VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT ("Agreement") is made and entered into as
of January 12, 1998, by and between Medical Biology Institute, a California
nonprofit public benefit corporation (the "Shareholder") and HealthMed, Inc., a
Nevada corporation ("Trustee").
This Agreement is made with reference to the following facts and
circumstances:
A. The authorized capital stock of LIDAK Pharmaceuticals, a California
corporation (the "Company"), consists of (i) 99,490,000, no par value per share,
Class A common shares, of which 38,613,799 are issued and outstanding, and such
shares set forth on Schedule 1 have been issued to the Shareholder (the "Class A
Shares"); and (ii) 510,000, no par value per share, Class B common shares, of
which 283,000 are issued and outstanding, and such shares set forth on Schedule
1 have been issued to the Shareholder (the "Class B Shares") (the Class A Shares
and the Class B Shares shall hereinafter be collectively referred to as the
"Shares").
B. The Shareholder wishes to transfer the Shares to Trustee in order to
provide Trustee the full and exclusive power to vote the shares of common stock
of the Company in accordance with the Company's business plan, to elect the
Company's Board of Directors, to manage the Company and to otherwise provide for
the smooth and efficient operation of the Company.
NOW, THEREFORE, in consideration of the covenants and conditions
contained herein, and for other valuable consideration, including, without
limitation (a) the extensive services Trustee has heretofore provided to the
Shareholder, including, without limitation, substantial business consulting
services appertaining or relating to the protection and maximization of the
value of the Shareholder's equity interests, potential equity interests and
prospective equity interests in the Company, including assisting the Shareholder
in the development of comprehensive plans that are believed by Trustee and the
Shareholder to be highly likely to lead to the creation of compelling new
opportunities for the Company and the Shareholder, and (b) as specifically
requested of Trustee by the Shareholder, and hereby acknowledged by the
Shareholder, the extensive services the Trustee is expected to use its best
efforts to provide in the future, in furtherance of the goals of both protecting
and maximizing the equity interests of all shareholders of the Company,
including that of the Shareholder, the parties hereby agree as follows:
1. TRUSTEE. HealthMed, Inc. is hereby appointed as Trustee for the
purposes set forth in and with the powers granted to him by this Agreement, and
Trustee hereby accepts such appointment and agrees to act as Trustee hereunder.
2. TERM OF VOTING TRUST. For a period of ten (10) years following the
date of this Agreement, all of the Shares owned by the Shareholder as of the
date of this Agreement, together with such other Shares that the Shareholder may
purchase or receive from any source
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whatsoever during the term of this Agreement, including but not limited to any
Shares received as a consequence of any event described in Paragraph 3 below,
shall be subject to the provisions of this Agreement (the "Voting Trust").
During said ten (10) year period, the Voting Trust shall be irrevocable, except
as otherwise provided by this Agreement or by the failure to cure a default of
the promissory note appended hereto as Exhibit A (the "Note") and executed in
connection with a Stock Purchase Agreement dated of even date herewith and
appended hereto as Exhibit B. Within two (2) years of the expiration of this
Agreement, the parties may mutually agree to extend the term of the Agreement
for an additional ten (10) year period.
