxy,
any and all prior proxies given by the undersigned with respect to any Shares
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies or enter into any agreement or understanding with any Person (as defined
in the Share Exchange Agreement (as defined below)) to vote or give instructions
with respect to the Shares and New Shares in any manner inconsistent with the
terms of this Irrevocable Proxy until after the earlier to occur of the
Expiration Date and a Change of Company Recommendation.
Until the earlier to occur of the Expiration Date and a Change of Company
Recommendation, this Irrevocable Proxy is irrevocable (to the fullest extent
permitted by applicable law), is coupled with an interest, is granted pursuant
to that certain Voting Agreement, dated of even date herewith, by and among
Parent and Stockholder (the "Voting Agreement"), and is granted in consideration
of and as a material inducement to Parent and Newco (as defined in the Share
Exchange Agreement (as defined below)) entering into that certain Share Exchange
Agreement, dated as of even date, by and among Parent, the undersigned and the
Company and, following its formation, Newco (the "Share Exchange Agreement"). As
used herein, the terms "Expiration Date" and a "Change in Company
Recommendation" shall have the meanings set forth in, or by reference in, the
Share Exchange Agreement.
(m) The attorneys and proxies named above, and each of them, are
hereby authorized and empowered by the undersigned, at any time prior to and
including the earlier to occur of the Expiration Date and a Change in Company
Recommendation, to act as the undersigned's attorney and proxy to vote the
Shares and New Shares, and to exercise all voting and other similar rights of
the undersigned with respect to the Shares and New Shares (including, without
limitation, the power to execute and deliver written consents pursuant to the
General Corporation Law of the State of Nevada), at every annual, special or
adjourned meeting of the stockholders of the Company and in every written
consent in lieu of such meeting as follows: in the event that there has not been
a Change of Company Recommendation (as defined in the Share Exchange Agreement),
with respect to all of the Shares and New Shares, in favor of approval of the
transactions contemplated by the Share Exchange Agreement (collectively, the
"Transactions"), the adoption of the Share Exchange Agreement and any other
matter that is contemplated by the Share Exchange Agreement or any action
required in furtherance thereof, as applicable and with respect to all of the
Shares and New Shares, against any Acquisition Proposal (as defined in the Share
Exchange Agreement) and any other matter that would reasonably be expected to
impede, interfere with, delay, postpone or adversely affect the Transactions (as
defined in the Voting Agreement).
Notwithstanding anything to the contrary contained herein, the attorneys
and proxies named above may not exercise this Irrevocable Proxy on any other
matter except as provided above, and the undersigned stockholder may vote the
Shares and New Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder and shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
[Signature Page Follows]
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This Irrevocable Proxy may not be amended or otherwise modified without
the prior written consent of Parent and Bioaccelerate Holdings, Inc. This
Irrevocable Proxy shall terminate, and be of no further force and effect,
automatically upon the earlier to occur of the Expiration Date and a Change of
Company Recommendation.
Dated: January 31, 2006
BIOACCELERATE HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Shares beneficially owned on the date hereof:
_______ shares of Company Stock, which represents approximately ____% of the
outstanding Company Stock as of the date hereof.
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