STOCKHOLDER VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS
STOCKHOLDER VOTING AGREEMENT AND IRREVOCABLE PROXY (this “Agreement”) is made,
entered into, and effective as of May 11, 2010, by and among HepaLife
Technologies, Inc., a Florida corporation (the “Company”), Harborview
Master Fund LP (the “Agent”) and the
persons listed on Schedule A to this
Agreement (each, a “Stockholder” and,
collectively, the “Stockholders”).
RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company is
entering into an Agreement and Plan of Merger (the “Merger Agreement”),
by and among the Company, HT Acquisition Corp., a Delaware corporation (“Merger Sub”), and
AquaMed Technologies, Inc., a Delaware corporation ("AquaMed") pursuant to
which Merger Sub shall be merged with and into AquaMed with AquaMed surviving as
a wholly-owned subsidiary of the Company;
WHEREAS,
pursuant to the Merger Agreement, all of the issued and outstanding shares of
Company Merger Stock (as defined in the Merger Agreement) will be exchanged and
converted into the right to receive shares of Parent Common Stock (as defined in
the Merger Agreement) constituting the Merger Consideration (as defined in the
Merger Agreement), all upon the terms and subject to the conditions set forth in
the Merger Agreement;
WHEREAS,
as of the date of this Agreement, each Stockholder is the “beneficial owner” (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended,
which meaning shall apply for all purposes of this Agreement) of the number of
shares of the outstanding common stock of the Company as set forth on Schedule A
of this Agreement;
WHEREAS,
pursuant to Section 1.6(b) of the Merger Agreement, at the Effective Time (as
defined in the Merger Agreement), the size of the Board of Directors of the
Company (the “Board of
Directors”) shall be three members, and each of the Stockholders desires
to vote the Shares (as defined below) in favor of the election of the
individuals set forth on Schedule 1.6(b) of the Merger
Agreement, subject to the terms and provisions of this Agreement;
and
WHEREAS,
each capitalized term used herein but not otherwise defined shall have the
meaning as set forth in the Merger Agreement.
AGREEMENT
NOW,
THEREFORE, in and as consideration of and for the foregoing premises and the
representations, warranties, agreements, and covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Voting. During
the term of this Agreement, the Stockholders agree to vote, or cause to be voted
(at all meetings of stockholders of the Company and pursuant to all written
consents in lieu of voting at a meeting), all shares of the Company’s voting
securities now or hereafter owned by them, whether beneficially or otherwise, or
as to which they have voting power (the “Shares”) in
accordance with the provisions of this Agreement.
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2. Board of
Directors.
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(a)
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Voting. The
Board of Directors of the Company shall initially consist of three (3)
directors comprised of the individuals set forth on Schedule 1.6(b) of the
Merger Agreement. During the term of this Agreement, each of
the Stockholders agrees to vote, or cause to be voted, all Shares
beneficially owned by such Person, in such a manner as may be necessary
(whether at an annual, special, adjourned or postponed meeting of
shareholders, by written consent or otherwise) to elect the individuals
set forth on Schedule 1.6(b) of the Merger Agreement (each, a “Director”) as
members of the Board of Directors.
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(b)
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Vacancies. In
the event that any Director is removed for cause, resigns or is otherwise
unable or unwilling to serve as a director of the Company prior to the
expiration of the term of such Director, the holders of the Shares will
take such action necessary to cause the election or appointment of a
replacement director designated by the remaining Directors to fill the
vacancy and serve as a director of the Company for the unexpired term of
such Director.
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3. Proxy. In
order to implement the voting agreement set forth in Section 1 and Section 2,
and limited thereto, each Stockholder hereby grants to the Agent,
with the Agent having full power of substitution, a proxy (a “Proxy”) to vote, on
all matters relating solely to the election of directors and the filling of
vacancies on the Board of Directors as contemplated by Section 2 above and
consistent with the terms and conditions of the Merger Agreement, on which the
Shares are entitled to vote, any and all Shares which such Stockholder is
entitled to vote, and to give written consents in lieu of voting such Shares, in
the same manner that the Agent votes, or provides written consent in lieu of a
vote as to, Shares owned by the Agent.
