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EXHIBIT B
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT made in Chicago, Illinois, as of February
9, 2000 by and among, Xxxxxxx Xxxxxx as Voting Trustee ("Voting Trustee"),
Xxxxxx X. Xxxxxxxxx ("SJP") and Xxxxxxx Xxxxxxxxx ("SP").
WITNESSETH:
WHEREAS, SJP is the owner of 2,774,600 shares (the "SJP Contributed
Stock") of the common stock (the "Common Stock"), $.001 par value per share, of
LEXON Technologies Inc., a Delaware corporation (the "Company");
;
WHEREAS, SP is the owner of 1,227,100 shares (the "SP Contributed
Stock," with the SJP Contributed Stock and the SP Contributed Stock being
hereinafter sometimes collectively referred to as the "Contributed Stock") of
Common Stock;
WHEREAS, it is a condition precedent to the obligations of Xxxxxxx
Xxxxxx (the "Buyer') to purchase shares of Common Stock pursuant to the terms of
that certain Stock Purchase Agreement, dated as of February 9, 2000 by and among
SJP, the Company and the Buyer (the "Purchase Agreement");
WHEREAS, each of SJP and SP acknowledge and agree that due to their
substantial ownership of the Common Stock of the Company they will each directly
benefit from the transactions contemplated by the Stock Purchase Agreement and
that such benefits constitute consideration for their respective agreements
contained herein;
WHEREAS, SJP and SP hereto have agreed upon the identity of the Voting
Trustee, and upon the form of this Agreement; and
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WHEREAS, the Voting Trustee has consented to act under this Agreement
for the purposes herein provided.
NOW, THEREFORE, in consideration of the foregoing, the agreement by
Xxxxxxx Xxxxxx to serve as Voting Trustee, the agreement of SJP and SP to
transfer the Stock to the Voting Trustee, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Copies of this Agreement, and of every agreement supplemental hereto
or amendatory hereof, shall be filed in the principal office of the Company in
Chicago, Illinois, and shall be open to the inspection of any stockholder of the
Company, or any beneficiary of the trust under this Agreement, daily during
business hours. All voting trust certificates ("VT Certificates") issued as
hereinafter provided shall be issued, received and held subject to all the terms
of this Agreement. Every person, firm or corporation entitled to receive VT
Certificates, and their transferees and assigns, upon accepting the VT
Certificates issued hereunder, shall become parties to and be bound by the
provisions of this Agreement with the same effect as if they had executed the
Agreement.
2. Transfer of Stock to Trustee. Concurrent with the execution of this
Agreement, each of SJP and SP have deposited with the Voting Trustee
certificates representing the SJP Contributed Stock (such certificate or
certificates, the "SJP Certificate(s)") and the SP Contributed Stock (such
certificate or certificates, the "SP Certificate(s)"), respectively, together
with any and all documentation necessary to transfer the Stock into the name of
the Voting Trustee.
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All certificates representing shares of Common Stock so delivered to
the Voting Trustee pursuant to this Agreement shall be surrendered by the Voting
Trustee to the Company or its transfer agent with instructions to cancel such
certificates and to issue new certificates for the full number of shares of
Common Stock represented thereby as follows:
(a) with respect to the SJP Certificate(s):
(i) one certificate representing the SJP
Contributed Stock issued to "Xxxxxx Xxxxxx,
as Voting Trustee under Voting Trust
Agreement dated February 9, 2000;" and
(ii) one certificate representing such number of
shares of Common Stock as is determined by
subtracting the SJP Contributed Stock from
the total number of shares of Common Stock
represented by the SJP Certificate(s).
(b) with respect to the SP Certificate(s):
(i) one certificate representing the SP
Contributed Stock issued to "Xxxxxxx Xxxxxx,
as Voting Trustee under Voting Trust
Agreement dated February 9, 2000;" and
(ii) one certificate representing such number of
shares of Common Stock as is determined by
subtracting the SP Contributed Stock from
the total number of Common Stock represented
by the SP Certificate(s).
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It is understood by and agreed among the parties that all certificates issued
upon cancellation of the SJP Certificate(s) and the SP Certificate(s) shall
continue to bear any restrictive or other legends which appeared on the SJP
Certificate(s) or the SP Certificates, as the case may be.
3. The VT Certificates. The VT Certificates to be issued and delivered
by the Voting Trustee in respect of the Stock as hereinbefore provided shall be
in substantially the form of Exhibit A hereto. The Trustee may, from time to
time, make such changes in the form of the VT Certificate as he deems necessary
or advisable, provided that such changes shall not be inconsistent with this
Agreement.
