Published on May 23, 2005
Exhibit 2
KOREAN REXAHN INVESTORS
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (this "Agreement") is effective for all
purposes and in all respects as of the ____ day of July, 2003, by and among (i)
Chang-Ho Ahn ("Ahn") and Young-Soon Park ("Park") [Ahn and Park being
hereinafter sometimes together referred to as the "Trustee" or "Trustees"), (ii)
each of the stockholders set forth on Exhibit A attached hereto (being
hereinafter sometimes referred to individually as a "Stockholder" and
collectively as the "Stockholders") and (iii) Rexahn Corporation, a Maryland
corporation (the "Corporation").
WHEREAS, each Stockholder is the legal and beneficial owner of that number
of shares of Common Stock (the "Stock") of the Corporation as set forth opposite
such Stockholder's name on Exhibit A attached hereto;
WHEREAS, the parties hereto believe that it is in the best interests of the
Stockholders and the Corporation to make provision for the unified voting of the
Stock by the creation of a voting trust hereby to be known as the "Korean Rexahn
Investors Voting Trust" (the "Trust") under and pursuant to Section 2-510 of the
Maryland General Corporation Law;
WHEREAS, the parties hereto recognize that such unified voting will permit
them to (i) secure continuity and stability of policy and management and (ii)
promote the continuous and uninterrupted governance of the Corporation;
WHEREAS, each Stockholder desires to transfer and assign to the Trustees,
and the Trustees desire to accept such transfer and assignment of, all such
Stockholder's legal right, title and interest in and to the Stock, as set forth
herein; and
WHEREAS, the parties hereto desire to set forth in writing their
understandings and agreements.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally and equitably to be bound, hereby agree as follows:
1. Creation of Trust.
(a) Each Stockholder hereby transfers and assigns to the Trustee, and
the Trustee hereby accepts the transfer and assignment of, all of such
Stockholder's legal right, title and interest in and to the shares of Stock
owned by such Stockholder, as set forth opposite such Stockholder's name on
Exhibit A attached hereto, which shares of Stock shall be held by the Trustee in
accordance with the terms and conditions of this Agreement. In furtherance of
the foregoing, each Stockholder hereby agrees to the following in order to be
issued a "Voting Trust Certificate" (as defined below):
(i) in the event such Stockholder has possession of a stock
certificate or stock certificates evidencing such Stockholder's shares of the
Stock, to execute in blank a form of assignment separate from certificate for
the benefit of the Trustee, which stock certificate(s) along with each
assignment separate from certificate shall thereupon be surrendered by the
Trustee to the Corporation for cancellation and for the issuance by the
Corporation of a new stock certificate with respect to such Stockholder in the
name of "Young-Soon Park, as Trustee of the Korean Rexahn Investors Voting
Trust" (each, a "New Stock Certificate"); or
(ii) in the event the stock certificate(s) evidencing such
Stockholder's shares of the Stock has (have) been lost, stolen, mutilated or
destroyed, such Stockholder shall deliver to the Trustee a stock indemnity
satisfactory to the Trustee, in her sole discretion, along with a form of
assignment (which assigns all of such Stockholder's legal right, title and
interest in and to such Stockholder's shares of Stock to the Trustee), which
stock indemnity along with such form of assignment shall thereupon be
surrendered by the Trustee to the Corporation for the issuance by the
Corporation of a New Stock Certificate.
The Trustee, in her sole discretion, may hold New Stock Certificates
representing the individual number of shares of Stock set forth on Exhibit A
attached hereto for each Stockholder or one New Stock Certificate representing
the aggregate number of shares of Stock held by the Trust.
(b) Upon receipt of the New Stock Certificate(s) for the Stock, the
Trustee shall hold such certificate(s) in her capacity as trustee, subject to
the terms and conditions of this Agreement, and the Trustee shall issue and
deliver to each Stockholder a voting trust certificate representing the number
of shares of Stock which such Stockholder has surrendered to the Trustee (each,
a "Voting Trust Certificate"). In addition, each Stockholder covenants and
agrees to transfer and assign to the Trustee any and all certificates evidencing
any shares of the capital stock of the Corporation (or shares of capital stock
of a subsidiary or affiliate of the Corporation as contemplated in paragraph 4
hereof) which may be acquired or otherwise obtained by such Stockholder after
the date hereof and, in exchange therefor, the Trustee shall issue additional
Voting Trust Certificate(s) to such transferring Stockholder as set forth in
this subparagraph 1(a). Any such additional shares of stock of the Corporation
(or shares of capital stock of a subsidiary or affiliate of the Corporation as
contemplated in paragraph 4 hereof) so transferred to or acquired by the Trust
shall be deemed to constitute "Stock" hereunder and shall be subject to all of
the provisions of this Agreement.
