Ex-9.1
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT") entered into on this 15th day of July, 2004,
by and among XXXXXXX XXXX, a stockholder and Vice Chairman ("Nino") of
Hemobiotech Inc., a Delaware corporation (the "Company"), NINO PARTNERS, LLC, a
Texas Limited Liability Company corporation, of which Nino is the principal
member ("Nino Partners"), BIOGRESS LLC, a Texas Limited Liability Company, of
which Nino and Bollon are the sole members ("Biogress"), and their respective
successors and assigns (collectively, the "Stockholders"), as acknowledged by
the Company and by Xxxxxx Xxxxxx, President and Chief Executive Officer of the
Company ("Bollon").
WITNESSETH:
WHEREAS, the Company desires to complete a private placement (the
"Private Placement") of a minimum of $2,000,000 of Units (the "Minimum
Offering") and a maximum of $3,500,000 of Units (the "Maximum Offering") (plus
up to an additional $1,000,000), in which each Unit shall consist of (i) a
Convertible Unsecured Promissory Note equal to $50,000 and (ii) 58,924 shares
(the "Unit Shares") of Common Stock, par value $.001 per share, of the Company
(the "Common Stock") and 117,648 Warrants, each Warrant (each, a "Warrant")
entitling the holder to purchase one share of Common Stock (the "Warrant
Shares"), such shares and Warrants having an aggregate purchase price of
$50,000;
WHEREAS, in order to induce Xxxxxx Associates LP, the Company's
placement agent (the "Placement Agent"), to represent the Company in the Private
Placement, each of the Stockholders has agreed to enter into this Voting
Agreement;
WHEREAS, each Stockholder is the record and beneficial owner of the
number of outstanding shares of Common Stock (as reflected on a post reverse
stock split basis) set forth opposite each such Stockholder's name on SCHEDULE A
hereto (with respect to each Stockholder, such Stockholder's "Existing Shares"
and, together with all shares of Common Stock which are acquired by such
Stockholders after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, or over which the
Stockholder has or shares voting power, such Stockholder's "Shares").
NOW, THEREFORE, in consideration of the commencement and consummation
of the Private Placement and the respective representations, warranties,
covenants and agreements set forth in this Agreement, and intending to be
legally bound hereby and thereby, the parties hereto agree as follows:
ARTICLE I: VOTING
1.1 AGREEMENT TO VOTE. Each Stockholder hereby agrees that it shall, at any
Regular or Special meeting of the stockholders of the Company, vote or
consent (in person or by proxy) all of its Shares together with a
majority-in-interest of the executive officers of the Company as they may
be constituted at such time (together, the "Executive Officers"), which as
of the date hereof shall constitute Bollon, with respect to any matter
submitted to a vote, or required to be submitted to a vote, of the
stockholders of the Company.
1.2 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants and agrees
that, except as contemplated by this Agreement, the Stockholder (a) has
not entered, and shall not enter at any time while this Agreement remains
in effect, into any voting agreement or voting trust with respect to the
Shares and (b) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy or power of attorney with respect to
the Shares, in either case, which is inconsistent with such Stockholder's
obligations pursuant to this Agreement.
1.3 LIMITATIONS ON TRANSFERS. Transfers made hereunder shall be expressly
subject to the requirements and restrictions set forth in the
Stockholders' Agreement, dated as of October 31, 2003, by and between the
Company and each of the stockholders named therein) (the "Stockholders'
Agreement"), each Founder's Stock Purchase Agreement, dated as of October
31, 2003, by and between the Company and each of Bollon, Nino, Nino
Partners, Biogress and Texas Tech University (each, a "Founder's Stock
Purchase Agreement") and any Subscription Agreement executed and delivered
by such Stockholder in connection with this Private Placement (each, a
"Subscription Agreement").
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to each other Stockholder as follows:
2.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. Such Stockholder
has full power and authority to execute and deliver this Agreement and to
perform such Stockholder's obligations hereunder. The execution, delivery
and performance by such Stockholder of this Agreement and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by such Stockholder and no other actions or proceedings on the
part of such Stockholder are necessary to authorize the execution and
delivery by it of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by such Stockholder, and, assuming this Agreement
constitutes a valid and binding obligation of each other Stockholder,
constitutes a valid and binding obligation of such Stockholder,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium and
similar laws relating to or affecting creditors generally or by general
equity principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law). If such Stockholder is married and
any of such Stockholder's Shares constitute community property under
applicable laws, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, such
Stockholder's spouse. If this Agreement is being executed in a
representative or fiduciary capacity, the individual or entity signing
this Agreement has the full power and authority to enter into and perform
this Agreement.
