EXHIBIT 9.3
VOTING AGREEMENT
This Voting Agreement ("Agreement") is executed as of November 8, 2004
between Takeda Pharmaceutical Company Limited, a Japanese corporation located at
0-0-0 Xxxxxxxxxx, Xxxx-xx, Xxxxx 000-0000, Xxxxx (hereinafter "Takeda"), and
BioNumerik Pharmaceuticals, Inc., a Texas corporation located at 0000 Xxxxxxxxx
Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Xxxxxx Xxxxxx of America (hereinafter
"BioNumerik") pursuant to and to effectuate certain voting arrangements provided
for between Takeda and BioNumerik in connection with Section 8.1 of the License
and Development Alliance Agreement (the "Alliance Agreement") executed between
Takeda and BioNumerik on October 5, 2004. Capitalized terms used herein and not
otherwise defined shall have the same meanings as set forth in the Alliance
Agreement. Takeda and BioNumerik may be referred to herein individually as a
"Party" or collectively as the "Parties." This Agreement shall take effect upon
the Effective Date (as defined in the Alliance Agreement).
NOW THEREFORE, for the consideration described herein and upon the terms
listed below, the Parties hereby agree as follows:
1. VOTING AGREEMENT. Although the Series I Preferred Stock and Series J
Preferred Stock which BioNumerik is selling to Takeda pursuant to the Alliance
Agreement will, in accordance with the BioNumerik designations filed as an
amendment to BioNumerik's articles of incorporation establishing such series of
preferred stock, vote on an as converted basis together with other classes and
series of BioNumerik capital stock on matters submitted to a vote of
shareholders, Takeda hereby agrees with BioNumerik, to vote all shares of
BioNumerik voting capital stock (BioNumerik common stock, Series I Preferred
Stock, Series J Preferred Stock or any other share of BioNumerik capital stock
entitled to vote generally on matters submitted to a vote of BioNumerik
shareholders) held by Takeda or its Affiliates at any time until the earlier of
three years after launch of the Product in the Territory or five years after the
date of execution of this Agreement in accordance, at Takeda's election, with
either (i) the recommendation of the BioNumerik Board of Directors to
shareholders with respect to such matter, or (ii) in a proportionate manner that
allocates Takeda's votes with respect to any such matter in the same relative
percentages as are recorded by BioNumerik with respect to the properly submitted
votes of other shareholders of BioNumerik as to such matter; provided, however,
that in accordance with the terms of the Series I Preferred Stock and Series J
Preferred Stock the holders of Series I
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Preferred Stock and Series J Preferred Stock will have separate class voting
rights with respect to any proposed amendments to the terms of such series of
Preferred Stock and the foregoing voting agreement between Takeda and BioNumerik
will not apply to Takeda's voting on any such proposed amendment to the terms of
such series of Preferred Stock.
2. ADDRESSES. All notices, reports, and audit requests with respect to
this Agreement will be made in writing and will be given by certified mail,
return receipt requested, by recognized international courier service, or by
personal delivery, properly addressed to the Party for whom it is intended as
follows:
If to Takeda:
General Manager, Divisions of Americas
Takeda Pharmaceutical Company Limited
1-1, Doshomachi 4-chome, Xxxx-Xx, Xxxxx, 000-0000, Xxxxx
with a copy to:
General Manager, Legal Department
Takeda Pharmaceutical Company Limited
1-1, Doshomachi 4-chome, Xxxx-Xx, Xxxxx, 000-0000, Xxxxx
If to BioNumerik:
Chief Executive Officer
BioNumerik Pharmaceuticals, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
All notices are deemed effective on the date of receipt or, if delivery is
not accepted, five (5) days after placement with a post office for delivery by
certified mail, return receipt requested as described above and five (5) days
after placement with a recognized international courier service for delivery as
described above.
3. EXECUTION. This Agreement will be executed in two (2) counterparts,
each of which will be deemed as original.
4. CHOICE OF LAW. This Agreement and the performance of the Parties
hereunder will be construed in accordance with and governed by the Texas
Business Corporation Act (the "TBCA"), as far as the TBCA is mandatorily
applicable to the matters within the scope of this
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Agreement as involving a Texas corporation, and in other respects by laws of the
State of New York, United States of America, without reference to choice of law.
5. SEVERABILITY. In the event that any term, provision, or covenant of
this Agreement is determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable, that term will be curtailed, limited or deleted, but
only to the extent necessary to remove such invalidity, illegality or
unenforceability, and the remaining terms, provisions and covenants will not in
any way be affected or impaired thereby.
6. WAIVER. No waiver by either Party of any breach of this Agreement, no
matter how long continuing or how often repeated, will be deemed a waiver of any
subsequent breach thereof, nor will any delay or omission on the part of either
Party to exercise any right, power, or privilege hereunder be deemed a waiver of
such right, power or privilege, except as stated herein.
7. FINAL AGREEMENT. This Agreement and the Alliance Agreement (including
its Exhibits and attachments) contain the entire agreement and understanding of
the Parties with respect to the matters contained herein, superceding all prior
understandings, whether written or oral, concerning the subject matter hereof.
The Parties may, from time to time during the continuance of this Agreement,
modify, vary or alter any of the provisions of this Agreement, but only by a
written instrument duly executed by authorized officials of both Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed and delivered by their duly authorized representatives as of the date
first written above. The undersigned represent that they are authorized to sign
this Agreement on behalf of the Parties hereto.
Takeda Pharmaceutical Company Limited BioNumerik Pharmaceuticals, Inc.
By: /s/ XXXXXX XXXXXXXX By: /s/ XXXXXXXXX X. XXXXXXXX
_________________________ ________________________________
Printed Name: Xxxxxx Xxxxxxxx Printed Name: Xxxxxxxxx X. Xxxxxxxx
Title: Corporate Officer Title: Chairman and Chief Executive
Officer
Date: Date: November 8, 2004
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