VOTING TRUST AGREEMENT
THIS
VOTING TRUST AGREEMENT (“Agreement”) is made and entered into by and between
Yinshing Xxxxx To (“Holder”), shareholder of Discovery Technologies, Inc.
(“Corporation”), and Xxx Xx (“Voting Trustee”) as of December 24,
2007.
RECITALS:
WHEREAS,
Holder owns 6,535,676 shares (the “Shares”) of the Corporation’s $0.001 par
value per share common stock (the “Common Stock”); and
WHEREAS,
Holder and Voting Trustee have entered into a Call Option Agreement dated as
of
the date hereof, pursuant to which the Voting Trustee has the right to acquire
Holder’s Shares;
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
obligations set forth herein, the parties agree as follows:
1. Voting
Trust.
1.1. Creation
of Voting Trust.
The
Voting Trustee, is hereby appointed voting trustee under the voting trust
created by this Agreement. During the term of this Agreement the Voting Trustee
shall act as voting trustee in respect to the Shares, with all the powers,
rights and privileges and subject to all the conditions and covenants
hereinafter set forth.
1.2. Deposit
of Shares.
Within
ten days after the execution and delivery of this Agreement, the Holder will
assign and transfer, or cause to be assigned and transferred, to Guzov Ofsink,
LLC, as collateral agent (the “Collateral Agent”), all shares of the Shares. The
Holder shall deposit with the Collateral Agent the certificates representing
such Shares, duly endorsed in blank or accompanied by stock powers or other
instruments of assignment duly executed in blank, free and clear of any liens,
claims, encumbrances or other rights of third parties.
1.3. Delivery
of Voting Trust Certificates.
Upon
receipt by the Collateral Agent of the certificates for the Shares, the Shares
shall be held in trust by the Voting Trustee, through the Collateral Agent,
subject to the terms and conditions of this Agreement and shall deliver or
cause
to be delivered to Holder one or more voting trust certificates (“Voting Trust
Certificates” or “Certificates”), in the form provided for in Section 2.1,
representing in the aggregate the total number of Shares deposited by
Holder.
1.4. Issue
of Share Certificates To Voting Trustee.
The
certificates representing the Shares shall be surrendered by the Voting Trustee
to the Corporation and cancelled, and new certificates representing the Shares
shall be issued by the Corporation to and in the name of the Voting Trustee,
and
the fact that such certificates are issued pursuant to this Agreement shall
be
noted by the Corporation on its stock transfer records. The Voting Trustee
is
authorized and empowered to cause to be made any further transfers of the Shares
which may become necessary through the occurrence of any change of persons
holding the office of Voting Trustee.
1.5. Acceptance
of Trust.
The
Voting Trustee accepts the trust created hereby in accordance with all of the
terms and conditions contained in this Agreement. The Shares shall be held
by
the Voting Trustee for the purposes of and in accordance with this Agreement,
and none of the Shares, or any interest therein, shall be sold or otherwise
disposed of, pledged or encumbered by the Voting Trustee, except as provided
in
this Agreement and in the Call Option Agreement dated as of the date of this
Agreement to which the Shares are subject (the “Option”).
2. Voting
Trust Certificates.
2.1. Form.
The
Voting Trust Certificates to be issued and delivered by the Voting Trustee
under
this Agreement in respect of the Shares shall be substantially in the following
form, with such changes therein consistent with the provisions of this Agreement
as the Voting Trustee and the Holder may from time to time approve:
THIS
CERTIFICATE AND THE SECURITIES REPRESENTED BY IT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE AND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
OFFERED FOR SALE OR OTHERWISE DISPOSED OF UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT OR OTHER QUALIFICATION RELATING TO THE CERTIFICATE AND
SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE CORPORATION AND VOTING TRUSTEES RECEIVE AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION AND VOTING TRUSTEES THAT SUCH
REGISTRATION OR OTHER QUALIFICATION UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
TRANSFER, SALE, OFFER OR DISPOSITION.
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No.
_________________________
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_________________________Shares
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VOTING
TRUST CERTIFICATE FOR COMMON
STOCK
OF
[CORPORATION], (the “Corporation”)
THIS
IS
TO CERTIFY THAT:
1. This
voting trust certificate is issued pursuant to, and the rights of the holder
hereof are subject to the terms and conditions of, a Voting Trust Agreement
(the
“Voting Trust Agreement”) dated [DATE] among [SHAREHOLDERS] (“Holder”) as
shareholders of [CORPORATION] (“Corporation”), and [TRUSTEE] (“Voting Trustee”).
