IRREVOCABLE VOTING AGREEMENT
EXHIBIT
9.1
IRREVOCABLE VOTING AGREEMENT
This
Irrevocable Voting Agreement (this “Agreement”) made as of July 30, 2008, by and
among Clal Biotechnology Industries Ltd. (“CBI”) of ______________, Xxxx. Xxxxxxx
Xxxxxxxx (“Xxxxxxxx”) of ________________, Tikero
Technologies Ltd. (“Tikero”) of ________________ and Mr. Xxx
Xxxxx (“Barak”) of ________________ (each a “Party” and collectively, the “Parties”).
WITNESSETH:
WHEREAS, the Parties shall be,
following the closing of a share purchase agreement with Tikero and CBI, the
holders of the majority of the issued and outstanding share capital of
BioCancell Therapeutics Inc. (the “Company”).
WHEREAS, the Parties desire to
set forth certain matters regarding the ownership of their holdings in the
Company and to provide for the continuing representation of the Parties on the
Board of Directors of the Company in the manner set forth below.
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the Parties
hereby agree as follows:
1. Composition
of the Board of Directors.
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1.1
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Each
of the Parties undertakes, as of the date hereof, to vote or cause to be
voted all shares of Common Stock or other voting securities of the Company
directly or indirectly (through control of more than 50% of the share
capital or voting rights of another entity, excluding entities which are
public companies) owned by it (including without limitation, shares of
Common Stock of the Company owned by them upon exercise or conversion of
any options, warrants or other convertible securities they hold), at any
General Meeting at which members of the Company’s
Board of Directors are appointed, in favor of the election of one member
recommended by each of CBI, Xxxxxxxx and Tikero (the “Nominating
Shareholders”).
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1.2.
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The
Parties’ undertaking shall apply with respect to the appointment of one
representative per each of the Nominating Shareholders, and the remaining
members of the Board of Directors will he appointed according to each
Party’s sole discretion and subject to applicable
law.
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1.3.
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Notwithstanding
the foregoing, in the event of the termination of position of a director,
who is a representative of a Nominating Shareholder, then each of the
Parties shall vote or cause to be voted all shares directly or indirectly
(through control of more than 50% of the share capital or voting rights of
another entity) owned by it (including without limitation, shares of
Common Stock of the Company owned by them upon exercise or conversion of
any options, warrants or other convertible securities they hold) in favor
of the nomination of such member whose identity shall be recommended by
such Nominating Shareholder.
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1.4.
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The
Parties shall not vote to terminate the office of a board member who is a
representative of a Nominating Shareholder without obtaining the prior
written consent of the applicable Nominating
Shareholder.
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1.5.
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Each
Party undertakes not to vote any shares (whether at a meeting or by
written consent in lieu of a meeting) with respect to the election,
removal or replacement of the members of the Board of Directors or their
replacements unless in accordance with the provisions of this Agreement.
This agreement shall not govern the vote with respect to additional board
members beyond the candidates of the Nominating Shareholders (or their
replacements), or the increase or decrease in the number of members of the
Board of Directors.
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1.6.
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In
the event of any share split, share dividend, recapitalization,
reorganization, combination or the acquisition or receipt of additional
Company shares, the provisions of this Agreement shall apply also to any
shares of Common Stock issued to or otherwise held by the
Parties.
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2. Termination.
A
Nominating Shareholder’s right to recommend a candidate to the Company’s Board
of Directors and the remaining Parties’ obligation to vote for such candidate,
shall apply only for as long as such Nominating Shareholder holds securities (on
an as converted basis including any type of debt convertible into equity of the
Company but excluding warrants or options to purchase equity of the Company)
that represent more than 7% of the
Company’s issued and outstanding share capital, and shall terminate
thereafter.
3. No
Revocation.
The
voting agreement contained herein is coupled with an interest and may not be
modified, amended, revoked and/or terminated, except by expiration in accordance
to section 2 above or an amendment, modification
or termination effected in accordance with Section 4.4 hereof. Nothing in this
Section 3 shall be construed as limiting the provisions of Section 2 or 4.4
hereof.
4. General.
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4.1.
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This
Agreement shall be governed by and construed according to the laws of the
State of Israel, without regard to the conflict of laws provisions
thereof. Any dispute arising under or in relation to this Agreement shall
be exclusively subject to binding arbitration in Tel-Aviv, Israel or such
other location as the parties mutually agree. The arbitration proceedings
will be conducted in accordance with, and pursuant to, the Israeli
Arbitration Law - 1968. There will be a single neutral arbitrator (“Arbitrator”) who, in the event that the
parties are unable to agree upon a mutually acceptable arbitrator within
ten (10) days after either party shall have requested such arbitration,
will be selected by the President of the Israeli Bar Association. The
Arbitrator will have the same power (but no greater power) to grant all
appropriate legal and equitable relief, both by way of interim relief and
as a part of the final award, as may be granted by any court of competent
jurisdiction, in order to carry out the terms of this Agreement
(including, without limitation, declaratory and injunctive relief and
damages). The Parties agree that the prevailing party in any arbitration
shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The Parties agree that the
prevailing party in any arbitration shall be awarded its reasonable
attorneys’ fees and costs.
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4.2.
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All
notices, requests, consents, and other communications under this Agreement
shall be in writing and shall be deemed delivered (i) three business days
after being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via
courier, facsimile or other reliable electronic means, in each case to the
intended recipient as set forth
above.
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Any Party
may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other Parties notice
in the manner set forth in this Section.
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4.3.
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This
Agreement constitutes the entire agreement and understanding of the
Parties with respect to the subject matter hereof, and supersedes all
prior agreements and understandings relating to such subject
matter.
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4.4.
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This
Agreement may be amended or terminated and the observance of any term of
this Agreement may be waived with respect to all Parties to this Agreement
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of all Nominating Shareholders.
No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition
or provision.
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4.5.
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This
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall
constitute one and the same document. This Agreement may be executed by
facsimile signatures.
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4.6.
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This
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective affiliates and successors in
interest.
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[REMAINDER
OF THE PAGE IS INTENTIONALLY LEFT BLANK]
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[Signature page for Voting Agreement]
IN WITNESS WHEREOF the Parties have exercised
this Voting Agreement in one or more counterparts as of the date first
hereinabove set forth.
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CLAL
BIOTECHNOLOGY
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XXXXXXX
XXXXXXXX
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INDUSTRIES
LTD.
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/s/
Oter Xxxxxxxx
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By:
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/s/ Xxxxx
Krupik
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/s/ Xxxxxxx
Xxxxxxxx
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Name:
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Oter
Xxxxxxxx Xxxxx
Krupik
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Title:
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VP
CEO
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TIKCRO
TECHNOLOGIES INC.
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XXX
XXXXX
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By:
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/s/
Izhah Tahiv
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/s/
Xxx Xxxxx
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Name:
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Izah
Tahiv
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Title:
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Chairman
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By:
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/s/
Aviv Xxxx
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Aviv
Xxxx, CEO
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