4. Transfer of Certificates. The VT Certificates shall be transferable
on the books of the Voting Trustee by the registered holder thereof, either in
person or by attorney thereto duly authorized, upon surrender thereof according
to the rules established for that purpose by the Voting Trustee; and the Voting
Trustee may treat the registered holder of a VT Certificate as owner thereof for
all purposes whatsoever, but the Voting Trustee shall not be required to deliver
certificates representing the Stock without the surrender of the VT Certificates
issued in respect of such Stock. Every transferee of a VT Certificate or VT
Certificates issued hereunder, or of all or any part of the rights under such VT
Certificates, or of all or any part of the rights related to the shares of Stock
represented by such VT Certificates shall, by the acceptance thereof, become a
party to this Agreement and shall be bound by the terms and provisions of this
Agreement to the same full extent as if such person were an original party
hereto.
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The VT Certificates to be issued hereunder have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or the
securities laws of any state, including Illinois, in reliance on exemptions
contained therein. The Stockholders represent that they are acquiring the VT
Certificates to be issued to them hereunder for their own account and for
investment purposes only, and not with a view to resale or further distribution
thereof in whole or in part. The holders of any VT Certificates issued hereunder
agree that they will not sell or otherwise transfer any of such VT Certificates
or any rights thereunder except in accordance with the provisions of any
applicable law, including the Securities Act, any applicable state securities
laws, and any rules or regulations thereunder. In order to ensure compliance
with such laws, as a condition of making or permitting any transfer or delivery
of the VT Certificates hereunder or of any rights thereunder, the Voting Trustee
may require the transferee to deliver written representations of the transferee
similar to the representations of the Stockholders contained herein and may
further require the delivery of a written opinion, addressed to the Voting
Trustee, of counsel satisfactory to the Voting Trustee to the effect either that
the VT Certificates, or rights thereunder, proposed to be transferred have been
duly registered under the Securities Act and any applicable state securities law
or that no such registration is required.
5. Dividends, Distributions and Recapitalizations. The Voting Trustee
shall collect and receive all dividends or other distributions that may accrue
or be paid upon the Stock or other securities subject to this Agreement and
shall, as of the date of distribution of such dividend or other distribution,
divide and pay the same among the holders of VT Certificates. Payments of
dividends
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or other distributions to the holders of VT Certificates shall be in proportion
to the number of shares of Stock respectively represented by their VT
Certificates.
If any dividend or other distribution in respect of the Stock
deposited hereunder is paid in securities of the Company having any voting
powers, then the Voting Trustee shall hold, subject to the terms of this
Agreement, the certificates representing such securities and shall, as of the
date of distribution of such dividend or other distribution, issue additional VT
Certificates representing in the aggregate the number of shares and class or
series of stock or other securities so received. Issuance of additional VT
Certificates to the holders of existing VT Certificates shall be in proportion
to the number of Shares of Stock respectively represented by their existing VT
Certificates among the holders of VT Certificates registered as such on the
transfer books of the Voting Trustee at the close of business on the record date
fixed by the Company for the distribution of such dividend or other
distribution.
Notwithstanding anything herein to the contrary, if and to the
extent that the Company shall at any time during the term of this Agreement have
issued and outstanding more than one class or series of Stock and shall declare
and pay any dividend or other distribution (i) with respect to less than all
series or classes of Stock, or (ii) disproportionately among different series or
classes of Stock; the Voting Trustee shall make such adjustments to the payments
or VT Certificates distributed hereunder as are necessary to appropriately
reflect the relative rights of the shares of capital stock or other securities
represented by existing VT Certificates.
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6. Subscription Rights. If any capital stock or other securities of the
Company are offered for subscription to the holders of Stock deposited
hereunder, the Voting Trustee, upon receipt of a request from any registered
holder of VT Certificates to subscribe on such holder's behalf, accompanied with
the sum of money required to pay the subscription price for such capital stock
or other securities, shall make such subscription and payment and:
(a) if such capital stock or other securities have no
voting rights associated therewith, instruct the
Company to issue a certificate representing the
appropriate amount of such capital stock or other
securities in the name of each holder upon whose
behalf a subscription was made; or
(b) if such capital stock or other securities have any
voting rights associated therewith, retain such
capital stock or other securities pursuant to the
terms of this Agreement and, upon receipt of the
certificates representing the same, issue a VT
Certificate representing the appropriate amount of
such capital stock or other securities to each holder
upon whose behalf a subscription was made.
7. Rights of Voting Trustee. For so long as any Stock shall remain
subject to the terms of this Agreement, the Voting Trustee shall have the right
to exercise, in person or by proxy, all voting rights and powers in respect of
such Stock. The right to vote shall include the right to vote for the election
of directors and in favor of or against any resolution or proposed action of any
character whatsoever which may be presented at any meeting of, or require the
consent of, stock-
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holders of the Company. Without limiting such general right, such action or
proceeding may include the sale or mortgaging and pledging of all or any part of
the property of the Company, for cash, securities or other property, and the
dissolution of the Company, or the consolidation, merger, reorganization or
recapitalization of the Company.
