VOTING AGREEMENT
THIS STOCKHOLDER VOTING
AGREEMENT (this “Agreement”) is made
and entered into as of January __, 2010, by and among QuantRx Biomedical Corp.,
a Nevada corporation (“Parent”), NuRx
Pharmaceuticals, Inc., a Nevada corporation (the “Company”) (only with
respect to Section
2(b) hereof), and the undersigned stockholder (“Stockholder”) of the
Company.
Recitals
A. Concurrently
with the execution and delivery hereof, Parent, NP Acquisition Corporation, a
Nevada corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and the
Company are entering into an Agreement and Plan of Merger of even date herewith
(as it may be amended or supplemented from time to time pursuant to the terms
thereof, the “Merger
Agreement”), which provides for the merger (the “Merger”) of Merger
Sub with and into the Company in accordance with its terms (the Merger, Merger
Agreement and the transactions contemplated thereby referred to collectively as
the “Proposed
Transaction”).
B. Stockholder
has sole voting power over such number of shares of each class of capital stock
of the Company beneficially owned (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) by
Stockholder as is indicated on the signature page of this
Agreement.
C. In
consideration of the execution and delivery of the Merger Agreement by Parent
and Merger Sub, Stockholder desires to agree to vote the Shares (as defined
herein) over which Stockholder has sole voting power so as to facilitate the
consummation of the Merger.
Now,
Therefore, intending to be legally bound, the parties hereto hereby agree
as follows:
1. Certain
Definitions.
(a) Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement. For all purposes of and under this
Agreement, the following terms shall have the following respective
meanings:
“Constructive Sale”
means with respect to any security, a short sale with respect to such security,
entering into or acquiring an offsetting derivative contract with respect to
such security, entering into or acquiring a futures or forward contract to
deliver such security or entering into any other hedging or other derivative
transaction that has the effect of either directly or indirectly materially
reducing the economic benefits or risks of ownership.
“Consent” shall mean
any approval, consent, ratification, permission, waiver or authorization
(including any: (i) permit, license, certificate, franchise, permission,
variance, clearance, registration, qualification or authorization issued,
granted, given or otherwise made available by or under the authority of any
Governmental Authority or pursuant to any Legal Requirement; or
(ii) right under any Contract with any Governmental
Authority).
“Legal Requirement”
shall mean any federal, state, local, municipal, foreign or other law, statute,
constitution, principle of common law, resolution, ordinance, code, edict,
decree, rule, regulation, ruling or requirement issued, enacted, adopted,
promulgated, implemented or otherwise put into effect by or under the authority
of any Governmental Authority.
“Person” means any
individual, corporation, limited or general partnership, limited liability
company, limited liability partnership, trust, association, joint venture,
governmental entity and other entity and group (which term will include a
“group” as such term is defined in Section 13(d)(3) of the Exchange
Act).
“Shares” means (i) all
outstanding shares of capital stock of the Company owned, beneficially or of
record, by Stockholder as of the date hereof, and (ii) all additional
outstanding shares of capital stock of the Company acquired by Stockholder,
beneficially or of record, during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date (as such term is
defined in Section
7 below), in the case of each of clauses (i) and (ii) as to which (and
only as to which) Stockholder has sole voting power; but in each case excluding
shares of capital stock of the Company that, by virtue of Stockholder’s
ownership of options or other convertible securities, are deemed to be
beneficially owned by Stockholder pursuant to Rules 13d-3(d)(1)(i)(A) or (B)
prior to the time at which Stockholder exercises such options or other
convertible securities and receives the underlying capital stock of the
Company.
“Transfer” means, with
respect to any security, the direct or indirect assignment, sale, transfer,
tender, exchange, pledge, hypothecation, or the gift, placement in trust, or the
Constructive Sale or other disposition of such security (excluding transfers:
(i) by testamentary or intestate succession,
(ii) otherwise by operation of law, or (iii) under any
written trading plan adopted prior to the date of this Agreement under Rule
10b5-1 of the Exchange Act) or any right, title or interest therein (including,
but not limited to, any right or power to vote to which the holder thereof may
be entitled, whether such right or power is granted by proxy or otherwise), or
the record or beneficial ownership thereof, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the
foregoing.
