EXHIBIT 9.1
CONFIDENTIAL
VOTING TRUST AGREEMENT
This Voting Trust Agreement (this "Agreement"), dated as of April 1,
2003, is entered into by and between Gopal M. Nair ("Shareholder") and Donald M.
Delwood ("Trustee") for the purpose of creating a voting trust of certain shares
of Common Stock of BioNumerik Pharmaceuticals, Inc. (the "Voting Trust").
PRELIMINARY STATEMENTS
Shareholder is the owner of 75,000 shares of Common Stock, par value
$0.01 per share (the "Shares") of BioNumerik Pharmaceuticals, Inc., a Texas
corporation (the "Company").
Shareholder has entered into that one certain Settlement Agreement
dated April 1, 2003 (the "Settlement Agreement"), by and between Shareholder and
the Company pursuant to which the Shareholder has agreed to transfer the Shares
to a Voting Trust to be held and administered under the terms thereof. A copy of
the Settlement Agreement is attached hereto as Exhibit A and incorporated herein
for all purposes.
Donald M. Delwood has agreed to serve as Trustee of the Voting Trust.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1. Assignment, Delivery and Transfer of Shares; Issuance of
Voting Trust Certificates. Simultaneously with the execution of this Agreement,
Shareholder will assign and deliver to Trustee a certificate representing 75,000
shares of Common Stock of the Company. Trustee shall cause the Shares to be
transferred to the Trustee on the books of the Company and shall issue and
deliver to Shareholder a certificate for the number of shares transferred to
Trustee in substantially the form indicated on Exhibit B attached hereto
("Voting Trust Certificate").
Section 2. Deposit of Additional Shares. Upon receipt of any additional
shares of Common Stock or other securities of the Company subsequent to the date
of this Agreement, Shareholder shall deposit with Trustee the certificates
representing such additional shares, and Trustee shall cause the transfer to be
recognized on the books of the Company and shall issue and deliver to
Shareholder a Voting Trust Certificate representing the number of shares
transferred.
Section 3. Voting by Trustee. During the period of this Agreement,
Trustee shall have the exclusive right to vote the Shares or give written
consent, in person or by proxy, at all meetings of the shareholders of the
Company, and in all proceedings in which the vote or written consent of
shareholders of the Company may be required or authorized by law. On each matter
presented to him for vote, the Trustee shall be required to vote the Shares in a
manner so that the percentage of the Shares voted in favor of a particular
matter and the percentage of the Shares voted against a particular matter by the
Trustee equals the percentage of the total number of shares of stock (including
Common Stock and Preferred Stock, if any) of the Company voted in favor of that
particular matter and the percentage of the total number of shares of stock of
the Company voted against that particular matter.
Section 4. Dividends. In the event that the Company issues dividends,
Trustee shall accept and receive such dividends for the benefit of Shareholder,
and shall thereafter deliver such dividends to Shareholder; provided, however,
in the event that the dividends are in the form of share certificates having
voting rights, Trustee shall not deliver the share certificates to Shareholder,
but shall instead retain the share certificates and issue a new Voting Trust
Certificate representing the share dividends.
Section 5. Termination of the Trust. The Voting Trust shall terminate
on the earliest occurrence of any of the following:
(a) A vote for termination by a majority of the Board of Directors
of the Company;
(b) Six (6) months and seven (7) days after the effective date of
a Registration Statement of the Company filed under the Securities Act of 1933,
as amended (the "Securities Act") and including securities to be sold on behalf
of the Company to the public in a firm commitment underwritten offering under
the Securities Act;
(c) Ten years after the effective date of this Agreement; or
(d) The death of Dr. Gopal M. Nair.
On termination of this Agreement, Shareholder shall surrender the
Voting Trust Certificates to Trustee and Trustee shall obtain from the Company
and deliver to Shareholder shares of Company stock properly endorsed for
transfer, equivalent to the amount of shares represented by the Voting Trust
Certificates surrendered.
Section 6. Sale or Transfer of Shares. Subject to the Company's right
of first refusal as set forth in Section 3 of the attached Settlement Agreement
and subject to any applicable lock-up agreement on the part of Shareholder as
provided in Section 13.B. of the attached Settlement Agreement, if at any time
during the term of this Agreement the Shareholder desires to sell or transfer
all or a portion of the Shares to a third party, he
2
shall have the right to do so by notifying the Trustee in writing of his intent
to sell or transfer such portion of the Shares. The Trustee shall make the
appropriate notations in the records of the Trust and shall, after the
transferor has delivered the Voting Trust Certificate(s) representing that
portion of the Shares to be transferred to the Trustee for cancellation, issue
new Voting Trust Certificate(s) to the transferee and transferor, as applicable,
representing the portion of the Shares transferred to the transferee and the
portion retained by the transferor, if applicable. Any transferee of such
portion of the Shares shall become a party to and agree to be bound by this
Agreement. Any purported transfer of all or a portion of the Shares to a person
or entity that has not become a party to this Agreement shall be null and void.
Any transferee of all or a portion of the Shares shall have all rights and shall
be subject to all limitations of the transferor under the applicable Voting
Trust Certificate and this Agreement with respect to the Shares so transferred
to such transferee.