(c) Each Voting Trust Certificate to be issued and delivered by the
Trustee in respect of shares of Stock shall be in the form set forth in Exhibit
B attached hereto and made a part hereof. Each Stockholder (and his, her or its
representatives or assigns), by accepting a Voting Trust Certificate, ratifies,
confirms and approves the creation of the Trust, and agrees that his, her or its
shares of Stock shall be held by the Trustee, subject to all of the terms and
conditions of this Agreement.
(d) The Trustee shall not issue, transfer or reissue any Voting Trust
Certificates that would constitute a violation of this Agreement, the Articles
of Incorporation of the Corporation, as amended (the "Charter") or the Bylaws of
the Corporation. The Trustee shall not be required to deliver stock certificates
representing a Stockholder's shares of Stock without the surrender of such
Stockholder's Voting Trust Certificate(s).
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(e) In the event that a Voting Trust Certificate is lost, stolen,
mutilated or destroyed, the Trustee shall issue a new Voting Trust Certificate
of like tenor and denomination upon receipt of: (i) evidence of such loss, theft
or destruction satisfactory to the Trustee, in her sole discretion; (ii) a stock
indemnity satisfactory to the Trustee, in her sole discretion; (iii) the
existing Voting Trust Certificate, if mutilated; and (iv) the reimbursement of
all costs and expenses of the Trustee incurred in connection with the issuance
of such new Voting Trust Certificate.
2. Appointment of Trustee. The Stockholders hereby appoint the Trustee to
serve as the trustee of the Trust. The Trustee hereby accepts her appointment as
Trustee of the Trust and, in performing her duties and responsibilities with
respect to the Trust, shall act in good faith and faithfully exercise her
judgments in the best interests of the Stockholders and the Corporation.
3. Rights, Powers and Privileges of Trustee.
(a) From the date on which the first shares of Stock subject to this
Agreement are registered in the Trustee's name in the stock record books of the
Corporation until the date on which the Trustee surrenders and delivers to each
Stockholder the certificate(s) of such Stockholder evidencing his, her or its
shares of Stock, the Trustee shall have the exclusive unqualified right and
power to waive notice of a meeting of the stockholders, to exercise, in person
or by nominees or proxies, all of such Stockholder's voting rights and powers in
respect of the Stock deposited hereunder and to take part in or consent to any
corporate or shareholders' action of any kind whatsoever. Trustee's right to
vote all of the shares of Stock shall include, without limitation, the right to
vote in favor of or against any resolution or proposed action of any nature
whatsoever which may be presented at any meeting or require the consent of
stockholders of the Corporation. Without limiting such general right, it is
understood that such action may include, upon terms satisfactory to Trustee or
to the nominees or proxies appointed by Trustee, the following: (1) mortgaging,
creating a security interest in and/or pledging all or any part of the property
of the Corporation, (2) the creation of any stock option plans and the issuance
of options thereunder, (3) execution of a stockholders' agreement or other
agreement(s) among the Corporation and its stockholders, (4) the lease or sale
of all or any part of the property of the Corporation for cash, securities or
other property, (5) the dissolution of the Corporation, (6) the consolidation,
merger, reorganization or recapitalization of the Corporation, (7) the issuance
of securities of the Corporation to investors in the Corporation (whether in the
form of debt or equity), (8) waiver of any preemptive rights or other
participation rights of Stockholders in issuances of equity or debt securities
of the Corporation, (9) the amendment or modification of the Corporation's
Charter or (10) any other proper corporate act.
