EXHIBIT 1
VOTING TRUST AND SHAREHOLDERS' AGREEMENT
----------------------------------------
THIS AGREEMENT dated for reference the 29th day of October, 2001.
AMONG:
MFC BANCORP LTD., a corporation organized under the laws of
the Yukon Territory, Canada
(the "Investor")
OF THE FIRST PART
AND:
XXXXXX XXXX, of Berlin, Germany and VENTEGIS CAPITAL AG
(formerly Cybermind Interactive Europe AG), a corporation
organized under the laws of Germany ("Ventis")
(collectively, the "Ventegis Group")
OF THE SECOND PART
AND:
CONSORS CAPITAL BANK AG, Branch Berliner Effektenbank AG,
a bank organized under the laws of Germany
(the "Depositary")
OF THE THIRD PART
WHEREAS the Investor and the Ventegis Group are herein collectively
referred to as the "Shareholders";
AND WHEREAS the Ventegis Group represents that it is the beneficial owner
of fully paid common shares (the "common shares") in the capital of Cybernet
Internet Services International, Inc., a corporation incorporated under the laws
of Delaware (the "Corporation"), as set forth in Schedule A annexed hereto;
AND WHEREAS the Shareholders desire to enter into this Voting Trust
Agreement to secure continuity of strategy and policy of the business and
affairs of the Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration and the mutual covenants herein contained, it is agreed by and
between the parties hereto as follows:
1. DEPOSIT OF SHARES
Each member of the Ventegis Group hereby delivers to the Depositary for
deposit hereunder a certificate or certificates registered in its name, duly
endorsed in blank for transfer representing the number of common shares of the
Corporation indicated opposite such person's name in Schedule A annexed hereto.
2. ISSUE OF VOTING TRUST CERTIFICATES
The Depositary hereby issues in the name of each member of the Ventegis
Group and delivers to such member of the Ventegis Group a voting trust
certificate in or substantially in the form of voting trust certificate set out
in Schedule B hereto representing the common shares of the Corporation so
delivered and deposited, and the Depositary shall forthwith proceed to transfer
such deposited common shares into its name.
3. EXERCISE OF VOTING RIGHTS BY INVESTOR
Until the actual delivery of any deposited common shares of the Corporation
to the holders of the voting trust certificates representing the same in
accordance with the provisions of this agreement, the Investor shall, in respect
thereof but subject as hereinafter provided, exclusively possess and be entitled
to exercise, in person or by attorney, all the voting rights appertaining to
such common shares of the Corporation and all rights in connection with the
initiation, taking part in and consenting to any action as shareholders of the
Corporation, and the Depositary shall from time to time and at all times do
whatever may be requested by the Investor, including the execution and delivery
of appropriate instruments of proxy and/or powers of attorney, to enable or
facilitate the exercise of any and all such rights by or on behalf of the
Investor. Prior to any vote of holders of common shares of the Corporation, the
Investor shall reasonably inform and advise the Ventegis Group of its actions
and decisions hereunder.
4. PAYMENT OF DIVIDENDS TO HOLDERS OF VOTING TRUST CERTIFICATES
The holder of each voting trust certificate issued hereunder shall be
entitled to receive promptly from the Depositary payments by cheque equivalent
in amount to the cash dividend or distribution payments, if any, received by the
Depositary upon that number of deposited common shares of the Corporation that
is equivalent to the number such shares represented by such voting trust
certificate. The payment made to the holders of voting trust certificates in
respect of any such dividend shall be made to the holders of record of such
certificates, respectively, according to the books of the Depositary as at the
close of business on the record date established by the Corporation for payment
to its shareholders of such cash dividend or distribution.
5. TRANSFER OF VOTING TRUST CERTIFICATES AND COMMON SHARES
(a) Voting trust certificates registered in the name of each member
of the Ventegis Group and common shares deposited hereunder
shall not be charged, pledged, encumbered,
transferred, assigned, disposed of or otherwise dealt with by
the Ventegis Group except in accordance with and subject to
the terms, conditions and provisions of this agreement; and
(b) No transfer, assignment, disposition or other dealing with
a voting trust certificate shall be valid for any purpose
whatsoever unless made on the register of the holders of voting
trust certificates maintained by the Depositary and upon
compliance with such reasonable requirements as the
Depositary may prescribe, including such reasonable evidence
that the provisions of this agreement have been duly complied
with if then in effect.
