VOTING AGREEMENT
VOTING
AGREEMENT, dated as of May ___, 2007 (this "Agreement"),
by
and among Neurochem Inc., a corporation organized under the Canada Business
Corporations Act (the "Company"),
and
the shareholders listed on the signature pages hereto under the heading
"Shareholders"
(each a
"Shareholder"
and
collectively, the "Shareholders").
WHEREAS,
as of the date hereof, the Shareholders own collectively 12,982,300 Common
Shares, which represent in the aggregate approximately 33.47% of the total
issued and outstanding capital shares of the Company; and
WHEREAS,
as a condition to the willingness of the Investors to enter into the Securities
Purchase Agreement and to consummate the transactions contemplated thereby
(collectively, the "Transaction"),
the
Investors have required that each Shareholder agree, and in order to induce
the
Investors to enter into the Securities Purchase Agreement, each Shareholder
has
agreed, to enter into this Agreement with respect to all the Common Shares
now
owned and which may hereafter be acquired by the Shareholder and any other
securities, if any, which such Shareholder is currently entitled to vote, or
after the date hereof, becomes entitled to vote, at any meeting of shareholders
of the Company (the "Other
Securities").
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE
I
VOTING
AGREEMENT OF THE SHAREHOLDER
SECTION
1.01. Voting
Agreement.
Subject
to the last sentence of this Section 1.01, each Shareholder hereby agrees
that at any meeting of the shareholders of the Company, however called, and
in
any action by written consent of the Company's shareholders, each of the
Shareholders shall vote the Common Shares and the Other Securities: (a) in
favor
of the Shareholder Approval (as defined in the Securities Purchase Agreement)
as
described in Section 4(q) of the Securities Purchase Agreement; and (b)
against any proposal or any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Securities Purchase Agreement
or which could result in any of the conditions to the Company's obligations
under the Securities Purchase Agreement not being fulfilled. Each Shareholder
acknowledges receipt and review of a copy of the Securities Purchase Agreement
and the other Transaction Documents (as defined in the Securities Purchase
Agreement). The obligations of the Shareholders under this Section 1.01 shall
terminate immediately following the occurrence of the Shareholder Approval.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SHAREHOLDER
Each
Shareholder hereby represents and warrants, severally but not jointly, to each
of the Investors as follows:
SECTION
2.01. Authority
Relative to This Agreement.
Each
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Shareholder and constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except (a) as such enforceability may be limited
by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to, or affecting
generally the enforcement of creditors' and other obligees' rights, (b) where
the remedy of specific performance or other forms of equitable relief may be
subject to certain equitable defenses and principles and to the discretion
of
the court before which the proceeding may be brought, and (c) where rights
to
indemnity and contribution thereunder may be limited by applicable law and
public policy.
SECTION
2.02. No
Conflict.
(a)
The
execution and delivery of this Agreement by such Shareholder does not, and
the
performance of this Agreement by such Shareholder shall not, (i) conflict with
or violate any federal, state or local law, statute, ordinance, rule,
regulation, order, judgment or decree applicable to any Shareholder or by which
the Common Shares or the Other Securities owned by such Shareholder are bound
or
affected or (ii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give
to others any rights of termination, amendment, acceleration or cancellation
of,
or result in the creation of a lien or encumbrance on any of the Common Shares
or the Other Securities owned by such Shareholder pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or
other instrument or obligation to which such Shareholder is a party or by which
such Shareholder or the Common Shares or Other Securities owned by such
Shareholder are bound. For the purposes of this Section 2.02 and Sections 2.03,
3.01 and 3.02, the Company acknowledges and agrees that in the case of
Shareholder Luxco Holdings II S.A.R.L. ("Luxco"),
certain of the Common Shares and Other Securities held by Luxco are subject
to a
pledge agreement with National Bank of Canada ("NBC")
pursuant to which Luxco has granted a security interest in, and a pledge of,
such Common Shares and Other Securities in favour of NBC and pursuant to which
Luxco is prohibited from voting same if it has been notified by NBC that an
Event of Default (as defined in the said pledge agreement) has occurred and
is
continuing.
(b) The
execution and delivery of this Agreement by such Shareholder does not, and
the
performance of this Agreement by such Shareholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity by such Shareholder.
SECTION
2.03. Title
to the Shares.
As of
the date hereof, each Shareholder is the owner of the number of Common Shares
set forth opposite its name on Appendix
A
attached
hereto, entitled to vote, without restriction, on all matters brought before
holders of capital shares of the Company, which Common Shares represent on
the
date hereof the percentage of the outstanding shares and voting power of the
Company set forth on such Appendix. Such Common Shares are all the securities
of
the Company owned, either of record or beneficially, by such Shareholder. Such
Common Shares are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on such
Shareholder's voting rights, charges and other encumbrances of any nature
whatsoever. No Shareholder has appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Common Shares or Other
Securities owned by such Shareholder.
ARTICLE III
COVENANTS
SECTION
3.01. No
Disposition or Encumbrance of Shares.
