VOTING AND SHAREHOLDERS AGREEMENT
VOTING AND SHAREHOLDERS AGREEMENT dated as of July ____, 1998
by and between PIONEER VENTURES ASSOCIATES LIMITED PARTNERSHIP, having an office
at 000 Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("PVALP"), AND TURAN M. ITIL,
XXXX X. ITIL, YASMIN ITIL LE BARS, XXXXXXXX ITIL, I. XXXXXX XXXXXXXX, PIERRE LE
BARS, XXXXXX X. XXXXXX, XXXXXXX XXXX, XXXX XXXXX, and XXXXXX XXXXXXXXX
(collectively hereinafter referred to as the "PRINCIPAL SHAREHOLDERS").
WHEREAS, the Principal Shareholders have sole or shared voting
power over an aggregate of at least 3,978,000 the common shares, $.001 par value
per share ("COMMON SHARES"), of NeuroCorp, Ltd. (the "COMPANY") as more
specifically set forth in EXHIBIT A attached hereto;
WHEREAS, pursuant to a certain Investment Agreement dated the
date hereof (the "INVESTMENT AGREEMENT"), PVALP is investing in the Company
through the purchase of Preferred Stock and may make a additional investments in
the Company through one or more Preferred Stock investments in the future; and
WHEREAS, the execution of this Agreement by the parties hereto
is a condition precedent to the consummation of the transactions provided for in
the Investment.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto agree as follows:
ARTICLE I. VOTING BY PRINCIPAL SHAREHOLDERS.
1.1 AGREEMENT TO VOTE. Each of the Principal Shareholders agrees
that, so long as PVALP shall own any Preferred Stock or Common Stock, each of
them shall vote all of his/hers Common Shares, whether now owned or hereafter
acquired, for the election as a director(s) of the Company of the designee(s)
of PVALP in accordance with paragraph 1.10 of the Investment Agreement at any
meeting of the Company's shareholders at which such designee shall be
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nominated as a director. Without limiting the generality of the foregoing, the
Principal Shareholders agree to execute and deliver any and all documents,
agreements and instruments, including, without limitation, proxies, as PVALP
shall reasonably request so that at least two designees of PVALP shall be
directors of the Company at all times while any Preferred Stock or Common Stock
is held by PVALP.
1.2 SPECIAL MEETING UPON DEFAULT. In the event of the default under,
or a breach of, this Agreement, or the Investment Agreement, or the
Certificate of Designation of Preferred Stock under which PVALP or its
assigns are a holder of Preferred Stock, the Principal Shareholders agree to
call a special meeting of the Shareholders at the sole expense of the Company
and they each agree that they shall vote in favor of that number of and those
nominees to the Board of Directors designated by PVALP such that the Board of
Directors of the Company shall then become comprised of a majority of
nominees of PVALP, after and during the continuation of any such defaults.
The Principal Shareholders hereby agree to take no action to contravene,
limit or otherwise terminate such PVALP board majority mechanism. The
Principal Shareholders agree to vote in favor of such PVALP nominees for as
long as any interest or principal remains unpaid under such Preferred Stocks.
1.3 PRESERVATION OF BYLAWS. The provisions of Sections 1(a) and 1(b)
above are in consonance with the amendments to Section 2 of Article II of the
Bylaws of the Company as set forth in the Unanimous Written Consent of the
Board of Directors of NeuroCorp, Ltd., dated July 22, 1998, attached hereto
as EXHIBIT B, respectively, and incorporated herein by this reference (the
"RESOLUTIONS"). If the directors or the shareholders of the Company further
amend Section 2 of Article II of the Bylaws at any time during which PVALP
shall own any Preferred Stock or Common Stock, upon the written demand
therefor by PVALP, each of the Principal Shareholders shall call a special
meeting of the Shareholders at the sole expense of the Company and they each
agree that they shall vote all of their Common Shares, whether now
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owned or hereafter acquired, for Section 2 of Article II of the Bylaws to be
restored to or retained, as the case may be, to the form as set forth in the
Resolutions, in accordance with Article VII of the Bylaws.
