EXHIBIT 9.01
VOTING TRUST AGREEMENT
FOR STOCK OF INTERMALL, INC.
This Voting Trust Agreement ( the "Agreement") for certain stock InterMall Inc.,
a California corporation (the "Company") made as of this 21st day of July,
1994, between the holder of voting stock of the Company listed on the signature
page hereof (the "Stockholder") and Software Partners, Inc. (the "Voting
Trustee").
WITNESSETH:
WHEREAS, it is desire of the Stockholder to promote continuity in the Company's
business policy by establishing a voting trust (the "Trust") for his shares of
voting stock of the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the promises and agreements
herein mutually and severally made by and between the Stockholder and Voting
Trustee, it is hereby agreed as follows:
SHARES SUBJECT TO THE AGREEMENT. The number of shares of voting stock of the
Company set forth opposite to the signature of the Stockholder on the
signature pages of this Agreement, and such additional shares of such voting
stock as shall be transferred to the voting Trustee pursuant to the terms
hereof, shall be subject to the provisions of the Agreement until its
termination pursuant to Section 9.
TRANSFER OF SHARES TO VOTING TRUSTEE. Simultaneously with his entry into this
Agreement the Stockholder is assigning, transferring and delivering the
certificate or certificates (duly endorsed or accompanied by duly executed
stock powers) representing the shares of voting stock set forth opposite his
signature on the signature page of the Agreement to the Voting Trustee, who
shall surrender the same to the proper offices of the Company for cancellation
and reissuance to itself as Voting Trustee.
LEGENDS. All certificates of voting stock held by the Voting Trustee pursuant
to this Agreement shall bear the following legend, in addition to any legends
required under any other agreement or that are necessary to comply with
federal and state securities laws:
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A VOTING
TRUST AGREEMENT (THE "AGREEMENT") FOR STOCK OF INTERMALL, INC. (THE
"COMPANY"), DATED AS OF JULY 21, 1994, BY AND AMONG A CERTAIN STOCKHOLDER OF
THE COMPANY AND THE VOTING TRUSTEE, A COPY OF WHICH AGREEMENT IS FILED IN THE
REGISTERED OFFICE OF THE COMPANY IN MOUNTAIN VIEW, CALIFORNIA, AND IS OPEN TO
THE INSPECTION OF ANY STOCKHOLDER OF THE COMPANY OR ANY BENEFICIARY OF THE
TRUST UNDER THE AGREEMENT DAILY DURING BUSINESS HOURS.
The above written legend shall also be stated in the stock ledger of the
Company.
ADDITIONAL SHARES. During the term of this Agreement, upon the prior consent of
the Voting Trustee, any of the voting stock of the Company that is not made or
required to be made subject to the Agreement may be made subject to all of the
terms and conditions hereof by the holder thereof endorsing and delivering the
certificate(s) thereof to the Voting Trustee in the manner described in
Section 2 hereof and signing and delivering to the Voting Trustee a
counterpart of this Agreement.
TRUST CERTIFICATES. Upon the execution of the Agreement and the delivery to the
Voting Trustee of the stock certificates required to be delivered hereunder,
the Voting Trustee shall deliver to the Stockholder a trust certificate
("TRUST CERTIFICATE") for the number of shares deposited by him; and
upon receipt of certificates for additional shares of voting stock of the
company in accordance with the terms hereof, the Voting Trustee shall deliver
to the Stockholder a Trust Certificate for the number of additional shares so
deposited by him. Said Trust Certificate should be substantially in the form
attached hereto as Exhibit A. Said Trust Certificate is subject to all
restrictions on transfer referred to therein or herein and is subject to all
of the terms and conditions hereof. Subject to such restrictions, a Trust
Certificate (and the beneficial interest represented thereby) may be
transferred by endorsement by the person to whom issued, or by his attorney-
in-fact, or by the administrator, executor or guardian of his estate, and
delivery of the same to the Voting Trustee; but such transfer shall not be
binding upon the Voting Trustee until the Trust Certificate, duly endorsed as
aforesaid, is surrendered to him, a counterpart of this Agreement executed by
the proposed transferee is delivered to the Voting Trustee and transfer is
entered upon records to be kept by him. The Voting Trustee shall treat the
person in whose name a Trust Certificate is from time to time issued as the
absolute owner thereof for all purposes and shall not be bound by any notice
to the contrary. After compliance with all the terms of this Section 5, every
transferee of an outstanding Trust Certificate issued hereunder shall be
treated for all purpose as a party hereto with like effect as though an
original party hereto and shall be included within the meaning of the term
"STOCKHOLDER" wherever used herein.
