EXHIBIT 2.2
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EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT, is made as of August 13, 2003 (this
"AGREEMENT"), by and among CTP/N Merger Corp., a Delaware corporation
("MERGERCO"), the persons listed on EXHIBIT A hereto (collectively, the
"SECURITYHOLDERS" and each a "SECURITYHOLDER"), Change Technology Partners,
Inc., a Delaware corporation and the parent corporation of MergerCo ("CTP"), and
Neurologix, Inc., a Delaware corporation ("TARGET").
PRELIMINARY STATEMENTS
WHEREAS, as of the date hereof each Securityholder owns (beneficially
and of record) the number of shares of (i) Target common stock, par value $.001
per share (the "TARGET COMMON STOCK"), (ii) Target convertible preferred stock,
par value $.001 per share (the "TARGET SERIES A PREFERRED"), and (iii) Target
Series B convertible preferred stock, par value $.001 per share (the "TARGET
SERIES B PREFERRED" and, together with the Target Common Stock and the Target
Series A Preferred, the "TARGET STOCK"), in each case, set forth opposite such
Securityholder's name on EXHIBIT B hereto (all such securities and any shares of
capital stock of Target hereafter acquired by the Securityholders prior to the
termination of this Agreement are collectively referred to herein as the
"SHARES");
WHEREAS, as of the date hereof each Securityholder owns (beneficially)
the principal amount of, or participatory interest in, the 6% secured promissory
note of Neurologix due in October 2007 (the "NEUROLOGIX Note" and, together with
the Shares, the "SECURITIES") set forth opposite such Securityholder's name on
EXHIBIT B hereto;
WHEREAS, CTP, MergerCo and Target are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended from
time to time, the "MERGER AGREEMENT"), which provides, upon the terms and
subject to the conditions thereof, for the merger of MergerCo with and into
Target (the "MERGER") with Target being the Surviving Corporation (the
"SURVIVING CORPORATION");
WHEREAS, each of the Securityholders desires, immediately prior to the
consummation of the Merger, to (i) convert all of the shares of Target Series A
Preferred and Target Series B Preferred that such Securityholder owns into
Target Common Stock in accordance with their terms (all such shares of Target
Common Stock to be issued upon conversion are referred to collectively as the
"TARGET CONVERSION COMMON SHARES") and (ii) exchange the principal amount of, or
participatory interest in, the Neurologix Note, that such Securityholder holds
for the number of whole shares of Target Common Stock, which shall not exceed an
aggregate of 400,000 shares of Target Common Stock, determined by dividing (x)
the sum of (a), the product of the outstanding unpaid principal amount of the
Neurologix Note as of the date of the exchange multiplied by such
Securityholder's percentage participatory interest in the Neurologix Note (such
portion of the principal amount, the "SECURITYHOLDER'S Portion") plus (b) the
amount of accrued and unpaid interest on the Securityholder's Portion as of the
date of the exchange by (y) $6.00 (all such shares of Target Common Stock to be
issued upon exchange are referred to collectively as the "TARGET EXCHANGE COMMON
SHARES" and together with the Target Conversion Common Shares, the "TARGET
COMMON SHARES");
WHEREAS, the Securityholders desire that, in connection with the
Merger, the Target Common Shares, as well as all other shares of Target Common
Stock that the Securityholders hold, be converted into shares of common stock,
par value $.001 per share ("NEW COMMON"), of CTP as provided in the Merger
Agreement; and
WHEREAS, as a condition to the willingness of CTP and MergerCo to enter
into the Merger Agreement and consummate the transactions contemplated therein,
CTP and MergerCo have requested that each Securityholder agree, and, in order to
induce CTP and MergerCo to enter into the Merger Agreement each such
Securityholder is willing to agree, to vote the Shares pursuant to the terms and
conditions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Securityholder hereby severally represents and warrants to CTP,
MergerCo and Target as follows:
Section 1.01. DUE AUTHORITY. (a) Such Securityholder has full power,
corporate or otherwise, and authority to execute and deliver this Agreement and
to perform such Securityholder's obligations hereunder. This Agreement has been
duly executed and delivered by or on behalf of such Securityholder and, assuming
its due authorization, execution and delivery by MergerCo and Target,
constitutes a legal, valid and binding obligation of such Securityholder,
enforceable against such Securityholder in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization and other laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(b) There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Securityholder is a
trustee, or other person or entity whose consent is required for the execution
and delivery of this Agreement by such Securityholder or the consummation by
such Securityholder of the transactions contemplated hereby.