4. Irrevocable Proxy.
EACH STOCKHOLDER ACKNOWLEDGES THAT ITS PROXY IS COUPLED WITH AN INTEREST, AND
AGREES THAT ITS PROXY IS IRREVOCABLE. THE PROXY WILL AUTOMATICALLY
EXPIRE UPON TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 8
BELOW. SUBJECT TO THE FOREGOING, THIS PROXY WILL SURVIVE THE DEATH,
DISABILITY, OR INCAPACITY OF THE STOCKHOLDERS.
5. Exercise of
Rights. Each Stockholder agrees and acknowledges that nothing
in this Agreement limits the ability of the Agent to exercise any of the Agent’s
rights under this Agreement or as a stockholder of the Company in accordance
with the Agent’s own interests without regard to the interests of such
Stockholder. The Agent has the right to vote or exercise (or refrain
from voting or exercising) this proxy at any time and from time to time as it
may elect in its sole discretion.
6. Reasonable Efforts to
Cooperate. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper, and/or advisable under applicable laws to consummate and make
effective the transactions contemplated by this Agreement. Each party
hereto shall promptly consult with the other parties hereto and provide any
necessary information and material with respect to all filings made by any party
hereto with any Governmental Authority in connection with this Agreement and the
transactions contemplated hereby.
7. Representations and
Warranties of Each Stockholder. Each Stockholder hereby
represents and warrants, severally and not jointly, as follows:
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(a) Ownership of
Shares. Such Stockholder is the “beneficial owner” of, and has
the sole power to vote and dispose of, the number of Shares set forth opposite
the name of such Stockholder on Schedule A hereto,
free and clear of any security interests, liens, charges, encumbrances,
equities, claims, options or limitations of whatever nature and free of any
other limitation or restriction (including, without limitation, any restriction
on the right to vote, sell, or otherwise dispose of such Shares), except, in
each case, as may exist by reason of this Agreement or pursuant to applicable
law. The number of Shares set forth opposite the name of such
Stockholder on Schedule A hereto
represents all of the shares of capital stock of the Company beneficially owned
by such Stockholder as of the date of this Agreement. Except as
permitted by this Agreement, the Shares beneficially owned by such Stockholder,
and the certificates representing such Shares are now, and at all times during
the term hereof shall be, held by such Stockholder, or by a nominee or custodian
for the benefit of such Stockholder, free and clear of all liens, proxies,
voting trusts or agreements, understandings or arrangements or any other rights
whatsoever, except for any such liens or proxies arising hereunder. This
Agreement is not intended, nor shall any provision hereof be construed in any
manner, to restrict a Stockholder’s right to sell, transfer or otherwise dispose
of any Shares owned by such Stockholder at any time, including, during the term
of this Agreement.
(b) Power; Binding
Agreement. Such Stockholder has the power and authority to
enter into and perform all of such Stockholder’s obligations under this
Agreement. This Agreement has been duly and validly executed and
delivered by such Stockholder and, assuming due execution and delivery by, and
enforceability against such Stockholder, constitutes a legal, valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as such enforcement may be limited by any
equitable defense. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such Stockholder is a
trustee, or any party to any other agreement or arrangement, whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated thereby.
(c) Consents; No
Conflicts. No filing with, and no permit, authorization,
consent or approval of, any Governmental Authority is necessary for the
execution and delivery of this Agreement by such Stockholder, the consummation
by such Stockholder of the transactions contemplated hereby and the compliance
by such Stockholder with the provisions hereof and none of the execution and
delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated hereby or compliance by such
Stockholder with any of the provisions hereof, except in cases in which any
conflict, breach, default or violation described below would not interfere with
the ability of such Stockholder to perform such Stockholder’s obligations
hereunder, shall (i) conflict with or result in any breach of any organizational
documents applicable, (ii) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, modification or acceleration)
under, any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind,
including, without limitation, any voting agreement, proxy arrangement, pledge
agreement, stockholders agreement or voting trust, to which such Stockholder is
a party or by which such Stockholder or any properties or assets of such
Stockholder may be bound, or (iii) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder or
any properties or assets of such Stockholder.
8. Termination. This
Agreement and the rights granted the Agent hereunder shall terminate with
respect to any Stockholder upon the earlier of:
3
(a) June
30, 2010;
(b) on
the date that the Articles of Amendment are filed with the Secretary of State of
the State of Florida, all as described in the Company’s Information Statement on
Schedule 14C as filed with the Securities and Exchange Commission on May 7,
2010; or
(c) the
date on which such Stockholder shall no longer beneficially own the
Shares.