Copies of the Voting Trust Agreement are kept on file by the Voting Trustee
in
their offices at [ADDRESS], have been deposited with the Corporation at its
registered office (or with the officer or agent having charge of its stock
transfer books), and are open to inspection in accordance with the requirement
of law.
2. By
acceptance of this certificate, the Holder thereof, and every transferee, agrees
to be bound by the terms of this certificate and of the Voting Trust
Agreement.
3. Upon
the
termination of the Voting Trust Agreement, the Holder shall be entitled to
receive a certificate or certificates for shares upon the release of such shares
pursuant to Section 8.2 of the Voting Trust Agreement. Until such receipt or
release the Holder shall from time to time be entitled to receive from the
Voting Trustee dividends and distributions payable in cash and property other
than voting stock of the Corporation, if any, received by or for the account
of
the Voting Trustee upon such shares. If the Voting Trustee shall receive any
additional shares issued by way of dividend upon, or in exchange for the
certificates for shares represented by this certificate, or upon the exercise
of
any right of subscription pursuant to Section 3.3 of the Voting Trust Agreement,
the Voting Trustee shall hold such shares in accordance with the terms of the
Voting Trust Agreement and shall issue Voting Trust Certificates in respect
thereof.
4. Until
the
re-transfer to the Holder hereof of certificates for the shares represented
by
this certificate, the Voting Trustee shall possess and be entitled to exercise
all rights and powers to vote the shares as provided in the Voting Trust
Agreement, and no Holder of this certificate shall in such capacity have any
rights or powers to vote such shares.
5. This
certificate is transferable only on the books of the Voting Trustee to be kept
by them, or their agents, upon surrender hereof (duly endorsed in blank or
accompanied by a proper instrument or assignment duly executed in blank,
together with all requisite transfer tax stamps attached thereto and an amount
sufficient to pay all Federal, state and local taxes or other governmental
charges, if any, then payable in respect of such transfer) by the registered
Holder in person or by such Holder's duly authorized attorney. Until this
certificate is so transferred, the Voting Trustee may treat the registered
Holder hereof as the absolute owner hereof for all purposes whatsoever. The
rights and powers to transfer this certificate are expressly limited by and
subject to the transfer restrictions contained in the Voting Trust
Agreement.
6. This
certificate is not valid unless signed by the Voting Trustee.
The
undersigned Voting Trustee have caused this certificate to be signed this
[DATE].
________________________________
_________________________,
Trustee
________________________________
_________________________,
Trustee
2.2. Restrictions
on Certificate Transfers
2.2.1. Applicability
of Restrictions.
The
restrictions on transfer of Voting Trust Certificates are intended to apply
during the term of the voting trust created under in this
Agreement.
2.2.2. Restriction
on Lifetime Disposition.
Holder
shall not dispose of (and the terms “dispose of” and “disposition” as used in
this Agreement mean any sale, transfer, assignment, pledge, mortgage,
distribution or other form of disposition or conveyance, whether voluntary,
involuntary, or by operation of law, and whether testamentary or inter vivos)
all or any part of his interest in a Voting Trust Certificate issued hereunder
except under the conditions set forth in this Agreement. Until the termination
of this Agreement, each Voting Trust Certificate shall remain subject to this
Agreement even though an offer or offers are made under this Agreement but
not
accepted. Any transfer of a Voting Trust Certificate shall result in its
immediate cancellation.
3. Dividends
and Distributions; Subscriptions.
3.1. Dividends
or Distributions Payable in Cash or Other Property.
The
Voting Trustee shall, from time to time, pay or cause to be paid to Holder,
his
pro rata share of any dividends or distributions payable in cash or property,
other than voting stock of the Corporation, collected by the Voting Trustee
upon
the Shares deposited hereunder. For the purpose of making any such payment,
or
for any other purpose, the Voting Trustee may, in his discretion, fix such
date
as they may reasonably determine as a record date for the determination of
persons entitled to any payments or other benefits hereunder, or order their
transfer books closed for such period or periods of time as they shall deem
proper.
3.2. Share
Dividends or Distributions.
The
Voting Trustee shall receive and hold, subject to the terms of this Agreement,
any voting stock of the Corporation issued in respect of the Shares by reason
of
any recapitalization, share dividend, split, combination or the like and shall
issue and deliver Voting Trust Certificates therefor to the Holder.
4. Matters
Relating to Administration of Voting Trust; Voting.
4.1. Action
by Voting Trustee.