6. REGISTER OF HOLDERS OF VOTING TRUST CERTIFICATES
The Depositary shall at all times treat and consider the registered holder
of a voting trust certificate on the books of the Depositary as the holder
thereof for all purposes. The Depositary shall keep a register of the names and
addresses of the holders of all voting trust certificates issued and shall
record the names and addresses of all transferees of voting trust certificates.
In the event that there is a discrepancy between the register of the holders of
voting trust certificates maintained by the Depositary and the voting trust
certificate held by the Shareholder, the register of holders kept by the
Depositary shall prevail.
7. RIGHT TO RECEIVE COMMON SHARES
On the termination of this agreement and pursuant to the provisions of
sections 6 and 9 hereof, each voting trust certificate shall entitle the
registered holder thereof, or its executors, administrators, legal personal
representatives or successors, or its attorney duly appointed by an instrument
in writing in form and execution satisfactory to the Depositary, to the number
of common shares of the Corporation represented thereby on surrender of such
voting trust certificate, duly endorsed for transfer, at the office of the
Depositary.
The Depositary shall at all times ensure that the number of common shares
of the Corporation held by it is equivalent to the aggregate number of all such
shares represented by the outstanding voting trust certificates issued by it.
8. TERM OF VOTING TRUST AND SHAREHOLDERS' AGREEMENT
The term of this agreement shall be for a period of eighteen (18) months
from the date of this agreement (the "Initial Term") and shall be automatically
renewed for a further period of three months perpetually (the "Renewal Term")
unless terminated. This agreement may be terminated at the end of the Initial
Term or each Renewal Term by written notice thirty (30) days prior to the expiry
of the Initial Term or Renewal Term, as applicable.
9. RELEASE OF COMMON SHARES ON TERMINATION
Upon the termination of this agreement or otherwise specified herein, the
Depositary shall distribute the deposited common shares of the Corporation by
distributing share certificates representing the deposited common shares
registered in the names of, or to the order of, the holders
of the voting trust certificates, to the holders of the voting trust
certificates, respectively, on surrender of such voting trust certificates, duly
endorsed for transfer at the office of the Depositary.
10. ISSUE OF REPLACEMENT VOTING TRUST CERTIFICATES
In case any voting trust certificate issued hereunder shall become
mutilated, or be lost, destroyed or stolen, the Depositary may issue and deliver
in exchange for and upon cancellation of such mutilated voting trust certificate
or in lieu of the voting trust certificate so lost, destroyed or stolen, a new
voting trust certificate representing the same number of common shares of the
Corporation upon, in case of loss, destruction or theft, the production of such
evidence thereof and the receipt of such indemnity and compliance with such
reasonable regulations as the Depositary may from time to time deem proper in
the circumstances.
11. PROTECTION OF DEPOSITARY
By way of supplement to the provisions of law or of any statute for the
time being in effect relating to trustees, it is agreed that:
(a) the Depositary shall not incur any liability or responsibility by
reason of any error of law or mistake or any matter or thing done
or omitted to be done under or in relation to this agreement,
except for matters relating to bad faith, wilful misconduct or
gross negligence; and
(b) the Depositary may in relation to this agreement, act on the opinion
or advice of or opinion obtained from any lawyer, broker or other
expert and shall not be responsible for any loss occasioned by
so acting, and shall incur no liability or responsibility for
deciding in good faith not to act upon any such opinion or advice.
12. INDEMNITY OF DEPOSITARY
The Shareholders shall indemnify and save the Depositary harmless from and
against any claims, demand, actions, causes of action, damage, loss, deficiency,
cost, liability and expense which may be made or brought against the Depositary
or which the Depositary may suffer or incur as a result of, in respect of or
arising out of their fulfillment of any covenant or obligation contained in this
agreement.
