Exhibit 9.1
VOTING AGREEMENT
VOTING AGREEMENT made as of this 25th day of October, 2002, by ASSET
VALUE FUND LIMITED PARTNERSHIP ("AVF") and ASSET VALUE MANAGEMENT, INC. ("AVM")
in favor of CARDIOTECH INTERNATIONAL, INC. ("CARDIOTECH").
W I T N E S S E T H:
WHEREAS, Cardiotech, Xxxx Acquisition Corp. and Xxxx Biomedical, Inc.
("XXXX") have entered into an Agreement and Plan of Merger and Reorganization
dated October 25, 2002 (the "MERGER AGREEMENT");
WHEREAS, each of the undersigned will receive substantial direct and
indirect benefit by reason of the consummation of the transactions (the
"MERGER") provided for in the Merger Agreement;
WHEREAS, each of the undersigned is the record and beneficial owner of
such number of shares of capital stock of Xxxx as of the date hereof as set
forth in EXHIBIT A hereto and will receive shares of capital stock of Cardiotech
as a result of the consummation of the Merger;
WHEREAS, each of the undersigned has determined that its execution,
delivery and performance of this Voting Agreement directly benefit, and are in
its best interests; and
WHEREAS, it is a condition precedent to the entering of the Merger
Agreement by Cardiotech and the consummation of the Merger that each of the
undersigned shall have executed and delivered to Cardiotech this Voting
Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein, and in order to induce Cardiotech to enter into the Merger Agreement and
to consummate the Merger, the undersigned, intending to be legally bound, hereby
agree with Cardiotech as follows:
1. DEFINITIONS. Reference is hereby made to the Merger Agreement, for a
statement of the terms thereof, and each of the undersigned represents and
warrants that it has read and reviewed the Merger Agreement. Unless otherwise
defined herein, all terms used in this Voting Agreement and not otherwise
defined herein shall have the meanings ascribed thereto in the Merger Agreement.
2. VOTING RESTRICTIONS. For a period of three (3) years following the
effectiveness of the Merger, each of AVF and AVM agrees, for itself and its
"affiliates" (as defined in the rules and regulations of the Securities and
Exchange Commission) (collectively, "COVERED PERSONS"), that (i) he, she or it
shall vote all shares of capital stock of Cardiotech then owned by such Covered
Person for each and every management nominee in any election of directors of
Cardiotech and not vote or take any action,
directly or indirectly, as a shareholder of Cardiotech, which would have the
effect of removing any member of the Board of Director of Cardiotech from
office, and (ii) all Covered Persons, in the aggregate, shall nominate no more
than one (1) person to serve on the Board of Directors of Cardiotech.
3. EXCEPTIONS. The restrictions provided in Section 2 above shall not
apply if: (i) on the date the Covered Person wishes to act contrary to Section 2
above, the mathematical average closing stock price of the shares of common
stock of Cardiotech for the twenty-five (25) trading days preceding such date is
less than fifty percent (50%) of the CTE Closing Price (as hereinafter defined);
and (ii) all of the Covered Persons have not at any time taken any "short"
positions in the shares of capital stock of Cardiotech. With respect to any
person or entity who directly owns an equity interest in either AVF or AVM who
is not a Covered Person (each, an "ADDITIONAL COVERED PERSON"), the restrictions
provided in Section 2 above (x) will be applicable only to shares of capital
stock of Cardiotech issued to AVF pursuant to the Merger (the "MERGER SHARES")
and not to additional shares otherwise acquired by such Additional Covered
Person from any other source and (y) with respect to any Covered Person, are not
applicable to any transferee of Merger Shares who is not either a Covered Person
or an Additional Covered Person; provided that AVF and AVM each agree that prior
to transferring any Merger Shares to any Covered Person or Additional Covered
Person, they will require such transferee to execute a joinder to this
Agreement, in form and substance reasonably acceptable to Cardiotech, pursuant
to which such transferee agrees to be bound by the terms hereof. Notwithstanding
anything in this Voting Agreement suggesting the contrary, each Covered Person
and Additional Covered Person may sell shares of capital stock of Cardiotech
(including, without limitation, the Merger Shares) at any time to any person or
entity who is neither a Covered Person nor an Additional Covered Person free and
clear of any voting restrictions whatsoever.
4. CTE CLOSING PRICE. For the purposes of this Voting Agreement, "CTE
CLOSING PRICE" shall mean $1.5124.
5. GOVERNING LAW. This Voting Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts.
6. COUNTERPARTS. This Voting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument. Facsimile signatures shall for
all purposes hereof be deemed to be original signatures of the parties hereto.
7. JURISDICTION. Each of the undersigned hereby irrevocably submits to
the jurisdiction of the state court or the federal court closest in proximity to
Suffolk County, Commonwealth of Massachusetts, in any action, suit or proceeding
brought under, in respect of or in connection with this Voting Agreement, and
hereby irrevocably waives, to the fullest extent each of the undersigned may
effectively do so, any defense based on improper jurisdiction or venue
including, without limitation, defenses based on forum non convenience.
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8. LEGAL FEES. The prevailing party in any action, suit or proceeding
brought under, in respect of or in connection with this Voting Agreement shall
be entitled to reasonable attorney's fees and costs from the other parties
thereto.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Voting Agreement in favor of Cardiotech as of the date first above written.
ASSET VALUE FUND LIMITED
PARTNERSHIP
By: ASSET VALUE MANAGEMENT,
INC., as General Partner
By:________________________
ASSET VALUE MANAGEMENT,
INC.
By:________________________
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EXHIBIT A
SCHEDULE OF OWNERSHIP OF XXXX CAPITAL STOCK
Asset Value Fund Limited Partnership 590,400
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