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, including such Stockholder’s spouse, parents, children,
siblings, mother-in-law, father-in-law, brother-in-law, sister-in-law,
son-in-law, daughter-in-law, and anyone who resides in such person’s home
(other than domestic employees), (iii) to any person or party whose
ownership of the Shares would provide continued beneficial ownership of the
Shares by the selling Stockholder pursuant to Rule 13d-3 promulgated under
the Securities Exchange Act of 1934 (as now or hereafter amended, the “Exchange
Act”).


 


If the foregoing conditions
are satisfied, the respective Stockholder may provide written notice to the
Trustees directing them to (i) sell the number of Shares or (ii) tender
the Shares, in each case in accordance with the written instructions of the
Stockholder contained in the notice. The Trustees shall use reasonable good
faith efforts to cause the sale or tender, as the case may be, of such Shares
in accordance with such instructions. Upon completion of the sale or tender of
such Shares, (i) the Trustees shall pay promptly the net proceeds from the
sale or tender of such Shares to the respective Stockholder, (ii) the
Trustees shall promptly notify the Company of such sale or tender, if not
previously notified, (iii) such Shares shall no longer be subject to the
terms and conditions of this Agreement or the voting trust.


 


12.           For purposes of this Agreement, a “Change of Control”
shall mean (A) the acquisition of shares of the Company by any “person” or
“group” (as such terms are used in Rule 13d-3 under the Exchange Act) in a
transaction or series of transactions that result in such person or group
directly or indirectly becoming the beneficial owner of 40% or more of the
Company’s voting capital stock after the date of this Agreement, (B) the
consummation of a merger or other business combination after which the holders
of voting capital stock of the Company do not collectively own 60% or more of
the voting capital stock of the entity surviving such merger or other business
combination, (C) the sale, lease, exchange or other transfer in a
transaction or series of transactions of all or substantially all of the assets
of the Company or (D) as the result of or in connection with any cash
tender offer or exchange offer, merger or other business combination, sale of
assets or contested election of directors or any combination of the foregoing
transactions (a “Transaction”), the persons who constituted a majority of the
members of the Board of Directors of the Company (the “Board”) on the date of
this Agreement and persons whose election as members of the Board was approved
by such members then still in office or whose election was previously so
approved after the date of this Agreement, but before the event that
constitutes a Change of Control, no longer constitute such a majority of the
members of the Board then in office. A Transaction constituting a Change of
Control shall only be deemed to have occurred upon the closing of the
Transaction. The term “Change of Control” shall not include the merger under
the Merger Agreement.


 


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13.           For purposes of this Agreement, the term “Cause” shall
mean (1) conviction of the Stockholder of any felony; (2) participation
by the Stockholder in any fraud or act of dishonesty against the Company; (3) material
violation by the Stockholder of (i) any contract between the Company and
the Stockholder, or (ii) any statutory duty of Stockholder to the Company;
(4) conduct of the Stockholder that, based upon a good faith and
reasonable factual investigation and determination by the Board, demonstrates
the Stockholder’s gross unfitness to serve; or (5) the continued, willful
refusal or failure by the Stockholder to perform any material duties reasonably
requested by the Board; provided, however, that in the case of conduct
described in clauses (3), (4) and (5) hereof, such conduct shall
not constitute “Cause” unless (a) the Board shall have given the
Stockholder written notice setting forth with specificity (i) the conduct
deemed to constitute “Cause,” (ii) reasonable action that would remedy the
objectionable conduct and (iii) a reasonable time (not less than ten days)
within which the Stockholder may take such remedial action, and (b) the
Stockholder shall not have taken such specified remedial action within such
specified reasonable time.


 


14.           If any mutilated Voting Trust Certificate is surrendered
to the Trustees, or the Trustees receive evidence to their satisfaction that
any Voting Trust Certificate has been destroyed, lost or stolen, and upon proof
of ownership satisfactory to the Trustees together with such security or
indemnity, in the case of a destroyed, lost or stolen Voting Trust Certificate,
as may be requested by the Trustees to be held harmless, the Trustees shall
execute and deliver a new Voting Trust Certificate representing the same number
of Shares as the Voting Trust Certificate so mutilated, destroyed lost or
stolen, with such notations, if any, as the Trustees shall determine.