(b) In voting the Stock held under the Agreement, Trustee, in person or
by her nominees or proxies, may, in her sole and absolute discretion, (i)
nominate and vote for directors of the Corporation, (ii) serve as director of
the Corporation, or any controlled or affiliated corporation, venture or entity,
and (iii) otherwise, insofar as she may act as a stockholder of the Corporation,
take such action in respect to the management of the Corporation's affairs as
she may, in her reasonable discretion, deem necessary so as to be completely
advised regarding the affairs of the Corporation and the management thereof;
and, in voting upon any matters at any meeting of the stockholders of the
Corporation, Trustee may exercise such judgment as she, in her sole and absolute
discretion, shall deem appropriate, but Trustee shall not be personally
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responsible with respect to any resolution passed, or proceeding or action
taken, pursuant to her vote so cast in any matter or act committed or omitted to
be done under this Agreement; provided, that such commission or omission does
not amount to gross negligence, willful misconduct or fraud on Trustee's part.
(c) The Trustee hereby appointed, and her successor, from time to time,
may be a party to this Agreement as a Stockholder and to the extent of shares of
capital stock of the Corporation deposited hereunder by her, shall be entitled
in all respects to the same rights and benefits as other Stockholders. Trustee
may in her individual capacity and for her own accounts, buy, sell or deal in
shares of capital stock of the Corporation and Voting Trust Certificates,
subject, as the case may be, to the restrictions set forth in this Agreement and
the Charter and Bylaws of the Corporation as the same may be amended. The
parties hereto acknowledge and agree that as of the date hereof Trustee owns [
,000] shares of Common Stock of the Corporation, which are not held in the Trust
and are not subject to this Agreement.
(d) Trustee may be a stockholder, director, officer or employee of the
Corporation, of any subsidiary, or of any affiliated corporation, or may
contract with or be or become pecuniary interested, directly or indirectly, in
any matter or transaction in which the Corporation, any subsidiary or any
controlled or affiliated corporation may be a party, or in which it may be
concerned, as fully and freely as though such Trustee were not a Trustee.
(e) The Trustee shall keep a list of the shares of capital stock of the
Corporation transferred to her and shall also keep a record of all Voting Trust
Certificates issued or transferred on their books. Such record shall contain the
names and addresses of the Voting Trust Certificate holders and the number of
shares represented by each such Voting Trust Certificate. Such list and record
shall be open at all reasonable times to the inspection of Voting Trust
Certificate holders.
4. Dividends.
(a) If during the term of this Agreement any dividend in respect of the
Stock deposited with the Trustee is paid, in whole or in part, in shares of
capital stock of the Corporation or shares of capital stock of any subsidiary or
affiliate of the Corporation (such as by reason of a spin-off, split-off,
merger, reorganization or recapitalization), the Trustees shall, subject to the
terms of this Agreement, hold the certificates for such shares of capital stock
which are received on account of such dividend and such shares shall be deemed
for all purposes to be part of the Stock and shall be subject to this Agreement.
The Trustee shall issue Voting Trust Certificates representing such shares of
capital stock to the Stockholders based on such Stockholder's Stock ownership.
(b) If during the term of this Agreement the Corporation pays any
dividend in respect of the Stock other than as contemplated in subparagraph 4(a)
above, the Corporation shall pay such dividends to each Stockholder directly
5. Right to Request Release of Stock; Termination of Agreement.
(a) This Agreement shall terminate on the earlier of (i) the date on
which the Trustee agrees to terminate this Agreement, (ii) the date of
dissolution or liquidation of the
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Corporation, whether voluntary or involuntary, (iii) the consummation of (A) a
sale of all or substantially all of the assets of the Corporation which results
in a distribution of the proceeds of such sale to the stockholders of the
Corporation in liquidation and dissolution of the Corporation as contemplated
under subsection 5(a)(ii) above or (B) a sale of all of the Stock for cash or a
merger of the Corporation which results in the payment of cash to the
stockholders of the Corporation and (iv) five years from the date hereof.. Upon
the termination of this Agreement, the Trust created pursuant to subparagraph
1(a) hereof shall cease to have any effect, and the parties hereto shall have no
further rights or obligations under this Agreement; provided, however, that in
the event of a termination pursuant to subparagraphs 5(a)(i), (ii), (iii)(A) or
(iv) hereof, the Trustee shall, following surrender of the Voting Trusts
Certificates to the Trustee, promptly arrange for each Stockholder to receive
from the Corporation a stock certificate representing that number of shares of
Stock of such Stockholder being held in the Trust; and, provided, further, that
in the event of a termination of this Agreement pursuant to subparagraph
5(a)(iii)(B) hereof, the Trustee shall, following surrender of the Voting Trust
Certificates, promptly arrange with the Corporation for the transfer of the
Stock to the purchaser or acquirer.
