EXHIBIT 10.1
INNOVATE ONCOLOGY, INC.
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of May 26,
2006 by and among Innovate Oncology, Inc., a Nevada corporation (the "Company"),
Gardant Pharmaceuticals, Inc. (formerly known as "Bioaccelerate Holdings,
Inc."), a Nevada corporation ("Gardant"), and Avantogen Limited, a corporation
organized under the laws of Australia ("Avantogen"). Capitalized terms used
herein but not otherwise defined herein shall have the meanings ascribed thereto
in the Share Exchange Agreement, dated as of January 31, 2006, by and among
Avantogen, Gardant and the Company (as amended, modified or supplemented from
time to time, the "Share Exchange Agreement").
WHEREAS, pursuant to the Share Exchange Agreement, Avantogen has agreed
to, contingent on the performance of certain covenants and the satisfaction of
certain conditions in the Share Exchange Agreement, transfer all of Avantogen's
equity interests in Resistys, Inc., a Delaware corporation, and One Million
Dollars (US$1,000,000) in cash to the Company and the Company has agreed to
transfer to Avantogen or a Parent Affiliate Thirty Two Million (32,000,000)
shares of common stock, US$0.001 par value, of the Company ("Common Stock") out
of an aggregate of Fifty Nine Million (59,000,000) shares of Common Stock on a
Fully Diluted Basis;
WHEREAS, a condition precedent to the consummation of the transactions
contemplated by the Share Exchange Agreement is that the Company Charter
Documents be amended, or, in the alternative, that Gardant and Avantogen enter
into this Agreement, in order to establish, among other things, restrictions on
certain actions by the Company post-Closing without the approval of the Gardant
so long as Gardant owns 20% or more of the capital stock of the Company on a
Fully Diluted Basis.
AGREEMENT
NOW, THEREFORE, in order to consummate or facilitate the consummation
of the actions and transactions contemplated above, the parties hereto agree as
follows:
Effective and contingent upon execution of this Agreement by the
Company, Gardant and Avantogen, and upon the Closing of the transactions
contemplated by the Share Exchange Agreement, the parties hereto agree to be
bound by the provisions hereof as the sole agreement of the parties hereto with
respect to voting rights in the Company and certain other rights, as set forth
herein.
1. RESTRICTIONS ON CERTAIN ACTIONS.
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For so long as Gardant shall own at least twenty percent (20%)
of the capital stock of the Company on a Fully Diluted Basis, (i) Avantogen will
vote its equity interests in the Company in favor of two (2) designees of
Gardant to serve as directors of the Company and (ii) the Company shall not,
without first obtaining the approval, by vote or written consent, of Gardant and
Avantogen, and Gardant and Avantogen agree that, without the prior written
consent of the other, neither will vote or act with respect to their equity
interests in the Company so as to:
(a) cause or authorize the liquidation,
dissolution or winding up of the Company;
(b) cause or authorize any assignment for the
benefit of creditors causing the Company or
any assets of the Company to be subject to
the authority of any trustee, custodian or
receiver or to cause or authorize the
Company to file for bankruptcy protection or
for protection under any insolvency or
similar Law;
(c) cause or authorize the sale of all or
substantially all of the Company's assets to
Gardant, Avantogen or any of their
respective Affiliates;
(d) cause or authorize the merger or
consolidation of the Company into Gardant,
Avantogen or any of their respective
Affiliates;
(e) cause or authorize the conversion of the
Company into another form of business;
(f) cause or authorize the Company to engage in
a business other than in the life sciences
field;
(g) cause or authorize the issuance of any
shares of capital stock of the Company (or
other securities convertible into any shares
of capital stock of the Company) to Gardant,
Avantogen or any of their respective
Affiliates below fair market value or
otherwise without adequate consideration;
(h) cause or authorize a change in the size of
the Company's Board of Directors;
(i) cause or authorize the redemption or
repurchase of any outstanding shares of
capital stock of the Company owned by
Gardant or Avantogen or their respective
Stockholders or Affiliates;
(j) cause or authorize the engagement by the
Company in any related-party transactions
with Gardant or Avantogen or their
respective Subsidiaries or Affiliates; or
(k) cause the Company to enter into any
transaction with a third party in which
Gardant or Avantogen or their respective
Subsidiaries or Affiliates receives a
benefit that does not inure to the benefit
of the Company or its shareholders as a
group.
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2. ADDITIONAL REPRESENTATIONS AND COVENANTS.
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2.1 No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
2.2 LEGENDS. Each certificate representing shares of the
Company's capital stock subject to this Agreement shall bear the following
legend:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING
AGREEMENT, DATED AS OF MAY 26, 2006, BY AND AMONG THE COMPANY
AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF WHICH MAY
BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE
DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SAID VOTING AGREEMENT."
2.3 TRANSFER LIMITATION. Each of Gardant and Avantogen agrees
that it will not sell, transfer or assign any Company Interests, or any interest
therein, in a private transaction not effectuated through a public market
without the delivery to the Company prior thereto of a written agreement
pursuant to which the transferee or assignee agrees that such Company Interests,
or any interest therein, shall be subject to this Agreement. The Company agrees
not to effectuate or recognize any such purported transfer or assignment without
such written agreement. Any purported transfer or assignment in violation of the
foregoing shall be null and void.
