Exhibit 9.0
VOTING TRUST AGREEMENT
This Voting Trust Agreement (this "Agreement") is made January 24, 2005
between NovaNet Media, Inc., a Nevada corporation, ("Shareholder") and Xxxxxx
Xxxxxxxxxx ("Trustee").
RECITALS
A. Shareholder owns 100,000 shares of Series "A" Convertible Preferred
Stock of Nova Communications Ltd. ("Corporation"), a Nevada corporation, which
represents the majority voting power of the Corporation. Xxxxxxx X. Xxxx
("Xxxx") is the president, director and control person of Shareholder. Xxxx has
resigned as president and a director of the Corporation, and as apart of such
resignation, Shareholder has agreed to subject the shares owned by Shareholder
to a voting trust under the terms and conditions stated in this Agreement.
B. Shareholder is willing that Xxxxxx Xxxxxxxxxx serve as trustee of
the voting trust.
C. Xxxxxx Xxxxxxxxxx has consented to act as trustee of the voting
trust and to be bound by the terms and conditions of this Agreement.
AGREEMENT
1. DEFINITIONS. In this Agreement, the following terms have the
following meanings:
"Shares" means (a) the Series "A" Convertible Preferred Stock of
Corporation owned by Shareholder to be placed in the voting trust pursuant to
this Agreement, and (b) any common or preferred shares of the Corporation, and
rights, options, or warrants to purchase common or preferred shares of the
Corporation, and securities of any type whatsoever that are, or may become,
convertible into common or preferred shares of the Corporation, that may be
issued or transferred hereafter with respect to the shares as a result of any
additional issuance, exchange, or reclassification of shares, corporate
reorganization, or any other form of recapital ization, consolidation, merger,
stock split, or stock dividend.
"Trustee" shall refer to Xxxxxx Xxxxxxxxxx and any successor trustee of
the voting trust, and "Trustee" means one of the Trustees.
2. TRANSFER OF SHARES TO TRUSTEES. The Shares will be transferred to
Trustee as follows:
(a) Shareholder will deliver to Trustees share certificate number 1001
represent ing the Shares. This share certificate will be endorsed, or will be
accompanied by instruments of transfer as Trustee may consider appropriate, to
transfer the Shares represented by the share certificate to Trustee, subject to
the provisions of this Agreement.
(b) Share certificate number 1001 representing the Shares will be
surrendered by Trustee to the Corporation and cancelled, and a new share
certificate (the "Trustee's Share Certificate") representing the Shares will be
issued to Trustees registered as follows: Xxxxxx Xxxxxxxxxx, as Trustees of that
Voting Trust Agreement dated January 24, 2005.
(c) Upon the Corporation's issuance of the Trustees' Share Certificate,
Trustees will hold it subject to this Agreement.
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3. VOTING TRUST CERTIFICATES.
(a) ISSUANCE. Trustee will issue and will deliver to Shareholder a
voting trust certificate for the Shares transferred to Trustee pursuant to this
Agreement. The voting trust certificate will be in the form attached as Exhibit
A.
(b) TRANSFER. A voting trust certificate is transferable only on the
books of Trustee, by its registered holder, either in person or by duly
authorized attorney-in-fact, upon surrender of the voting trust certificate,
properly endorsed, or accompanied by an instrument of transfer approved by
Trustee. Trustee may treat the registered holder of the voting trust certificate
as the owner of the voting trust certificate for all purposes of this Agreement.
The Trustee is not required to recognize any transfer of a voting trust
certificate not made in accordance with the provisions of this paragraph 3(b)
unless the person claiming ownership has produced indicia of ownership
satisfactory to Trustee and has provided indemnity as Trustee, in Trustee's sole
discretion, may require.
(c) NEW CERTIFICATES. Upon the selection of a successor Trustee, the
Shares subject to the voting trust will be transferred to successor Trustee and
a new share certificate representing the Shares subject to the voting trust will
be registered in the name of successor Trustee in the manner stated in paragraph
2. The new share certificate will be held by the successor Trustee subject to
the terms of this Agreement.
(d) LOST, STOLEN, OR DESTROYED CERTIFICATES. If a voting trust
certificate is lost, stolen, mutilated, or destroyed, the Trustee may, in
Trustee's sole discretion, issue a new voting trust certificate upon Trustee's
receipt of an affidavit of the holder of the voting trust certificate that the
voting trust certificate has been lost, stolen, mutilated, or destroyed, which
affidavit must be satisfactory in form and substance to Trustee, and upon
Trustee's' receipt of indemnity as Trustee, in Trustee's sole discretion, may
require.