ARTICLE II. TRANSFERS
2.1 TRANSFER OF COMMON SHARES TO AFFILIATES. During the term of this
Agreement, neither the Principal Shareholders nor any other person who shall
become a party to or bound by this Agreement shall transfer any Common
Shares, whether now or hereafter acquired by him or her, (i) to any person
without the prior written consent of PVALP which consent will not be
unreasonably withheld, (ii) to any affiliate, as hereinafter defined, without
first obtaining the prior written consent of PVALP which consent shall not be
unreasonably withheld, and the written agreement of such affiliate to be
bound by and subject to the terms and conditions of this Agreement, with the
same force and effect as if such person were named as a party to this
Agreement or as a Principal Shareholder hereunder, or (iii) pursuant to a
registration statement without the prior written approval of PVALP which
consent will not be unreasonably withheld, or (iv) such that the aggregate
holdings of the Principal Shareholders shall not equal less than fifty and
one-tenth of one percent (50.1%) on a fully diluted basis including all of
the authorized Series C Preferred Stock whether or not actually issued. The
term "affiliate" shall mean (a) any spouse, parent, parent-in-law,
grandparent, child, grandchild, sibling, uncle, aunt, niece, nephew or first
cousin of the transferor or (b) any person which the transferor directly or
indirectly controls or (c) any transfer to a person if the transferor remains
a beneficial owner, as that term is used in Section 13(d) of the Securities
Exchange Act of 1934, as amended, of the transferred shares.
ARTICLE III. CO-SALE PROVISIONS
3.1 THIRD-PARTY OFFER AND NOTICE. Any voluntary or involuntary
transfer of the Common Shares by any Principal Shareholder will be subject to
a participation right of co-sale
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by Pioneer Ventures or its assigns on a PRO RATA fully diluted basis. If any one
or more of the Principal Shareholders obtains from a third party ("THIRD PARTY
PURCHASER") an offer to purchase any amount of his or her Shares, such Principal
Shareholders shall submit a written notice (the "CO-SALE NOTICE") to Pioneer
Ventures disclosing the amount of Common Shares proposed to be sold, the offered
purchase price, the proposed closing date, and the total number of Common Shares
owned by the Principal Shareholders.
3.2 CO-SALE RIGHT OF PARTICIPATION. Upon receipt of a Co-Sale Notice
from any Principal Shareholders, Pioneer Ventures or its assigns may elect to
participate in such transaction and shall have the right to offer its
securities, at the same price and on the same terms, on a fully diluted pro
rata basis with the proposed selling shareholder(s) as set forth in the offer
made by the Third Party Purchaser. Each participating selling party shall in
turn be entitled to receive at the applicable closing the net proceeds of the
sale allocable to the securities sold on behalf of each selling shareholder,
after deduction of such selling shareholder's proportionate share of the
reasonable expenses of the sale. These co-sale provisions will not apply to
any sale of securities pursuant to a distribution to the public, whether
pursuant to a registered public offering, Rule 144 or otherwise. If less than
all of a shareholder's securities are being sold pursuant to this Article
III, the securities to be sold shall be determined on a pro rata fully
diluted basis.
3.3 NOTICE OF INTENT TO PARTICIPATE IN CO-SALE. If Pioneer Ventures
wishes to participate in any sale under this Article III, then Pioneer
Ventures shall notify the selling Principal Shareholders in writing of such
intention as soon as practicable after such Pioneer Ventures' receipt of the
Co-Sale Notice made pursuant to Section 3.1, and in any event within fifteen
(15) days after the date of such Co-Sale Notice has been delivered. Such
notification shall be delivered in person or by facsimile to the Principal
Shareholders at the Company's offices.
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ARTICLE IV. REMEDIES
4.1. VIOLATION OF AGREEMENT; CONSENT TO INJUNCTIVE RELIEF. Each of the
Principal Shareholders recognizes and agrees that any violation of any of
his/her obligations set forth in this Agreement would cause irreparable damage
which could not be compensated by monetary damages. Such violation shall
constitute an Event of Default under the Investment Agreement. Accordingly, in
the event of any breach of a Principal Shareholder's obligations under this
Agreement, such Principal Shareholder consents to the entry of injunctive relief
by a court of competent jurisdiction restraining any such violation or
threatened violation, and/or granting full voting authority to PVALP for
purposes of this Agreement, in addition to any other remedies available at law
or in equity.