(b) In the event of (i) a consummation of a merger of the Corporation
with or into another entity or a reorganization or other business combination of
the Corporation that results in the capital stock of the Corporation being
exchanged for equity securities of another entity (the "Replacement Securities")
or (ii) the consummation of an initial public offering with respect to the
Common Stock of the Corporation, each Stockholder shall thereafter have the
right to request in writing that such Stockholder's shares of Replacement
Securities or Stock (as applicable) be released from the Trust. In such case,
the Trustee shall, following surrender of the Voting Trust Certificates held by
the requesting Stockholder, promptly surrender the certificates representing the
Replacement Securities or the Stock (as applicable) on behalf of the requesting
Stockholder to the issuer of such certificates and instruct such issuer to issue
a new stock certificate or stock certificates to such Stockholder.
6. Transfers.
(a) Subject to the provisions of this paragraph 6, if a Stockholder
proposes to "Transfer" (as such term is defined below) any shares of Stock, then
such Stockholder (the "Proposing Stockholder") shall give written notice (the
"Initial Notice") simultaneously to the Trustee and the Corporation at least
thirty (30) calendar days prior to the proposed closing of such Transfer. The
Initial Notice shall describe in reasonable detail the proposed Transfer
including, without limitation, the number of shares of Stock (the "Transfer
Stock") proposed to be transferred, the nature of such Transfer, the
consideration to be paid, the payment terms and the name and address of each
prospective purchaser or transferee. In the event that a Transfer is being made
pursuant to the provisions of paragraph 9 hereof, the Initial Notice shall state
the category of exemption under which the Transfer is being made. For purposes
of this Agreement, the term "Transfer" shall mean any sale, assignment,
encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by
bequest, devise or descent, or other transfer or disposition of any kind,
including, but not limited to, transfers to receivers, levying creditors,
trustees or receivers in bankruptcy proceedings or general assignees for the
benefit of creditors, whether voluntary or by operation of law, directly or
indirectly, of any of the Stock.
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(b) Except as provided in paragraph 9(a) hereof, for a period of fifteen
(15) calendar days following any Initial Notice, the Corporation shall have the
right to purchase all or any portion of the Transfer Stock subject to such
Initial Notice on the same terms and conditions as set forth therein. The
Corporation's purchase right shall be exercised by written notice signed by an
officer of the Corporation (a "Corporation Notice") and delivered to the
Proposing Stockholder. The Corporation shall effect the purchase of the Transfer
Stock, including payment of any portion of the purchase price required to be
paid upon closing and execution of any documents evidencing any deferred
obligation to pay purchase price, within thirty (30) calendar days after
delivery of the Corporation Notice. At such time, the Proposing Stockholder
shall tender to the Trustee each Voting Trust Certificate held by such Proposing
Stockholder, together with such other instruments and documents as shall be
reasonably required by the Trustee and the Corporation to cause the transfer of
the Transfer Stock to the Corporation.
(c) In the event the Corporation does not purchase all of the Transfer
Stock, the Proposing Stockholder shall have the right to transfer that portion
of the Transfer Stock not so elected to be purchased pursuant to subparagraph
6(a) and (b) hereof to the purchaser on the same terms and conditions as set
forth in the Initial Notice, subject to all of the provisions and restrictions
of this Agreement. Upon tender to the Trustee of the Voting Trust Certificates
held by such Proposing Stockholder, the Trustee shall instruct the Corporation
to issue stock certificate(s) to the Proposing Stockholder representing the
Transfer Stock to be purchased by the purchaser, whereupon the Proposing
Stockholder shall deliver to such purchaser such stock certificate(s) properly
endorsed for transfer. As a condition to any sale to such purchaser, the
purchaser shall agree to contribute the Transfer Stock purchased by the
purchaser to the Trust and to have such shares held in the Trust subject to this
Agreement. If a sale of Stock to a purchaser who was the subject of the Initial
Notice is not consummated on or before ninety (90) days after the date of the
Initial Notice, the Proposing Stockholder shall not Transfer any of such
Stockholder's shares of Stock without again complying with the provisions of
this paragraph 6.