Section 7. Replacement of Trustee. The Trustee may be removed from his
office by the affirmative vote of a majority of the Board of Directors of the
Company. In the event of the death, resignation or removal of Trustee, the
successor Trustee shall be appointed by majority vote of the Board of Directors
of the Company.
Section 8. Liability and Indemnity of Trustee. The Trustee shall not be
liable for any error of judgment or mistake of fact or law, or for any act or
omission undertaken in good faith in connection with the Trustee's powers and
duties under this Agreement, except to the extent due to the Trustee's own
willful misconduct or gross negligence. The Trustee is authorized and empowered
to construe this Agreement and his reasonable construction made in good faith
shall be conclusive and binding. The Trustee shall not be liable for acting on
any legal advice or on any notice(s), request(s) or instruction(s), or any other
document(s) believed by the Trustee to be genuine and to have been signed by the
proper party or parties. The Trustee shall be entitled to be indemnified fully
from the distributions coming to his hand for any expenses, claims, losses,
damages or liabilities, including, without limitation, attorneys' fees incurred
by the Trustee and arising out of or in connection with the administration of
the Trust established by this Agreement and his rights and duties hereunder,
except to the extent that the action giving rise to such indemnification was the
result of willful misconduct or gross negligence by the Trustee ("Losses"). Each
holder of record of a Voting Trust Certificate representing all or a portion of
the Shares held pursuant hereto covenants with the Trustee that in the event
monies and securities in the Trustee's hands are insufficient to indemnify the
Trustee against all Losses, each such holder shall, in proportion to the portion
of the Shares represented by the Voting Trust Certificate held by such holder,
hold harmless and keep indemnified the Trustee against all Losses.
Section 9. Trustee's Compensation. Trustee shall serve in his capacity
as Trustee without compensation of any kind except that his expenses lawfully
incurred in the administration of his duties as Trustee shall be reimbursed to
him by the Company. Notwithstanding the foregoing, Trustee or any of his
successors may not serve the
3
Company or any of its affiliates as a director, employee or officer but may
serve in any other capacity, and in such capacity may receive compensation from
the Company.
Section 10. Notices from the Company. All notices, reports, statements,
and other communications directed to Trustee from the Company shall be promptly
forwarded to Shareholder.
Section 11. Copies of the Agreement. This Agreement may be executed in
multiple counterparts but shall not otherwise be separable or divisible. Upon
the execution of this Agreement and the establishment of the Voting Trust,
Trustee shall cause a copy of this Agreement to be filed in the registered
office of the Company. This Agreement shall be open to inspection in the manner
provided for inspection under Article 2.30 of the Texas Business Corporation
Act.
Section 12. Governing Law. This Agreement is intended by the parties to
be governed and construed in accordance with the laws of the State of Texas,
without regard to the conflicts of law principles thereof.
Section 13. Severability of Provisions. This Agreement shall not be
severable or divisible in any way, but it is specifically agreed that, if any
provision should be invalid, the invalidity shall not affect the validity of the
remainder of the Agreement.
Section 14. Arbitration: Agreement Disputes. In the event of any and
all disputes arising under this Agreement, the parties hereto agree to try in
good faith, to settle such dispute amicably between them. If a dispute has not
been settled after thirty (30) days of good-faith negotiation, then the parties
hereto agree that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement shall be
settled by arbitration to be held in New Orleans, Louisiana, in accordance with
the rules then in effect of the American Arbitration Association. The
arbitration shall be held by one arbitrator selected in accordance with the
rules then in effect of the American Arbitration Association. The arbitrator may
grant injunctions or other relief in such dispute or controversy. The decision
of the arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. Each party hereto shall pay one-half of the costs and
expenses of the arbitrator and the American Arbitration Association for such
arbitration, and each party shall separately pay its counsel fees and expenses,
provided that the Company shall reimburse the Trustee for the costs of such
arbitration and counsel fees and expenses in connection with such arbitration
proceeding. The arbitrator will be informed that he is not to award any punitive
damages or exemplary damages. Any arbitration suit will be governed by the laws
of the State of Texas, without regard to the conflicts of law principles
thereof. Each party hereto acknowledges that compliance with the provisions of
this Agreement is necessary to protect the proprietary interests of the other
party. Each party hereto agrees that in addition to the arbitration provisions
contained herein, in the event of a breach of
4
this Agreement by a party hereto, the other party hereto shall be authorized and
entitled to seek and obtain immediate injunctive relief from any court of
competent jurisdiction.
Section 15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall have the same force and effect as original signatures, provided, however,
that any party who provides a facsimile signature agrees to provide an original
signature within a reasonable time.
Section 16. Construction by Trustee. Trustee is authorized and
empowered to construe this Agreement. His reasonable construction made in good
faith shall be conclusive and binding on Shareholder.
Executed on April 1, 2003.
TRUSTEE
/s/ DONALD M. DELWOOD
-------------------------------------------
Donald M. Delwood
SHAREHOLDER
/s/ GOPAL M. NAIR
-------------------------------------------
Gopal M. Nair
5
Exhibits
The following non-material Exhibits have been ommitted and will be provided upon
request:
Exhibit A: Copy of Settlement Agreement
Exhibit B: Voting Trust Certificates