13. DEPOSIT OF ADDITIONAL SHARES
Each of the members of the Ventegis Group agrees to deliver to the
Depositary, for deposit hereunder, the certificate or certificates registered in
its name, duly endorsed in blank for transfer, representing any common shares of
the Corporation that it may at any time hereafter and until the termination of
this agreement as provided in section 8 hereof purchase or otherwise acquire in
any manner whatsoever, whereupon the Depositary shall issue a voting trust
certificate in respect of such shares, and the provisions of this agreement
shall apply in respect thereof, mutatis mutandis, as if such common shares were
originally deposited hereunder.
14. CHANGE OF COMMON SHARES
The parties hereto agree that the provisions of this agreement relating to
the deposited common shares of the Corporation shall apply mutatis mutandis to
any shares or securities into which such common shares may be converted,
changed, reclassified, redivided, redesignated, subdivided or consolidated, to
any shares or securities that are received by the Depositary as the registered
holder of the deposited common shares of the Corporation as a stock dividend or
distribution payable in shares or securities of the Corporation that entitle the
holder thereof to vote at any meeting of the shareholders of the Corporation and
to any shares or securities of the Corporation or of any successor or continuing
company or corporation to the Corporation that may be received by the Depositary
as the registered holder of the deposited common shares of the Corporation on a
reorganization, amalgamation, consolidation or merger, statutory or otherwise.
15. EARN-OUT
(a) Ventis agrees and covenants to pay the Investor an earn-out fee
(the "Earn-Out Fee") equal to 30% of the difference between the
average closing bid price of the common shares during the last 10
trading days immediately prior to the one year anniversary of the
date hereof on the Frankfurt Stock Exchange, or if not so listed,
the principal stock exchange or quotation system on which the
common shares are traded (the "Calculated Share Price") and E0.42,
multiplied by the aggregate number of common shares then
deposited by Ventis under this agreement, provided that if a
tender bid offer (the "Tender Bid") is made for all of the common
shares of the Corporation, the Investor has not been engaged as an
advisor to the Corporation and Ventis tenders and sells its common
shares to the Tender Bid, no Earn-Out Fee shall be payable to the
Investor on any such share so tendered or sold;
(b) Ventis shall have the option of paying the Earn-Out Fee to the
Investor in either cash (by electronic wire transfer or bank draft)
or common shares. If common shares are paid in lieu of cash, the
common shares shall be valued at the Calculated Share Price and
Ventis shall instruct the Depositary to deliver to the Investor
forthwith a share certificate in the name of the Investor
representing such number of common shares to the Earn-Out Fee
divided by the Calculated Share Price;
(c) The Earn-Out Fee shall be paid by Ventis to the Investor within
fifteen (15) days following the one year anniversary of the date
hereof (the "Payment Period"), if payable;
(d) If the Earn-Out Fee is not paid by Ventis to the Investor within
the Payment Period, the Investor may deliver a default notice (the
"Default Notice") to Ventis and the Depositary outlining the amount
owing to the Investor and the number of common shares to be
released by the Depositary as payment and settlement of the
Earn-Out Fee;
(e) Upon receiving the Default Notice from the Investor, the
Depositary shall:
(i) within five (5) days deliver a share certificate, without
any restrictions or legends whatsoever, in the name of the
Investor representing such number of
common shares as specified in the Default Notice;
(ii) amend the register of holders of voting trust certificates
by reducing the holdings of Ventis by the number of common
shares specified in the Default Notice; and
(iii) unilaterally cancel the voting trust certificate
representing the common shares deposited by Ventis and
reissue a new voting trust certificate reflecting the
reduction in holdings of Ventis; and
(f) In the event that Ventis sells, assigns or transfers a voting
trust certificate or common shares deposited hereunder in accordance
with section 17 herein, the provisions of paragraph 15(a) shall
immediately apply in respect thereof, mutatis mutandis, as if the
Calculated Share Price was to be determined on the closing date of
the purchase and sale transaction, and all other provisions of this
section 15 shall also apply mutatis mutandis, such that the Earn-Out
Fee shall then be due and payable.