3. ASSIGNMENT OF STOCK TO TRUSTEE. The Shareholder hereby transfers,
assigns and delivers to and deposits with Trustee all of the Shares now owned or
held by it. The Shareholder agrees to deliver to Trustee immediately upon the
execution of this Agreement all certificates evidencing such Shares properly
endorsed for transfer to Trustee. All certificates of Shares transferred to the
Trustee by the Shareholder shall be surrendered to and canceled by the Company,
and the Company shall issue a new certificate to the Trustee, and it shall
appear upon the certificate so issued that it is issued pursuant to this
Agreement. An entry shall be made in the proper books of the Company that the
Trustee is the registered owner of such Shares pursuant to this Agreement, and a
duplicate of this Agreement shall be filed with the Secretary of the Company and
shall, at all times during the term hereof (including any extension(s) hereof),
be open to inspection by any Shareholder or such Shareholder's attorney. Upon
receipt by the Company of the Shareholder's Share certificates and transfer of
the same into the name of the Trustee, the Trustee shall hold the certificates
issued in its name pursuant to the terms of this Agreement, and the Company
shall thereupon issue and deliver to the Shareholder a Voting Trust Certificate,
representing the Shareholder's beneficial interest in the trust herein created,
substantially in the form of Schedules 2 and 3 attached hereto and incorporated
herein by this reference. If at any time during the existence of the Voting
Trust, other or additional Shares are issued by the Company to the Shareholder,
including, without limitation, through the exercise of stock options or
warrants, or any securities issued in respect of or in exchange for all or part
of any Shares owned by the Shareholder or held by Trustee pursuant to the terms
of this Agreement, as a consequence of any merger, reorganization,
recapitalization, reclassification, readjustment, stock split, stock dividend,
or other change in the Company's capital structure, such other or additional
securities likewise immediately shall be assigned, transferred and delivered to
and deposited with Trustee to be held subject to the terms of this Agreement.
All of such shares now or hereafter so transferred, assigned, delivered and
deposited shall be held by Trustee in trust for the uses and purposes herein set
forth, and such shares hereinafter will be referred to as the "Shares."
4. POWERS OF TRUSTEE. During the existence of the Voting Trust, Trustee
shall possess and exercise all rights and powers inuring to such Shares as if it
were the absolute owner and holder of the Shares.
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5. TRUSTEE MAY BE INTERESTED PERSONALLY. Trustee's agents may serve as
director, officer, employee or consultant of the Company, and Trustee may be the
owner of shares of common stock of the Company at any time during the term of
this Agreement with the same rights as he or it would have had if he or it were
not an agent of the Trustee or a Trustee hereunder, respectively, and,
irrespective of whether such Trustee is an owner of any shares of common stock
of the Company, may vote or cause votes to be cast in favor of its agent's(s')
own election, appointment or employment as such director, officer, employee or
consultant.
6. COMPENSATION OF TRUSTEE. Trustee shall not be entitled to
compensation for its services as Trustee hereunder.
7. LIABILITY OF TRUSTEE; INDEMNITY. Trustee shall not be liable for any
error of judgment nor for any act of commission or omission, nor for any mistake
of law or fact, nor for anything it may do or refrain from doing in good faith,
nor generally shall it have any accountability hereunder, except for its own
willful misconduct or gross negligence. The Shareholder hereby agrees to
indemnify and defend Trustee from and against any and all claims, demands,
losses, costs, and expenses, including but not limited to attorneys' fees and
costs paid or incurred by Trustee, and any and all liability therefor, that
Trustee may sustain or incur in connection with any action taken in accordance
with the provisions of this Agreement, except for matters arising from Trustee's
own willful misconduct or gross negligence. Trustee hereby agrees to indemnify
and defend the Shareholder from and against any and all claims, demands, losses,
costs, and expenses, including but not limited to attorneys' fees and costs paid
or incurred by the Shareholder, and any and all liability therefor, that the
Shareholder may sustain or incur in connection with any action taken in
accordance with the provisions of this Agreement, except for matters arising
from the Shareholder's own willful misconduct or gross negligence.
8. TRANSACTIONS BY SHAREHOLDER. During the term of this Agreement, the
Shareholder shall not have the right nor shall it attempt to sell, assign,
hypothecate, encumber or transfer or in any other manner dispose of any of the
Shares or any interest therein, including but not limited to the Voting Trust
Certificate(s) representing such Shares; provided, however, that the Shareholder
may publicly sell Shares in the public market upon the following conditions: (i)
the Shareholder shall provide written notice to the Trustee at least twenty-four
(24) hours prior to any sale of the Shares, and (ii) the number of Shares to be
sold by the Shareholder in any thirty (30) day period shall not exceed twenty
percent (20%) of the number of Shares deposited by the Shareholder in this trust
pursuant to the terms of this Agreement. Upon the sale of the Shares as herein
provided the certificates representing the Shares sold hereby and in the hands
of Trustee shall be assigned to the Shareholder or purchaser of the Shares.