4. TRUSTEE AND HIS RESPONSIBILITIES.
(a) NUMBER. During the term of this Agreement, there will be one
trustee of the voting trust.
(b) SELECTION AND REMOVAL OF TRUSTEE. Shareholder may, upon giving
written notice to Trustee, remove Trustee, whether or not the removal is for
cause. Shareholder agrees, however, not to remove Trustee for a period of 120
days from the date of this Agreement. In the event of the removal, resignation,
death, or incompetency of the Trustee, Shareholder will select, in Shareholder's
sole discretion, a new trustee. If Shareholder dies during the term of this
Agree ment, the power to remove and select the Trustee will be vested in the
person appointed by Shareholder in a validly executed will, and if no such
person is so appointed, the power to remove and select the Trustee will be
vested in the personal representative of Shareholder's estate. If a court of
competent jurisdiction enters a decree adjudicating Shareholder incompetent to
manage Shareholder's person or estate, the power to remove and select the
Trustee will be vested in the conservator of Shareholder's estate.
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(c) RESIGNATION OF A TRUSTEE. Any Trustee may resign at any time by
giving written notice of resignation to the registered holders of voting trust
certificates, to Shareholder, and to the Corporation. The resignation will
become effective 10 (ten) days after the written notice is given.
(d) DEATH OF A TRUSTEE. If a Trustee dies, the personal representative
of the deceased Trustee's estate will give written notice of death to
Shareholder, to the other registered holders of voting trust certificates, and
to the Corporation, and the successor to the deceased Trustee will be promptly
selected in accordance with paragraph 4 (b).
(e) INCOMPETENCY OF A TRUSTEE. If a court of competent jurisdiction
enters a decree adjudicating a Trustee incompetent to manage Trustee's person or
estate, written notice of incompetency will be given by the guardian,
conservator, or other legal representative of the incompetent Trustee to
Shareholder, to the other registered holders of voting trust certificates, and
to the Corporation.
(f) SELECTION OF A SUCCESSOR TRUSTEE. Promptly after the removal,
resignation, death, or adjudication of incompetency of a Trustee, a successor
Trustee will be promptly selected pursuant to this paragraph 4. Written notice
of the selection of a successor Trustee will be given by the party or parties
who made the selection to Shareholder, to the other registered holders of voting
trust certificates, and to the Corporation. Any successor Trustee selected in
accordance with paragraph will execute a counterpart copy of this Agreement
pursuant to which the successor Trustee will agree to be bound by this
Agreement.
(g) COMPENSATION OF TRUSTEES. Trustees will serve without compensation.
(h) REIMBURSEMENT OF EXPENSES OF TRUSTEES. Shareholder will reimburse
Trustee for reasonable expenses incurred or paid by the Trustee in furtherance
of Trustee's' obligations under this Agreement, provided, however, that the
Trustee will not be reimbursed for office rent, employee salaries, telephone
expenses, costs of supplies, or other overhead expenses paid or in curred by the
Trustee in the discharge of Trustee's obligations under this Agreement.
(i) VOTING RIGHTS OF TRUSTEES. During the term of this Agreement, the
Trustee will have the right, subject to the provisions of this Agreement, to
exercise, in person or by proxy, all shareholders' voting rights and powers with
respect to the Shares, and to take part in or consent to any corporate or
shareholders' action of any kind whatsoever. The right to exercise all
shareholders' voting rights will include, without limitation, the right to vote
for the election of directors, and in favor of or against any resolution or
proposed action, which may be presented at any meeting of the shareholders or
which may require the consent of the shareholders of Corporation.
(j) TRUSTEE'S FIDUCIARY DUTIES. In exercising the voting rights with
respect to the Shares, either in person or by proxy, the Trustee will exercise
his best judgment to vote for suitable directors of company, and to vote upon
any resolution, proposed action, and other matter presented at any shareholders'
meeting. In exercising voting rights, the Trustee will act in good faith and in
a manner reasonably believed to be in the best interest of Corporation. The
Trustee will not be required to vote in the manner recommended or advised by the
registered holders of voting trust certificates.
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(k) EXCULPATION OF TRUSTEE. The Trustee will not be liable to the
holders of voting trust certificates or to Shareholder for honest mistakes of
judgment, or for action or inaction taken in good faith and reasonably believed
to be in the best interest of the Corporation, provided that the mistake,
action, or inaction does not constitute recklessness, fraud, or willful or
wanton misconduct.
5. TERM AND TERMINATION.
(a) TERM. The voting trust will commence on the date of execution of
this Agreement and will continue in effect until January 24, 2007, unless
terminated on an earlier date pursuant to paragraph 5(b) or extended pursuant to
a valid extension agreement.
