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3/1/01
HIGH SPEED NET SOLUTIONS, INC.
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into
as of the 16th day of February, 2001, among Xx. Xxxxx Xxxxxxx ("Stockholder"),
High Speed Net Solutions, Inc., a Florida corporation, together with any of its
majority-owned subsidiaries (the "Company"), and Xxxxxx Xxxxxxx (the "Trustee").
BACKGROUND STATEMENT
The Stockholder is the owner and holder of the number of shares of the
Company (the "Shares") set forth opposite his name and signature below. The
Asset Purchase Agreement, as amended, dated as of October 30, 2000 (the
"Purchase Agreement") requires the Stockholder to execute and deliver this
Agreement as a condition to the issuance of Share Purchase Price under the
Purchase Agreement. The Company, the Stockholder and other stockholders desire
to provide for orderly governance of the Company.
The term "Shares" in this Agreement shall mean shares of the Company
beneficially owned shares or owned and currently held shares or any shares
acquired by Stockholder in the future, except that any shares removed from the
coverage of this Agreement through the provisions of Section 4(b) or 4(c) shall
not be included. The term "beneficial" or "beneficially" or "beneficial owner"
shall have the meaning given in Exhibit A to this Agreement.
STATEMENT OF AGREEMENT
1. NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained and the transactions
contemplated hereby and thereby, the parties hereby covenant and agree as
follows:
2. Transfer. Stockholder hereby assigns to the Trustee the Shares, to
be held by the Trustee under the terms and conditions of this Agreement.
Stockholder hereby authorizes and directs the Company to transfer the Shares to
the Trustee on the books of the Company. The Company will issue to the Trustee,
as trustee, a new certificate representing the Shares and the parties hereby
agree to execute and deliver such documents as the Company may reasonably
request to effectuate such transaction. The parties hereto acknowledge that the
voting trust hereby created shall apply during its term to all securities of the
Company (or any successor company) received by Stockholder (or any transferee of
the Shares), whether by dividend, stock split, merger, share exchange,
liquidation or otherwise. The parties further agree that any cash or other
property (other than securities
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of the Company or successor company) received in any such exchange or otherwise
for the Shares shall be distributed by the Trustee to Stockholder as
appropriate.
3. Voting Trust Certificates. The Trustee will issue to Stockholder a
Voting Trust Certificate evidencing his beneficial ownership of the Shares held
by the Trustee.
4. Transfer of Voting Trust Certificates.
(a) Except as provided in Section 4(b) and 4(c) below, Stockholder
may not transfer his Voting Trust Certificates, his interest in the
voting trust hereby created, or the Shares, without the prior written
consent of the Trustee. Consent to transfer of Voting Trust
Certificates shall not be withheld if the proposed transferee executes
and delivers to the Trustee agreements in form and substance reasonably
acceptable to the Trustee, whereby the proposed transferee agrees to be
bound by this Agreement. To the extent permitted hereunder, any such
transfer of Voting Trust Certificates and any subsequent transfers
shall be made only on the books of the Trustee by the record holder
thereof or by his legal representative, who shall furnish the Trustee
with proper evidence of authority to transfer, or by his attorney
thereunto authorized by power of attorney duly executed and filed with
the Trustee, and on surrender for cancellation of the Voting Trust
Certificate.
(b) Each month commencing on the first month anniversary of this
Agreement, one twelfth (1/12) of the Shares subject to this Agreement
shall be released from the provisions of this Agreement until all
Shares are no longer subject to this Agreement. Upon release of all of
the Shares from this Agreement, this Agreement shall automatically
terminate. All Shares released shall continue to be subject to the
limitations of the Purchase Agreement regarding public sale.
(c) Nothing in this Agreement shall prevent Stockholder from making
a sale of Shares to a bona fide third party transferee, other than a
relative, agent or affiliate of Stockholder, such that Stockholder will
cease to be the beneficial owner of the Shares after the sale. Shares
sold pursuant to this Section 4(c) shall be released from this
Agreement.
5. Term. This Agreement will terminate on the first of (a) mutual
agreement of the Company and Stockholder, or (b) the termination of this
Agreement pursuant to Section 4(b) above.
6. Rights and Duties of Trustee. The Trustee will have full power to
vote, consent, and otherwise exercise all the voting rights in respect of the
Shares held by it hereunder as the Trustee, and the Trustee shall vote the
Shares as directed by a majority of the Board of Directors of the Company. The
Trustee will not be liable for any act or failure
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to act arising hereunder. Trustee hereby agrees to vote the Shares as determined
by Trustee without consultation with or direction from Stockholder.
