Exhibit 10.2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is entered into as of January 31,
2006, by and between Innovate Oncology, Inc., a Nevada corporation ("Innovate"),
and Xx. Xxxxxxx Xxxxx ("Stockholder"), a stockholder of Avantogen Limited, a
corporation organized under the laws of Australia ("Avantogen"). Terms not
otherwise defined herein shall have the respective meanings ascribed to them in
the Share Exchange Agreement (as defined below).
RECITALS
A. The execution and delivery of this Agreement by Stockholder is a
material inducement to the willingness of Bioaccelerate Holdings, Inc.
("Bioaccelerate") and Innovate (Bioaccelerate and Innovate are sometimes
referred to together herein as "BA/IO") to enter into that certain Share
Exchange Agreement, dated as of the date hereof (as amended, modified or
supplemented pursuant to its terms, the "Share Exchange Agreement"), by and
among Avantogen, Bioaccelerate and Innovate and, following its formation, Newco
(as defined in the Share Exchange Agreement).
B. Stockholder understands and acknowledges that Bioaccelerate and
Innovate are entitled to rely on (i) the truth and accuracy of Stockholder's
representations contained herein and (ii) Stockholder's performance of the
obligations set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth in the Share Exchange Agreement and in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Restrictions on Shares.
(a) Stockholder shall not, directly or indirectly, transfer, grant
an option, co-sale right or right of first refusal with respect to, sell,
exchange, pledge, short sell, hedge, or otherwise dispose of or encumber
(collectively, a "Transfer"), the Shares (as such term is defined in Section 4
below) or any New Shares (as such term is defined in Section 1(d) below), or
make any offer or enter into any agreement providing for any of the foregoing,
at any time from the date of this Agreement through and including the Expiration
Date. As used herein, the term "Expiration Date" shall mean the earlier of (i)
immediately after the date and time of the Closing (as defined in the Share
Exchange Agreement) and (ii) the date and time of the valid termination of the
Share Exchange Agreement in accordance with its terms.
(b) Except pursuant to the terms of this Agreement, at any time from
the date of this Agreement through and including the Expiration Date,
Stockholder shall not, directly or indirectly, grant any proxies or powers of
attorney with respect to any of the Shares, deposit any of the Shares into a
voting trust, or enter into a voting agreement or similar arrangement or
commitment with respect to any of the Shares.
(c) At any time from the date of this Agreement through and
including the Expiration Date, Stockholder, in his capacity as a stockholder of
Avantogen, shall not, directly or indirectly, take any action that would make
any representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of Stockholder, in his capacity as a stockholder
of Avantogen, to perform his obligations under this Agreement or, in his
capacity as a stockholder of Avantogen, preventing or delaying the consummation
of any of the transactions contemplated hereby or the transaction contemplated
by the Share Exchange Agreement (collectively, the "Transactions").
(d) Any securities of Avantogen that Stockholder purchases or with
respect to which Stockholder otherwise acquires record or beneficial ownership
(as defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended) after the date of this Agreement through and including the
Expiration Date, (collectively, the "New Shares") shall be subject to the terms
and conditions of this Agreement to the same extent as if they constituted
Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date and subject to
Section 2(b), at every meeting of the stockholders of Avantogen called with
respect to any of the following, and at every adjournment or postponement
thereof, and on every action or approval by written consent or resolution of the
stockholders of Avantogen with respect to any of the following, (i) in the event
that there has not been a Change in the Parent Recommendation (as defined in the
Share Exchange Agreement), Stockholder shall vote, to the extent not voted by
the person(s) appointed under the Proxy (as defined in Section 3 below), the
Shares and any New Shares in favor of approval of the Transactions, the adoption
of the Share Exchange Agreement and any other matter that is contemplated by the
Share Exchange Agreement and any action required in furtherance thereof and
Stockholder shall vote, to the extent not voted by the person(s) appointed under
the Proxy, against any Acquisition Proposal (as defined in the Share Exchange
Agreement) and any other matter that would reasonably be expected to impede,
interfere with, delay, postpone or adversely affect the Transactions. The Proxy
shall not be voted for any other purpose.