2.2 NON-CONTRAVENTION. The execution, delivery and performance by such
Stockholder of this Agreement do not and 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 such Stockholder is a party or by which such
Stockholder (or any of its assets) is bound, except for any such breach,
violation, conflict or default which, individually or in the aggregate,
would not impair or affect such Stockholder's ability to perform such
Stockholder's obligations hereunder.
2.3 SHARES. As of the date hereof, such Stockholder's Existing Shares
constitute all of the shares of Common Stock owned of record or
beneficially by such Stockholder. Such Stockholder has or will have the
voting power, power of disposition, power to issue instructions with
respect to the matter set forth in Section 1.1 hereof, and power to agree
to all of the matters set forth in this Agreement, in each case with
respect to all of such Stockholder's Existing Shares and with respect to
all of such Stockholder's Shares hereafter (unless transferred in
accordance with the Stockholders' Agreement, the founder's Stock Purchase
Agreement and any Subscription Agreement executed and delivered in
connection with the Private Placement), with no limitations,
qualifications or restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
ARTICLE III: GENERAL PROVISIONS
3.1 TERMINATION. This Agreement shall remain in full force and effect until
the date that is two (2) years following the Company's consummation of the
Maximum Offering (provided that this Agreement is not in violation of any
applicable federal or state securities laws). Nothing in this Section 3.1
shall relieve or otherwise limit any party of liability for breach of this
Agreement.
3.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or facsimile, upon confirmation of
receipt, or (b) on the first Business Day following the date of dispatch
if delivered by a recognized next-day courier service. All notices to the
Stockholders hereunder shall be delivered as set forth below each
Stockholder's signature below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice. All
notices to the Placement Agent hereunder shall be delivered to Xxxxxx
Associates, LP, 00 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxx Xxxxxx.
3.3 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart. Signatures transmitted by
facsimile or other comparable means shall be deemed an original.
3.4 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without giving effect
to choice of law principles thereof).
3.5 SEVERABILITY. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
3.6 ASSIGNMENT. Except as expressly provided herein, neither this Agreement
nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto, in whole or in part (whether by
operation of law or otherwise), without the prior written consent of all
of the parties hereto. Any assignment in violation of the preceding
sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns (including, in
the case of an individual, any executors, administrators, estates or legal
representatives of such individual).
3.7 CONSENT TO JURISDICTION. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any Federal court located in the
State of Delaware or any Delaware state court in the event any dispute
arises out of this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court, and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a Federal court sitting in the State of
Delaware or a Delaware state court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or any of the
transactions contemplated by this Agreement in any Federal court located
in the State of Delaware or any Delaware state court, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
3.8 EXPENSES. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
3.9 AMENDMENTS. This Agreement may not be modified or amended, except upon the
execution and delivery of a written agreement executed by the parties
hereto.
3.10 CERTAIN DEFINITIONS. For purposes of this Agreement, the term "beneficial
ownership" (or any similar term) shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934.
IN WITNESS WHEREOF, each of the parties hereto has signed this Agreement
or caused this Agreement to be signed by its respective officers thereunto duly
authorized, all as of the date first written above.
STOCKHOLDERS:
/s/ Xxxxxxx Xxxx
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XXXXXXX XXXX
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000.000.0000
NINO PARTNERS LLC
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Managing Member
Address: 00000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000.000.0000
BIOGRESS LLC
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Principal Member
Address: 15305 Dallas as Parkway, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000.000.0000
ACKNOWLEDGED:
HEMOBIOTECH, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, individually
SCHEDULE A
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STOCKHOLDER
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XXXXXXX XXXX
Number of shares of
Common Stock: 1,086,113
Number of options granted: 0
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NINO PARTNERS LLC
Number of shares of
Common Stock: 2,851,047
Number of options granted: 0
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BIOGRESS LLC
Number of shares of
Common Stock. 217,223
Number of options granted: 0
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