The
Voting Trustee shall possess and be entitled, subject to the provisions hereof,
in his discretion, to exercise all the rights and powers of absolute owners
of
all Shares, including, but without limitation, the right to receive dividends
on
Shares, and the right to vote, consent in writing or otherwise act with respect
to any corporate or shareholders' actions. Such corporate or shareholders'
actions include but are not limited to any increase or reduction in the stated
capital of the Corporation, any classification or reclassification of any of
the
shares as now or hereafter authorized into preferred or common stock or other
classes of shares with or without par value, any amendment to the Articles
of
Incorporation or Bylaws, any merger or consolidation of the Corporation with
other corporations, any sale of all or any part of its assets, and the creation
of any mortgage or security interest in or lien on any property of the
Corporation. It is expressly stipulated that no voting right shall pass to
others by or under the Voting Trust Certificates, or by or under this Agreement,
or by or under any other express or implied agreement.
4.2. Indemnification.
The
Holder shall indemnify and hold the Voting Trustee harmless from and against
any
and all liabilities, losses, costs, and expenses, including reasonable
attorneys' fees, in connection with or arising out of the administration of
the
voting trust created by this Agreement or the exercise of any powers or the
performance of any duties by them as herein provided or contemplated, to the
fullest extent permitted under the law.
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Holder
of Voting Trust Certificates Bound.
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All
Voting Trust Certificates issued under this Agreement shall be issued, received,
and held subject to all of the terms of this Agreement. Every registered Holder
of a Voting Trust Certificate, and every bearer of a Voting Trust Certificate
properly endorsed in blank or properly assigned, by the acceptance or holding
thereof shall be deemed conclusively for all purposes to have assented to this
Agreement and to all of its terms, conditions and provisions and shall be bound
by this Agreement with the same force and effect as if such Holder or bearer
had
been originally a party to this Agreement.
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Dissolution
of Corporation.
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In
the
event of the dissolution or total or partial liquidation of the Corporation,
whether voluntary or involuntary, the Voting Trustee shall receive the moneys,
securities, rights or property to which the Holder of Shares are entitled,
and
shall distribute the same to the Holder.
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Reorganization
of Corporation.
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In
case
the Corporation is merged into or consolidated with another corporation, or
all
or substantially all of the assets of the Corporation are transferred to another
corporation, then in connection with such transfers the term “Corporation” for
all purposes of this Agreement shall be taken to include such successor
corporation, and the Voting Trustee shall receive and hold under this Agreement
any voting stock of such successor corporation received on account of the
ownership, as Voting Trustee hereunder, of Shares held hereunder prior to such
merger, consolidation or transfer. Voting Trust Certificates issued and
outstanding under this Agreement at the time of such merger, consolidation
or
transfer may remain outstanding, or the Voting Trustee may, in their discretion,
substitute for such Voting Trust Certificates new voting trust certificates
in
appropriate form, and the term “Shares” as used herein shall be taken to include
any shares which may be received by the Voting Trustee in lieu of all or any
part of the shares of the Corporation.
8. Termination;
Release of Shares.
This
Agreement shall have the same term as the Option and shall terminate only upon
the termination of the Option.
| 8. |
Amendments.
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This
Agreement may be amended or terminated at any time by an instrument in writing
duly executed and acknowledged by the Holder and the Voting
Trustee.
| 9. |
Miscellaneous.
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9.1. Benefits
of this Agreement; Survival.
The
terms of this Agreement shall be binding upon and inure to the benefit of and
shall be enforceable by the Holder, the Voting Trustee, and their respective
successors and assigns.
9.2. Notice.
Any
notice, request, offer, acceptance or other communication permitted or required
to be given hereunder to the Holder or the Voting Trustee shall be sent by
certified mail or by courier service, return receipt requested, or
hand-delivered to such person at the address set forth below:
Holder:
Voting
Trustee:
or
at
such other addresses as may be established by notice hereunder. Any notice
so
given shall be deemed effective at the time of delivery indicated on the duly
completed postal service or courier receipt or when hand-delivered.
9.3. Severability.
In case
any provision of this Agreement shall be held to be invalid or unenforceable
in
whole or in part, neither the validity nor the enforceability of the remainder
of this Agreement shall be in any way affected.
9.4. Descriptive
Headings; Gender.
The
headings in this Agreement are for the convenience of reference only and shall
not limit or otherwise affect the provisions hereof. The use of the masculine
gender shall be deemed to include the feminine and neuter gender.
9.5. Counterparts
of this Agreement.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
9.6. Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of New
York.
The
respective parties have caused this Agreement to be executed as of the date
first above written.
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Voting
Trustee:
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/s/ Xxx Xx
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Xxx Xx
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Holder:
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/s/Yinshing Xxxxx To
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Yinshing Xxxxx To
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