9. FILING OF COPY OF AGREEMENT WITH THE COMPANY. An executed copy of
this Agreement shall be filed in the office of the Company and be subject to
inspection by all the shareholders of the Company.
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10. TERMINATION AND IRREVOCABILITY OF TRUST. The Voting Trust shall
terminate upon the first to occur of the following events: (i) upon the
expiration of its ten (10) year term, unless extended, as provided by Section 2
of this Agreement, (ii) upon the written consent of Trustee and Shareholder,
(iii) an uncured default on the Note, (iv) in the event of the resignation of
Trustee, or (v) the death of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the presently qualified and
acting President of Trustee. Upon the termination of the Voting Trust the
certificates representing all of the Shares held under this Agreement and then
remaining in the hands of Trustee shall be assigned to the Shareholder then
entitled thereto.
11. MISCELLANEOUS.
(a) Notices. Any notices which any party is required or may
desire to give to any other party or parties under this Agreement shall be in
writing, and shall be given by addressing the same to such other party or
parties at the address(es) set forth below, and by depositing the same so
addressed, postage prepaid, certified mail, return receipt requested, in the
United States mail, by delivering the same personally to such other party or
parties or by electronic facsimile. A party may change the address for the
service of notice by written notice given to the other parties in the manner
herein provided.
If to Shareholder:
Medical Biology Institute
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Trustee:
HeatlhMed, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Parties in Interest; Assignment.
(i) Neither this Agreement nor any of the Shareholder's or
Trustee's rights hereunder shall be assigned by such party without the prior
written consent of the other party, except that Trustee may assign its rights
and obligations hereunder to an entity to be formed or caused to be formed by
Trustee.
(ii) Subject to the conditions on assignment, this Agreement
and all the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
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(c) No Third Party Beneficiaries. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or entity, whatsoever, other than the parties hereto and their permitted
successors or assigns, any rights or remedies under or by reason of this
Agreement.
(d) Counterparts. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Validity and Severability. The provisions of this
Agreement are severable and if any provision, clause, sentence, section or part
thereof is held to be illegal, invalid, unconstitutional or inapplicable to any
person or circumstance, such illegality, invalidity, unconstitutionality or
inapplicability shall not affect or impair any of the remaining provision(s),
sentence(s), clause(s), section(s) or part(s) of the Agreement, Trustee, or the
Shareholder or to other persons or circumstances. It is understood and agreed
that the terms, conditions, and covenants of this Agreement would have been
made, entered into and this Agreement executed by all parties if such illegal,
invalid or unconstitutional provisions, sentences, clauses, sections or parts
had not been included therein. To the extent that a portion or part of this
Agreement may be invalid, but may be made valid by the striking of certain words
or phrases, such words or phrases shall be deemed to be stricken and the
remainder of the other portions of this Agreement shall remain in full force and
effect.
(f) Governing Law. This Agreement shall be construed and
governed by the laws of the State of California and the invalidity and
unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision. The parties hereby consent to the
jurisdiction of the federal and state courts located in either the county of Los
Angeles or San Diego, California, for any action or suit arising out of this
Agreement, and waive any defense to such jurisdiction, including, without
limitation, any defense based on venue or inconvenient forum.
(g) Headings. The headings herein are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(h) Entire Agreement, Amendments and Waiver. This Agreement,
recitals, Schedules, any amendments hereto or thereto, and the other writings
referred to herein or therein or delivered pursuant hereto or thereto which form
a part hereof or thereof contain the entire understanding of the parties with
respect to the subject matter hereof. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by all of the parties hereto. Any condition to a party's obligations hereunder
may be waived in writing by such party to the extent permitted by law.
