VOTING TRUST AGREEMENT
EXHIBIT
2
THIS AGREEMENT is dated for
reference the 15th day of
July, 2008.
BETWEEN:
Each of
the undersigned shareholders of MIGENIX INC., a company incorporated
pursuant to the laws of British Columbia with an office at 102 – 0000
Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(each a
"Shareholder",
collectively the "Shareholders")
AND:
DJOHNSON HOLDINGS INC., a
company incorporated pursuant to the laws of British Columbia with an office at
1320 – 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X
0X0
("Holdings")
WHEREAS:
A.
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Each
of the Shareholders represents that it is the beneficial owner of fully
paid common shares (the "Common Shares") in the
capital of MIGENIX Inc. (the "Company") as set
opposite their respective names in Schedule "A" attached
hereto;
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B.
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Holdings
represents that it is the beneficial owner of 5,039,000 fully paid common
shares (the "Holdings
Shares") in the capital of the Company;
and
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C.
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Each
of the Shareholders wishes to vest its voting rights in the Common Shares
set forth opposite their respective names in Schedule "A" hereto (the
"Voting Shares")
in Holdings on the terms and conditions contained in this
Agreement.
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NOW THEREFORE, in
consideration of the respective covenants and agreements provided in this
Agreement, and the sum of $1.00 now paid by the parties to each other, and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by the parties), the parties covenant and agree as
follows:
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ARTICLE
ONE
REPRESENTATIONS,
WARRANTIES AND COVENANTS
1.1 Each of the Shareholders respectively
covenant, represent and warrant as follows and acknowledge and confirm that
Holdings is relying upon such covenants, representations and warranties in
connection with the entering into of this Agreement:
(a)
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this
Agreement has been duly executed and delivered by and on behalf of the
Shareholder and constitutes a legal, valid and binding obligation of the
Shareholder enforceable against the Shareholder in accordance with its
terms;
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(b)
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the
Shareholder is the beneficial owner of the Voting Shares set forth
opposite such Shareholders name in Schedule "A" hereto and has the ability
to direct the voting of the Voting
Shares;
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(c)
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neither
the Shareholder nor any other person has granted, issued or provided to
any person a proxy or other instrument or document authorizing or
entitling, or purporting to authorize or entitle, any person to exercise
any voting rights attached to the Voting Shares, including, without
limitation, the right to vote the Voting Shares at any meeting of
shareholders, and the Shareholder will not nor will it permit any other
person to grant, issue or provide any such proxy, combination or document
to any other person other than Holdings or its order as provided
herein;
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(d)
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no
person, firm or corporation other than Holdings has any agreement or
option, or any right or privilege (whether by law, common, pre-emptive or
contractual) capable of becoming an agreement or option for the purchase,
acquisition or transfer of any of the Voting Shares or any interest
therein or any right thereto; and
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(e)
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the
Shareholder has all the necessary power and authority to execute and
deliver this Agreement and to perform or cause to be performed its
obligations hereunder.
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1.2 Holdings covenants, represents and
warrants as follows and acknowledges and confirms that the Shareholders are
relying upon such covenants, representations and warranties in connection with
the entering into of this Agreement:
(a)
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this
Agreement has been duly executed and delivered by and on behalf of
Holdings and constitutes a legal, valid and binding obligation of Holdings
enforceable against Holdings in accordance with its
terms;
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(b)
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Holdings
is the beneficial owner of the Holdings Shares and has the ability to
direct the voting of the Holdings
Shares;
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(c)
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neither
Holdings nor any other person has granted, issued or provided to any
person a proxy or other instrument or document authorizing or entitling,
or purporting to authorize or entitle, any person to exercise any voting
rights attached to the Holdings Shares, including, without limitation, the
right to vote the Holdings Shares at any meeting of
shareholders;
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(d)
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no
person, firm or corporation has any agreement or option, or any right or
privilege (whether by law, common, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase, acquisition or transfer
of any of the Holdings Shares or any interest therein or any right
thereto; and
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(e)
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Holdings
has all the necessary power and authority to execute and deliver this
Agreement and to perform its obligations
hereunder.