7. Transfer of Voting Trust Certificates. The Trustee shall have the right,
as an administrative convenience, upon any exempt Transfer of Stock under
paragraph 9 hereof or any Transfer of Stock pursuant to paragraph 6 hereof, to
cancel the Voting Trust Certificate of the selling or transferring Stockholder
and issue a new Voting Trust Certificate to the transferee; provided, however,
that any new Voting Trust Certificate issued to a transferee shall be subject to
all restrictions, limitations and provisions contained in this Agreement and as
may be set forth in the Charter or Bylaws of the Corporation, as the same may be
amended.
8. Right of Co-Sale. If at anytime the holders of a majority of the shares
of the capital stock of the Corporation (the "Majority Stockholders") receive an
offer in writing, signed by an offeror or offerors (who must be a person or
persons financially capable of carrying out the terms of such bona fide offer)
not affiliated in any manner with, or related to, such Majority Stockholders or
the Corporation (the "Bona Fide Purchaser"), in a form legally enforceable
against such nonaffiliated and unrelated offeror or offerors (a "Bona Fide
Offer") to purchase all of the shares of the Stock owned by such Majority
Stockholders, then the Majority Stockholders shall have the right (but not the
obligation) to deliver a written notice to the other Stockholders which shall
state (i) that the Majority Stockholders propose to effect such a transaction,
(ii) the proposed purchase price per share to be paid by the Bona Fide
Purchaser, and (iii) the name or names of the Bona Fide Purchaser(s), and which
attaches a copy of all documents between the
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Majority Stockholders and such Bona Fide Purchaser necessary to establish the
terms of the transactions with respect to the Stock. The other Stockholders (the
"Selling Stockholders") agree that, upon receipt of such notice, such Selling
Stockholders shall be obligated to sell all of their Stock upon the terms and
conditions of such transaction (and otherwise take all necessary action to cause
the consummation of the proposed transaction). Not less than two (2) days prior
to the proposed transfer, the Selling Stockholders shall tender their Voting
Trust Certificates to the Trustee and the Trustee shall promptly instruct the
Corporation to issue to such Selling Stockholder certificates representing the
Stock of such Selling Stockholder to be purchased pursuant to the Bona Fide
Offer, whereupon the Selling Stockholders shall deliver to the Majority
Stockholders, each such certificate, properly endorsed for transfer, along with
any other appropriate documentation to permit the sale of the Selling
Stockholders' Stock, including, without limitation, a limited power-of-attorney
authorizing the Majority Stockholders (or their designee) to transfer the
Selling Stockholders' Stock to the Bona Fide Purchaser (in accordance with the
terms and conditions set forth in the Bona Fide Offer) and to execute all other
documents required to be executed in connection with such transaction.
9. Exempt Transfers; Conditions to Transfer.
(a) Notwithstanding the provisions of paragraphs 6 and 8 hereof, the
first refusal and co-sale rights of the Corporation and the Stockholders shall
not apply to any Transfer of Stock or a Voting Trust Certificate (i) by a
Stockholder to any entity controlling, controlled by, or under common control
with, such Stockholder, whether or not now existing; (ii) by a Stockholder that
is (A) a partnership to its partners or former partners in accordance with
partnership interests; (B) a corporation to its stockholders in accordance with
their interest in the corporation; or (C) a limited liability company to its
members or former members in accordance with their interest in the limited
liability company; or (iii) by a Stockholder to the spouse, children, family
trusts or estate of such Stockholder, as the case may be; provided, however,
that any Transfer made pursuant to one of the exemptions provided by this
paragraph 9 shall not be effective until the requirements in subparagraph 9(b)
hereof have been satisfied. Such transferee shall be treated as a "Stockholder"
for purposes of this Agreement.
(b) In addition to the restrictions on Transfers set forth in paragraphs
6, 8 and 9(a) hereof, each Stockholder agrees not to Transfer all or any portion
of the Stock or Voting Trust Certificate unless and until (i) the transferee has
agreed in writing to be bound by the terms of this Agreement, which writing
shall be acceptable to the Corporation and the Trustee, in their sole
discretion; (ii) such Stockholder has notified the Corporation and the Trustee
of the proposed Transfer and has furnished the Corporation and the Trustee with
a statement setting forth in reasonable detail the circumstances surrounding the
proposed Transfer; and (iii) if requested by the Corporation or the Trustee,
such Stockholder has furnished the Corporation or the Trustee (as applicable)
with an opinion of counsel, reasonably satisfactory to the Corporation or the
Trustee (as applicable), in its or her sole discretion, that such Transfer will
not require registration of such securities under the Securities Act of 1933, as
amended (the "Securities Act").