2. Transfer and Voting
Restrictions.
(a) At
all times during the period commencing with the execution and delivery of this
Agreement and expiring on the Expiration Date, Stockholder shall not, except in
connection with the Merger, Transfer any of the Shares, or enter into an
agreement, commitment or other arrangement with respect
thereto. Notwithstanding the foregoing or anything to the contrary
set forth in this Agreement, Stockholder may Transfer any or all of the Shares
(i) by will, or by operation of law, in which case this Agreement shall bind the
transferee, (ii) in connection with estate and charitable planning purposes,
including Transfers to relatives, trusts and charitable organizations, or (iii)
to any other Person, so long as, in the case of the foregoing clauses (i) and
(ii), the transferee, prior to such Transfer executes a counterpart of this
Agreement (with such modifications as Parent may reasonably request solely to
reflect such transfer).
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(b) Stockholder
understands and agrees that if Stockholder attempts to Transfer, vote or provide
any other Person with the authority to vote any of the Shares other than in
compliance with this Agreement, the Company shall not, and Stockholder hereby
unconditionally and irrevocably instructs the Company to not, (i) permit any
such Transfer on its books and records, (ii) issue a new certificate
representing any of the Shares or (iii) record such vote, in each case, unless
and until Stockholder shall have complied with the terms of this
Agreement. Each stock certificate evidencing Shares that is issued in
the name of Stockholder on or after the date of this Agreement shall bear a
legend indicating that such Shares are subject to the terms of this Agreement
and any transferee of the Shares evidenced by the stock certificate takes the
Shares subject to the terms of this Agreement.
(c) Except
as otherwise permitted by this Agreement or by order of a court of competent
jurisdiction, Stockholder will not commit any act that could restrict or affect
Stockholder’s legal power, authority and right to vote all of the Shares then
owned of record or beneficially by Stockholder or otherwise prevent or disable
Stockholder from performing any of his, her or its obligations under this
Agreement. Without limiting the generality of the foregoing, except
for this Agreement and as otherwise permitted by this Agreement, Stockholder
will not enter into any voting agreement with any Person with respect to any of
the Shares, grant any Person any proxy (revocable or irrevocable) or power of
attorney with respect to any of the Shares, deposit any of the Shares in a
voting trust or otherwise enter into any agreement or arrangement with any
Person limiting or affecting Stockholder’s legal power, authority or right to
vote the Shares in favor of the approval of the Proposed
Transaction.
3. Agreement to Vote
Shares.
(a) Prior
to the Expiration Date, at every meeting of the stockholders of the Company
called, and at every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of the Company, Stockholder (in
Stockholder’s capacity as such) shall appear at the meeting or otherwise cause
the Shares to be present thereat for purposes of establishing a quorum and, to
the extent not voted by the Persons appointed as proxies pursuant to this
Agreement, vote (i) in favor of (A) approval of the Proposed Transaction, and
(B) in favor of any other matter reasonably necessary to the consummation of the
transactions contemplated by the Merger Agreement and considered and voted upon
by the stockholders of the Company and any adjournment or postponement
recommended by the Company with respect to any stockholder meeting in connection
with the Proposed Transaction, (ii) against the approval or adoption of any
Acquisition Proposal, any proposal made in opposition to, or in competition
with, the Proposed Transaction, or any action that is intended, or that would
reasonably be expected, to prevent or materially delay or interfere with the
Merger and the other transactions contemplated by the Merger Agreement and (iii)
against any of the following (to the extent unrelated to the Proposed
Transaction): (A) any merger, consolidation or business combination
involving the Company or any of its subsidiaries other than the Proposed
Transaction; (B) any sale, lease or transfer of all or substantially all of the
assets of the Company or any of its subsidiaries; (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company or any
of its subsidiaries; or (D) any other action that is intended, or could
reasonably be expected, to otherwise impede, interfere with, delay, postpone,
discourage or adversely affect the consummation of the Proposed
Transaction.