Each
Shareholder hereby covenants and agrees that, until the Shareholder Approval
has
been obtained, except as contemplated by this Agreement, such Shareholder shall
not offer or agree to sell, transfer, tender, assign, hypothecate or otherwise
dispose of, grant a proxy or power of attorney with respect to, or create or
permit to exist any security interest, lien, claim, pledge, option, right of
first refusal, agreement, limitation on such Shareholder's voting rights, charge
or other encumbrance of any nature whatsoever ("Encumbrance")
with
respect to the Common Shares or Other Securities, directly or indirectly,
initiate, solicit or encourage any person to take actions which could reasonably
be expected to lead to the occurrence of any of the foregoing; provided,
however,
that
any such Shareholder may assign, sell or transfer any Common Shares or Other
Securities provided that any such recipient of the Common Shares or Other
Securities has delivered to the Company and each Investor a written agreement
in
a form reasonably satisfactory to the Investors that the recipient shall be
bound by, and the Common Shares and/or Other Securities so transferred, assigned
or sold shall remain subject to this Agreement.
SECTION
3.02. Company
Cooperation.
The
Company hereby covenants and agrees that it will not, and each Shareholder
irrevocably and unconditionally acknowledges and agrees that the Company will
not (and waives any rights against the Company in relation thereto), recognize
any Encumbrance or agreement on any of the Common Shares or Other Securities
of
such Shareholder subject to this Agreement unless the provisions of Section
3.01
have been complied with. The Company agrees to use its reasonable best efforts
to ensure that at any time in which any Shareholder Approval is required
pursuant to Section 4(q) of the Securities Purchase Agreement, it will cause
holders of Common Shares or Other Securities representing the percentage of
outstanding capital shares required to vote in favor of the Transaction in
order
for the Company to comply with its obligations under Section 4(q) of the
Securities Purchase Agreement to become party to and bound by the terms and
conditions of this Agreement and the Common Shares and Other Securities held
by
such holders to be subject to the terms and conditions of this Agreement.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances.
Each
Shareholder will execute and deliver such further documents and instruments
and
take all further action as may be reasonably necessary in order to consummate
the transactions contemplated hereby.
SECTION
4.02. Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that any Investor (without being joined by any other Investor) shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity. Any Investor shall be entitled to its
reasonable attorneys' fees in any action brought to enforce this Agreement
in
which it is the prevailing party.
SECTION
4.03. Entire
Agreement.
This
Agreement constitutes the entire agreement among the Company and the
Shareholders (other than the Securities Purchase Agreement and the other
Transaction Documents) with respect to the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, among the
Company and the Shareholders with respect to the subject matter
hereof.
SECTION
4.04. Amendment.
The
provisions of this Agreement may not be amended or waived, nor may this
Agreement be terminated, except (i) by an instrument in writing signed by the
parties hereto and (ii) with the prior written consent of the
Investors.
SECTION
4.05. Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected
in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the
parties hereto shall negotiate in good faith to modify this Agreement so as
to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
SECTION
4.06. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. The parties hereby agree that all actions or proceedings arising
directly or indirectly from or in connection with this Agreement shall be
litigated only in the Supreme Court of the State of New York or the United
States District Court for the Southern District of New York located in New
York
County, New York. The parties consent to the jurisdiction and venue of the
foregoing courts and consent that any process or notice of motion or other
application to any of said courts or a judge thereof may be served inside or
outside the State of New York or the Southern District of New York by registered
mail, return receipt requested, directed to the party being served at its
address set forth on the signature pages to this Agreement (and service so
made
shall be deemed complete three (3) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. Each of the Company and each Shareholder
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit,
action, or proceeding brought in such a court and any claim that suit, action,
or proceeding has been brought in an inconvenient forum. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
SECTION
4.07. Third-Party
Beneficiaries.
The
Investors shall be intended third party beneficiaries of this Agreement to
the
same extent as if they were parties hereto, and shall be entitled to enforce
the
provisions hereof.
SECTION
4.08. Termination.
This
Agreement shall terminate immediately following the occurrence of the
Shareholder Approval or upon the mutual consent of each Shareholder and the
Investors.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each Shareholder and the Company has duly executed this
Agreement.
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THE
COMPANY:
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NEUROCHEM
INC.
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By:
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Name:
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Title:
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Dated:
May ___, 2007
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Address:
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Neurochem
Inc.
000
Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxx
Xxxxxx
X0X 0X0
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SHAREHOLDER:
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Dated:
May ___, 2007
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Address:
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APPENDIX
A
|
Shareholder
|
Common
Shares
Owned
|
Percentage
of Shares
Outstanding1
|
Voting
Percentage
of
Shares
Outstanding
|
|
PP
Luxco Holdings II
|
11,068,368
|
28.54%
|
28.54%
|
|
Power
Technology
Investment
Corporation
|
1,166,666
|
3.01%
|
3.01%
|
|
Picchio
Pharma Limited
|
330,600
|
0.85%
|
0.85%
|
|
FMRC
Trust
|
250,000
|
0.64%
|
0.64%
|
|
Xx.
Xxxxxxxxx Xxxxxxx
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166,666
|
0.43%
|
0.43%
|
1
Based on 38,779,333 shares outstanding