9. No
Limitation. Notwithstanding any other provision hereof,
nothing in this Agreement shall be construed to prohibit any Stockholder that is
or has been designated as a member of the Board of Directors from taking any
action solely in his or her capacity as a member of the Board of Directors or
from exercising his or her fiduciary duties as a member of such Board of
Directors.
10. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter
hereof.
(b) Assignment. This
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of each Stockholder.
(c) Successors and
Assigns. Without limiting any other rights the Stockholders
may have hereunder in respect of any transfer of any Shares, each Stockholder
agrees that this Agreement and the obligations hereunder shall not attach to the
Shares beneficially owned by such Stockholder and shall not be binding upon any
person to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, other such Stockholder’s heirs, guardians,
administrators, successors or affiliates.
(d) Amendment. This
Agreement may not be amended, changed or otherwise modified except by an
instrument in writing signed by the Stockholders, and the Company.
(e) Notice. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly received if
given) by hand delivery or by facsimile transmission with confirmation of
receipt, as follows:
If to the
Company:
HepaLife
Technologies, Inc.
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
Attention: Chief
Executive Officer
Facsimile: (000)
000-0000
with a
copy (which shall not constitute notice) to:
Xxxxxx
and Xxxxx, LLP
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxx X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
4
If to the
Agent:
Harborview
Master Fund LP
000 Xxxxx
Xxxxxx
Xxxxx
0000
Xxx Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxxxx
Facsimile:
000-000-0000
with a
copy (which shall not constitute notice) to:
Xxxxxx
and Xxxxx, LLP
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxx X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
If to a
Stockholder:
At the
addresses and facsimile numbers set forth on Schedule A
hereto.
or to
such other address or facsimile number as the person to whom notice is given may
have previously furnished to the other parties hereto in writing in the manner
set forth above.
(f) Severability. Whenever
possible, each provision or portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law but
if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction such invalidity, illegality or unenforceability shall
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
(g) Remedies. All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such
party.
(h) Waiver. The
failure of any party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
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(i) Third
Parties. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto and any other third party successor, and
nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
(j) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
(k) Specific Performance;
Consent to Jurisdiction. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any state
court located in the State of New York, County of New York, or any Federal court
located in the Southern District of New York, this being in addition to any
other remedy to which they are entitled at law or in equity and the Company and
Agent shall not be required to post any bond or other security in connection
with any equitable remedy. In addition, each of the parties hereto
(i) consents to submit itself to the personal jurisdiction of any state court
located in the State of New York, County of New York, or any Federal court
located in the Southern District of New York in the event any dispute arises out
of this Agreement or any transaction contemplated by this Agreement, (ii) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court and (iii) agrees that it shall
not bring any action relating to this Agreement or any transaction contemplated
by this Agreement in any court other than any such court. The parties
hereto irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York, County
of New York or in any Federal court located in the Southern District of New
York, and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in a inconvenient forum.
(l) Headings. The
descriptive headings used herein are inserted for convenience of reference only
and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
(m) Counterparts. This
Agreement may be executed in counterparts (by fax or otherwise), each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
Remainder
of Page Intentionally Left Blank. Signature Page(s)
Follow.
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Stockholder
Voting Agreement and Irrevocable Proxy effective as of the date first written
above.
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THE
COMPANY:
HEPALIFE
TECHNOLOGIES, INC.
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxx
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Title:
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President
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HARBORVIEW
MASTER FUND LP:
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By:
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/s/
Xxxxx Xxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxx
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Title:
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Chairman
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STOCKHOLDERS:
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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1420525 Alberta
Ltd
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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President
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GRQ Consultants,
Inc.
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By:
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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President
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SCHEDULE
A
Stockholders
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Name,
Address and Facsimile Number of Stockholder
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Shares
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Xxxxxx Xxxxx
0000 Xxxx Xxxx
Xxxxxxxxx, XX X0X 0X0
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2,000,000
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1420525
Alberta Ltd.
0000
Xxxx 0xx Xxxxxx
Xxxxx
000
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
Facsimile:
(000) 000-0000
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34,261,174
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GRQ
Consultants, Inc.
#000
-000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
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16,047,115
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