16. AMENDMENTS AND RELEASE OF COMMON SHARES
No modification or amendment to this agreement may be made unless agreed to
by the parties in writing. Each Shareholder covenants one with the other that
the deposited common shares shall not be released by the Depositary except on
termination of this agreement or in accordance with the terms herein and that it
will not request nor be entitled to the release of its common shares by the
Depositary except on such basis.
17. RIGHT OF FIRST REFUSAL
Each member of the Ventegis Group shall not sell, assign or transfer any
common shares deposited hereunder or any voting trust certificates held, except
pursuant to this section 17.
(a) If any member of the Ventegis Group (the "Offeror"):
(i) receives a bona fide written offer (the "Offer") from any
person, firm or corporation dealing at arm's length with the
Offeror to purchase all or any portion of the common shares
beneficially owned by such member of the Ventegis Group, which
is acceptable to the member of the Ventegis Group; or
(ii) wishes to sell any common shares deposited hereunder to a third
party dealing at arm's length with the Offeror through a
good faith market sale through the facilities of a stock
exchange in Germany or in the USA (the "Proposed Sale"),
such member of the Ventegis Group shall give notice of such
Offer or Proposed Sale (the "Notice") to the Investor and
shall set out in the Notice the number of common shares to be
sold pursuant to the Offer or Proposed Sale (the "Offered
Shares") and the terms upon which and the price at which (the
"Purchase Price") such Offered Shares will be sold pursuant to
the Offer or Proposed Sale;
(b) Upon the Notice being given, the Investor shall have the right to
purchase all, but not less than all, of the Offered Shares for the
Purchase Price;
(c) Within five (5) business days of having been given the Notice (which
said five (5) day period may be waived or abridged by the Investor in
its sole discretion), if the Investor desires to purchase all of the
Offered Shares that it is entitled to purchase in accordance with the
provisions of paragraph 17(b), the Investor shall give notice to the
Offeror. If the Investor is willing to purchase all, but not less
than all, of the Offered Shares, the transaction of purchase and
sale shall be completed in accordance with the terms set out in the
Notice;
(d) If the Offeror makes default in transferring the Offered Shares
to the Investor in accordance with the terms set out in the
Notice, the Depositary is authorized and directed to receive the
purchase money and to thereupon cause the name of the Investor
to be entered in the registers of the Depositary as the holders of
the voting trust certificate purchasable by it and shall also be
effectively transferred thereby. The said purchase money shall be
held in trust by the Depositary on behalf of the Offeror
and not commingled with the Depositary's assets. The receipt by
the Depositary for the purchase money shall be a good discharge to
the Investor and, after its name has been entered in the registers
of the Depositary in exercise of the aforesaid power, the validity
of the proceedings shall not be subject to question by any
person. On such registration, the Offeror will then only
be entitled to receive, without interest, the Purchase Price
received by the Depositary;
(e) If the Investor does not give notice in accordance with the
provisions of paragraph 17(c) that it is willing to purchase all
of the Offered Shares, the rights of the Investor, subject as
hereinafter provided, to purchase the Offered Shares shall forthwith
cease and the Offeror may sell the Offered Shares to the third party
purchaser within fifteen (15) days after the expiry of the five (5)
business day period specified in paragraph 17(c), for a price not
less than the Purchase Price and on terms no more favourable to
such person than those set forth in the Notice, provided that:
(i) if the Offered Shares are sold by way of private sale or to
a party not dealing at arm's length with the Offeror, then
the person to whom the Offered Shares is to be sold shall
agree prior to such transaction to be bound by this agreement
and to become a party hereto in place of the Offeror with
respect to the Offered Shares; or
(ii) if the Offered Shares are sold in good faith by the Offeror
to a third party dealing at arm's length with the Offeror
through the facilities of a Stock Exchange in Germany or in
the USA then the person to whom the Offered Shares is
to be sold shall not be required to be bound by or subject
to any of the terms of this agreement ; and
(f) If the Offered Shares is not sold within such fifteen (15) day
period on such terms,
the rights of the Investor pursuant to this section 17 shall
again take effect and so on from time to time.