VOTING RIGHTS. During the term of this Agreement, the Voting Trustee, or a
proxy appointed by the Voting Trustee, shall possess and be entitled to
exercise the exclusive right to vote all of the shares of voting stock of the
Company standing in the name of or held by the Voting Trustee, at all regular
and special meetings of the stockholders of the Company, and may vote for, do
or assent or consent to, any act or proceeding which the stockholder might or
could vote for, do or assent or consent to, and shall have all the powers,
rights and privileges of a stockholder of the Company, including, without
limitation, the election of its nominee(s) as a director of the Company and
taking any other action in respect of matters in which it (in its individual
capacity) has an interest. (The rights, powers and privileges conferred on
the Voting Trustee by the foregoing sentence are herein called the "VOTING
RIGHTS.") The Stockholder hereby irrevocably constitutes and appoints the
Voting Trustee the true and lawful attorney, agent and proxy of the
Stockholder with full power of substitution, to exercise the Voting Rights
(the Stockholder, hereby agreeing and acknowledging that, for all purposes
whatsoever, such proxy is and shall be deemed to be coupled with an interest).
DIVIDENDS. The company is hereby authorized to pay all distributions and
dividends that are paid in cash, stock (other than voting stock) or other
property directly to the Stockholder holding Trust Certificates issued in
respect of the stock on which such distributions or dividends are declared, as
such stockholder is shown on the records of Voting Trustee. All shares of
voting stock issued as dividends on shares of stock that are subject to this
Agreement shall also be subject to this Agreement. The stock certificates for
such shares shall be issued in the name of and delivered to the Voting Trustee
to be held hereunder, subject to all of the provisions hereof, and the Voting
Trustee shall issue additional Trust Certificates in respect of such shares to
the Stockholder entitled thereto.
SUBSCRIPTION RIGHTS. In case the Company shall at any time issue any stock or
other securities to which the holders of the voting stock of the Company shall
be entitled to subscribe, by way of preemptive right or otherwise, the Voting
Trustee shall promptly give notice of such right to subscribe and of the terms
hereof, to the Stockholder at his address registered with the Voting Trustee;
and the Stockholder upon providing the Voting Trustee with funds in the
requisite amount, shall have the right, pro rata, subject to such reasonable
regulations as may be prescribed by the Voting Trustee, to instruct the Voting
Trustee to subscribe for such stock or other securities, or any part thereof,
upon such terms as the Voting Trustee may prescribe; and to the extent that
the Stockholder shall fail to exercise such rights the Voting Trustee shall be
entitled, in his absolute discretion, to permit such right to subscribe to
lapse.
Upon receiving proper instructions in writing, the Voting Trustee shall
subscribe for such stock or other securities (but only out of funds provided
by the Stockholder for the purpose) and shall distribute the same to the
Stockholder, except that voting stock of the Company when so subscribed for
and received
by the Voting Trustee shall not be distributed but shall be held hereunder,
subject to all provisions hereof, and the Voting Trustee shall issue new or
additional Trust Certificates in respect of such shares to the Stockholder.
TERMINATION. This Agreement shall terminate upon the earliest of
(i) the fourth anniversary of the effective date hereof, or
(ii) upon the written consent of the Voting Trustee and the owners of Trust
Certificates representing a majority of the number of shares then subject to
this Agreement.
Upon the termination of the Agreement, the certificates representing all of
the shares of stock so held under this Agreement and then remaining in the
hands of the Voting Trustee shall be delivered (duly endorsed or accompanied
by duly executed stock powers) to the parties then entitled thereto as shown
by Trust Certificates then outstanding, upon surrender to the Voting Trustee
(duly endorsed or accompanied by duly executed instruments of surrender) of
the Trust Certificates issued in respect of said shares.
ACCEPTANCE. The Voting Trustee hereby accepts the position of Voting Trustee
hereunder subject to all the terms, conditions and reservations herein
contained, and agrees that he will exercise the powers and perform the duties
of Voting Trustee as herein set forth. Nothing in this Section 10 or
elsewhere in this Agreement shall be construed to prevent the Voting Trustee
from resigning from such position as set forth in Section 11.