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(b) If
Stockholder is the beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the record holder and
any nominees to vote all of the Shares in accordance with Section
3(a).
4. Grant of Irrevocable
Proxy.
(a) Stockholder
hereby irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Parent and each of its executive officers and any of them, in their
capacities as officers of Parent (the “Grantees”), as
Stockholder’s proxy and attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of Stockholder, to vote
the Shares, to instruct nominees or record holders to vote the Shares, or grant
a consent or approval or dissent or disapproval in respect of such Shares in
accordance with Section 3 hereof and,
in the discretion of the Grantees, with respect to any proposed adjournments or
postponements of any meeting of stockholders of the Company at which any of the
matters described in Section 3 hereof is
to be considered.
(b) Stockholder
represents that any proxies heretofore given in respect of the Shares that may
still be in effect are not irrevocable, and such proxies are hereby
revoked.
(c) Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 4 is given in
connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of Stockholder under this
Agreement. Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 78.355 of the Nevada
Revised Statutes. Notwithstanding this Section 4(c), the
proxy granted by Stockholder shall be revoked upon termination of this Agreement
in accordance with its terms.
(d) The
Grantees may not exercise this irrevocable proxy on any other matter except as
provided above. Stockholder shall retain at all times the right to
vote the Shares in Stockholder’s sole discretion and without any other
limitation on all matters other than those set forth in Section 3 that
are at any time or from time to time presented for consideration to the
Company’s stockholders generally.
(e) Parent
may terminate this proxy with respect to Stockholder at any time at its sole
election by written notice provided to Stockholder.
5. Action in Stockholder
Capacity Only. Stockholder makes no agreement or understanding
herein as a director or officer of the Company. Stockholder signs
solely in Stockholder’s capacity as a record holder and beneficial owner, as
applicable, of Shares, and nothing in this Agreement shall (or shall require any
Stockholder to attempt to) limit or restrict any Stockholder who is a director
or officer of the Company from acting in such capacity (it being understood that
this Agreement shall apply to Stockholder solely in Stockholder’s capacity as a
holder of the Shares).
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6. Representations and
Warranties of Stockholder.
(a) Stockholder
hereby represents and warrants to Parent as follows: (i) Stockholder
is the beneficial or record owner of the shares of capital stock of the Company
indicated on the signature page of this Agreement free and clear of any and all
pledges, Liens, security interests, mortgage, claims, charges, restrictions,
options, title defects or encumbrances, in each case that would impair or
adversely affect Stockholder’s ability to perform its obligations under this
Agreement, other than those encumbrances which are in favor of the Company
(provided Parent shall have been provided with copies of the relevant
documentation related thereto) ; (ii) Stockholder does not beneficially own any
securities of the Company other than the shares of capital stock and rights to
purchase shares of capital stock of the Company set forth on the signature page
of this Agreement; (iii) Stockholder has full power and authority to make, enter
into and carry out the terms of this Agreement and to grant the irrevocable
proxy as set forth in Section 4; and (iv)
this Agreement has been duly and validly executed and delivered by Stockholder
and constitutes a valid and binding agreement of Stockholder enforceable against
Stockholder in accordance with its terms, subject to the effect of (x)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to rights of creditors generally and
(y) rules of law and equity governing specific performance, injunctive relief
and other equitable remedies. Stockholder agrees to notify Parent
promptly of any additional shares of capital stock of the Company of which
Stockholder becomes the beneficial owner after the date of this
Agreement. If the Stockholder is a married individual and the
Stockholder’s Shares constitute community property or otherwise need spousal
approval in order for this Agreement to be a legal, valid and binding obligation
of the Stockholder, this Agreement has been duly authorized, executed and
delivered by, and constitutes a legal, valid and binding obligation of, the
Stockholder’s spouse, enforceable against such spouse in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors’ rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) As
of the date hereof and for so long as this Agreement remains in effect
(including as of the date of the Company Stockholders Meeting, which, for
purposes of this Agreement, includes any adjournment or postponement thereof),
except for this Agreement or as otherwise permitted by this Agreement,
Stockholder has full legal power, authority and right to vote all of the Shares
then owned of record or beneficially by Stockholder, in favor of the approval
and authorization of the Proposed Transaction without the consent or approval
of, or any other action on the part of, any other Person (including, without
limitation, any governmental entity). Without limiting the generality
of the foregoing, Stockholder has not entered into any voting agreement (other
than this Agreement) with any Person with respect to any of the Shares, granted
any Person any proxy (revocable or irrevocable) or power of attorney with
respect to any of the Shares, deposited any of the Shares in a voting trust or
entered into any arrangement or agreement with any Person limiting or affecting
Stockholder’s legal power, authority or right to vote the Shares on any
matter.