 


15.           Upon the termination of this Agreement, the Trustees shall
request that the Company issue certificates representing the Shares deposited
hereunder in the names of the holders of record of the Voting Trust
Certificates and shall deliver such certificates to the holders of Voting Trust
Certificates in the proportion of their respective holdings, upon presentation
and surrender to the Trustees of the Voting Trust Certificates therefor. If the
Trustees for any reason shall be unable to complete such deliveries within
30 days after the termination of this Agreement, the Trustees may then deposit
with the Company such stock certificates, along with written authority to the
Company to deliver them in exchange for the Voting Trust Certificates; and upon
such deposit, all further liability of the Trustees for the delivery of such
stock certificates and the delivery or payment of dividends upon surrender of
the Voting Trust Certificates, shall cease, and the Trustees shall not be
required to take any further action hereunder.


 


16.           The Trustees may serve as directors, officers, employees
or consultants of the Company and be compensated therefor, and may hold stock
in the Company or become a creditor of the Company or otherwise deal with it in
good faith. The Trustees may hold or dispose of Voting Trust Certificates
issued to them or otherwise acquire additional Voting Trust Certificates to the
same extent as any other Stockholder.


 


17.           The Trustees shall serve hereunder without compensation.
The Trustees shall have the right to incur and pay such reasonable expenses and
charges and to employ and pay such agents, attorneys and counsel as they may
deem necessary and proper. The Company shall reimburse any such expenses or
charges incurred by and due to the Trustees.


 


18.           In the event of the death, resignation or legal
incompetence of a Trustee, a designee successor Trustee or Trustees shall be
appointed by the remaining Trustees from the other independent members of the
Board (as determined pursuant to any national securities exchange rules and
regulations then applicable to the Company). The term “Trustee” as used in his
Agreement shall apply equally to the Trustees named herein and to their
successors hereunder.


 


19.           Each of the Trustees, by signing a counterpart of this
Agreement, accepts the voting trust herein created and his or her role as a
Trustee therefor, including the duties and responsibilities of 


 


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each Trustee to the other Trustees and to the
beneficiaries of this voting trust as set forth in this Agreement, and shall
act solely as a Trustee hereunder and not in any individual capacity.


 


20.           The Trustees shall not be liable for any act or omission
as Trustees hereunder taken or omitted in good faith and without gross
negligence, including acting upon any signature, instrument, notice,
resolution, request, consent, order or certificate or other written
documentation reasonably and in good faith believed by the Trustees to be
genuine and signed by the proper party or parties thereto. No Trustee shall be
responsible for any act or omission by any predecessor or successor Trustee.
The Company shall indemnify each Trustee against all costs, charges, expenses,
losses, liabilities, actions, suits and damages incurred by any or all of them
in the or arising from the administration of this voting trust or the exercise
of any power conferred upon the Trustee by this Agreement, except to the extent
such cost, charge, expense, loss, liability, action, suit or damage is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the Trustee’s gross negligence or willful misconduct.


 


21.           The Company by executing this Agreement consents to all
the terms and conditions hereof, and agrees that it will take all action
necessary or appropriate for carrying out the terms hereof.


 


22.           This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators and permitted successors and assigns.


 


23.           This Agreement constitutes the entire understanding among
the parties hereto with respect to the subject matter hereof. The invalidity or
unenforceability, in part or in whole, or any provision hereof shall not affect
the validity or enforceability of the remainder of such provision or any other
provision hereof. A court of competent jurisdiction may reduce or limit the
scope of any provision hereof in order to make such provision enforceable.


 


24.           This Agreement may be executed in several counterparts
each of which shall be deemed an original, but all of which together shall constitute
one and the same document.


 


25.           Any notice that may be given under this Agreement shall be
in writing and be deemed given when delivered by hand, confirmed facsimile
transmission, or nationally recognized overnight courier or, if mailed, one day
after mailing by registered or certified mail, return receipt requested, to the
Company at its principal executive office address, or to the Trustees or the
Stockholders at their respective addresses stated on the signature pages or
Schedule I to this Agreement, or at such other address as any of them may
by similar notice designate.


 


26.           This Agreement may be amended, and additional parties may
be added, by written agreement signed by the Company, the holders of a majority
in interest of the Stockholders and the Trustees; provided, however, that the
Trustees shall give each Stockholder notice of any such amendment, and a
Stockholder who did not approve the amendment may opt out of the amendment, so
that the amendment shall not be applicable to such Stockholder, by providing
written notice to the Trustees no later than ten business days after the date
that the Trustees shall have been deemed to have given the notice of amendment
to the Stockholder.