Section 1.02. NO CONFLICT; CONSENTS. (a) The execution and
delivery of this Agreement by such Securityholder do not, and the performance by
such Securityholder of such Securityholder's obligations under this Agreement
and the compliance by such Securityholder with any provisions hereof do not and
will not, (i) conflict with or violate any law, statute, rule, regulation,
order, writ, judgment or decree applicable to such Securityholder or such
Securityholder's Securities, (ii) conflict with or violate the Securityholder's
charter, bylaws, partnership agreement or other organizational documents, if
applicable, or (iii) 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
such
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Securityholder's Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which such Securityholder is a party or by which such
Securityholder or such Securityholder's Securities are bound.
(b) The execution and delivery of this Agreement by such
Securityholder do not, and the performance of this Agreement by such
Securityholder will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority
except for applicable requirements, if any, of the Securities Exchange Act of
1934, as amended, and except where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
will not prevent or delay the performance by such Securityholder of his or her
obligations under this Agreement in any material respect.
Section 1.03. TITLE TO SECURITIES. (a) The Securities set forth
opposite such Securityholder's name on EXHIBIT B hereto constitute all of the
securities of Target that are owned by such Securityholder. Such Securityholder
is the record and beneficial owner of all of such Securityholder's shares of
Target Stock and has such interest in the Neurologix Note as is set forth
opposite such Securityholder's name on EXHIBIT B hereto. As of the date hereof,
(i) the aggregate number of outstanding shares of Target Common Stock held by
the Securityholders represents approximately 86.1% of the aggregate number of
outstanding shares of Target Common Stock held by all of Target's stockholders,
(ii) the aggregate number of outstanding shares of Target Series A Preferred
held by the Securityholders represents 100% of the aggregate number of
outstanding shares of Target Series A Preferred held by all of Target's
stockholders, (iii) the aggregate number of outstanding shares of Target Series
B Preferred held by the Securityholders represents approximately 79.2% of the
aggregate number of outstanding shares of Target Series B Preferred held by all
of Target's stockholders, and (iv) the aggregate number of outstanding shares of
Target Common Stock, Target Series A Preferred (on an as-converted to Target
Common Stock basis) and Target Series B Preferred (on an as-converted to Target
Common Stock basis) held by the Securityholders represents approximately 91.4%
of the aggregate number of outstanding shares of Target Common Stock, Target
Series A Preferred (on an as-converted to Target Common Stock basis) and Target
Series B Preferred (on an as-converted to Target Common Stock basis) held by all
of Target's stockholders. Such Securityholder has, and such Securityholder will
have as of the Closing Date, good and marketable title to such Securities, free
and clear of all security interests, claims, liens, pledges, options,
encumbrances, charges, agreements, voting trusts, proxies and other arrangements
or restrictions whatsoever ("ENCUMBRANCES").
(b) Such Securityholder has, and during the Voting Term
(as defined below) will have, the sole voting power with respect to the matters
set forth in Article IV hereof with respect to all of the Shares held by such
Securityholder, with no restrictions on such rights, subject to applicable laws
and the terms of this Agreement.
Section 1.04. NO PRIOR VOTING AGREEMENTS. Such Securityholder's Shares
and the certificates representing such Shares are now, and at all times during
the Voting Term hereof will be, held by such Securityholder free and clear of
all proxies, voting trusts and voting agreements,
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understandings or arrangements providing for any right on the part of any person
other than such Securityholder to vote such Shares except any such
understandings arising under this Agreement.