(b) TERMINATION. The voting trust will terminate upon the occurrence of
any one of the following events:
(i) The mutual agreement of Shareholder (or, in the event of
the death or incompetency of Shareholder, the other person having the
power to remove or select the Trustee) and Trustee; or
(ii) Upon the closing of the first underwritten public
offering for any Shares of common stock or preferred stock of the
Corporation, any rights, options, or warrants to purchase shares of
common stock or preferred stock of the Corporation, and any securities
of any type whatsoever that are or may become convertible into Shares
of common share or preferred share of the Corporation, pursuant to an
effective registration statement under the Securities Act of 1933, in
an aggregate amount of at least $10 million; or
(iii) The Corporation makes an assignment for the benefit of
creditors; files a voluntary petition in bankruptcy; is adjudicated
bankrupt or insolvent; files a peti tion or answer seeking for itself
any reorganization, arrangement, composition, read justment,
liquidation, dissolution, or similar relief under any statute, law, or
regulation; files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of the foregoing nature; or seeks, consents to, or
acquiesces in the appointment of a trustee, receiver, or liquidator or
itself or of all or any substantial part of its properties;
(c) NOTICE OF TERMINATION. Upon the termination of the voting trust
pursuant to paragraphs 5(b)(i) or 5(b)(ii), the Trustee will promptly give
written notice of termination to the registered holders of the voting trust
certificates. After notice is given, the holders of the voting trust
certificates will have no further rights under this Agreement except to receive
share certificates for the Shares represented by the voting trust certificates,
and cash, share, securities, and other property distributable under the
provisions of this Agreement, and except for any rights, claims, or causes of
action which may have accrued prior to the giving of the notice.
(d) SURRENDER OF SHARE CERTIFICATES. Upon the termination of the voting
trust pursuant to paragraphs 5(b)(i) or 5(b)(ii), the Trustee will deliver to
the registered holder of a voting trust certificate, within 10 (ten) days after
the surrender to the Trustee of the voting trust certificate properly endorsed,
a share certificate for the number of the Shares represented by the
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voting trust certificate. The share certificate will be registered in the name
of the registered holder of the voting trust certificate.
6. DIVIDENDS.
(a) CASH, NON-VOTING SHARES, AND OTHER PROPERTY. If the Corporation
distributes with respect to the Shares any cash, shares (except for shares
described in paragraph 6(b)), securities, or other property, the Trustee will,
upon receipt of the cash, shares, securities, or other property, distribute them
as soon as practicable to the registered holders of the voting trust
certificates on the date of the distribution by the Corporation. The
distribution will be made to the registered holders of voting trust certificates
ratably in accordance with the number of the Shares represented by their
respective voting trust certificates on the date of the distribution. In lieu of
receiving cash, shares, securities, or other property distributed by the
Corporation with respect to the Shares and disbursing them to the registered
holders of voting trust certificates, the Trustee may instruct the Corporation
in writing to distribute the cash, shares, securities, or other property
directly to the registered holders of voting trust certificates.
(b) VOTING SHARES OR SECURITIES CONVERTIBLE INTO VOTING SHARES. If the
Corpora tion distributes with respect to the Shares any voting shares of the
Corporation or other securities of the Corporation that are, or may become,
convertible into voting shares of the Corporation, the Trustee will receive and
hold, subject to the terms of this Agreement, all such voting shares and
securities, and will issue and deliver voting trust certificates with respect to
the voting shares and securities to the registered holders of voting trust
certificates on the date of the distribution by the Corporation.
7. MERGER. If the Corporation is merged into or consolidated with
another corporation, or all or substantially all assets of the corporation are
transferred to another corporation, then in connection with the merger,
consolidation, or transfer, the term "Corpora tion" for purposes of this
Agreement will include the successor corporation, and the term "Shares" for
purposes of this Agreement will include the voting capital shares of the
successor corporation that may be received by the Trustee upon the surrender of
or in lieu of all or any part of the Shares. With respect to voting trust
certificates issued and outstanding under this Agreement at the time of the
merger, consolidation, or transfer, the Trustee will substitute for the voting
trust certificates new voting certificates in an appropriate form.
8. DISSOLUTION. If Corporation dissolves, or distributions are made in
complete or partial liquidation of the Corporation, the Trustee will, upon
receipt, distribute to the registered holders of voting trust certificates cash,
securities, and other property distributed by the Corporation with respect to
the Shares subject to the voting trust. The distribution will be made to the
registered holders of voting trust certificates ratably in accordance with the
number of Shares represented by their respective voting trust certificates on
the date of the distribution. In lieu of receiving cash, securities, and other
property distributed by the Corporation with respect to the Shares, the Trustee
may instruct the Corporation in writing to distribute the cash, securi ties, or
other property to the registered holders of the voting trust certificates.