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ARTICLE
TWO
VOTING
2.1 Each of the Shareholders hereby
irrevocably constitute, nominate and appoint Holdings, with full power of
appointment and substitution, as the Shareholder's true and lawful
representative and attorney in fact and proxy to appear for, represent and vote
the Voting Shares at all meetings of shareholders of the Company, or any
adjournment(s) thereof, with power to vote upon any and all questions which may
arise at any meeting or meetings and full authority to complete, execute and
deliver on behalf of the Shareholder any and all proxies whether solicited by
management of the Company, Holdings, affiliates of Holdings or otherwise with
respect to the Voting Shares, all in such manner as Holdings may, in Holdings'
sole and absolute discretion, deem fit and advisable, without having any regard
to the interests or subsequent directions of the Shareholder.
2.2 For greater certainty, the Shareholders
agree to refrain from voting the Voting Shares or taking any other action
contrary to the provisions hereof and, without limiting the generality of the
foregoing, shall not pledge, hypothecate, margin, transfer, sell, or otherwise
deal with any of the Voting Shares without the prior written consent of
Holdings.
2.3 By virtue of the power herein granted,
Holdings shall have full power to substitute and appoint one or more attorney or
attorneys under it with the same or more limited powers and such substitute or
substitutes shall have full power to remove and to appoint, and the Shareholders
hereby respectively agree and covenant for its successors and assigns to allow,
ratify and confirm whatsoever Holdings or its substitute or substitutes shall do
or cause to be done by virtue of this appointment. The power of
attorney granted herein shall be irrevocable.
2.4 The Shareholders shall from time to
time and at any time do and cause to be done all acts and execute and cause to
be executed all documents that may be requested in writing by Holdings to enable
or facilitate Holdings to exercise the voting rights appertaining to the Voting
Shares and
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to take
part in and consent to any corporate or shareholders' action not in conflict
with the terms of this Agreement.
2.5 Notwithstanding any other provision
herein, no ballot, proxy or vote by or on behalf of any of the Shareholders, or
any nominee thereof other than Holdings, signed, authorized, cast or exercised
after the date of this Agreement shall be valid unless it is signed, authorized,
cast or exercised by Holdings so as to carry out the provisions of this
Agreement.
2.6
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Holdings
shall vote the Voting Shares and the Holdings Shares as
follows:
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(a)
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for a
slate of directors to be determined by Holdings after consultation with
the Shareholders, which slate of directors shall include the following
persons:
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Name of
Nominees
Xxxxxxx
Xxxxxxx and
Xxxxx
Xxxxxxx;
(b)
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for or
against any matter that Holdings, in its discretion, shall deem necessary
or advisable to give effect to the terms and intent of this
Agreement.
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2.7 Notwithstanding any provision contained
in this Agreement, Holdings covenants and agrees to refrain from voting the
Voting Shares in favour of any resolution to cancel the Voting
Shares.
ARTICLE
THREE
LIABILITY
3.1 Each of the Shareholders agree that
Holdings may act on the opinion or advice obtained from any lawyer, broker or
other expert and shall not be responsible for any loss occasioned by so doing,
and shall incur no liability or responsibility for deciding in good faith not to
act upon such opinion or advice. Holdings shall not incur any
liability or responsibility to any of the Shareholders by reason of any error of
law or mistake or any matter or thing done or omitted to be done under or in
relation to this Agreement except for its own wilful default or gross
negligence.
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ARTICLE
FOUR
DIVIDENDS
4.1 Notwithstanding any other provision
contained in this Agreement, Holdings hereby agrees that the Shareholders shall
be entitled to receive any and all dividends which may be declared on the Voting
Shares from time to time and, except for the voting rights granted hereunder,
shall retain all beneficial right, title and interest in and to the Voting
Shares, on and subject to the terms of this Agreement.
