Exhibit 10.1
INOVIO BIOMEDICAL
CORPORATION
VOTING TRUST
AGREEMENT
This Agreement dated as of
June 1, 2009 is by and among Inovio Biomedical Corporation, a
Delaware corporation, the stockholders listed on Schedule I
hereto (the “Stockholders”), and Simon Benito, Tee
Khiang Ng and Dr. Morton Collins as voting trustees hereunder (the
“Trustees”).
Effective as of the date hereof, VGX
Pharmaceuticals, Inc. (“Old VGX”) merged with and
into an acquisition subsidiary of Inovio Biomedical Corporation
(the “Company”) and the shares of Old VGX were
converted into the right to receive shares of the Company as merger
consideration in accordance with the terms and provisions of the
Agreement and Plan of Merger dated as of July 7, 2008, as
amended on December 5, 2008 (the “Merger
Agreement”). As a result of the merger, Old VGX became a
wholly owned subsidiary of the Company.
The purpose of this Agreement is to
enable the Voting Trustees to vote the Shares (as defined herein)
with respect to all matters submitted to a vote of the stockholders
of the Company in accordance with the terms hereof.
In consideration of the mutual
covenants and agreements contained herein, the parties hereto agree
as follows:
1.
The parties to this Agreement intend to create a voting trust
within the meaning of Section 218(a) of the General
Corporation Law of the State of Delaware, and as such shall
promptly file a copy of this Agreement in the registered
office of the Company located in the State of Delaware, including
all counterparts as executed, all supplements and amendments
thereto and shall hold the Agreement, as executed, supplemented and
amended, for inspection by the Stockholders upon
request.
2.
Each Stockholder hereby assigns and transfers to the Trustees all
shares of the Company’s Common Stock listed opposite such
Stockholder’s respective name on Schedule I hereto (the
“Shares”), and shall immediately deposit the
certificates representing the Shares with the Trustees and receive
in exchange therefor one or more voting trust certificates,
substantially in the form of Exhibit A hereto, representing
the Shares deposited with the Trustees (the “Voting Trust
Certificates”), to be held subject to all terms of this
Agreement. The Trustees shall deliver the stock certificates so
deposited to the Company for cancellation and for new share
certificates, fully paid, non-assessable and representing the
Shares, registered in the name of the Trustees, including a legend
to the effect that such certificates have been issued pursuant to
this Agreement, and the Company shall transfer the Shares on the
books of the Company to the name of the Trustees, with a similar
notation as to the effect of this Agreement.
3.
While this Agreement is in effect, the Trustees shall have the
legal title to the Shares and be entitled to exercise, in person or
by their nominee or proxy, all rights and powers in respect to any
or all such Shares, including the right to vote thereon and to take
part in or consent to any corporate or stockholders’ action
of any kind whatsoever, whether ordinary or extraordinary, in
accordance with all of the terms and conditions set forth in this
Agreement. 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 or require the consent of stockholders of
the Company, including, but not limited to any proposed Change of
Control (as defined elsewhere herein). It is expressly understood
and agreed that the holders of Voting Trust Certificates shall not
have any right, either under said Voting Trust Certificates or
under this Agreement, or under any agreement express or implied, or
otherwise, with respect to any Shares held by the Trustees
hereunder to vote such Shares or to take part in or consent to any
corporate action, or to do or perform any other act or thing which
the holders of the Company’s Common Stock are now or may
hereafter become entitled to do or perform. The Trustees shall have
the right to waive any notice of meeting or other notices due in
respect of the Shares. Except as provided in Section 11
hereof, the Trustees shall
have no authority to sell, transfer
or otherwise dispose of, convey any interest in or encumber any of
the Shares deposited under this Agreement.
4.
On any matter, including the election of directors, presented to
the stockholders of the Company for a vote, the Trustees shall vote
the Shares in the same proportion as the shares voted on the matter
by the other stockholders of the Company. For purposes of this
section, a “vote” shall include, with respect to the
election of directors, a vote “for” and a vote to
“withhold authority,” and with respect to any other
matter, a vote “for”, “against” or
“abstain.” With respect to a consent solicitation, the
Trustees shall provide a consent with respect to the percentage of
Shares deposited hereunder in the same proportion as the consents
received with respect to all outstanding shares of the
Company.