9. COMPLIANCE WITH STATUTORY REQUIREMENTS. Trustees and Shareholder
will perform all acts necessary for the voting trust to be and remain valid
under the laws of the State of Nevada.
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10. Miscellaneous.
(a) EXPENSES. Each party will bear its own expenses, including but not
limited to the fees of any accountants, counsel, public officials, or others
engaged by the party, in connec tion with this Agreement and the transactions
contemplated by it, except as this Agreement otherwise expressly provides.
(b) APPLICABLE LAW. All terms and conditions of this Agreement and the
rights, duties, and remedies of the parties are governed by the laws of the
State of Nevada and without regard to the law of conflicts of laws. The
provisions of this Agreement are severable, and invalidity of any provision of
this Agreement will not affect the validity of any other provisions. This
Agreement will be construed in all respects as if all invalid or unenforceable
provisions were omitted.
(c) NO WAIVER. A party's failure to require strict performance of any
provision of this Agreement is not a waiver of or prejudice to the party's right
to require strict performance of the same provision in the future, of any other
provision of this Agreement.
(d) NOTICES. All notices sent by the parties to each other must be in
writing delivered personally or sent by mail, if to Shareholder at:
if to Shareholder, at: NovaNet Media, Inc.
c/o Xxxxxxx X. Xxxx
000 Xxxxxxx Xxx. #000
Xxxxxxxx, XX 00000
if to the Trustee, at: Xxxxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
or to any other address a party may, by notice, designate to the others.
(e) MODIFICATION. No change or modification of this Agreement is valid
or effective unless it is in writing and signed by the party or parties to be
bound.
(f) ENTIRE AGREEMENT; COUNTERPARTS. This Agreement is the entire and
exclusive agreement between the parties with respect to its subject matter. It
may not be modified except in writing signed by all parties. This Agreement may
be signed in two (2) or more counterparts, and all counterparts will constitute
one and the same instrument.
SHAREHOLDER: TRUSTEE:
NovaNet Media, Inc.
by: /s/ XXXXXXX X. XXXX /s/ XXXXXX XXXXXXXXXX
Xxxxxxx X. Xxxx
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VOTING TRUST CERTIFICATE
NOVA COMMUNICATIONS LTD.
No. 001
This certifies that NovaNet Media, Inc., a Nevada corporation, or
registered assigns, is entitled to all the benefits arising from the deposit of
100,000 shares of Series "A" Convertible Preferred Stock, par value $0.001,of
Nova Communications Ltd., a Nevada corporation
( "Company"), with the undersigned Trustee pursuant to a voting trust agreement
("Voting Trust Agreement") dated January 24, 2005 by and among NovaNet Media,
Inc. and the Trustee, a copy of which Voting Trust Agreement is on file in the
office of the Company, 000 Xxxxxxx Xxx. # 000, Xxxxxxxx, XX 00000.
The Voting Trust Agreement shall be effective until January 24, 2007,
unless earlier terminated as provided in the Voting Trust Agreement. Upon
termination of the Voting Trust Agreement, the registered holder of this Voting
Trust Certificate, upon surrender to the Trustee of this Voting Trust
Certificate properly endorsed, shall receive a stock certificate for the number
of shares of Series "A" Convertible Preferred Stock of the Company represented
by this Voting Trust Certificate.
During the term of the Voting Agreement, the Trustee shall possess and
shall be entitled to exercise all voting rights with respect to the shares of
Series "A" Convertible Preferred Stock of the Company represented by this Voting
Trust Certificate. This Voting Trust Certificate is issued, received, and held
under the rights of the holder, are subject to, the terms and conditions of the
Voting Trust Agreement.
This Voting Trust Certificate is transferable on the books of the
Trustee by the registered holder, either in person or by a duly authorized
attorney, upon surrender of this Voting Trust Certificate properly endorsed.
Until this Voting Certificate is transferred on the books of the Trustee, the
Trustee may consider the registered holder as the absolute owner of this Voting
Trust Certificate.
Dated this 24th day of January, 2005.
/s/ XXXXXX XXXXXXXXXX, Trustee
FOR VALUE RECEIVED,__________________ hereby sells, assigns and
transfers unto ____________________ this Voting Trust Certificate, and all
rights and benefits represented by this Voting Trust Certificate and
appoints___________________________ attorney to transfer this Voting Trust
Certificate on the books of the Trustee with full power of substitution.
DATE:___________ __________________________________________________________
Signature, name as appears on the Voting Trust Certificate
IN THE PRESENCE OF:_____________________________________________________________