10. Market Standoff Agreement.
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(a) Each Stockholder hereby agrees that such Stockholder shall not
Transfer any Stock owned by such Stockholder for a period specified by the
underwriters (the "Underwriter(s)") with respect to a public offering of the
Common Stock or other securities of the Corporation, which period shall not
exceed one hundred eighty (180) calendar days following the effective date of
the first registration statement of the Corporation filed under the Securities
Act; provided all officers and directors of the Corporation and holders of at
least one percent (1%) of the Corporation's voting securities enter into similar
agreements.
(b) Each Stockholder shall execute and deliver such other agreements as
may be reasonably requested by the Trustee, the Corporation or the
Underwriter(s) which are consistent with the foregoing or which are necessary to
give effect thereto. In addition, if requested by the Trustee, the Corporation
or the Underwriter(s), each Stockholder shall provide, within ten (10) calendar
days of such request, such information as may be required by the Trustee, the
Corporation or such Underwriter(s) in connection with the completion of any
public offering of the Corporation's securities pursuant to a registration
statement filed under the Securities Act. The obligations described in this
paragraph 10 shall not apply to a registration relating solely to employee
benefit plans or a registration relating solely to a transaction under Rule 145
of the Securities Act (or any successor rule thereto). The Corporation may
impose stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of said
period of up to one hundred eighty (180) calendar days.
11. Trustee Compensation. The Trustee shall serve at all times as trustee
without compensation.
12. Successor Trustee.
(a) Upon the death or resignation of Park, the failure of Park to serve
as Trustee hereunder because of incapacity or disability or in the event Park is
no longer a stockholder of the Corporation, the Stockholders owning at least a
majority of the Stock shall elect a successor Trustee who shall assume all of
the rights, powers, duties and obligations of a Trustee hereunder (any person or
persons succeeding Trustee or Park hereunder is hereinafter referred to as
"Substitute Trustee").
(b) In the event a Substitute Trustees is appointed under this
Agreement, all references in this Agreement to the Trustee shall thereafter be
deemed to mean and include the Substitute Trustee.
13. Indemnification. The Trustee shall be indemnified and held harmless by
the Stockholders from and against any and all claims, demands, liabilities,
costs, expenses, damages and causes of action, of any nature whatsoever, arising
out of or incidental to the performance of the duties of the Trustee hereunder,
except where the claim at issue is based upon the gross negligence, willful
misconduct or fraud by the Trustee. The indemnification authorized by this
paragraph 13 shall include, but not be limited to, payment of (a) reasonable
attorneys' fees or other expenses incurred in connection with settlement or in
any finally adjudicated legal proceeding and (b) the removal of any liens
affecting any property of the indemnitee. The indemnification rights contained
in this paragraph 13 shall be cumulative of, and in addition to,
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any and all rights, remedies and recourses to which the Trustee shall be
entitled, whether pursuant to the provisions of this Agreement, at law or in
equity. Indemnifications shall be made solely and entirely from the Stock held
in the Trust.
14. Limitation of Liability.
(a) The Trustee assumes no responsibility in respect of any action taken
by them or by any agent designated or employed by them hereunder, and Trustee,
whether or not acting under the advice of counsel, shall not incur or be under
any responsibility or liability as a Stockholder, Trustee, fiduciary, or
otherwise, by reason of any error of law, fact or judgment, or of any matter or
thing done or suffered or omitted to be done under this Agreement, except for
Trustee's gross negligence, willful misconduct or fraud. The Trustee shall be
protected in acting upon any certificate for Stock, Voting Trust Certificate, or
other paper or document, believed by them or any of them in good faith to be
genuine and to have been signed by the proper party or parties.
(b) Without limiting the foregoing, the Trustee may consult with legal
counsel and any action under this Agreement taken or suffered in good faith by
her in accordance with the opinion of such counsel shall be conclusive upon the
parties hereto, and the Trustee shall be presumptively relieved of liability and
fully protected in respect thereof.