Section 1.05. ACKNOWLEDGMENT OF RELIANCE. Such Securityholder
understands and acknowledges that CTP and MergerCo are entering into the Merger
Agreement in reliance upon such Securityholder's execution and delivery of this
Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF CTP AND MERGERCO
Each of CTP and MergerCo (each a "CTP PARTY") hereby represents and
warrants to the Securityholders and Target as follows:
Section 2.01. DUE AUTHORITY. Such CTP Party has full power, corporate
or otherwise, and authority to execute and deliver this Agreement and to perform
such CTP Party's obligations hereunder. This Agreement has been duly executed
and delivered by or on behalf of such CTP Party and, assuming its due
authorization, execution and delivery by the other CTP Party, the
Securityholders and Target, constitutes a legal, valid and binding obligation of
such CTP Party, enforceable against such CTP Party in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and other laws affecting the enforcement
of creditors' rights generally and by general principles of equity.
Section 2.02. NO CONFLICT; CONSENTS. (a) The execution and
delivery of this Agreement by such CTP Party do not, and the performance by such
CTP Party of such CTP Party's obligations under this Agreement and the
compliance by such CTP Party with any provisions hereof do not and will not, (i)
conflict with or violate any law, statute, rule, regulation, order, writ,
judgment or decree applicable to such CTP Party, (ii) conflict with or violate
such CTP Party's charter, bylaws, partnership agreement or other organizational
documents, if applicable, or (iii) 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 any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such CTP Party is a party.
(b) The execution and delivery of this Agreement by such
CTP Party do not, and the performance of this Agreement by such CTP Party will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF TARGET
Target hereby represents and warrants to CTP, the Securityholders and
MergerCo as follows:
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Section 3.01. DUE AUTHORITY. Target has full power, corporate or
otherwise, and authority to execute and deliver this Agreement and to perform
Target's obligations hereunder. This Agreement has been duly executed and
delivered by or on behalf of Target and, assuming its due authorization,
execution and delivery by the Securityholders and MergerCo, constitutes a legal,
valid and binding obligation of Target, enforceable against Target in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization and other laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 3.02. NO CONFLICT; CONSENTS. (a) The execution and
delivery of this Agreement by Target do not, and the performance by Target of
Target's obligations under this Agreement and the compliance by Target with any
provisions hereof do not and will not, (i) conflict with or violate any law,
statute, rule, regulation, order, writ, judgment or decree applicable to Target,
(ii) conflict with or violate Target's charter or bylaws, or (iii) 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 any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Target is a party.
(b) The execution and delivery of this Agreement by
Target do not, and the performance of this Agreement by Target will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not reasonably be expected to prevent
or delay the performance by Target of its obligations under this Agreement in
any material respect.
Section 3.03. VALID ISSUANCE. The (a) Target Exchange Common
Shares, when issued in compliance with the provisions of this Agreement and the
Merger Agreement for the consideration expressed herein, and (b) Target
Conversion Common Shares will, when issued in each case, be validly issued,
fully paid and nonassessable and will be free of any liens or encumbrances other
than restrictions on transfer under this Agreement and applicable state and
federal securities laws.
Section 3.04. STOCKHOLDER WRITTEN CONSENT. Upon Target's
receipt of the Stockholder Written Consent (as defined below) from the
Securityholders and executed thereby, Target's stockholders will have taken all
action required of them to approve the Merger, the Merger Agreement and the
transactions contemplated thereby for purposes of the federal securities laws,
the DGCL, Target's certificate of incorporation and Target's by-laws.
ARTICLE IV.
COVENANTS OF THE PARTIES
Section 4.01. TRANSFER OF SHARES. During the Voting Term, each
Securityholder shall not hereafter (a) sell, tender, transfer, pledge, encumber,
assign or otherwise dispose of any of such Securityholder's Securities, (b)
deposit such Securityholder's Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or grant any proxy or
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power of attorney with respect thereto, (c) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect sale,
transfer, pledge, encumbrance, assignment or other disposition of any of
securities of Target, or (d) take any action that would make any representation
or warranty of such Securityholder contained herein untrue or incorrect in any
material respect or have the effect of preventing or disabling, in whole or in
part, such Securityholder from performing such Securityholder's obligations
under this Agreement; provided, however, that nothing in this Agreement shall
prevent any Securityholder from selling, tendering, transferring, pledging,
encumbering, assigning or otherwise disposing of any of such Securityholder's
securities of Target to any other Securityholder who remains bound by this
Agreement.