The Voting Trustee may act as, and receive compensation as, a
director or officer of the Company or of any controlled or subsidiary or
affiliated corporation, or be otherwise associated therewith; and he, or any
firm of which he may be a member, or any corporation or association of which he
may be a stockholder, director or officer, or any such firm, corporation or
association in which he may be otherwise directly or indirectly interested, may
to the extent permitted by law, and without liability in any way or under any
circumstances by reason thereof, contract with the Company or with any
controlled or subsidiary or affiliated corporation, or be or become pecuniarily
interested in any matter or transaction to which the Company or any controlled
or subsidiary or affiliated corporation may be a party or in which the Company
or any controlled or subsidiary or affiliated corporation may in any way be
concerned, as fully as though he were not Voting Trustee hereunder.
The Voting Trustee shall not be personally responsible with
respect to any action taken pursuant to his vote cast in any matter or act
committed, or omitted to be done, under this Agreement, provided such commission
or omission does not amount to willful misconduct on his part, and provided also
that the Voting Trustee at all times exercises good faith in such matters. The
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Voting Trustee shall not be required to give any bond or security for the
discharge of his duties as Voting Trustee hereunder.
8. Term and Termination. This Agreement shall be effective as of the
date hereof and shall continue in full force and effect until February 9, 2001,
unless earlier terminated as provided below (the effective date of any such
termination being hereinafter the "Termination Date"). Notwithstanding the
foregoing, this Agreement may be terminated (a) at the joint election of SJP and
SP (such election to be evidenced by a written instrument delivered to the
Voting Trustee stating the effective date of such termination and signed by both
of SJP and SP) at any time after September 1, 2000 if and only if that certain
Common Stock Purchase Warrant (the "Warrant), dated February 9, 2000, entitling
the holder thereof to purchase up to 2,600,000 share of Common Stock shall not
have been fully exercised prior to the Termination Date (as defined in the
Warrant), or (b) at any time at the election of the Voting Trustee by delivery
of a notice of termination (specifying the effective date of such termination)
to the registered holders of VT Certificates at their respective addresses as
appearing on the transfer books of the Voting Trustee.
9. Termination Procedure. From and after the Termination Date, the VT
Certificates shall cease to have any effect, and the holders of the VT
Certificates shall have no further rights under this Agreement other than to
receive certificates representing shares of stock or other property
distributable under the terms hereof and upon the surrender of such
Certificates.
At any time after the Termination Date, the registered holders of VT
Certificates may deliver the same to the Voting Trustee together with
instructions from the registered holder to cancel such
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VT Certificates and to deliver or cause to be delivered to such registered
holder a certificate representing the shares of Stock, or if other property is
then being held pursuant to the terms of this Agreement, such other property,
distributable in respect of such VT Certificate under the terms hereof.
Within fifteen (15) days of receipt of a VT Certificate together with
the instructions specified above, the Voting Trustee shall distribute, or take
such action as is necessary to cease the distribution of, the Stock or other
property represented by such VT Certificate.
At any time subsequent to thirty (30) days after the Termination Date,
the Voting Trustee may deposit with the Company certificates representing the
number of shares of Stock together with any other property represented by the VT
Certificates not then surrendered to the Voting Trustee; and upon such deposit,
all further liability of the Voting Trustee under this Agreement, including, but
not limited to, for the delivery of certificates representing shares of Stock or
other property and for the delivery or payment of dividends or the exercise of
subscription rights, shall cease, and the Voting Trustee shall not be required
to take any further action hereunder.
10. Trustee. If for any reason at any time Xxxxxxx Xxxxxx shall be
unable or unwilling to serve as Voting Trustee and he shall not have appointed a
Successor Voting Trustee, then this Agreement shall terminate in accordance with
the provisions of Paragraph 9 hereof.
11. Notice. Unless otherwise specifically provided in this Agreement,
any notice or communication required hereunder shall be deemed to be given or
made sufficiently if enclosed in
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postpaid envelopes, first class mail, addressed to the person or company
entitled to receive such notice as follows:
(a) to holders of VT Certificates at the addresses shown
on the transfer books of the Voting Trustee;
(b) to the Company at its principal place of business, or
to such other address as the Company may designate by
notice to the Voting Trustee; and
(c) to the Voting Trustee at such address as may from
time to time be furnished to the Company by him, and
if no such address has been furnished by the Voting
Trustee, then to him in care of the Company.