18. LEGEND
At all times during the term of this agreement, and from time to time, 90%
of the common shares represented by the share certificates of the Corporation
deposited hereunder with the Depositary shall have the following legend endorsed
thereon forthwith after the execution of this agreement and from time to time
thereafter:
"THE SALE, TRANSFER, ASSIGNMENT, VOTING, PLEDGE OR ENCUMBRANCE OF THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS AND CONDITIONS OF A VOTING TRUST AND SHAREHOLDERS' AGREEMENT
DATED OCTOBER 29, 2001, AMONG MFC BANCORP LTD., XXXXXX XXXX AND VENTEGIS
CAPITAL AG. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF THIS CERTIFICATE TO THE * ."
For greater certainty, if the number of common shares represented by share
certificates of the Corporation deposited hereunder shall decrease, the number
of common shares represented by share certificates of the Corporation subject to
the legend endorsement shall decrease accordingly.
19. OFFER TO PURCHASE NOTES
During the term of this agreement:
(a) if the Investor acquires all of the Corporation's issued and
outstanding 14% Senior Notes, due 2009 (the "Notes"),
the Investor shall:
(i) within ten (10) days of completing its last purchase
of the Notes, notify and offer (the "Note Offer") to sell
all of the Notes to the Corporation at an amount equal to
all of its direct and indirect costs and expenses relating
to the acquisition and carrying costs of the Notes,
including legal, accounting, tax and other advisory fees,
interest expense, cost of capital, capitalized costs, and
reasonable commissions, finders fees and any other ancillary
costs or expenses (the "Costs"). Within ten (10) days of
receiving the Note Offer, if the Corporation desires to
purchase all of the Notes, it shall notify the Investor
in writing of its intention and the purchase and sale
transaction shall be completed within ten (10) days thereafter
at the offices of the Investor or such other place as the
parties may agree; and
(ii) cause its nominee directors that are on the board of the
Corporation to abstain from voting on any matters
dealing with the Note Offer; or
(b) if the Investor acquires less than 100% of the Notes and
subsequently disposes of any Notes, the Investor shall:
(i) within ten (10) business days pay to each of the Shareholders
an amount equal to the product of: (A) the Investor's
proceeds of disposition less all expenses, fees and taxes
incurred in relation thereto, and less its Costs, multiplied by
(B) each of the Shareholders' proportionate percentage interest
in the outstanding common shares of the Corporation as at the
date of payment; and
(ii) cause its nominee directors that are on the board of the
Corporation to abstain from voting on any matters dealing
with this paragraph 19(b).
20. AFFILIATE TRANSACTIONS
The Investor will cause its nominee directors that are on the board of the
Corporation to use reasonable best efforts to ensure that any transaction
between the Corporation and an Affiliate (as such term is defined in the
indenture between the Corporation and The Bank of New York dated July 8, 1999,
as amended from time to time (the "Indenture"), relating to the Notes) is
effected in accordance with section 4.12 of the Indenture.
21. EXPENSES OF PARTIES
Each of the parties hereto shall bear all expenses incurred by it in
connection with this agreement including, without limitation, the charges of
their respective counsel, accountants, financial advisors and finders.
22. NOTICE
Any notice or other document required or permitted to be given pursuant to
this agreement shall be validly given if delivered or sent by registered mail,
postage prepaid, to the address of the addressee as follows:
If to the Ventegis Group:
XXXXXX XXXX
Xxxxxxx Xxxxxxx 00
00000 Xxxxxx, Xxxxxxx
Attention: Xxxxxx Xxxx
Fax No.: x00 00 000 00 000
and
VENTEGIS CAPITAL XX
Xxxxxxxxxxxxx 00
00000 Xxxxxx, Xxxxxxx
Attention: Karsten Haesen
Fax No.: x00 00 000 00 000
If to Ventis:
VENTEGIS CAPITAL AG
Xxxxxxxxxxxxx 00
00000 Xxxxxx, Xxxxxxx
Attention: Karsten Haesen
Fax No.: x00 00 000 00 000
If to the Investor:
MFC BANCORP LTD.