3. TERMINATION.
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3.1 TERMINATION EVENTS. This Agreement shall terminate upon
the earliest to occur of:
(a) the consummation of one or more public
offerings or similar financings (including,
without limitation, a PIPE or a registered
direct offering) resulting in the receipt by
the Company of $7,500,000 or more in
aggregate gross proceeds and a minimum of
$0.50 per share of Company capital stock;
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(b) the consummation of a sale, conveyance or
other disposal of all or substantially all
of the assets of the Company, a merger or
consolidation or the Company with or into
any other Person (other than an individual),
or the merger of any other Person (other
than an individual) into the Company, or any
other corporate reorganization, sale,
conveyance or other disposal of assets,
consolidation, reorganization or merger, in
which the Company's stockholders receive
cash or shares of stock in a corporation
whose stock is publicly traded on a national
securities exchange or the Nasdaq National
Market System, other than a sale to Gardant
or Avantogen or their respective
Subsidiaries or Affiliates;
(c) the written agreement of Gardant and
Avantogen to terminate this Agreement;
(d) three (3) years after the date hereof; or
(e) Gardant owning less than twenty percent
(20%) of the capital stock of the Company on
a Fully Diluted Basis.
3.2 REMOVAL OF LEGEND. At any time after the termination of
this Agreement in accordance with Section 3.1, any holder of a stock certificate
legended pursuant to Section 2.2 may surrender such certificate to the Company
for removal of the legend, and the Company will duly reissue a new certificate
without the legend.
4. MISCELLANEOUS.
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4.1 SUCCESSORS AND ASSIGNS. This Agreement and the rights of
the parties hereunder may not be assigned (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. This Agreement is not intended to create any
third party beneficiaries.
4.2 ENTIRE AGREEMENT. This Agreement 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.
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4.3 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.
4.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, facsimile, or
nationally recognized overnight courier, and shall be deemed to have been duly
given 1) if delivered by hand, on the date of such delivery, 2) if delivered by
facsimile, on the date of such delivery, with receipt of appropriate
confirmation, and 3) if delivered by nationally recognized overnight courier, on
the business day following dispatch to the respective persons named below:
If to the Company after the Closing Date or to Avantogen, addressed to
such entity care of, or at, respectively:
Avantogen Limited
Suite 4, Level 36
88 Phillip Street
Sydney NSW 2000
Attn: Chief Executive Officer
Fax: + 61 2 9252 6877
with copies to:
Kaye Scholer LLP
1999 Avenue of the Stars, Suite 1700
Los Angeles, California 90067-6048
Attn: Barry Lawrence, Esq.
Fax: (310) 788-1200
If to the Company prior to the Closing Date or to Gardant, addressed to
such entity care of, or at, respectively:
Gardant Pharmaceuticals, Inc.
712 Fifth Avenue, 19th Floor
New York, New York 10019
Reference: Avantogen Limited/Innovate Oncology, Inc.
Transaction
Fax: (212) 581-1922
Any party may change such party's address for notices by notice duly given
pursuant hereto.
4.5 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the New York applicable to
contracts entirely negotiated, executed and performed within that State, without
giving effect to the conflict of law principles thereof.
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4.6 JURISDICTION AND VENUE. Each of the parties hereto hereby
irrevocably and unconditionally submits 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.
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.
4.7 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise
provided herein, no delay of or omission in the exercise of any right, power or
remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed as a waiver of or acquiescence in any such breach or
default, or of any similar breach or default occurring later; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default occurring before or after that waiver.
4.8 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.
4.9 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.
4.10 CAPTIONS. The headings of this Agreement are inserted for
convenience only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
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4.11 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.
4.12 AMENDMENTS; WAIVERS. This Agreement may be amended,
modified or canceled and the terms or covenants hereof may be waived, only by a
written instrument executed by the parties, or in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the right
of such party at a later time to enforce the same. No waiver by any party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant contained in this Agreement.
4.13 PUBLIC ANNOUNCEMENTS. The parties hereto agree that no
announcement relating to the transactions contemplated hereby shall be made by
any party hereto or any of their Affiliates or representatives without the prior
written consent and involvement of each other party, except as may be required
by any applicable Law or Governmental Authority.
4.14 STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any
issuance of shares of the Company's voting securities hereafter to Gardant
and/or Avantogen (including, without limitation, in connection with any stock
dividend, combination, splits, reverse splits, recapitalization, reorganization
or similar transactions), such shares shall become subject to this Agreement and
shall be endorsed with the legend set forth in Section 2.2.
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The parties hereto have executed this Voting Agreement as of the date
first written above.
COMPANY:
INNOVATE ONCOLOGY, INC.
By: /s/ Linden Boyne
--------------------------------
Name: Linden Boyne
Title: CEO
Address: 712 Fifth Avenue
19th floor
New York, NY 10019
Facsimile: +442074512469
Email: Linden.Boyne@sterlingfcs.com
[Signature Page to Innovate Voting Agreement]
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GARDANT:
GARDANT PHARMACEUTICALS, INC.
By: /s/ Lee Cole
--------------------------------
Name: Lee Cole
Title: Chairman
Address: 712 Fifth Avenue
19th floor
New York, NY 10019
Facsimile: +442074512469
Email: lee.cole@bioaccelerate.com
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AVANTOGEN:
AVANTOGEN LIMITED
By: /s/ Richard Opara, M.D.
-------------------------------
Name: Richard Opara, M.D.
Title: Chairman
Address: Suite 4, Level 36
88 Phillip Street
Sydney NSW 2000 Australia
Facsimile: +61292526877
Email: r_opara@hotmail.com
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