3. Irrevocable Proxy. Concurrently with the execution and delivery of this
Agreement, Stockholder hereby delivers to Innovate a duly executed proxy in the
form attached hereto as Exhibit A (the "Proxy"), which Proxy is coupled with an
interest, and, until the earlier to occur of the Expiration Date and a Change in
the Parent Recommendation, shall be irrevocable to the fullest extent permitted
by law, with respect to each and every meeting of stockholders of Avantogen or
action or approval by written resolution or consent of stockholders of Avantogen
with respect to the matters contemplated by Section 2 covering the total number
of Shares and New Shares in respect of which Stockholder is entitled to vote at
any such meeting or in connection with any such written consent and which Proxy
shall automatically terminate upon the earlier to occur of the Expiration Date
and a Change in the Parent Recommendation. Upon the execution of this Agreement
by Stockholder, (i) Stockholder hereby revokes any and all prior proxies (other
than the Proxy) given by Stockholder with respect to the subject matter
contemplated by Section 2, and (ii) Stockholder shall not grant any subsequent
proxies with respect to such subject matter, or enter into any agreement or
understanding with any Person to vote or give instructions with respect to the
Shares and New Shares in any manner inconsistent with the terms of Section 2,
until after the earlier to occur of the Expiration Date and a Change in the
Parent Recommendation.
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4. Representations, Warranties and Covenants of Stockholder. Stockholder
hereby represents, warrants and covenants to BA/IO as follows:
(a) Stockholder is the beneficial or record owner of, or is trustee
of a trust that is the record holder of, and whose beneficiaries are the
beneficial owners of, or exercises voting power over, that number of shares of
capital stock of Avantogen ("Avantogen Stock") set forth on the signature page
hereto (all such shares owned beneficially or of record by Stockholder, or over
which Stockholder exercises voting power, on the date hereof, collectively, the
"Shares"). As of the date hereof, the Shares constitute Stockholder's entire
interest in the outstanding shares of Avantogen Stock and Stockholder does not
hold any other outstanding shares of capital stock of Avantogen or rights to
acquire any such capital stock. No person not a signatory to this Agreement has
or will have a beneficial interest in or a right to acquire or vote any of the
Shares or any New Shares. The Shares are and will be, and New Shares, if any,
will be, at all times up until and including the earlier to occur of the
Expiration Date and a Change in the Parent Recommendation free and clear of any
security interests, liens, claims, pledges, options, rights of first refusal,
co-sale rights, agreements, limitations on Stockholder's voting rights, charges
and other encumbrances of any nature that could adversely affect the
Transactions or the exercise or fulfillment of the rights and obligations of
Avantogen under the Share Exchange Agreement or of the parties to this
Agreement. Stockholder's principal residence or place of business is set forth
on the signature page hereto.
(b) Stockholder has the full legal right, power and authority to
execute and deliver this Agreement, to perform his obligations hereunder, and to
consummate the transactions contemplated hereby. No further action on the part
of the Stockholder is necessary to authorize this Agreement or the other
agreements, documents, certificates and instruments required to be delivered
hereby or the performance of the transactions contemplated hereby. This
Agreement and the other agreements, documents, certificates and instruments
required to be delivered by the Stockholder in accordance with the provisions
hereof (the "Stockholder Documents") have been or will be, as applicable, duly
executed and delivered by the Stockholder and this Agreement constitutes, and
the Stockholder Documents when executed and delivered will constitute, the
legal, valid and binding obligations of Stockholder, enforceable against
Stockholder in accordance with their respective terms.
