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Exhibit 10.58
EXECUTION COPY
MODEX THERAPEUTIQUES, S.A.
STOCKHOLDERS VOTING AGREEMENT
This STOCKHOLDERS VOTING AGREEMENT (the "Agreement"), is made as of
this 10th day of July, 1996 by and among CytoTherapeutics, Inc., a Delaware
corporation ("CTI"), Societe Financiere Valoria S.A., a Swiss corporation
("Valoria"), and those individual stockholders listed on the signature page
hereto ("Individual Stockholders," together with CTI and Valoria, "Founders,"
each a "Founder").
WHEREAS, each of the Founders owns that number of shares of the Common
Stock ("Common Stock") of Modex Therapeutiques, S.A. ("Modex") set forth next to
his or its name on Exhibit A; and
WHEREAS, simultaneously herewith CTI has invested SFr 1.2 million in
Common Stock, loaned to Modex an additional SFr 1.2 million pursuant to a
Convertible Loan Agreement dated as of the same date as this Agreement and
agreed, under such Agreement, to loan Modex an additional SFr 2.4 million on the
second anniversary of this Agreement (the "Second Anniversary") if certain
conditions are met; and
WHEREAS, simultaneously herewith Valoria has loaned to Modex SFr 2.4
million under the terms of a similar Convertible Loan Agreement dated as of the
same date as this Agreement and agreed, under such Agreement, to loan Modex an
additional SFr 1.2 million on the Second Anniversary; and
WHEREAS, it was a condition to CTI and Valoria making such investments
in Modex that this Agreement be executed by the parties hereto; and
WHEREAS, the Individual Stockholders wish to encourage such investments
and to agree with CTI and Valoria as provided herein; and
WHEREAS, all the Founders wish to agree herein as to how all voting
securities of Modex held by the Founders shall be voted, and to provide, among
other matters, for the election of the Directors of Modex;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Founders hereby agree as follows:
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1. Board of Directors.
(a) Each Founder agrees to vote all voting shares of Modex's Common
Stock now owned by such Founder and any such shares hereafter acquired or
controlled by such Founder (collectively, the "Voting Securities"), and
otherwise to use such Founder's best efforts, to set the number of directors on
the Board of Directors of Modex at five and to cause and maintain the election
to the Board of Directors of: (i) three persons designated by CTI and (ii) two
persons designated by a majority of the Individual Stockholders.
The initial designees of CTI pursuant to clause (i) above shall be ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and Dr. ▇▇▇▇▇ ▇▇▇▇▇. The initial designees of the
Individual Stockholders pursuant to clause (ii) above shall be Drs. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇.
(b) In the absence of any designation by CTI, each Founder shall vote
to re-elect any director previously designated by CTI then serving on the Board
of Directors if such director is still eligible to serve, as provided herein. In
the absence of any designation by the Individual Stockholders, each Founder
shall vote to re-elect any director previously designated by such Individual
Stockholders then serving on the Board of Directors if such director is still
eligible to serve, as provided herein.
(c) No Founder shall vote to remove any member of the Board of
Directors designated by CTI in accordance with the aforesaid procedure unless
CTI so votes, and if CTI so votes then all other Founders shall likewise so
vote. No Founder shall vote to remove any member of the Board of Directors
designated by the Individual Stockholders in accordance with the aforesaid
procedure unless the Individual Stockholders so vote, and if the Individual
Stockholders so vote, then all other Founders shall likewise so vote.
(d) Any vacancy on the Board of Directors created by the resignation,
removal, incapacity or death of any person designated under this Section 1 by
CTI shall immediately be filled by another person designated by CTI and any such
vacancy created by the resignation, removal, incapacity or death of any person
designated under this Section 1 by the Individual Stockholders shall immediately
be filled by another person designated by the Individual Stockholders. Each
Founder shall vote such Founder's Voting Securities in accordance with any such
new designation, and no such vacancy shall be filled in the absence of a new
designation by the original designating party or parties.
2. General Voting Agreement.
Except as otherwise set forth in Section 1, each Founders agrees to
vote all shares of Voting Securities in regard to any matter for which such
Founder has the right to vote under the Articles of Incorporation of Modex or
applicable law as follows:
(a) A percentage of the Founder's Voting Securities equal to the CTI
Percentage shall be voted in the manner designated by CTI;
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(b) A percentage of the Founder's Voting Securities equal to the IS
Percentage shall be voted in the manner designated by a majority of the
Individual Stockholders; and
(c) A percentage of the Founder's Voting Securities equal to the
Valoria Percentage shall be voted in the manner designated by Valoria.
For purposes of this Agreement, (i) the "CTI Percentage" shall be that
percentage equal to (x) the number of shares of Voting Securities held by CTI,
on an as-converted basis, multiplied by (y) 100 and divided by (z) the number
(the "Total Number") of Voting Securities issued and outstanding and held by all
Founders, on an as-converted basis; (ii) the "IS Percentage" shall be that
percentage equal to (x) the number of Voting Securities held by the Individual
Stockholders, on an as-converted basis, multiplied by (y) 100 and divided by (z)
the Total Number; and (iii) the "Valoria Percentage" shall be that percentage
equal to (x) the number of Voting Securities held by Valoria, on an as-converted
basis, multiplied by (y) 100 and divided by (z) the Total Number. For the
purposes of this Agreement, "as converted" means, with respect to any Founder or
any group of Founders, the number of shares of Voting Securities held by such
Founder or group of Founders after giving effect to the conversion by such
Founder or Group of Founders of any Note or other security of Modex convertible
into Voting Securities.
