VOTING AGREEMENT AND IRREVOCABLE PROXY
Exhibit 10.16
VOTING AGREEMENT
AND IRREVOCABLE PROXY
AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT (this “Agreement”) is entered into as of February 9, 2006, by and among
Lifeline Therapeutics, Inc., a Colorado corporation (“Company”), Xxxx Xxxxxx, and Xxxx Xxxx Xxxxxx.
Xxxx Xxxxxx and Xxxx Xxxx Xxxxxx are referred to collectively in this Agreement as the
“Shareholders”.
PRELIMINARY STATEMENTS
WHEREAS, Company and Xxxx Xxxxxx have entered into an Agreement, dated 9, 2006, by and between
Company and Myhill (the “Consultant Agreement”) whereby Xxxx Xxxxxx resigned from his position with
the Company and will act as a consultant for the Company;
WHEREAS, Xxxx Xxxx Xxxxxx, the wife of Xxxx Xxxxxx, benefits from the payments received by
Xxxx Xxxxxx under the Consultant Agreement;
WHEREAS, in connection with the Consultant Agreement, Shareholder has agreed to the execution
and delivery of this Agreement as part of the consideration for the Shareholders’ receiving the
benefits from the Consultant Agreement; and
WHEREAS, Company and the Shareholders desire to enter into this Agreement to set forth their
current agreements and understandings with respect to how shares of Company’s class A common stock
held by either or both of the Shareholders (the “Shares”) will be voted.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Voting Provisions.
1.1 Transfer of Voting Rights. Each of the Shareholders hereby grants to the Chairman
of the Board of Directors of Company (the “Board”) the irrevocable right to vote the Shares and any
New Shares (as defined below) at every meeting of the shareholders of Company and at every
adjournment thereof, and on every action or approval by written consent of the shareholders of
Company.
1.2 Additional Share Purchases. Each of the Shareholders agrees that any shares of
capital stock of Company that either or both Shareholders purchases or with respect to which either
or both Shareholders otherwise acquires record or beneficial ownership (“New Shares”) after the
execution of this Agreement and prior to the termination of this Agreement (including through the
exercise of any stock options, warrants or similar instruments) shall be
subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. Irrevocable Proxy. EACH OF THE SHAREHOLDERS HEREBY GRANTS TO AND APPOINTS THE
CHAIRMAN OF THE BOARD, AS SUCH SHAREHOLDER’S SOLE AND EXCLUSIVE PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE OR TO ACT BY WRITTEN CONSENT, IN EACH CASE TO THE FULLEST
EXTENT PERMITTED BY AND SUBJECT TO APPLICABLE LAW, THE SHARES AND ANY NEW SHARES IN RESPECT OF ANY
MATTER. THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE THROUGH THE TERMINATION
DATE (AS DEFINED BELOW). EACH OF THE SHAREHOLDERS FURTHER AGREES TO TAKE SUCH OTHER ACTION AND
EXECUTE SUCH OTHER INSTRUMENTS, IN EACH CASE AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
VOTING AGREEMENT AND IRREVOCABLE PROXY, AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THAT
SHAREHOLDER WITH RESPECT TO THE SHARES OR ANY NEW SHARES THAT IS INCONSISTENT WITH THE INTENT
HEREOF.
3. Successors in Interest. Provisions of this Agreement shall be binding upon the
successors in interest to any of the Shares held by each of the Shareholders to whom a transfer of
such stock is made; provided, however, that this Agreement shall not be binding upon any successor
in interest to any of the Shares if such Shares were purchased for full consideration in a
“brokers’ transaction” as defined in Rule 144(g) of the Securities Act of 1933, as amended, or in a
transaction in which a broker-dealer registered with the National Association of Securities Dealers
effected the transaction and received compensation for effecting the transaction.
4. General Provisions.
4.1 Termination. This Agreement shall terminate on February 7, 2016 (the “Termination
Date”).
4.2 Amendment. This Agreement shall only be amended by the written agreement of
Company and Shareholder.
4.3 Governing Law. The construction, validity and interpretation of this Agreement
shall be governed by the internal laws of the State of Colorado without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Colorado or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Colorado.
4.4 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the same document.
4.5 Reorganization. The provisions of this Agreement shall apply to any shares or
other securities resulting from any stock split or reverse split, stock dividend, reclassification,
subdivision, consolidation or reorganization of any shares or other equity
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securities of Company
and to any shares or other securities of Company or of any successor company which may be received
by Shareholder by virtue of his ownership of the Shares or any New Shares.
4.6 Headings. The headings of this Agreement are for convenience only and do not
constitute a part of this Agreement.
4.7 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
4.8 Further Assurances. Each of the parties hereto shall execute and deliver all
additional documents and instruments and shall do any and all acts and things reasonably requested
in connection with the performance of the obligations undertaken in this Agreement and/or otherwise
to effectuate in good faith the intent of the parties.
4.9 Binding Effect. The rights and obligations of each party under this Agreement
shall be specifically applicable to and enforceable against any transferees of the parties hereto.
4.10 Entire Agreement. This Agreement is intended to be the sole agreement of the
parties as it relates to this subject matter and does hereby supersede all other agreements of the
parties relating to the subject matter hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| SHAREHOLDERS: | LIFELINE THERAPEUTICS, INC. | |||||||
/s/ Xxxx Xxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxxx | ||||||
| Title: CFO | ||||||||
/s/ Xxxx Xxxx Xxxxxx |
||||||||
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