Section 4.02. VOTING OF SHARES. (a) Each Securityholder, by this
Agreement, does hereby agree, during and for the Voting Term, to vote all of
such Securityholder's Shares at every meeting of the stockholders of Target or
any adjournment thereof or in connection with any written consent of Target's
stockholders, (i) in favor of the adoption of the Merger Agreement and approval
of the Merger and the other transactions contemplated by the Merger Agreement
and (ii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders or in such consent, and in connection therewith to
execute any documents that are necessary or appropriate in order to effectuate
the foregoing. Without limiting the foregoing and in accordance therewith, each
Securityholder agrees to execute and deliver to Target, concurrently with the
execution of this Agreement, a written consent substantially in the form
attached hereto as EXHIBIT D (the "STOCKHOLDER WRITTEN CONSENT").
(b) For the purposes of this Agreement, "VOTING TERM"
means the period from the execution of this Agreement until the earlier of (i)
the date of any termination of the Merger Agreement pursuant to the terms
thereof or (ii) the Effective Time.
(c) Each Securityholder agrees that such Securityholder
will not enter into any agreement or understanding with any person or entity or
take any action during the Voting Term that will permit any person or entity to
vote or act by written consent or give instructions to vote or so act with
respect to any of such Securityholder's Shares in any manner inconsistent with
the terms of this Section 4.02.
Section 4.03. CERTAIN EVENTS. Each Securityholder agrees that, during
the Voting Term, this Agreement and the obligations hereunder shall attach to
such Securityholder's Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation, if applicable, such
Securityholder's heirs, guardians, administrators, successors or assigns.
Section 4.04. CONVERSION AND EXCHANGE OF SECURITIES. (a) Each
Securityholder agrees that immediately prior to the Effective Time, such
Securityholder shall (a) convert all of the shares of Target Series A Preferred
and Target Series B Preferred that such Securityholder holds (collectively, the
"ROLLOVER SHARES") into such number of shares of Target Common Stock as such
Rollover Shares, by their terms, are then convertible (as indicated on EXHIBIT C
hereto)
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(b) Target and each of the Noteholders (as defined below)
agrees that immediately prior to the Effective Time, such Noteholder shall
exchange all of such Noteholder's interest in the Neurologix Note (regardless
whether such interest (i) arises under the any of the Credit Documents (as
defined below) and (ii) relates to any right to receive any payment or other
consideration in respect of unpaid principal, accrued and unpaid interest
thereon, or any other obligation or liability of Target under the Credit
Documents) for such whole number of Target Exchange Common Shares as is
determined by dividing (x) the sum of (a) the product of the outstanding unpaid
principal amount of the Neurologix Note as of the date of the exchange
multiplied by such Securityholder's Portion, plus (b) the amount of the accrued
and unpaid interest on the Securityholder's Portion as of the date of the
exchange by (y) $6.00. Each of the Securityholders having such an interest in
the Neurologix Note (Palisade Private Partnership, L.P. ("PALISADE"), Xxxxx X.
Xxxxxxx ("XXXXXXX"), and Xxxxxx X. Xxxxxxx ("KAPLITT")) is referred to
individually as a "NOTEHOLDER." The Noteholders agree that, notwithstanding any
other provision of this Agreement to the contrary, in no event shall Target be
required or obligated to issue more than 400,000 Target Exchange Common Shares
in the aggregate to the Noteholders in consideration of their exchange of the
Neurologix Note. Target agrees that, upon the tender to Target of the Neurologix
Note for cancellation by the holder thereof, Target shall, immediately prior to
the Effective Time and in accordance with the terms of this Agreement and the
Merger Agreement, issue to the Noteholders all of the Target Exchange Common
Shares.