(c) The execution and delivery of this Agreement, the performance of
the obligations hereunder and the consummation of the transactions contemplated
hereby do not conflict with, result in a default under or a breach or violation
of, adversely affect the rights and benefits afforded to Stockholder or give any
party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Stockholder under (a) any
Law to which Stockholder or his assets, properties or businesses are subject or
bound, (b) any judgment, order or decree of any Governmental Authority which is
applicable to Stockholder or the assets, properties or businesses of Stockholder
or (c) any material contracts, or other agreement, contract, commitment,
arrangement or understanding, oral or written, to which Stockholder is a party,
by which Stockholder may have rights or by which any of the properties or assets
of Stockholder may be bound or affected, except, with respect to clauses (a),
(b) and (c), for any of the same that has not had and could not reasonably be
expected to result in a material adverse effect on the ability of the
Stockholder to perform any of his obligations under this Agreement. Except as
aforesaid, no authorization, approval or consent of, and no registration or
filing with, any Governmental Authority is required in connection with the
execution, delivery or performance of this Agreement or the transactions
contemplated hereby by Stockholder.
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5. Representations, Warranties and Covenants of Innovate. Innovate hereby
represents, warrants and covenants to Stockholder as follows:
(a) Innovate has the full legal right, power and authority to
execute and deliver this Agreement, to perform his obligations hereunder, and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the unanimous
approval of the Board of Directors of Innovate, if such approval is necessary,
and no other corporate action on the part of Innovate will be necessary to
authorize this Agreement or the other agreements, documents, certificates and
instruments required to be delivered hereby or the performance of the
transactions contemplated hereby. This Agreement and the other agreements,
documents, certificates and instruments required to be delivered by Innovate in
accordance with the provisions hereof (the "Innovate Documents") will be duly
executed and delivered by Innovate by duly authorized officers and this
Agreement constitutes, and the Innovate Documents when executed and delivered
will constitute, the legal, valid and binding obligations of Innovate,
enforceable against Innovate in accordance with their respective terms.
(b) The execution and delivery of this Agreement, the performance of
the obligations hereunder and the consummation of the transactions contemplated
hereby do not conflict with, result in a default under or a breach or violation
of, adversely affect the rights and benefits afforded to Innovate or give any
party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Innovate under (a) any
Law to which Innovate or its assets, properties or businesses are subject or
bound, (b) any judgment, order or decree of any Governmental Authority which is
applicable to Innovate or the assets, properties or businesses of Innovate, (c)
the charter or bylaws of Innovate or any securities issued by Innovate, or (d)
any material contracts, or other agreement, contract, commitment, arrangement or
understanding, oral or written, to which Innovate is a party, by which Innovate
or any shareholder of Innovate may have rights or by which any of the properties
or assets of Innovate may be bound or affected, except with respect to clauses
(a), (b) and (d), for any of the same that has not had or will not have a
Material Adverse Effect (as defined in the Share Exchange Agreement) on Innovate
or in a material adverse effect on the ability of Innovate to perform its
obligations under this Agreement or the Share Exchange Agreement. Except as
aforesaid, no authorization, approval or consent of, and no registration or
filing with, any Governmental Authority is required in connection with the
execution, delivery or performance of this Agreement or the transactions
contemplated hereby by Innovate.
6. Disclosure of the Transaction; Press Releases. Except as may be
required by Law or by any listing agreement with, or the policies of the
Australian Stock Exchange, Stockholder shall hold any information regarding this
Agreement and the Transactions in strict confidence and shall not divulge any
such information to any third person (except legal counsel, advisors and
representatives) until Avantogen and/or Innovate have publicly disclosed the
Transactions. Neither Stockholder, nor any of his affiliates shall issue or
cause the publication of any press release or other public announcement with
respect to this Agreement, the Transactions or the Share Exchange Agreement
except after making reasonable efforts to consult with BA/IO to the extent
practicable.
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7. Appraisal Rights. Stockholder agrees not to exercise any rights of
appraisal or any dissenters' rights that Stockholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Transactions.
8. Capacity. The parties hereto acknowledge and agree that this Agreement
and the Proxy are entered into by Stockholder in Stockholder's capacity as a
stockholder of Avantogen and shall not be construed to have any effect,
obligation, restriction, limitation or liability on Stockholder, or (if
applicable) Stockholder's agents or representatives, in any other manner or
capacity, including without limitation, in any capacity as an officer, director,
employee, agent or representative of Avantogen. Without limiting the foregoing,
the parties hereto acknowledge and agree that any vote by Stockholder in
approval of the Transactions, the adoption of the Share Exchange Agreement and
any other matter that is contemplated by the Share Exchange Agreement, or by any
persons appointed by Proxy with respect to any or all of such matters, shall not
constitute the actual or deemed approval by Stockholder of any agreement or
matter contemplated by the Share Exchange Agreement that affects Stockholder in
his capacity other than as a shareholder of Avantogen.