RESIGNATION OF VOTING TRUSTEE. The Voting Trustee may resign its position as
such by giving written notice to the Stockholder. Such resignation shall
become effective on the day specified in such notice or upon the election or
appointment of such Voting Trustee's successor and such successor's acceptance
of such election or appointment, whichever is earlier.
LIABILITY OF VOTING TRUSTEE. The Voting Trustee shall not incur any
responsibility as a stockholder, Voting Trustee or otherwise by reason of any
error of judgment or mistake of law or other mistake, or for any act or
omission of any agent or attorney, or for any misconstruction of the
Agreement, or any action of any sort taken or omitted hereunder and believed
by him to be in accordance with the provisions and intents hereof or
otherwise, except for his own individual willful misconduct. The Voting
Trustee may act and receive compensation as a director, officer, agent or
member or any committee of the Company or of any controlled or subsidiary or
affiliated company, or be otherwise associated therewith; and he or any
entity in which he may hold an interest or a position, or any person
associated with any such entity, may, to the extent permitted by law, and
without liability in any way or under any circumstances by reason hereof,
contract or otherwise deal with the Company or with any controlled or
subsidiary or affiliated company, as fully as though the Voting Trustee were
not a trustee.
INDEMNIFICATION. The Stockholder agrees to indemnify and hold the Voting
Trustee harmless from and against any and all liability arising out of the
holding by the Voting Trustee any stock hereunder or any action taken by him
hereunder (except for its own willful misconduct). The Voting Trustee shall
receive no compensation for its services hereunder.
FILING WITH SECRETARY OF THE COMPANY. Copies of the Agreement and of any
extension agreements and consents executed pursuant to Section 9 hereof shall
be filed with the Secretary of the Company, which copies shall be open to the
inspection of any stockholder of the Company or any holder of a Voting Trustee
Certificate daily during business hours on the same terms as the record of
stockholders is open to inspection to stockholders.
ASSIGNMENT; RESTRICTIONS ON TRANSFERS. This Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective
executors, administrators, successors and assigns as the case may be,
PROVIDED, HOWEVER, that this Agreement and all rights, obligations and claims
hereunder and all interests herein are subject to all of the same restrictions
on transfer that are applicable to the Trust Certificates.
HEADINGS. The subject headings of the sections of the Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties pertaining to such subject matter. No
supplement, modification, amendment or waiver of the Agreement shall be
binding unless executed in writing by the holder(s) of the beneficial interest
in the shares then subject to the Agreement and the Voting Trustee. No waiver
of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver.
COUNTERPARTS. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instruments.
NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on
the date of service if served personally on the party to whom notice is to be
given, or on the tenth day after mailing if mailed to the party to whom notice
is to be given, by first class mail registered or certified, postage prepaid,
and properly addressed to such party at the address listed on the signature
line hereof. Any party may change its address for purpose of this section by
giving the other parties written notice of the new address in the manner set
forth above.
GOVERNING LAW. This Agreement shall in all respects be construed, interpreted
and enforced in accordance with and governed by the laws of the State of
California.
SEVERABILITY. If any provision of the Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable as to a particular
application, then such provision shall be deemed modified to exclude such
application, and such provision in all other applications, and all other
provisions of this Agreement, shall continue in full force and effect without
being modified, impaired or invalidated in any way. It is the intent and
agreement of the parties hereto that this Agreement be given the maximum
force, effect and application (not, however, exceeding its express terms)
permissible under applicable law.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
has caused this Agreement to be executed on its behalf by its officers thereunto
duly authorized, as the case may be, all as of the date and year first above
written.
STOCKHOLDER NUMBER OF SHARES/CLASS/SERIES
By: /s/ Xxxx Xxxxxx 1,264,395 Common shares
------------------------
Name: XXXX X. XXXXXX
Address: 00000 XXXXXX XXXXX, XXXXXXX, XX 00000
VOTING TRUSTEE
Software Partners, Inc.
By: /s/ Xxxx Xxxxxx
_____________________
Name: XXXX X. XXXXXX
Title: PRESIDENT
Address:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
CONSENT OF THE SPOUSE OF STOCKHOLDER
The undersigned hereby represents, warrants and agrees as follows:
She is the spouse of a party to the attached Voting Trust Agreement for Stock of
InterMall, Inc., dated as of July 21, 1994;
She has read this foregoing Agreement and has received such legal and other
counsel about it as she desires; she is fully aware of all of the terms
thereof; and she fully consents and agrees to be bound by all such terms.