Every notice so given shall be effective, whether or not received, and the date
five (5) days after the date of mailing.
All distributions of cash, securities or other property hereunder by
the Voting Trustee to the holders of VT Certificates may be made in the same
manner as hereinabove provided for the giving of notice to the holders of VT
Certificates.
12. Miscellaneous. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. No amendment or
modification of, or supplement to, nor the waiver of any provision hereof, shall
be valid unless the same shall be in writing and signed by the party against
whom such amendment, modification, supplement or waiver is sought to be
enforced. No failure or delay on the part of any party hereto to exercise any
power, right or privilege hereunder shall be deemed a waiver of such power,
right or privilege nor shall any effective waiver
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of any power, right or privilege at any given time be deemed to constitute a
waiver of such power, right or privilege at any future time.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
This Agreement shall be governed by, and construed in accordance with,
the provisions of the Delaware General Corporation Law applicable to voting
trust agreements and domestic corporations.
If any provision of this Agreement shall be determined to be invalid
for any reason, the remaining provisions shall be severable and enforceable in
accordance with their terms.
IN WITNESS WHEREOF, the parties hereto have executed this Voting Trust
Agreement on the day and year first above written.
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX, AS VOTING TRUSTEE
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX, STOCKHOLDER
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EXHIBIT A
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No. ___________ __________ Shares
LEXON TECHNOLOGIES INC.
a Delaware Corporation
VOTING TRUST CERTIFICATE FOR CAPITAL STOCK
XXXXXXX XXXXXX, Voting Trustee of certain shares of the common
stock, $.001 par value per share (the "Common Stock"), of
LEXON TECHNOLOGIES INC., a Delaware corporation (the
"Company"), under a Voting Trust Agreement dated February 9,
2000 (the "Agreement"), having received certain shares of
Common Stock (the "Stock") pursuant to the Agreement, which
Agreement the holder hereof by accepting this voting trust
certificate (the "VT Certificate") ratifies and adopts, hereby
certifies that will be entitled
to receive a certificate representing fully paid and non-
assessable shares of Common Stock on the expiration (or
earlier termination) of the Agreement, and in the meantime
shall be entitled to receive all dividends or other
distributions that may accrue or be paid upon the Stock,
except that any such dividends or other distributions that are
evidenced by instruments carrying the right to vote shall be
retained in the Voting Trust by the Voting Trustee and VT
Certificates therefor issued by them.
Until the Voting Trustee shall have delivered the
Stock held under the Agreement to the holder of this VT
Certificate, or to the Company, as specified in the Agreement,
the Trustee shall possess and shall be entitled to exercise,
in his full and complete discretion as he deems appropriate,
all voting rights and powers of an absolute owner of such
Stock, including the right to vote thereon for every purpose,
and to execute consents in respect thereof for every purpose,
it being expressly stipulated that no voting right passes to
the holder hereof or his assigns under this VT Certificate or
any agreement, expressed or implied.
No certificate representing the Stock shall be due or
deliverable hereunder until the expiration or earlier
termination of the Agreement
This VT Certificate has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or
the securities laws of any state, including
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Illinois, in reliance on exemptions contained therein. The
holder hereof represents that he is acquiring this VT
Certificate for his own account and for investment purposes
only, and not with a view to resale or further distribution
hereof in whole or in part. The holder hereof agrees that he
will not sell or otherwise transfer this VT Certificate or any
rights hereunder except in accordance with the terms of the
Agreement, and in accordance with the provisions of any
applicable law, including the Securities Act, any applicable
state securities laws, and any rules or regulations
thereunder. In order to ensure compliance with such laws, as a
condition of making or permitting any transfer or delivery of
this VT Certificate or of any rights here under, the Voting
Trustee may require the transferee to deliver written
representations of the transferee, similar to the
representations of the holder contained herein, and may
further require the delivery of a written opinion, addressed
to the Voting Trustee, of counsel satisfactory to the Voting
Trustee to the effect either that this VT Certificate or
rights hereunder proposed to be transferred have been duly
registered under the Securities Act and any applicable state
securities law or that no such registration is required.
This VT Certificate is transferable only on the books
of the undersigned Voting Trustee by the registered holder in
person or by his duly authorized attorney, and the holder
hereof, by accepting this VT Certificate, manifests his
consent that the undersigned Voting Trustee may treat the
registered holder hereof as the true owner of this VT
Certificate for all purposes, except for the delivery of
certificates representing the Stock, which delivery shall not
be made without the surrender hereof.
This VT Certificate is not valid unless duly signed by the
Voting Trustee.
IN WITNESS WHEREOF, the Voting Trustee has executed
this VT Certificate this __ day of ________________ 2000.
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XXXXXXX XXXXXX, Voting Trustee
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