 


27.           This Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Delaware without giving
effect to conflicts of laws.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to by duly executed as of the date
first written above.


 


	
   

  	
  INOVIO BIOMEDICAL CORPORATION

  
	
   

  	
  By:

  	
  /s/ Avtar Dhillon

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  /s/ Simon Benito

  
	
   

  	
  Simon Benito, Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Tee Khiang Ng

  
	
   

  	
  Tee Khiang Ng, Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Morton Collins

  
	
   

  	
  Dr. Morton Collins, Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  Contact Information for Trustees

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  c/o Inovio Biomedical Corporation

  
	
   

  	
   

  	
  11494 Sorrento Valley Road

  
	
   

  	
   

  	
  San Diego, California 92121.

  
	
   

  	
  Fax Number:

  	
  (858)597-0451

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signatures of Stockholders

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ J. Joseph Kim

  	
   

  	
   

  	
   

  
	
  Dr. J. Joseph Kim, Stockholder

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Young Park

  	
   

  	
   

  	
   

  
	
  Young Park, Stockholder

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ David Weiner

  	
   

  	
   

  	
   

  
	
  David Weiner, Stockholder

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Michael Kaufman

  	
   

  	
   

  	
   

  
	
  Michael Kaufman, Stockholder

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Bryan Chang

  	
   

  	
   

  	
   

  
	
  Bryan Chang, Stockholder

  	
   

  	
   

  	
   

  
					



 


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SCHEDULE I


 


	
  Name and Address of Stockholder

  	
   

  	
  Number of Shares Deposited

  	
   

  
	
  J. Joseph Kim

  	
   

  	
  3,450,000

  	
   

  
	
  Young Park

  	
   

  	
  1,000,000

  	
   

  
	
  David Weiner

  	
   

  	
  2,700,000

  	
   

  
	
  Michael Kaufman

  	
   

  	
  300,000

  	
   

  
	
  Bryan Chung

  	
   

  	
  550,000

  	
   

  
	
   

  	
   

  	
  8,000,000

  	
   

  



 


All addresses provided as 450 Sentry Parkway East, Suite 102, Blue
Bell, Pennsylvania 19422.


 

















 


EXHIBIT A


 


THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED OR TRANSFERRED
UNLESS (1)(A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) EFFECTED IN ACCORDANCE
WITH AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION AND (2) CONSISTENT
WITH THE TERMS AND CONDITIONS ON TRANSFER SET FORTH IN THE VOTING TRUST
AGREEMENT AS DEFINED HEREIN.


 


INOVIO BIOMEDICAL CORPORATION


 


Voting
Trust Certificate


 


	
  No.

  	
   

  	
   

  	
  Shares

  	
   

  



 


This certifies that                                      has
deposited                          shares of common stock,
par value $             per share, of
Inovio Biomedical Corporation (the “Company”), a Delaware corporation, with the
undersigned Trustees, under the Inovio Biomedical Corporation Voting Trust
Agreement dated as of                                     , 2009, as
may be amended from time to time (the “Voting Trust Agreement”) among the
Company, the Trustees and the Stockholders named therein, a copy of which will
be furnished to the holder hereof without charge upon written request therefor
to the Trustees, and shall be entitled to a certificate or certificates
representing such shares upon termination of the Voting Trust Agreement in
accordance with its terms. Prior to the delivery of such certificates upon such
termination, the undersigned Trustees shall possess and be entitled to
exercise, in the manner and to the extent provided in the Voting Trust
Agreement, all of the rights of every kind of the holder of this certificate
with respect to the shares so deposited.


 


The holder of this
Certificate has acquired it to hold as evidence of an investment and without a
view towards distribution. This Certificate, including the interest represented
hereby, is transferable only on the books of the Trustees upon presentation and
surrender hereof in accordance with the terms of the Voting Trust Agreement.


 


The holder of this
Certificate takes the same subject to all terms and conditions of the Voting
Trust Agreement and is bound by and entitled to the benefit of such Voting Trust
Agreement.


 


IN WITNESS WHEREOF, the
Trustees have caused this Certificate to be signed as of this                          day of             , 2009.


 


	
   

  	
   

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Trustee

  



 


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