00 Xxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xxx Xxxxxxx
Fax No.: x0 000 000-0000
with a copy to:
SANGRA, MOLLER
Barristers and Solicitors
0000 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: H.S. Sangra
Fax No.: x0 000 000-0000
If to the Depositary:
CONSORS CAPITAL BANK AG
Niederlassung : Berliner Effektenbank AG
Xxxxxxxxxxxxxx 000
00000 Xxxxxx, Xxxxxxx
Attention: President
Fax No.: x00 00 000 00 000
Any notice or other document given by mail as aforesaid shall be deemed to
have been received on the fifth day following the date on which such notice or
document was mailed.
In lieu of notice by mail as aforesaid, any notice or other document
required or permitted to be given pursuant to this agreement may be validly
given if delivered to the address of the addressees set forth above and such
notice or document so delivered shall be deemed to have been given at the time
of delivery.
If by reason of a strike, lockout or other work stoppage, actual or
threatened, of postal employees or other disruption of normal postal services,
any notice to be given hereunder would
reasonably be unlikely to reach its destination, such notice shall be valid and
effective only if delivered to the appropriate address in accordance with this
section 22 or by facsimile, telex or other means of prepaid transmitted or
recorded communication.
Any party may change its address for service from time to time by notice
given in accordance with the foregoing provisions.
23. GOVERNING LAW
This agreement shall be construed and enforced in accordance with the laws
of the Province of British Columbia and the federal laws of Canada applicable
therein without regard to principles of conflicts of laws.
24. CURRENCY
Unless otherwise provided for herein, all monetary amounts referred to in
this agreement shall refer to the Euro.
25. NO THIRD PARTY BENEFICIARIES
This agreement shall not confer any rights or remedies upon any person
other than the parties hereto and their respective successors and permitted
assigns.
26. TIME OF THE ESSENCE
Time shall be of the essence of this agreement and of every part hereof and
no extension or variation of this agreement shall operate as a waiver of this
provision.
27. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties with
respect to all of the matters herein and its execution has not been induced by,
nor do any of the parties rely upon or regard as material, any representations
or writings whatever not incorporated herein and made a part hereof and may not
be amended or modified in any respect except by written instrument signed by the
parties hereto. The recitals of this agreement and the Schedules attached hereto
are incorporated into and form part of this agreement.
28. SUCCESSORS
This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors, assigns, heirs administrators,
executors and legal personal representatives.
29. COUNTERPARTS
This agreement may be executed in several counterparts, each of which, when
executed by a party hereto, shall be deemed to be an original and such
counterparts shall together constitute one and the same instrument.
30. FACSIMILE TRANSMISSION
The parties hereto agree that this agreement may be transmitted by
facsimile or such similar device and that the reproduction of signatures by
facsimile or such similar device will be treated as binding as if originals and
each party hereto undertakes to provide each and every other party hereto with a
copy of the agreement bearing original signatures forthwith upon demand.
IN WITNESS WHEREOF the parties hereto have hereunto set their signatures.