Without limiting the foregoing, she specifically agrees that any interest that
she may now have or hereafter acquire in any or all of the shares of voting
stock of InterMall, Inc., whether as community property, quasi-community
property or separate property, shall be subject to all of the terms of the
Agreement.
/s/ Xxx Xxxxxx
___________________________
XXX X. XXXXXXX-XXXXXX
EXHIBIT A
TRUST CERTIFICATE
THIS IS TO CERTIFY that the undersigned Voting Trustee has received a
certificate or certificates issued in the name of XXXX X. XXXXXX, evidencing the
ownership of 1,264,395 shares of common stock of InterMall, Inc., a California
corporation (the "Company"), and that said shares of stock are held by said
Voting Trustee under the terms of that certain Voting Trust Agreement for Stock
of InterMall, Inc. ((the "Agreement") dated as of July 21, 1994, between the
undersigned Voting Trustee and the stockholder of the company who has executed
the same (the "Stockholder"), a copy of which Agreement is on file with the
Secretary of the Company. During the term of the Agreement, said Voting Trustee
under the Agreement is entitled to exercise the right to vote and otherwise
represent all of said shares of stock for all purposes, it being agreed that no
voting rights shall accrue to the Stockholder by virtue of the ownership of the
Trust Certificate. Upon the termination of the Agreement, the undersigned will,
upon endorsement and surrender
of this Trust Certificate to him, assign and deliver a stock certificate
representing a like number of said shares of stock.
THE SECURITIES REPRESENTED BY THIS TRUST CERTIFICATE HAVE BEEN ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NO INTEREST
THEREIN MAY BE TRANSFERRED EXCEPT IN COMPLIANCE, ESTABLISHED TO THE SATISFACTION
OF THE COMPANY, WITH SAID ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER BY THE SECURITIES AND EXCHANGE COMMISSION.
July 21, 1994
VOTING TRUSTEE
Software Partners, Inc.
By: /s/ Xxxx Xxxxxx
__________________
Name: XXXX X. XXXXXX
Title: PRESIDENT
VOTING TRUST AGREEMENT
FOR STOCK OF INTERMALL, INC.
This Voting Trust Agreement ( the "Agreement") for certain stock InterMall Inc.,
a California corporation (the "Company") made as of this 21st day of July,
1994, between the holder of voting stock of the Company listed on the signature
page hereof (the "Stockholder") and Software Partners, Inc. (the "Voting
Trustee").
WITNESSETH:
WHEREAS, it is desire of the Stockholder to promote continuity in the Company's
business policy by establishing a voting trust (the "Trust") for his shares of
voting stock of the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the promises and agreements
herein mutually and severally made by and between the Stockholder and Voting
Trustee, it is hereby agreed as follows:
SHARES SUBJECT TO THE AGREEMENT. The number of shares of voting stock of the
Company set forth opposite to the signature of the Stockholder on the
signature pages of this Agreement, and such additional shares of such voting
stock as shall be transferred to the voting Trustee pursuant to the terms
hereof, shall be subject to the provisions of the Agreement until its
termination pursuant to Section 9.
TRANSFER OF SHARES TO VOTING TRUSTEE. Simultaneously with his entry into this
Agreement the Stockholder is assigning, transferring and delivering the
certificate or certificates (duly endorsed or accompanied by duly executed
stock powers) representing the shares of voting stock set forth opposite his
signature on the signature page of the Agreement to the Voting Trustee, who
shall surrender the same to the proper offices of the Company for cancellation
and reissuance to itself as Voting Trustee.
LEGENDS. All certificates of voting stock held by the Voting Trustee pursuant
to this Agreement shall bear the following legend, in addition to any legends
required under any other agreement or that are necessary to comply with
federal and state securities laws:
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A VOTING
TRUST AGREEMENT (THE "AGREEMENT") FOR STOCK OF INTERMALL, INC. (THE
"COMPANY"), DATED AS OF JULY 21, 1994, BY AND AMONG A CERTAIN STOCKHOLDER OF
THE COMPANY AND THE VOTING TRUSTEE, A COPY OF WHICH AGREEMENT IS FILED IN THE
REGISTERED OFFICE OF THE COMPANY IN MOUNTAIN VIEW, CALIFORNIA, AND IS OPEN TO
THE INSPECTION OF ANY STOCKHOLDER OF THE COMPANY OR ANY BENEFICIARY OF THE
TRUST UNDER THE AGREEMENT DAILY DURING BUSINESS HOURS.