9. Termination. For clarification, this Agreement and the Proxy delivered
in connection herewith shall automatically terminate and shall have no further
force or effect as of the earlier to occur of the Expiration Date and a Change
in the Parent Recommendation.
10. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given to (i) BA/IO when given to BA/IO pursuant
to the Notice provisions of the Share Exchange Agreement (Section 11.7) and (ii)
when given to Stockholder pursuant to the procedures set forth in the Notice
provisions of the Share Exchange Agreement but addressed pursuant to the
information set forth beneath Stockholder's name on the Stockholder's signature
page hereto.
(b) Interpretation. When a reference is made in this Agreement to
Sections or Exhibits, such reference shall be to a Section of or an Exhibit to
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The phrases "the date of this Agreement", "the date
hereof", and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to the date first above written.
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(c) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that BA/IO will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein or in the Proxy. Therefore, it is agreed that, in
addition to any other remedies that may be available to BA/IO upon any such
violation of this Agreement or the Proxy, BA/IO shall have the right to enforce
such covenants and agreements and the Proxy by specific performance, injunctive
relief or by any other means available to BA/IO at law or in equity.
(d) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument.
(e) Entire Agreement. This Agreement and the documents and
instruments and other agreements specifically referred to herein or delivered
pursuant hereto (including, without limitation, the Proxy) sets forth the entire
understanding of the parties relating to the subject matter of this Agreement
and cancels and supersedes all agreements, arrangements and understanding
relating thereto made prior to or on the date hereof, written or oral, between
the parties to this Agreement.
(f) Successors and Assigns. This Agreement and the rights of the
parties hereunder may not be assigned by the Shareholder (except by operation of
law or as expressly stated hereunder) and shall be binding upon and shall inure
to the benefit of the parties hereto.
(g) Reformation and Severability. In case any provision of this
Agreement shall be held to be invalid, illegal or unenforceable, it shall, to
the extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the parties, and if
such modification is not possible, such provision shall be severed from this
Agreement, and in either case the validity, legality and enforceability of the
remaining provisions of this Agreement and the future application of such
provision shall not in any way be affected or impaired thereby.
(h) Remedies Cumulative. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
(i) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts entirely negotiated, executed and performed within that State without
giving effect to the conflict of law principles thereof.
(j) Jurisdiction and Venue.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself, herself or himself and its, hers or his
property, to the nonexclusive jurisdiction of any New York state court or U.S.
federal court sitting in New York, New York, and any appellate court therefrom,
in any suit, action or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereunder, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such suit, action or proceeding may be heard and determined in any such New York
state court or U.S. federal court. Each of the parties hereto agrees that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
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(ii) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it or he may legally and
effectively do so, any objection that it or he may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereunder in any New York state
court or U.S. federal court sitting in New York, New York. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such suit, action or proceeding
in any such court.
(k) Representation by Counsel. Each party to this Agreement
represents and warrants that such party has been represented by counsel in the
negotiation, drafting and execution of this Agreement. Accordingly, no provision
of this Agreement shall be construed against any party on the grounds that party
drafted the provision or caused it to be drafted.
(l) Additional Documents, Etc. Stockholder shall execute and deliver
any additional documents necessary or desirable, in the reasonable opinion of
BA/IO, to carry out the purpose and intent of this Agreement. Without limiting
the generality or effect of the foregoing or any other obligation of Stockholder
hereunder, Stockholder hereby authorizes BA/IO to deliver a copy of this
Agreement to Avantogen.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed as of the date first above written.
INNOVATE ONCOLOGY, INC.
By:
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Name:
-----------------------------------
Title:
-----------------------------------
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Xx. Xxxxxxx Xxxxx
----------------------------------------
(Print Address)
----------------------------------------
(Print Address)
----------------------------------------
(Print Telephone Number)
Shares beneficially owned on the date hereof:
_________ shares of Avantogen Stock, which represents approximately ____% of the
outstanding Avantogen Stock as of the date hereof.