MFC BANCORP LTD. XXXXXX XXXX
By: /s/ Xx. Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxx
----------------------------- -----------------------
Name: Xx. Xxxxxx Xxxxxxxxxx Name:
----------------------------- -----------------------
Title: Director Title:
----------------------------- -----------------------
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------
Title:
-----------------------------
VENTEGIS CAPITAL AG. CONSORS CAPITAL BANK AG
By: /s/ Karsten Haesen By: /s/ Xxxxx-Xxxx Kleverstaat
----------------------------- ------------------------------
Name: Karsten Haesen Name: Xxxxx-Xxxx Kleverstaat
----------------------------- ------------------------------
Title: Board Member Title: Vorstand
----------------------------- ------------------------------
By: /s/ Carsten Dujesiefken
-----------------------------
Name: Carsten Dujesiefken
-----------------------------
Title: Board Member
-----------------------------
SCHEDULE A
NUMBER OF COMMON
NAME SHARES HELD
---- ----------------
Xxxxxx Xxxx 1,295,400
Ventegis Capital AG
(formerly Cybermind Interactive
Europe AG) 5,577,396
SCHEDULE B
*
No. Common Shares
VOTING TRUST CERTIFICATE
In respect of
COMMON SHARES OF
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
THIS IS TO CERTIFY that, upon the termination of the voting trust and
shareholders' agreement hereinafter mentioned and on surrender of this trust
certificate, duly endorsed for transfer to the undersigned Depositary, [Name of
Registered Holder] will be entitled, upon and subject to the terms and
provisions of the voting trust and shareholders' agreement (the "Voting Trust
Agreement") made the * day of *, 2001 among the Shareholders and the
Undersigned Depositary, to receive out of the common shares ("common shares")
in the capital of Cybernet Internet Services International, Inc., a corporation
incorporated under the laws of Delaware (the "Corporation"), deposited with
the undersigned Depositary under the Voting Trust Agreement, a certificate or
certificates for * common shares of the Corporation and in the meantime to
receive payments, equivalent in amount to the dividend or distribution
payments, if any, received in cash or by cheque by the Depositary upon a
like number of said common shares of the Corporation, subject however to
the terms and provisions of the Voting Trust Agreement applicable to the
payment of such cash dividends and distributions. Capitalized terms used
herein, which are not otherwise defined, shall have the meanings set out
in the Voting Trust Agreement.
No voting right passes by or under this voting trust certificate or by or
under any agreement expressed or implied and, until the actual delivery of such
share certificate for common shares of the Corporation as aforesaid to the
registered holder hereof, the Investor shall, in respect thereof, exclusively
possess and be entitled to exercise all the rights of voting and of taking part
in the consenting to any corporate or shareholders' action appertaining to the
common shares of the Corporation deposited with the undersigned Depositary, in
accordance with the terms of the Voting Trust Agreement.
This voting trust certificate is issued pursuant and subject to the terms
and conditions of the Voting Trust Agreement, which among other things,
establishes the rights of the holders of voting trust certificates issued
pursuant to the Voting Trust Agreement and the rights, powers and discretions of
the Investor and of the Depositary, for particulars of all of which reference is
made to the Voting Trust Agreement, an original counterpart of which is on file
at the office of the Depositary.
The right to transfer, assign, dispose of or otherwise deal with this
voting trust certificate is expressly subject to the terms, conditions and
restrictions contained in the Voting Trust Agreement, and no transfer,
assignment, disposition or other dealing with this voting trust certificate is
valid for any purpose whatsoever, unless made in accordance with and subject to
the terms, conditions and restrictions of the Voting Trust Agreement. This
voting trust certificate is transferable only, subject to such terms, conditions
and restrictions, on the books of the Depositary maintained by the Depositary on
surrender hereof, properly endorsed for transfer by the registered holder hereof
in person or by attorney duly authorized, and, until completion of the due
transfer hereof on the said books in accordance with and subject to the terms,
conditions and
restrictions contained in the Voting Trust Agreement, the Depositary shall be
required at all times to treat and consider the holder of record hereof on
said books as the holder hereof for all purposes.
IN WITNESS WHEREOF, Consors Capital Bank AG has caused this Certificate to
be signed by its duly authorized officer this day of , 2001.
--- --------------
CONSORS CAPITAL BANK AG,
Depositary,
By:
------------------------
Authorized Signatory
FORM OF TRANSFER
(to be set out on the back of Voting Trust Certificate)
FOR VALUE RECEIVED, hereby sells, assigns and
------------------
transfers unto the within Voting Trust
----------------------------------
Certificate and all right, title and interest in the common shares in the
capital of Cybernet Internet Services International, Inc. represented thereby,
and hereby irrevocably constitutes and appoints
------------------------
attorney to transfer the said certificate on the books of the within named
Depositary with full power of substitution in the premises.
DATED:
In the presence of:
----------------------- ----------------------------------
(signature of witness) (signature of registered holder)