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(c) The
execution and delivery of this Agreement and the performance by Stockholder of
Stockholder’s agreements and obligations hereunder will not result in any breach
or violation of or be in conflict with or constitute a default under any term of
any agreement, judgment, injunction, order, decree, law, regulation or
arrangement to which Stockholder is a party or by which Stockholder (or any of
Stockholder’s assets) is bound, except for any such breach, violation, conflict
or default which, individually or in the aggregate, would not impair or
adversely affect Stockholder’s ability to perform Stockholder’s obligations
under this Agreement or render inaccurate any of the representations made by
Stockholder herein.
(d) Stockholder
understands and acknowledges that Parent, Merger Sub and the Company are
entering into the Merger Agreement in reliance upon Stockholder’s execution and
delivery of this Agreement and the representations and warranties of Stockholder
contained herein.
7. Termination. This
Agreement shall terminate (a) upon the earlier of (i) the Effective Time and
(ii) the termination of the Merger Agreement, or (b) at any time upon notice by
Parent to Stockholder (such date under (a) or (b) hereof constituting the “Expiration
Date”). No party hereto shall be relieved from any liability
for breach of this Agreement by reason of any termination of this
Agreement.
8. Confidentiality. Stockholder
recognizes that successful consummation of the transactions contemplated by the
Merger Agreement may be dependent upon confidentiality with respect to the
matters referred to herein. In this connection, pending public
disclosure thereof, and so that Parent and the Company may rely on the safe
harbor provisions of Rule 100(b)(2)(ii) of Regulation FD, Stockholder hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than its counsel and advisors, if any) without the prior
written consent of Parent and the Company, except for disclosures Stockholder’s
counsel advises are necessary to fulfill any Legal Requirement, in which case
Stockholder shall give notice of such disclosure to Parent and the Company as
promptly as practicable so as to enable Parent and the Company to seek a
protective order from a court of competent jurisdiction with respect
thereto. Stockholder’s obligations pursuant to this Section 8 shall
terminate at the time of the first public announcement by Parent or the Company
of the existence of this Agreement.
9. Appraisal
Rights. Stockholder agrees not to exercise any rights of
appraisal or any dissenters’ rights that Stockholder may have or could
potentially have or acquire in connection with the Merger.
10. Proxy
Statement. The Stockholder agrees that none of the information
relating to the Stockholder or his, her or its controlled Affiliates provided by
or on behalf of the Stockholder for inclusion in the Proxy Statement will, from
the time the Proxy Statement is first filed with the SEC to the time the Proxy
Statement is first published, sent or given to stockholders of the Company,
contain any untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Each Stockholder hereby authorizes the Company to publish
and disclose in the Proxy Statement (including all documents and schedules filed
with the SEC in connection therewith) its identity and ownership of the
Stockholder’s Shares and the nature of its commitments, arrangements and
understandings under this Agreement.
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11. Miscellaneous
Provisions.
(a) Amendments, Modifications
and Waivers. No amendment, modification or waiver in respect
of this Agreement shall be effective against any party unless it shall be in
writing and signed by Parent, the Company and Stockholder.