Section 4.05. TERMINATION OF CREDIT DOCUMENTS. Target and each of the
Noteholders agrees that (a) upon the exchange of the Neurologix Note and the
issuance of the Target Exchange Common Shares as provided in Section 4.04, each
of the Credit Documents and all of such parties respective rights and
obligations thereunder shall be terminated effective as of the closing date of
the Merger, (b) the Credit Documents shall be of no further force or effect. For
purposes of this Agreement, the term "CREDIT DOCUMENTS" means each of the
following agreements or instruments: (i) the Neurologix Note, (ii) the Credit
Line Agreement, dated as of November 1, 1999, between Target and Palisade, (iii)
the Participation Agreement between Palisade and Xxxxxxx with respect to the
Neurologix Note and (iv) the Participation Agreement between Palisade and
Kaplitt with respect to the Neurologix Note and (c) such Noteholder shall
forthwith deliver to Target UCC-3 termination statements terminating the
Noteholder's security interest under the Credit Documents and any other
agreement granting the Noteholder a security interest in any of Target's assets,
which agreement was executed and delivered in connection with the Credit
Documents (as each such agreement or Credit Document may have heretofore been
amended, modified or supplemented), and the security interest granted by the
Credit Documents or such other agreement shall become null and void and of no
further force and effect.
Section 4.06. WAIVER OF APPRAISAL RIGHTS. Each Securityholder hereby
waives, with respect to all of such Securityholder's Shares (including, without
limitation, the Target Common Shares whether acquired prior to or after date of
the Stockholder Written Consent) and to the fullest extent permitted by
applicable law, all appraisal or other rights to which such Securityholder may
be entitled under Section 262 of the Delaware General Corporation Law in
connection with the Merger. This waiver shall be binding upon all of such
Securityholder's heirs, representatives, executors, successors and assigns, as
applicable.
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Section 4.07. STOP TRANSFER. (a) Each Securityholder agrees with, and
covenants to, CTP and MergerCo that such Securityholder shall not request that
Target register the transfer (book-entry or otherwise) of any certificate or
instrument representing any of such Securityholder's Securities, unless such
transfer is made in compliance with this Agreement. Each Securityholder agrees
that such Securityholder will surrender to Target, within fifteen Business Days
after the date hereof, the certificates and instruments representing such
Securities, and Target will place a legend in substantially the following form
on such certificates and instruments (as well as on all other Shares issuable to
the Securityholder after the date hereof) in addition to any other legend
required thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER,
VOTING AND OTHER RESTRICTIONS PURSUANT TO A VOTING AGREEMENT, DATED AS
OF AUGUST 13, 2003, BY AND AMONG NEUROLOGIX, INC. (THE "COMPANY"), THE
HOLDER HEREOF, AND OTHER PARTIES THERETO (AS AMENDED FROM TIME TO TIME,
THE "VOTING AGREEMENT"). THE COMPANY WILL FURNISH A COPY OF SUCH VOTING
AGREEMENT TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
Target shall notify its transfer agent of the provisions set forth in this
Section 4.07 and instruct its transfer agent not to permit any transfer of
Securities except in compliance with the terms hereof, and each Securityholder
agrees to provide such documentation and to do such other things as may be
required to give effect to such provisions with respect to such Securities.
Section 4.08. Target agrees that it shall not issue any shares with
respect to any new class or series of capital stock authorized after the date
hereof unless the prospective holders of such shares become party to this
Agreement or a enter into a similar written agreement for the benefit of CTP,
MergerCo and Target.
ARTICLE V.
GENERAL PROVISIONS
Section 5.01. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
Section 5.02. ENTIRE AGREEMENT. This Agreement, those documents
expressly referred to herein, the Merger Agreement, and the other documents
dated as of the date hereof, contain the sole and entire agreement among the
parties hereto with respect to the subject matter hereof and supersede all prior
discussions and agreements between the parties with respect to the subject
matter hereof.
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Section 5.03. AMENDMENTS. This Agreement may not be modified, amended,
waived; altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto; provided, however, that CTP
and MergerCo may in writing waive or consent to a modification of any provision
of this Agreement with respect to any Securityholder without the agreement of
any other party hereto.
Section 5.04. TERMINATION. This Agreement shall terminate upon the
earlier to occur of the (a) the consummation of the Merger and (b) the
termination of the Merger Agreement.
Section 5.05. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise, except in accordance with Section 4.01.