15. Notices. Any notice required to be given hereunder to the Trustees or a
Stockholder shall be deemed to be sufficiently given and effective (a) if in
person, at the time of hand delivery or (b) by a nationally recognized overnight
courier (such as Federal Express) one (1) business day after being sent in the
United States of America and three (3) business days after being sent outside
the United States of America. All notices hereunder shall be addressed to the
Trustee or the Stockholder at their respective address appearing on the records
of the Corporation, or to such other address as any party may furnish to the
others by notice in accordance with this paragraph 15.
16. Arbitration. In the event any dispute among any of the parties hereto
arises relating to this Agreement, such parties shall use their best efforts to
resolve such dispute by negotiation, including pursuing available dispute
resolution procedures such as mediation. If the parties are unable to resolve
such dispute within ten (10) days after any party hereto provides notification
to one or more other parties of such party's intent to submit the dispute to
arbitration, such dispute shall be submitted to arbitration. The Trustee shall
determine whether the arbitration rules and procedures of the American
Arbitration Association ("AAA") or the International Chamber of Commerce ("ICC")
shall apply and the location of the arbitration proceeding, which decision shall
be final and conclusive on all parties hereto. The arbitrator(s) shall be
appointed in accordance with the AAA or ICC rules (as applicable).
17. Amendment and Modification. This Agreement may be amended or modified
by the Trustee and the Corporation, provide, however, that if in the opinion of
either the Trustee or the Corporation (which shall be conclusive) any such
amendment or modification will materially adversely affect the rights of the
Stockholders, the Trustee shall notify the Stockholders of the nature of such
amendment or modification not less than fifteen (15) calendar days prior to the
date on which it is proposed that such amendment or modification is to become
effective and
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such amendment or modification shall not become effective, if on or prior to
such proposed effective date, the holders of more than fifty percent (50%) of
the Stock represented by the Voting Trust Certificates outstanding under the
Trust shall in writing advise the Trustee of their objection thereto. The
Trustee, in her sole discretion, is hereby expressly authorized to amend this
Agreement, without any prior notice to or consent of the Stockholders, to admit
additional parties as Primary Investors hereunder.
18. Benefit and Burden. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective estates, heirs,
trustees, beneficiaries, executors or administrators, personal or legal
representatives and, subject to the provisions of this Agreement, assigns.
19. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
20. Construction. The Trustee is authorized and empowered to construe this
Agreement, and her construction made in good faith shall be conclusive and final
upon all Stockholders. This Agreement shall be construed solely as an agreement
among the parties hereto and solely affecting and relating to the Trustee, the
Stockholders and the other parties hereto, and no other person shall have any
rights whatsoever hereunder.
21. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Maryland, without regard to principles
of conflict of laws or choice of law.
22. Preamble; Exhibits. The preamble hereto is hereby incorporated
herein and, by this reference, made a part hereof. Similarly, Exhibit A and
Exhibit B attached hereto is hereby incorporated herein and, by this reference,
made a part hereof.
23. Headings. The headings in this Agreement are for convenience and
reference only and shall not be used in interpreting, construing or enforcing
any of the provisions of this Agreement.
24. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute the same instrument.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Trust
Agreement under seal as of the date first above written.
TRUSTEES:
/s/ Chang-Ho Ahn (SEAL)
-----------------------------------
CHANG-HO AHN, Co-Trustee
/s/ Young-Soon Park (SEAL)
-----------------------------------
YOUNG-SOON PARK, Co-Trustee
CORPORATION:
REXAHN CORPORATION, a Maryland corporation
By: /s/ Chang H. Ahn
--------------------------------
Name: Chang H. Ahn
Title: Chief Executive Officer
STOCKHOLDERS:
[SEE ATTACHED COUNTERPART SIGNATURE
PAGES FOR EACH STOCKHOLDER.]
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COUNTERPART SIGNATURE PAGE OF STOCKHOLDER
KOREAN REXAHN INVESTORS VOTING TRUST
The undersigned hereby executes the Voting Trust Agreement for the Korean
Rexahn Investors Voting Trust as a Stockholder and hereby agrees to all of the
terms and conditions contained therein.