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(i) Specific Performance. The Shareholder and Trustee
acknowledge that, in view of the uniqueness of the Company's business, a party
hereto would not have an adequate remedy at law for money damages in the event
the other party breached any of the terms of this Agreement and, therefore, the
parties agree that each party shall be entitled to specific enforcement against
the other party for performance of the terms hereof in addition to any other
remedy to which it may be entitled at law or in equity, and in any such action
or proceeding the responding party(ies) will not raise or tender any defense to
the effect that the petitioning party has an adequate remedy at law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
"SHAREHOLDER"
MEDICAL BIOLOGY INSTITUTE
By:_______________________________________
▇▇▇▇▇ ▇▇▇▇, M.D.
Its: President
By:_______________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chairman of the Board
"TRUSTEE"
HEALTHMED, INC.
By:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President & Secretary
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SCHEDULE 1
Shareholder
No. Shares of Stock Deposited
MEDICAL BIOLOGY INSTITUTE 151,900 Class A Shares
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SCHEDULE 2
Voting Trust Certificate
No. 001 151,900 Shares of Class A Stock
LIDAK PHARMACEUTICALS
VOTING TRUST CERTIFICATE
This is to certify that Medical Biology Institute ("Certificate
Holder") has transferred to the person now and hereafter listed as voting
trustee (the "Trustee") on the signature page of that certain Voting Trust
Agreement, dated January 12, 1998, or any extension thereof (the "Voting Trust
Agreement") the above-stated number of shares of stock of LIDAK Pharmaceuticals,
a California corporation ("Corporation"), to be held by the Trustee pursuant to
the terms of the Voting Trust Agreement. The Certificate Holder, or his/her/its
permitted successor or successors-in-interest, is entitled to all of the rights
accorded the Certificate Holder under the terms of the Voting Trust Agreement.
THE SALE, ASSIGNMENT, HYPOTHECATION, ENCUMBRANCE OR TRANSFER OF THIS
VOTING TRUST CERTIFICATE IS RESTRICTED BY THE VOTING TRUST AGREEMENT, A COPY OF
WHICH HAS BEEN FILED WITH THE SECRETARY OF CORPORATION.
Dated as of January 12, 1998.
VOTING TRUSTEE:
HEALTHMED, INC.
By:_________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President & Secretary
MEDICAL BIOLOGY INSTITUTE No. Shares of Class A Stock Deposited
By:____________________________ 151,900
▇▇▇▇▇ ▇▇▇▇, M.D.
Its: President
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SCHEDULE 3
Voting Trust Certificate
No. 001 ________ Shares of Class B Stock
LIDAK PHARMACEUTICALS
VOTING TRUST CERTIFICATE
This is to certify that Medical Biology Institute ("Certificate
Holder") has transferred to the person now and hereafter listed as voting
trustee (the "Trustee") on the signature page of that certain Voting Trust
Agreement, dated January 12, 1998, or any extension thereof (the "Voting Trust
Agreement") the above-stated number of shares of stock of LIDAK Pharmaceuticals,
a California corporation ("Corporation"), to be held by the Trustee pursuant to
the terms of the Voting Trust Agreement. The Certificate Holder, or his/her/its
permitted successor or successors-in-interest, is entitled to all of the rights
accorded the Certificate Holder under the terms of the Voting Trust Agreement.
THE SALE, ASSIGNMENT, HYPOTHECATION, ENCUMBRANCE OR TRANSFER OF THIS
VOTING TRUST CERTIFICATE IS RESTRICTED BY THE VOTING TRUST AGREEMENT, A COPY OF
WHICH HAS BEEN FILED WITH THE SECRETARY OF CORPORATION.
Dated as of January 12, 1998.
VOTING TRUSTEE:
HEALTHMED, INC.
By:_________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President & Secretary
MEDICAL BIOLOGY INSTITUTE No. Shares of Class B Stock Deposited
By:____________________________ ___________
▇▇▇▇▇ ▇▇▇▇, M.D.
Its: President
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EXHIBIT A
10
EXHIBIT B
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