Section 5.06. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its heirs, successors
and assigns and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 5.07. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they may be entitled at law or in equity. Any requirements for the
securing or posting of any bond with respect to any such remedy are hereby
waived.
Section 5.08. CHOICE OF LAW; CONSENT TO JURISDICTION. This Agreement
and any and all matters arising directly or indirectly herefrom ("AGREEMENT
MATTERS") shall be governed by and construed and enforced in accordance with the
internal laws of the State of Delaware applicable to agreements made and to be
performed entirely in such state, without giving effect to the conflict of law
principles thereof. Each of the parties hereto hereby (i) irrevocably consents
and submits to the sole exclusive jurisdiction of the United States District
Court for the District of Delaware and any state court in the State of Delaware
(and of the appropriate appellate courts from any of the foregoing) in
connection with any suit, arbitration, mediation, action or other proceeding
(each a "PROCEEDING") directly or indirectly arising out of or relating to any
Agreement Matter; provided that a party to this Agreement shall be entitled to
enforce an order or judgment of such a court in any United States or foreign
court having jurisdiction over the other party hereto, (ii) irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such Proceeding in any such
court or that any such Proceeding which is brought in any such court has been
brought in an inconvenient forum, (iii) waives, to the fullest extent permitted
by law, any immunity from jurisdiction of any such court or from any legal
process therein, and (iv) agrees that service of
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any summons, complaint, notice or other process relating to such Proceeding may
be effected in the manner provided for the giving of notice hereunder.
Section 5.09. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
the other parties.
Section 5.10. DEFINITIONS. Terms used in this Agreement but not
otherwise defined herein shall have the respective meanings set forth in the
Merger Agreement.
Section 5.11. NO AGREEMENT UNTIL EXECUTED. Irrespective of negotiations
among the parties or the exchanging of drafts of this Agreement, this Agreement
shall not constitute or be deemed to evidence a contract, agreement, arrangement
or understanding among the parties hereto unless and until this Agreement is
executed by the parties hereto.
Section 5.12. EXCULPATION, No Securityholder shall have any liability
or obligation whatsoever under or by reason of this Agreement because of a
breach by any other Securityholder of its obligations, representations or
warranties hereunder or thereunder.
Section 5.13. DIRECTORS AND OFFICERS. Notwithstanding anything herein
to the contrary, the covenants and agreements set forth herein shall not prevent
any of the Securityholders who are serving on Target's board of directors or who
are officers of Target from taking any action, subject to the applicable
provisions of the Merger Agreement, while acting in such capacity as a director
or officer of Target.
Section 5.14. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, by
telecopy, by overnight courier or sent by certified or registered mail, postage
prepaid, and shall be deemed given when so delivered personally, or when so
received by facsimile or courier, or if mailed, three calendar days after the
date of mailing, as follows (or at such other address for a party as shall be
specified by like notice):
If to CTP or MergerCo, to:
Change Technology Partners, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Chairman and Chief Executive Officer
with a copy to (which shall not constitute notice):
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Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
(000) 000-0000
(000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to Target, to:
Neurologix, Inc. x/x
Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
and if to any of the Securityholders, at the address or facsimile transmission
number specified below its name on the signature pages hereto (or, in the case
of persons who subsequently become parties hereto, at their last addresses or
facsimile transmission numbers shown on the record books of Target). Any Person
who becomes a Securityholder shall provide its address and facsimile number to
Target, which shall promptly provide such information to each of the other
Securityholders.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW)
-11-
IN WITNESS WHEREOF, the parties have duly executed this Voting
Agreement as of the date first written above.
"TARGET"
NEUROLOGIX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
"CTP"
CHANGE TECHNOLOGY PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
"MERGERCO"
CTP/N MERGER CORP.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
(SIGNATURE PAGE TO VOTING AGREEMENT)
"STOCKHOLDERS"
AUCKLAND TECHNOLOGY ENABLING
CORPORATION
By: /s/ Xxxxxx During
--------------------------------
Name: Xxxxxx During on behalf of
Mr. Warwick Greenwood -
Trustee and Director.
