Exhibit 10.9
VOTING AGREEMENT
This VOTING AGREEMENT (this
“ Agreement ”) is made as of the 24
th
day of August, 2004, by
Hopkins Capital Group II, LLC, Dr. Raphael J. Mannino, Donald L.
Ferguson and James A. McNulty (the “ Stockholders
”) in favor of BioDelivery Sciences International, Inc. (the
“ Parent ”) and Mark A. Sirgo and Andrew L. Finn
(the “ Arius Stockholders ”).
WHEREAS , the Parent has entered into an Agreement and
Plan of Merger and Reorganization (the “ Merger
Agreement ”), dated August 10, 2004, by and among Parent,
Arius Acquisition Corp., Arius Pharmaceuticals, Inc. (the “
Company ”), and the Arius Stockholders)
WHEREAS , each of the undersigned will receive
substantial direct and indirect benefit by reason of the
consummation of the transactions (the “ Merger
”) provided for in the Merger Agreement;
WHEREAS , each of the Stockholders is the record and
beneficial owner of such number of shares of Common Stock of Parent
(the “ Common Stock ”) as of the closing of the
Merger as set forth in Exhibit A hereto;
WHEREAS , it is a condition precedent to the entering of
the Merger Agreement by the Company and the consummation of the
Merger that each of the Stockholders shall have executed and
delivered to the Company this Agreement.
NOW, THEREFORE
, in consideration of the covenants
and representations set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by all parties, the parties hereto agree as
follows:
1. Recitals . The recitals to
this Agreement are incorporated herein and made an operative part
of this Agreement.
2. Definitions . Reference is
hereby made to the Merger Agreement, for a statement of the terms
thereof, and each of the undersigned represents and warrants that
it has read and reviewed the Merger Agreement. Unless otherwise
defined herein, all terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed thereto in the
Merger Agreement.
3. Representation and
Warranty . The Stockholders hereby represent and warrant,
jointly and severally, to each of the Arius Stockholders that, as
of the date hereof, the Stockholders hold, in the aggregate,
greater than fifty percent (50%)
