EXHIBIT 9.2
CONFIDENTIAL
VOTING TRUST AGREEMENT
This Voting Trust Agreement (this "Agreement"), dated as of May 30,
2003, is entered into by and between Dasharatha G. Reddy ("Dr. Reddy") and
Dhanabalan Murali ("Dr. Murali") (Dr. Reddy and Dr. Murali collectively, the
"Shareholders", and individually, a "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
Shareholders collectively own 34,000 shares of Common Stock, par value
$0.01 per share (the "Shares") of BioNumerik Pharmaceuticals, Inc., a Texas
corporation (the "Company").
Shareholders have entered into that one certain Settlement Agreement
dated as of May 30, 2003 (the "Settlement Agreement"), by and between
Shareholders and the Company pursuant to which Shareholders have 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,
Shareholders will assign and deliver to Trustee a certificate or certificates
representing 34,000 shares of Common Stock of the Company. Trustee shall
surrender the certificates to the Company and the Company shall cancel the
certificates. New share certificates shall be issued in the name of the Trustee
and the new certificates shall state that they are issued pursuant to this
Agreement. That fact shall also be noted in the Company's stock transfer records
in the entry of Trustee's ownership of the shares. Trustee shall cause the
Shares to be transferred to the Trustee on the books of the Company and shall
issue and deliver to Jeffrey A. Goldberg, Shareholders' Attorney, a certificate
for the number of shares transferred by each such Shareholder 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, each 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 Jeffrey A.
Goldberg, Shareholders' Attorney, 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. The Trustee shall not vote the
Shares in favor of the sale, mortgage, or pledge of all or substantially all of
the assets of the Company or for any merger, consolidation, reorganization, or
dissolution of the Company, except with the consent of the owners of two-thirds
(2/3), or more in interest of the Voting Trust Certificates at a meeting of
owners of not less than two-thirds (2/3) in interest of the Voting Trust
Certificates.
Section 4. Dividends. In the event that the Company issues dividends,
Trustee shall accept and receive such dividends for the benefit of the
Shareholders, and shall within a reasonable time thereafter deliver a percentage
of such dividends received by Trustee to Jeffrey A. Goldberg, Shareholders'
Attorney, which percentage for each Shareholder shall be equal to the percentage
that the number of shares of BioNumerik stock transferred by such Shareholder to
Trustee bears to the total number of Shares; 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 Shareholders, but shall
instead retain the share certificates and issue new Voting Trust Certificates
representing the share dividends. Any shares issued as dividends shall become
subject to this Agreement to the same extent as if they were originally
deposited under it. In the event of dissolution or total or partial liquidation
of the Company, the Trustee shall receive any moneys, securities, rights, or
property to which the Shareholders may be entitled, and shall distribute it for
the benefit of the Voting Trust Certificate holders consistent with their
ownership percentage to Jeffrey A. Goldberg, Shareholders' Attorney.
Section 5. Termination of the Trust. The Voting Trust shall terminate
on the earliest occurrence of any of the following:
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(a) A vote for termination by a majority of the Board of Directors
of the Company; or
(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; or
(c) Ten years after the effective date of this Agreement; or
(d) The death of both Dasharatha G. Reddy and Dhanabalan Murali.
On termination of this Agreement, Shareholders shall surrender the
Voting Trust Certificates to Trustee and Trustee shall obtain from the Company
and deliver with respect to each Shareholder to Jeffrey A. Goldberg,
Shareholders' Attorney, shares of Company stock properly endorsed for transfer,
equivalent to the amount of shares represented by the Voting Trust Certificates
surrendered by each Shareholder.
Section 6. Sale or Transfer of Shares. Subject to the Company's right
of first refusal as described in Section 3 of the attached Settlement Agreement
and subject to any applicable lock-up agreement on the part of each Shareholder
as described in Section 9.B. of the attached Settlement Agreement, if at any
time during the term of this Agreement a Shareholder desires to sell or transfer
to a third party all or a portion of the Shares represented by Voting Trust
Certificates issued to such Shareholder, he 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. The Shareholders agree
that any proceeds from the sale of such shares shall be delivered by
Shareholders to Jeffrey A. Goldberg, Shareholders' Attorney.
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.
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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 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 Jeffrey A. Goldberg, Shareholders' Attorney.
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.
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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 San Antonio, Texas, 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-third 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
parties hereto. Each party hereto agrees that in addition to the arbitration
provisions contained herein, in the event of a breach of this Agreement by a
party hereto, each 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.
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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 Shareholders.
Executed effective as of May 30, 2003.
TRUSTEE
/s/ DONALD M. DELWOOD
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SHAREHOLDERS
/s/ DASHARATHA G. REDDY
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Dasharatha G. Reddy
/s/ DHANABALAN MURALI
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Dhanabalan Murali
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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