STOCKHOLDERS:
/s/ Young Soon Park
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Name: Young Soon Park
/s/ Suk Hyung Kwon
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Name: Suk Hyung Kwon
/s/ Sook Hee Ko
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Name: Sook Hee Ko
/s/ Hyok-Soon Kwon
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Name: Hyok-Soon Kwon
/s/ Dong Youn Lee
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Name: Dong Youn Lee
/s/ Bokja An
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Name: Bokja An
/s/ Kyung-Sook Kim
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Name: Kyung-Sook Kim
/s/ Jae Sung Kim
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Name: Jae Sung Kim
/s/ Hu Weon Yoon
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Name: Hu Weon Yoon
12
/s/ Dong Sik Choi
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Name: Dong Sik Choi
/s/ Younsoo Kim
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Name: Younsoo Kim
/s/ Ho In Ryou
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Name: Ho In Ryou
/s/ Hea Ryeun Lee
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Name: Hea Ryeun Lee
/s/ Chong Sook Lee
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Name: Chong Sook Lee
/s/ Ki-Bong Kwon
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Name: Ki-Bong Kwon
/s/ Jae Moon Shim
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Name: Jae Moon Shim
/s/ Mi Seong Kweon
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Name: Mi Seong Kweon
/s/ Jeong Mi Lim
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Name: Jeong Mi Lim
/s/ Sung Han Yoon
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Name: Sung Han Yoon
/s/ Jae Bok Nam
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Name: Jae Bok Nam
/s/ Yeo Joo Lee
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Name: Yeo Joo Lee
13
/s/ Hwa-Myung Kim
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Name: Hwa-Myung Kim
/s/ Gil-Jong Back
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Name: Gil-Jong Back
/s/ Hee Ock Koh
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Name: Hee Ock Koh
/s/ Yeon-Gyeong Kim
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Name: Yeon-Gyeong Kim
/s/ Ok-Rae Lim
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Name: Ok-Rae Lim
/s/ Kyung Sook Mun
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Name: Kyung Sook Mun
/s/ Su Young Kim
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Name: Su Young Kim
/s/ Hyeran Kim
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Name: Hyeran Kim
/s/ Yu Jine Rho
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Name: Yu Jine Rho
Onnuri Healthy Family Welfare Association
By: /s/ Young Soon Park
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Name: Young Soon Park
/s/ Joong-Gil Kang
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Name: Joong-Gil Kang
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/s/ Young Soh Kong
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Name: Young Soh Kong
/s/ Tae Hee Kwak
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Name: Tae Hee Kwak
/s/ Jung Ja Kwon
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Name: Jung Ja Kwon
/s/ Nam Chul Kim
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Name: Nam Chul Kim
/s/ Dong Sun Kim
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Name: Dong Sun Kim
/s/ Young Kwang Kim
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Name: Young Kwang Kim
/s/ Moo Yong Park
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Name: Moo Yong Park
/s/ Sang Sung Park
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Name: Sang Sung Park
/s/ Sung Ha Park
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Name: Sung Ha Park
/s/ Jong Hwa Park
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Name: Jong Hwa Park
/s/ Young Bae Bang
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Name: Young Bae Bang
15
/s/ Jeong-hee Seong
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Name: Jeong-hee Seong
/s/ Kyung Hee Shin
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Name: Kyung Hee Shin
/s/ Hee Joong Shin
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Name: Hee Joong Shin
/s/ Byung Hwa Ahn
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Name: Byung Hwa Ahn
/s/ Kyung Ai Lee
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Name: Kyung Ai Lee
/s/ Jung Ae Lee
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Name: Jung Ae Lee
/s/ Jung Ja Lee
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Name: Jung Ja Lee
/s/ Jeong Hee Lee
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Name: Jeong Hee Lee
/s/ Hye Kyung Lee
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Name: Hye Kyung Lee
/s/ Kyo Sun Chung
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Name: Kyo Sun Chung
/s/ Hong Sin Joung
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Name: Hong Sin Joung
/s/ Soo Worl Cho
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Name: Soo Worl Cho
16
/s/ Nam Rye Chin
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Name: Nam Rye Chin
/s/ Bok-Hee Choi
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Name: Bok-Hee Choi
/s/ Jin Yeob Choi
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Name: Jin Yeob Choi
Technoangel IC
By: /s/ [Signature Illegible]
-----------------------------------
Name: Technoangel IC
17