The above written legend shall also be stated in the stock ledger of the
Company.
ADDITIONAL SHARES. During the term of this Agreement, upon the prior consent of
the Voting Trustee, any of the voting stock of the Company that is not made or
required to be made subject to the Agreement may be made subject to all of the
terms and conditions hereof by the holder thereof endorsing and delivering the
certificate(s) thereof to the Voting Trustee in the manner described in
Section 2 hereof and signing and delivering to the Voting Trustee a
counterpart of this Agreement.
TRUST CERTIFICATES. Upon the execution of the Agreement and the delivery to the
Voting Trustee of the stock certificates required to be delivered hereunder,
the Voting Trustee shall deliver to the Stockholder a trust certificate
("TRUST CERTIFICATE") for the number of shares deposited by him; and upon
receipt of certificates for additional shares of voting stock of the company
in accordance with the terms hereof, the Voting Trustee shall deliver to the
Stockholder a Trust Certificate for the number of additional shares so
deposited by him. Said Trust Certificate should be substantially in the form
attached hereto as Exhibit A. Said Trust Certificate is subject to all
restrictions on transfer referred to therein or herein and is subject to all
of the terms and conditions hereof. Subject to such restrictions, a Trust
Certificate (and the beneficial interest represented thereby) may be
transferred by endorsement by the person to whom issued, or by his attorney-
in-fact, or by the administrator, executor or guardian of his estate, and
delivery of the same to the Voting Trustee; but such transfer shall not be
binding upon the Voting Trustee until the Trust Certificate, duly endorsed as
aforesaid, is surrendered to him, a counterpart of this Agreement executed by
the proposed transferee is delivered to the Voting Trustee and transfer is
entered upon records to be kept by him. The Voting Trustee shall treat the
person in whose name a Trust Certificate is from time to time issued as the
absolute owner thereof for all purposes and shall not be bound by any notice
to the contrary. After compliance with all the terms of this Section 5, every
transferee of an outstanding Trust Certificate issued hereunder shall be
treated for all purpose as a party hereto with like effect as though an
original party hereto and shall be included within the meaning of the term
"STOCKHOLDER" wherever used herein.
VOTING RIGHTS. During the term of this Agreement, the Voting Trustee, or a
proxy appointed by the Voting Trustee, shall possess and be entitled to
exercise the exclusive right to vote all of the shares of voting stock of the
Company standing in the name of or held by the Voting Trustee, at all regular
and special meetings of the stockholders of the Company, and may vote for, do
or assent or consent to, any act or proceeding which the stockholder might or
could vote for, do or assent or consent to, and shall have all the powers,
rights and privileges of a stockholder of the Company, including, without
limitation, the election of its nominee(s) as a director of the Company and
taking any other action in respect of matters in which it (in its individual
capacity) has an interest. (The rights, powers and privileges conferred on
the Voting Trustee by the foregoing sentence are herein called the "VOTING
RIGHTS.") The Stockholder hereby irrevocably constitutes and appoints the
Voting Trustee the true and lawful attorney, agent and proxy of the
Stockholder with full power of substitution, to exercise the Voting Rights
(the Stockholder, hereby agreeing and acknowledging that, for all purposes
whatsoever, such proxy is and shall be deemed to be coupled with an interest).
DIVIDENDS. The company is hereby authorized to pay all distributions and
dividends that are paid in cash, stock (other than voting stock) or other
property directly to the Stockholder holding Trust Certificates issued in
respect of the stock on which such distributions or dividends are declared, as
such stockholder is shown on the records of Voting Trustee. All shares of
voting stock issued as dividends on shares of stock that are subject to this
Agreement shall also be subject to this Agreement. The stock certificates for
such shares shall be issued in the name of and delivered to the Voting Trustee
to be held hereunder, subject to all of the provisions hereof, and the Voting
Trustee shall issue additional Trust Certificates in respect of such shares to
the Stockholder entitled thereto.