(b) Entire
Agreement. This Agreement constitutes the entire agreement
among the parties to this Agreement and supersedes all other prior agreements
and understandings, both written and oral, among or between any of the parties
with respect to the subject matter hereof and thereof.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law
thereof.
(d) WAIVER OF JURY
TRIAL. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BETWEEN
THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(e) Assignment and
Successors. This Agreement shall be binding upon, and shall be
enforceable by and inure solely to the benefit of, the parties hereto and their
respective successors and assigns, including, without limitation, Stockholder’s
estate and heirs upon the death of Stockholder; provided, however, that neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by any of the parties hereto without prior written consent of
the other parties hereto except that Parent, without obtaining the consent of
any other party hereto, shall be entitled to assign this Agreement or all or any
of its rights or obligations hereunder to any one or more of its
affiliates. No assignment by Parent under this Section 10(e) shall
relieve Parent of its obligations under this Agreement. Any attempted
assignment of this Agreement in violation of the foregoing shall be void and of
no effect.
(f) No Third Party
Rights. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person (other than the parties hereto) any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
(g) Cooperation. Stockholder
agrees to cooperate fully with Parent and to execute and deliver such further
documents, certificates, agreements and instruments and to take such other
actions as may be reasonably requested by Parent to evidence or reflect the
transactions contemplated by this Agreement and to carry out the intent and
purpose of this Agreement. Stockholder hereby agrees that Parent and
the Company may publish and disclose in the Proxy Statement (including all
documents and schedules filed with the Securities and Exchange Commission
(“SEC”)),
Stockholder’s identity and ownership of Shares and the nature of Stockholder’s
commitments, arrangements and understandings under this Agreement and may
further file this Agreement as an exhibit to any filing made by Parent or the
Company with the SEC relating to the Proposed Transaction.
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(h) Severability. If
any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
(i) Specific Performance;
Injunctive Relief. The parties hereto acknowledge that Parent
and the Company will be irreparably damaged if any of the provisions of this
Agreement are not performed in accordance with their specific terms and that any
breach of this Agreement by Stockholder could not be adequately compensated in
all cases by monetary damages alone. Accordingly, in addition to any
other right or remedy to which Parent or the Company may be entitled, at law or
in equity, it shall be entitled to seek to enforce any provision of this
Agreement by a decree of specific performance and temporary, preliminary and
permanent injunctive relief to prevent breaches or threatened breaches of any of
the provisions of this Agreement, without posting any bond or other
undertaking.
(j) Notices. All
notices, Consents, waivers and other communications required or permitted by
this Agreement shall be in writing and shall be deemed given to a party when (i)
delivered to the appropriate address by hand or overnight courier service (cost
prepaid); or (ii) sent by facsimile with confirmation of transmission by the
transmitting equipment confirmed with a copy delivered as provided in clause
(i), in each case to the parties at the following address or facsimile (or to
such other address or facsimile as a party may designate by notice to the other
parties): (i) if to Parent or the Company, to the address or
facsimile provided in the Merger Agreement, including to the persons designated
therein to receive copies; and (ii) if to Stockholder, to Stockholder’s address
or facsimile shown below Stockholder’s signature on the last page
hereof.
(k) Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same instrument, and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other parties; it being understood that all parties need
not sign the same counterpart. The exchange of copies of this
Agreement and of signatures pages by facsimile or electronic transmission shall
constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile or electronic transmission shall be
deemed to be their original signatures for all purposes.
(l) Headings. The
headings contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred to
in connection with the construction or interpretation of this
Agreement.
(m) Legal
Representation. This Agreement was negotiated by the parties
with the benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to any construction or interpretation
thereof.
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[Signature
page follows]
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IN
WITNESS WHEREOF, the undersigned have caused this Voting Agreement to be duly
executed as of the date first above written.
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PARENT:
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STOCKHOLDER:
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Address:
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Shares
Beneficially Owned by Stockholder:
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___________
shares of Company Common
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Stock
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___________
shares of Company Preferred
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Stock
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___________
shares subject to Options
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COMPANY:
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NURX
PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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[Signature
Page to Voting Agreement]