5.
During the term hereof, the holders of the Voting Trust
Certificates shall not have legal title to any part of the Shares
and, except pursuant to Section 11 hereof, shall not be
entitled to transfer or convey any interest in, including, without
limitation, any encumbrance on, the Shares or the Voting Trust
Certificates. No creditor of any holder of a Voting Trust
Certificate shall be able to obtain legal title to or exercise
legal or equitable remedies with respect to the Shares or the
Voting Trust Certificates.
6.
Except as otherwise provided herein, upon the declaration of any
dividends by the Company with respect to the Shares deposited with
the Trustees hereunder the Trustees shall cause all such dividends
to be distributed by the Company pro rata among the Stockholders as
if such holders themselves held the Shares represented by their
Voting Trust Certificates.
7.
Except as otherwise provided herein, upon declaration of any pro
rata distributions of additional shares of capital stock of the
Company declared by the Company with respect to the Shares
deposited with the Trustees hereunder, each Stockholder agrees that
such pro rata stock distributions shall be issued in the name of
the Trustees as additional deposits hereunder and the Trustees
shall issue additional Voting Trust Certificates
therefor.
8.
In the event of dissolution or liquidation of the Company during
the term of this Agreement in such manner as to entitle the holders
of Voting Trust Certificates to liquidating dividends, the Trustees
shall cause all such liquidating dividends to be distributed by the
Company pro rata among the Stockholders as if such holders
themselves held the Shares represented by their Voting Trust
Certificates.
9.
In the event that the Company presents evidence satisfactory to the
Trustees that it has acquired the beneficial ownership of any
Shares represented by a Voting Trust Certificate, the Trustees
shall immediately refrain from exercising any voting rights with
respect to such Shares and, upon surrender of the Voting Trust
Certificate in question to the Trustees with evidence satisfactory
to the Trustees of its transfer to the Company, the Trustees shall
take all steps necessary to transfer legal title to such Shares to
the Company and the Company shall cancel such Shares and restore
them to the status of authorized but unissued shares.
10.
This Agreement shall expire upon the earlier of: (i) with
respect to all Stockholders, the date which is ten years from the
date of this Agreement; (ii) with respect to all Stockholders,
upon a Change of Control, as defined herein; (iii) with
respect to a Stockholder, the death of the Stockholder;
(iv) with respect to a Stockholder, termination of the
Stockholder’s employment with the Company for any reason
other than for Cause, as defined in the Stockholder’s then
existing employment agreement with the Company, or if the
Stockholder does not have such an employment agreement with the
Company, as defined herein; provided, however, that if such
Stockholder is Joseph Kim, this Agreement shall terminate with
respect to all Stockholders; or (v) with respect to all
Stockholders, the acquisition by the Company of the beneficial
ownership of all Shares represented by Voting Trust Certificates
pursuant to this Agreement.
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11.
Notwithstanding anything to the contrary set forth in this
Agreement, and subject to the further restrictions of any
applicable lock-up agreements or other restrictive covenants as
reflected on the certificates representing the Shares, each
Stockholder shall have the right to cause the Trustees to sell
Shares deposited by that Stockholder, or to tender Shares in the
event of a tender offer or exchange offer, for the benefit of the
Stockholder, if the following conditions are satisfied:
(a)
In the case of a sale of the Shares, the Shares are sold in open
market transactions in accordance with the provisions of
Rule 144 under the Securities Act of 1933 (the
“Securities Act”), or any successor provision, or
pursuant to an effective registration statement under the
Securities Act;
(b)
In the case of a tender offer or exchange offer, the Shares are
tendered in accordance with the terms of the tender offer or
exchange offer; and
(c)
In either case, such Shares are not being transferred (i) if
the Stockholder is an entity, to an affiliate, subsidiary,
director, officer, employee, agent or representative of the
Stockholders, (ii) if the Stockholders is an individual, to an
immediate family member, includin