SUBSCRIPTION RIGHTS. In case the Company shall at any time issue any stock or
other securities to which the holders of the voting stock of the Company shall
be entitled to subscribe, by way of preemptive right or otherwise, the Voting
Trustee shall promptly give notice of such right to subscribe and of the terms
hereof, to the Stockholder at his address registered with the Voting Trustee;
and the Stockholder upon providing the Voting Trustee with funds in the
requisite amount, shall have the right, pro rata, subject to such reasonable
regulations as may be prescribed by the Voting Trustee, to instruct the Voting
Trustee to subscribe for such stock or other securities, or any part thereof,
upon such terms as the Voting Trustee may prescribe; and to the extent that
the Stockholder shall fail to exercise such rights the Voting Trustee shall be
entitled, in his absolute discretion, to permit such right to subscribe to
lapse.
Upon receiving proper instructions in writing, the Voting Trustee shall
subscribe for such stock or other securities (but only out of funds provided
by the Stockholder for the purpose) and shall distribute the same to the
Stockholder, except that voting stock of the Company when so subscribed for
and received by the Voting Trustee shall not be distributed but shall be held
hereunder, subject to all provisions hereof, and the Voting Trustee shall
issue new or additional Trust Certificates in respect of such shares to the
Stockholder.
TERMINATION. This Agreement shall terminate upon the earliest of
(i) the fourth anniversary of the effective date hereof, or
(ii) upon the written consent of the Voting Trustee and the owners of Trust
Certificates representing a majority of the number of shares then subject to
this Agreement.
Upon the termination of the Agreement, the certificates representing all of
the shares of stock so held under this Agreement and then remaining in the
hands of the Voting Trustee shall be delivered (duly endorsed or accompanied
by duly executed stock powers) to the parties then entitled thereto as shown
by Trust Certificates then outstanding, upon surrender to the Voting Trustee
(duly endorsed or accompanied by duly executed instruments of surrender) of
the Trust Certificates issued in respect of said shares.
ACCEPTANCE. The Voting Trustee hereby accepts the position of Voting Trustee
hereunder subject to all the terms, conditions and reservations herein
contained, and agrees that he will exercise the powers and perform the duties
of Voting Trustee as herein set forth. Nothing in this Section 10 or
elsewhere in this Agreement shall be construed to prevent the Voting Trustee
from resigning from such position as set forth in Section 11.
RESIGNATION OF VOTING TRUSTEE. The Voting Trustee may resign its position as
such by giving written notice to the Stockholder. Such resignation shall
become effective on the day specified in such notice or upon the election or
appointment of such Voting Trustee's successor and such successor's acceptance
of such election or appointment, whichever is earlier.
LIABILITY OF VOTING TRUSTEE. The Voting Trustee shall not incur any
responsibility as a stockholder, Voting Trustee or otherwise by reason of any
error of judgment or mistake of law or other mistake, or for any act or
omission of any agent or attorney, or for any misconstruction of the
Agreement, or any
action of any sort taken or omitted hereunder and believed by him to be in
accordance with the provisions and intents hereof or otherwise, except for his
own individual willful misconduct. The Voting Trustee may act and receive
compensation as a director, officer, agent or member or any committee of the
Company or of any controlled or subsidiary or affiliated company, or be
otherwise associated therewith; and he or any entity in which he may hold an
interest or a position, or any person associated with any such entity, may, to
the extent permitted by law, and without liability in any way or under any
circumstances by reason hereof, contract or otherwise deal with the Company or
with any controlled or subsidiary or affiliated company, as fully as though
the Voting Trustee were not a trustee.
INDEMNIFICATION. The Stockholder agrees to indemnify and hold the Voting
Trustee harmless from and against any and all liability arising out of the
holding by the Voting Trustee any stock hereunder or any action taken by him
hereunder (except for its own willful misconduct). The Voting Trustee shall
receive no compensation for its services hereunder.
FILING WITH SECRETARY OF THE COMPANY. Copies of the Agreement and of any
extension agreements and consents executed pursuant to Section 9 hereof shall
be filed with the Secretary of the Company, which copies shall be open to the
inspection of any stockholder of the Company or any holder of a Voting Trustee
Certificate daily during business hours on the same terms as the record of
stockholders is open to inspection to stockholders.
ASSIGNMENT; RESTRICTIONS ON TRANSFERS. This Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective
executors, administrators, successors and assigns as the case may be,
PROVIDED, HOWEVER, that this Agreement and all rights, obligations and claims
hereunder and all interests herein are subject to all of the same restrictions
on transfer that are applicable to the Trust Certificates.