3. Termination.
(a) This Agreement shall terminate on the earlier to occur of the tenth
anniversary of this Agreement or the closing of an underwritten public offering
of the Common Stock.
(b) Unless earlier terminated in accordance with the provisions of
Section 3(a), the rights granted to CTI pursuant to Section 1 shall terminate at
such time as any Individual Stockholder has notified CTI in writing that the CTI
Percentage is less than 50% and CTI has failed to increase the CTI Percentage to
more than 50% within ninety (90) days of such notice from such Individual
Stockholder.
(c) Subject to Section 10(a), the rights granted to the Individual
Stockholders pursuant to Section 1 shall terminate as follows: (i) such rights
with respect to each Individual Stockholder shall terminate if such Individual
Stockholder has ceased to be a consultant to Modex and (ii) such rights with
respect to the Individual Stockholders as a group shall terminate if less than
two Individual Stockholders are serving as consultants to Modex.
4. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been received when delivered to the Founders
at their respective addresses set forth on Exhibit A, or in any case to such
other address as the addressee shall have furnished to the other parties hereto
in the manner prescribed by this Section 4.
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5. Specific Performance. The rights of the parties under this Agreement
are unique and, accordingly, the parties shall, in addition to such other
remedies as may be available to any of them at law, have the right to enforce
their rights hereunder by actions for specific performance to the extent
permitted by law.
6. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes and
cancels all prior agreements and understandings between them or any of them as
to such subject matter.
7. Waivers and Further Agreements. This Agreement may only be amended
by the written agreement of all of the parties. Any waiver by any party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach of that provision or of any other provision
hereof. Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as any other party
may reasonably require in order to effectuate the terms and purposes of this
Agreement.
8. Assignment; Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and assigns, including,
without limitation, permitted transferees of the Voting Securities. Each party
to this Agreement who may wish to transfer any shares of Common Stock of Modex
covered by this Agreement shall require as a condition of such transfer that the
transferee of such shares agree to be bound by the terms of this Agreement and
any applicable provisions of the Articles of Incorporation of Modex, and any
transferee of such shares, whether pursuant to such a voluntary transfer, or by
operation of law, or otherwise, shall, to the maximum extent permitted by law,
be so bound.
9. 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 instrument.
10. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
Iccordance with the internal laws of Switzerland.
12. Dispute Resolution. All disputes, differences, controversies or
claims arising in connection with, or questions occurring under, this Agreement
shall be settled as provided in Exhibit B.
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IN WITNESS WHEREOF, the parties have caused this Stockholders Voting
Agreement to be duly executed as of the date first above written.
CYTOTHERAPEUTICS, INC.
By/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
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Title: Vice President and General Counsel
SOCIETE FINANCIERE VALORIA S.A.
By/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Power of Attorney
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ Thorens
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▇▇▇▇▇▇▇ Thorens
By/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
Founder Shares of Common
------- Stock Owned
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CytoTherapeutics, Inc. 6,500
▇▇▇▇▇▇▇ 1,522
▇▇▇▇▇▇▇▇▇ 1,826
Thorens 1,826
Efrat 1,826
Societe Financiere Valoria S.A 500
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EXHIBIT B
Arbitration
Any and all disputes, controversies or claims arising out of, involving
or relating to the existence, validity, performance, amendment, breach
or termination of this Agreement shall be referred to, settled and
finally resolved exclusively under the rules of arbitration of La
Chambre de Commerce et d'Industrie de Geneve ("CCIG") by an arbitral
tribunal appointed as set forth herein in accordance with said rules.
To the extent not prohibited under applicable law, the arbitral
tribunal's decision shall be final and binding on the parties and, to
the extent not prohibited under applicable law, the parties hereby
exclude any right of appeal to any court on the merits of any dispute.
Subject to the provisions of the last paragraph, each party shall
nominate one arbitrator. If a party fails to nominate an arbitrator
within thirty (30) days from the date when the claimant's request for
arbitration has been communicated to the other party, such appointment
shall be made by the rules of CCIG. The two arbitrators so appointed
shall agree upon the third arbitrator who shall act as Chair of the
arbitral tribunal. If said two arbitrators fail to nominate a Chair
within thirty (30) days from the latter of the two appointments, the
Chair shall be selected by the rules of CCIG. Such appointment shall be
final and binding upon the parties.
The place of arbitration shall be Geneva, Switzerland.
The language to be used in the arbitral proceeding shall be English.
The proceedings shall be governed by the provisions of Chapter 12 of
the Swiss Federal Act on International Private Law of December 18, 1987
relating to international arbitration and the rules of arbitration of
CCIG.
This Agreement and the arbitral award shall be governed by the law of
Switzerland. The award shall be in writing and shall include the
arbitral tribunal's decision as to the costs of the arbitration and
reasonable legal fees. The award may grant any relief appropriate under
the applicable law, including without limitation declaratory relief
and/or specific performance. The award will be notified to the parties
by the Arbitral Tribunal.
In the event that disputes arise between two parties under this
Agreement and any other agreement, document or instrument executed in
connection with the transactions contemplated hereby, such disputes
shall be resolved in a consolidated arbitral proceeding by the three
arbitrators appointed in accordance with the provisions above.
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Notwithstanding the foregoing, in the event that disputes arise between
more than two parties under this Agreement or under this Agreement and
any other agreement, document or instrument executed in connection with
the transactions contemplated hereby, such disputes shall be resolved
in a consolidated arbitral proceeding by a single arbitrator appointed
in accordance with the rules of CCIG.
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