4.2 For greater certainty, the Shareholders
agree to bear any and all expenses, costs, damages and other liabilities arising
out of the acceptance by Holdings of these trusts and, notwithstanding the
generality of the foregoing, the Shareholders shall not before or after
termination of this Agreement commence, maintain or promote any action
whatsoever against Holdings for any action or inaction by Holdings with respect
to exercise of its rights hereunder, including Holdings' right to vote or
refrain from voting the Voting Shares, save and except for any action by the
Shareholders to terminate this Agreement upon fulfillment of the terms and
conditions contained herein.
ARTICLE
FIVE
TERMINATION
5.1 The
rights and obligations of the parties hereunder shall terminate at 5:00 p.m.
(Vancouver time) on December 31, 2008.
ARTICLE
SIX
MISCELLANEOUS
6.1. Appointment of
Holdings. Delivery of a copy of this Agreement by Holdings
shall serve as good and sufficient confirmation of Holdings' appointment
hereunder and Holdings' authority hereunder to act and exercise the rights
provided for herein.
6.2. Further
Assurances. The parties covenant and agree to execute such
further and other documents and instruments and to do such further and other
things as may be necessary to implement and carry out the terms and the full
intent of this Agreement.
6.3. Notice. Any
notice, consent, direction or other instrument required or permitted to be given
under the provisions of this Agreement shall be in writing and may be given by
delivering same or mailing same by prepaid registered mail addressed to the
intended recipient at the address set forth in this Agreement. Any
notice, requisition, consent, direction or other instrument aforesaid, if
delivered, shall be deemed to have been given or made on the day in which it was
delivered and if mailed shall be deemed to have been given or made on the fifth
business day following the date on which it was so mailed. Any party
hereto may give written notice of change of address in the same manner in which
any notice shall thereafter be given to it as above provided at such changed
address.
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6.4. Enurement. This
Agreement shall enure to the benefit of and be binding upon the parties and each
of their heirs, executors, administrators, successors, and permitted
assigns.
6.5. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and the federal
laws of Canada applicable therein and each of the parties hereto exclusively
attorn to the exclusive jurisdiction of the courts in Vancouver, British
Columbia.
6.6. Captions. The
captions appearing in this Agreement have been inserted for convenience of
reference only and in no way define, limit or enlarge the scope or meaning of
this Agreement or any provision hereof.
6.7. Number and
Gender. All references to any party to this Agreement shall be
read with such changes in number and gender as the context hereof or any
reference to the parties shall require.
6.8. Counterparts. This
Agreement may be executed in several parts in the same form and by facsimile or
email transmission and such parts as so executed shall together form one
original Agreement and such parts if more than one shall be read together and
construed as if all the signing parties hereto had executed one copy of this
Agreement.
IN WITNESS WHEREOF this
Agreement shall be effective upon execution hereof by all of the parties
hereto.
Address:
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/s/ Xxxxxx
Xxxx
Xxxxxx
Xxxx
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)
)
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0000
Xx. 0 Xxxx
Xxxxxxxx,
X.X. X0X 0X0
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)
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Address:
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/s/ Lydja
Yue
Lydja
Yue
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)
)
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#512
– 0000 00xx
Xxxxxx XX
Xxxxxxx,
XX X0X 0X0
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)
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The
conditions of this Agreement are hereby accepted by Holdings as of the date
first written above.
/s/ Xxxxxxx Xxxxxxx
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)
)
)
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Authorized
Signatory
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)
)
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SCHEDULE
"A"
Voting
Shares
Migenix
Inc.
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Voting
Shares
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Number
of Common
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Shareholder
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Shares
Held
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Xxxxxx
Xxxx
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2,066,000
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Lydja
Yue
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452,000
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Total
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2,518,000
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