HEADINGS. The subject headings of the sections of the Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties pertaining to such subject matter. No
supplement, modification, amendment or waiver of the Agreement shall be
binding unless executed in writing by the holder(s) of the beneficial interest
in the shares then subject to the Agreement and the Voting Trustee. No waiver
of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver.
COUNTERPARTS. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instruments.
NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on
the date of service if served personally on the party to whom notice is to be
given, or on the tenth day after mailing if mailed to the party to whom notice
is to be given, by first class mail registered or certified, postage prepaid,
and properly addressed to such party at the address listed on the signature
line hereof. Any party may change its address for purpose of this section by
giving the other parties written notice of the new address in the manner set
forth above.
GOVERNING LAW. This Agreement shall in all respects be construed, interpreted
and enforced in accordance with and governed by the laws of the State of
California.
SEVERABILITY. If any provision of the Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable as to a particular
application, then such provision shall be deemed modified to
exclude such application, and such provision in all other applications, and
all other provisions of this Agreement, shall continue in full force and
effect without being modified, impaired or invalidated in any way. It is the
intent and agreement of the parties hereto that this Agreement be given the
maximum force, effect and application (not, however, exceeding its express
terms) permissible under applicable law.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
has caused this Agreement to be executed on its behalf by its officers thereunto
duly authorized, as the case may be, all as of the date and year first above
written.
STOCKHOLDER NUMBER OF SHARES/CLASS/SERIES
By: /s/ Xxxx Xxxxxxxxx 735,605 Common shares
__________________________
Name: XXXX XXXXXXXXX
Address: 00000 XXXXXXXX XXXXX, XXXXXXXX, XX 00000
VOTING TRUSTEE
Software Partners, Inc.
By: /s/ Xxxx Xxxxxx
_____________________
Name: XXXX X. XXXXXX
Title: PRESIDENT
Address:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
CONSENT OF THE SPOUSE OF STOCKHOLDER
The undersigned hereby represents, warrants and agrees as follows:
She is the spouse of a party to the attached Voting Trust Agreement for Stock of
InterMall, Inc., dated as of July 21, 1994;
She has read this foregoing Agreement and has received such legal and other
counsel about it as she desires; she is fully aware of all of the terms
thereof; and she fully consents and agrees to be bound by all such terms.
Without limiting the foregoing, she specifically agrees that any interest that
she may now have or hereafter acquire in any or all of the shares of voting
stock of InterMall, Inc., whether as community
property, quasi-community property or separate property, shall be subject to
all of the terms of the Agreement.
/s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX
EXHIBIT A
TRUST CERTIFICATE
THIS IS TO CERTIFY that the undersigned Voting Trustee has received a
certificate or certificates issued in the name of XXXX XXXXXXXXX, evidencing the
ownership of 735,605 shares of common stock of InterMall, Inc., a California
corporation (the "Company"), and that said shares of stock are held by said
Voting Trustee under the terms of that certain Voting Trust Agreement for Stock
of InterMall, Inc. ((the "Agreement") dated as of July 21, 1994, between the
undersigned Voting Trustee and the stockholder of the company who has executed
the same (the "Stockholder"), a copy of which Agreement is on file with the
Secretary of the Company. During the term of the Agreement, said Voting Trustee
under the Agreement is entitled to exercise the right to vote and otherwise
represent all of said shares of stock for all purposes, it being agreed that no
voting rights shall accrue to the Stockholder by virtue of the ownership of the
Trust Certificate. Upon the termination of the Agreement, the undersigned will,
upon endorsement and surrender of this Trust Certificate to him, assign and
deliver a stock certificate representing a like number of said shares of stock.
THE SECURITIES REPRESENTED BY THIS TRUST CERTIFICATE HAVE BEEN ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NO INTEREST
THEREIN MAY BE TRANSFERRED EXCEPT IN COMPLIANCE, ESTABLISHED TO THE SATISFACTION
OF THE COMPANY, WITH SAID ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER BY THE SECURITIES AND EXCHANGE COMMISSION.
July 21, 1994
VOTING TRUSTEE
Software Partners, Inc.
By: /s/ Xxxx Xxxxxx
__________________
Name: XXXX X. XXXXXX
Title: PRESIDENT