ARTICLE V. MISCELLANEOUS
5.1. REPRESENTATIONS. Each of the Principal Shareholders represents and
warrants that, at the date hereof, he/she or it is the sole record and
beneficial owner of the Common Shares set forth opposite his/her name on EXHIBIT
A to this Agreement. Each of the Principal Shareholders represents that he/she
is not the beneficial owner of any Common Shares NOT disclosed herein through
any affiliate or otherwise.
5.2 FURTHER ASSURANCES. From and after the date of this Agreement, the
parties hereto shall from time to time, at the request of any other party and
without further consideration, do, execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may be
reasonably requested or required more effectively to evidence and give effect to
the transactions provided for in this Agreement.
5.3. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or if mailed by first
class registered or certified mail return receipt requested, or by first class
mail or overnight courier if received, addressed to the parties at their
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respective addresses set forth on the first page of this Agreement, or to such
other person or address as may be designated by like notice hereunder.
5.4 MODIFICATIONS. This Agreement may not be modified or discharged
orally, but only in writing duly executed by the party to be charged.
5.5 SUCCESSORS AND ASSIGNS. All the covenants, stipulations, promises
and agreements in this Agreement shall bind the parties' respective heirs,
successors and assigns, whether so expressed or not.
5.6 HEADINGS. The headings of the various sections of this Agreement
are for convenience of reference only and shall in no way modify any of the
terms or provisions of this Agreement.
5.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada applicable to instruments made
and to be performed entirely within such State.
5.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
5.9 GENDER. All pronouns used herein are inserted for convenience only
and shall be applied in the masculine, feminine, or third person as appropriate
for each party signing hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
and year first above written.
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BY PVALP:
PIONEER VENTURES ASSOCIATES LIMITED PARTNERSHIP
By: Ventures Management Partners LLC
Its General Partner
By: Pioneer Ventures Corp.,
Its Managing Member
BY:
-----------------------------
Xxxxxx X. Xxxxxx, President
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BY THE PRINCIPAL SHAREHOLDERS:
------------------------------------ ------------------------------------
Turan M. Itil Xxxx X. Itil
------------------------------------ ------------------------------------
Yasmin Itil Le Bars Xxxxxxxx Itil
------------------------------------ ------------------------------------
I. Xxxxxx Xxxxxxxx Pierre Le Bars
------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx Xxxx
------------------------------------ ------------------------------------
Xxxxxx XxxXxxxxx Xxxx Xxxxx
CONSENTED TO, AND THE OBLIGATION SET FORTH IN ARTICLE I TO PAY FOR
SUCH SPECIAL MEETINGS OF THE SHAREHOLDERS IS HEREBY AGREED TO:
NEUROCORP, LTD.
BY:
-------------------------------------
Turan M. Itil, Chairman and President
EXHIBIT A
TO
VOTING AGREEMENT
PRINCIPAL SHAREHOLDERS
NAME AND ADDRESS(1) NO. OF PERCENTAGE
-------------------- SHARES OWNERSHIP
------ ----------
Turan M. Itil 897,200 8.30%
Xxxx X. Itil 1,138,800 10.16%
Yasmin Itil Le Bars 723,000 6.69%
Xxxxxxxx Itil 522,000 4.83%
I. Xxxxxx Xxxxxxxx(2) 0 0.00%
Pierre Le Bars 210,000 1.94%
Xxxxxx X. Xxxxxx(3) 87,000 0.008%
Xxxxxxx Xxxx 147,000 1.36%
Xxxxxx XxxXxxxxx 3,000 0.00027%
Xxxx Xxxxx 84,000 0.007%
------
Total(4) 3,812,000
-----------------
(1) The address for these individuals and entities is c/o NeuroCorp, Ltd., 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000.
(2) Xx. Xxxxxxxx has 250,000 options to purchase common stock, which would
equal 2.18% on a fully diluted basis.
(3) Excludes 3,800 shares held by Xx. Xxxxxx'x son and daughter.
(4) Total shares issued and outstanding at June 30, 1998 equals 11,213,806
shares plus the 250,000 options to purchase shares held by Xx. Xxxxxxxx.
EXHIBIT B
(Resolutions approved by Board of Directors)