Title:
Address for Notice:
-----------------------------------
-----------------------------------
-----------------------------------
Facsimile:
-------------------------
ZENITH PARTNERS
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
Address for Notice:
-----------------------------------
-----------------------------------
-----------------------------------
Facsimile:
-------------------------
(SIGNATURE PAGE TO VOTING AGREEMENT)
PALISADE PRIVATE PARTNERSHIP, L.P.
BY: PALISADE PRIVATE HOLDINGS, LLC,
GENERAL PARTNER
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Member
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile:
--------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile:
--------------------------
XXXXXX X. XXXXXXX XXXXX-PROFIT SHARING
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile:
--------------------------
(SIGNATURE PAGE TO VOTING AGREEMENT)
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile:
--------------------------
MEDTRONIC INTERNATIONAL, LTD.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Corporate Controller and
Treasurer
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile:
--------------------------
(SIGNATURE PAGE TO VOTING AGREEMENT)
EXHIBIT A
---------
SECURITYHOLDERS
---------------
Auckland Technology Enabling Corporation
Zenith Partners
Palisade Private Partnership, X.X.
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Xxxxx-Profit Sharing
Medtronic International, Ltd.
Xxxxxx X. Xxxxxxx
EXHIBIT B
---------
SECURITYHOLDERS' OWNERSHIP OF SECURITIES
----------------------------------------
-------------------------------------------------------------------------------------------------------
TARGET TARGET TARGET
SECURITYHOLDER COMMON STOCK SERIES A SERIES B NEUROLOGIX NOTE
PREFERRED PREFERRED
-------------------------------------------------------------------------------------------------------
(OWNED (OWNED (OWNED (PERCENTAGE
BENEFICIALLY AND BENEFICIALLY BENEFICIALLY PARTICIPATORY
OF RECORD) AND OF RECORD) ND OF RECORD) INTEREST)*
-------------------------------------------------------------------------------------------------------
Auckland Technology 1,312,500
Enabling Corporation
-------------------------------------------------------------------------------------------------------
Zenith Partners 832,500
-------------------------------------------------------------------------------------------------------
Palisade Private 138.768 9,260 94.4%
Partnership, L.P.
-------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 5.880 55,560 4.0%
-------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx
Xxxxx-Profit Sharing 2.352
-------------------------------------------------------------------------------------------------------
Medtronic International,
Ltd. 324,074
=======================================================================================================
Xxxxxx Xxxxxxx 1.6%
=======================================================================================================
TOTALS 2,145,000 147.000 388,894 100.0%
-------------------------------------------------------------------------------------------------------
*The Neurologix Note is owned of record by Palisade Private Partnership, L.P.
EXHIBIT C
---------
ROLLOVER SHARES AND TARGET CONVERSION COMMON SHARES
---------------------------------------------------
-----------------------------------------------------------------------------------------------------
SECURITYHOLDER TARGET SERIES A PREFERRED TARGET SERIES B PREFERRED
-----------------------------------------------------------------------------------------------------
SHARES OF SHARES OF
TARGET COMMON TARGET
STOCK COMMON STOCK
TARGET RECEIVABLE TARGET RECEIVABLE
SERIES A SHARES UPON SERIES B SHARES UPON
OUTSTANDING CONVERSION OUTSTANDING CONVERSION
-----------------------------------------------------------------------------------------------------
Auckland Technology Enabling
Corporation
-----------------------------------------------------------------------------------------------------
Zenith Partners
-----------------------------------------------------------------------------------------------------
Palisade Private Partnership, 138.768 2,081,520 9,260 9,260
L.P.
-----------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 5.880 88,200 55,560 55,560
----------------------------------------------------------------------------------- -----------------
Xxxxxx X. Xxxxxxx Xxxxx-Profit 2.352 35,280
Sharing
-----------------------------------------------------------------------------------------------------
Medtronic International, Ltd. 324,074 324,074
-----------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx
=====================================================================================================
TOTALS 147.000 2,205,000 388,894 388,894
---------------------------------------------------------------------------------------------------
EXHIBIT D
---------
STOCKHOLDER WRITTEN CONSENT
---------------------------