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EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
The undersigned stockholder of Avantogen Limited, a corporation organized
under the laws of Australia ("Avantogen"), hereby irrevocably (to the fullest
extent permitted by applicable law) appoints Innovate Oncology, Inc., a Nevada
corporation ("Innovate"), and each of them, or any other designee of Innovate,
as the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and
related rights to the fullest extent that the undersigned is entitled to do so
with respect to all of the shares of capital stock of Avantogen that now are or
hereafter may be record or beneficially owned by the undersigned, and any and
all other shares or securities of Avantogen issued or issuable in respect
thereof on or after the date hereof (collectively, the "Shares" and all Shares
acquired after the date hereof, collectively, the "New Shares") in accordance
with the terms of this Irrevocable Proxy until the earlier to occur of the
"Expiration Date" and a "Change in the Parent Recommendation" (as such terms are
defined). The Shares record or beneficially owned by the undersigned stockholder
of Avantogen as of the date of this Irrevocable Proxy are listed on the final
page of this Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies or enter into any agreement or understanding with any
Person (as defined in the Share Exchange Agreement (as defined below)) to vote
or give instructions with respect to the Shares and New Shares in any manner
inconsistent with the terms of this Irrevocable Proxy until after the earlier to
occur of the Expiration Date and a Change in the Parent Recommendation.
Until the earlier to occur of the Expiration Date and a Change in the
Parent Recommendation, this Irrevocable Proxy is irrevocable (to the fullest
extent permitted by applicable law), is coupled with an interest, is granted
pursuant to that certain Voting Agreement, dated of even date herewith, by and
among Innovate and Stockholder (the "Voting Agreement"), and is granted in
consideration of and as a material inducement to Bioaccelerate and Innovate
entering into that certain Share Exchange Agreement, dated as of even date, by
and among Innovate, Bioaccelerate Holdings, Inc. and Avantogen and, following
its formation, Newco (the "Share Exchange Agreement"). As used herein, the terms
"Expiration Date" and a "Change in the Parent Recommendation" shall have the
meanings set forth in, or by reference in, the Share Exchange Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to and including
the earlier to occur of the Expiration Date and a Change in the Parent
Recommendation, to act as the undersigned's attorney and proxy to vote the
Shares and New Shares, and to exercise all voting and other similar rights of
the undersigned with respect to the Shares and New Shares, at every annual,
special or adjourned meeting of the stockholders of Avantogen and in every
written consent in lieu of such meeting as follows: in the event that there has
not been a Change in the Parent Recommendation (as defined in the Share Exchange
Agreement), with respect to all of the Shares and New Shares, in favor of
approval of the transactions contemplated by the Share Exchange Agreement
(collectively, the "Transactions"), the adoption of the Share Exchange Agreement
and any other matter that is contemplated by the Share Exchange Agreement or any
action required in furtherance thereof, as applicable and with respect to all of
the Shares and New Shares, against any Acquisition Proposal (as defined in the
Share Exchange Agreement) and any other matter that would reasonably be expected
to impede, interfere with, delay, postpone or adversely affect the Transactions
(as defined in the Voting Agreement).
Notwithstanding anything to the contrary contained herein, the attorneys
and proxies named above may not exercise this Irrevocable Proxy on any other
matter except as provided above, and the undersigned stockholder may vote the
Shares and New Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder and shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
[Signature Page Follows]
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This Irrevocable Proxy may not be amended or otherwise modified without
the prior written consent of Innovate and Xx. Xxxxxxx Xxxxx. This Irrevocable
Proxy shall terminate, and be of no further force and effect, automatically upon
the earlier to occur of the Expiration Date and a Change in the Parent
Recommendation.
Dated: January 31, 2006
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Xx. Xxxxxxx Xxxxx
Shares beneficially owned on the date
hereof:
_______ shares of Avantogen Stock, which
represents approximately ____% of the
outstanding Avantogen Stock as of the
date hereof.
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