7. Dividends. The holders of the Voting Trust Certificates will be
entitled to receive any dividends (other than dividends of securities of the
Company or any successor company) paid on the shares represented by their Voting
Trust Certificates. The Trustee shall direct the Company to make payment or
delivery of any such dividends directly to the holders of the Voting Trust
Certificates.
8. Securities Dividends. If the Company pays a dividend by delivery to
the Trustee of securities of the Company or any successor company, the Trustee
shall retain and hold any such securities as Trustee pursuant to the terms of
this Agreement and will deliver to the holders of the Voting Trust Certificates
additional Voting Trust Certificates representing such securities.
9. Successor Trustee. The Trustee may not be removed for any reason.
The Trustee may resign at any time by written notice to the registered holders
of Voting Trust Certificates. The Trustee may give any person or entity a proxy
to vote the Shares, which proxy shall terminate not later than termination of
this Agreement. Any such proxy must be in writing signed by the Trustee. Upon
the resignation, death or disability of the Trustee, the Company may select a
successor Trustee by action of its Board of Directors. The Trustee and his
successors as Trustee may act as Trustees hereunder whether or not they are also
stockholders of the Company, officers or directors of the Company, or holders of
Voting Trust Certificates hereunder. Except as set forth in this Section 9,
Stockholder may not assign his right under this Agreement to any other party
without the prior written consent of all parties hereto. The Company may assign
its rights under this Agreement to any majority owned subsidiary.
10. Notices. Any and all notices, requests, demands or other
communications provided for hereunder shall be given in writing and shall be
deemed to have been given (a) when received, if delivered in person, (b) one
business day after deposit with an overnight delivery service, addressed as set
forth on the signature page hereof, or (c) three (3) business days following the
mailing thereof, if mailed by certified first class mail, postage prepaid,
return receipt requested, addressed as set forth on the signature page hereof.
11. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective devisees, legatees,
heirs, successors, administrators, executors, personal representatives, and
assigns.
12. Governing Law. This Agreement shall be subject to and governed by
the laws of the State of Florida.
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13. Prior Agreements. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof, and all other prior
Agreements are terminated.
14. Amendment. This Agreement may not be amended except with the
written approval of all parties.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first set forth above.
COMPANY:
HIGH SPEED NET SOLUTIONS, INC.
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
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Title: President and CEO
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Address:
000 Xxxxxxxxxxxx Xx. Xxxx
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Suite 2120
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Xxxxxxx, XX 00000
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TRUSTEE:
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
STOCKHOLDER:
/s/ Xxxxx Xxxxxxx
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Xx. Xxxxx Xxxxxxx
Number of Shares:
Class of Shares: Common Stock
Address:
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EXHIBIT A
The term "beneficially," when used in connection with the ownership of
securities, means (a) any interest in a security which entitles you to any of
the rights or benefits of ownership even though you may not be the owner of
record or (b) securities owned by you directly or indirectly, including those
held by you for your own benefit (regardless of how registered) and securities
held by others for your benefit (regardless of how registered), such as by
custodians, brokers, nominees, pledgees, etc., and including securities held by
an estate or trust in which you have an interest as legatee or beneficiary,
securities owned by a partnership of which you are a member (whether a general
or limited partner), securities held by a personal holding company of which you
are a stockholder, etc., and securities held in the name of your spouse or any
other member of your immediate family.
A "beneficial owner" of a security includes any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise has or shares:
(1) voting power which includes the power to vote, or to
direct the voting of, such security; and/or
(2) investment power which includes the power to dispose, or
to direct the disposition, of such security.
In addition, you will be deemed to be the beneficial owner of any
security for which you have the right to acquire the voting or investment power
within 60 days, including any right to acquire such security (a) through the
exercise of any option, warrant or right, (b) through the conversion of a
security, (c) pursuant to the power to revoke a trust, discretionary account or
similar arrangement, or (d) pursuant to the automatic termination of a trust,
discretionary account or other similar arrangement.
Any person who, directly or indirectly, creates or uses a trust, proxy,
power of attorney, pooling arrangement or any other contract, arrangement, or
device with the purpose or effect of divesting such person of beneficial
ownership of a security or preventing the vesting of such beneficial ownership
as part of a plan or scheme to evade the reporting requirements of Sections
13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, shall be
deemed for purposes of such sections to be the beneficial owner of such
security.
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