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Exhibit 4.5
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT (the "Agreement") is made and entered into
as of this __ day of May, 1998, by and between HARBOR VIEW FUND, INC., a
_________ corporation, with its principal offices at__________________________
("HVFI"), XXXXXXX XXXXXXXX, an individual residing at ________________________
("Xxxxxxxx") (HVFI and Xxxxxxxx collectively the "Shareholders") and REGISTRY
MAGIC INCORPORATED, a Florida corporation, with its principal offices at Xxx
Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company").
PRELIMINARY STATEMENT
WHEREAS, the Company has an authorized capital of 30,000,000 shares of
Common Stock, having a par value of $.001 per share (the "Common Stock"), of
which 3,993,000 shares are issued and outstanding as of the date hereof;
WHEREAS, contemporaneously herewith, the Company is undertaking an
initial public offering of 1,600,000 shares of Common Stock;
WHEREAS, Xxxxxxx Xxx acquired 240,000 shares of Common Stock (the
"Shares") from Xxxxx Xxxxxx pursuant to an agreement dated May 1, 1997.
Thereafter Xxxxxxx Xxx transferred the Shares to Xxxx Xxx, wife of Xxxxxxx Xxx;
WHEREAS, Xxxx Xxx has entered into a transaction to transfer 145,000 of
the Shares to Xxxxxxxx and 95,000 of the Shares to HVFI;
WHEREAS, Xxxx Xxx received Warrants to purchase 100,000 shares of
Common Stock (the "Warrants") as sole shareholder of First Cambridge Securities
and has subsequently transferred such Warrants to HVFI. (Hereinafter the Shares
and the Warrants are collectively the "Securities"); and
WHEREAS, as a condition of the Company gaining inclusion to the NASDAQ
SmallCap Market and in order to secure continuity and stability of policy and
management of the Company, the Shareholders deem it advisable to deposit their
Shares, and the shares issued upon exercise of the Warrants, in the Company with
the Chairman of the Board of the Company (the "Trustee"). The Trustee has
consented to act under this Agreement for the purposes herein provided.
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NOW, THEREFORE, in consideration of the agreements contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
conclusively acknowledged, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. FILING OF AGREEMENT. Copies of this Agreement, and of every
supplement, amendment or change, shall be filed in the principal office of the
Company in the State of Florida, and in any other state where so required, and
shall be open to the inspection of any shareholder of the Company during
business hours. All voting trust certificates issued as hereinafter provided
shall be issued, received and held subject to all of the terms of this
Agreement. Every person entitled to receive voting trust certificates
representing the Securities under this Agreement, upon accepting the voting
trust certificate representing the Securities under this Agreement, shall be
bound by the provisions of this Agreement.
2. TRANSFER OF STOCK TO TRUSTEE.
(a) Simultaneous with the execution hereof, the Shareholders
are depositing with the Trustee, their certificates for the Shares of the
Company listed on the subscription page hereof. The stock certificates shall
have been duly endorsed, or are accompanied by such instruments of transfer as
to enable the Trustee to cause such certificates to be transferred into the name
of the Trustee, as hereinafter provided. On receipt by the Trustee of the
certificate for any such Shares and the transfer of the same into the name of
the Trustee, the Trustee shall hold the same subject to the terms of this
Agreement, and shall thereupon issue and deliver to the Shareholders a voting
trust certificate for the Shares so deposited which shall be in the form annexed
hereto as Exhibit A.
(b) Upon exercise of the Warrants, all shares underlying the
Warrants shall be subject to the terms of this Agreement and shall be deposited
with the Trustee pursuant to Section 2(a) above.
3. RIGHTS AND DUTIES OF TRUSTEE.
(a) Until the actual delivery to the Shareholders of stock
certificate(s) in exchange for the voting trust certificate, and until the
surrender of the voting trust certificate for cancellation, the Trustee shall
have the right, subject to the provisions of this paragraph hereinafter set
forth, to exercise, in person or by his nominees or proxies, all Shareholder's
voting rights and powers in respect of all shares of Common Stock deposited
hereunder and as set forth below, and to take part in or consent to any
corporate or shareholders' action of any kind whatsoever. The right to vote
shall include the right to vote for the election of directors, and in favor of
or against any resolution or proposed action of any character whatsoever, which
may be presented at any meeting or require the consent of shareholders of the
Company. Without limiting such general right, it is understood that such action
or proceeding may include, upon terms satisfactory to the Trustee or to his
nominees or proxies thereto appointed by him, mortgaging, creating a security
interest
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in, and pledging of all or any part of the property of the Company, the lease or
sale of all or any part of the property of the Company, for cash, securities, or
other property, the dissolution of the Company, and the consolidation, merger,
reorganization, or recapitalization of the Company.
(b) In voting the stock held by the Trustee hereunder, either
in person or by his nominees or proxies, the Trustee shall vote such stock in
the same proportion as all of the Company's shareholders vote or on matter
submitted to them, and shall otherwise, insofar as he may as a shareholder of
the Company, take such part or action in respect to the management of its
affairs as he may deem necessary so that he may be advised of the affairs and
management of the Company; and in voting upon any matters that may come before
him at any shareholders' meeting, the Trustee shall exercise like judgment and
voting, but he shall not be personally responsible with respect to any action
taken pursuant to his vote so cast in any matter or act committed or omitted to
be done under this Agreement, provided such commission or omission does not
amount to intentional misconduct on his part.
(c) The Shareholders hereby release, waive and satisfy all
claims, demands and causes of action, if any, that may arise out of or in
connection with any acts or omissions of the Trustee made pursuant to this
Agreement, except for acts or omissions that are finally determined by a court
of competent jurisdiction to constitute gross negligence or intentional
misconduct by the Trustee.
4. TERM. This Agreement shall be irrevocable and continue in effect
until the earlier of ten (10) years from the date hereof or such time as the
Shareholders divest themselves of such Securities on the open market or a
bona fide judicial settlement regarding the Securities.
5. TRANSFER OF CERTIFICATE. This Agreement and the voting trust
certificate issued under this Agreement shall not be transferable, and the
Trustee shall not be required to recognize any transfer of a voting trust
certificate. In the event of the loss, destruction or mutilation of a voting
trust certificate issued hereunder, the Trustee, in his sole discretion, may
issue a replacement voting trust certificate, upon receipt by the Trustee of (i)
evidence of loss, destruction or mutilation satisfactory to the Trustee; (ii)
indemnity satisfactory to the Trustee; (iii) the existing certificate, if
mutilated; and (iv) the reasonable fees and expenses, including legal fees, in
connection with the issuance of a replacement voting trust certificate.
6. TERMINATION PROCEDURE.
(a) Upon the termination of this Agreement, the Trustee, at
such time as he may choose during the period commencing twenty (20) days before
and ending twenty (20) days after such termination, shall mail written notice of
such termination to the
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Shareholders, at the address appearing on the transfer books of the Trustee.
After the date specified in any such notice (which date shall be fixed by the
Trustee), the voting trust certificate shall cease to have any effect, and the
Shareholders shall have no further rights under this Agreement other than to
receive the certificate for the shares of the Company or other property
distributable under the terms hereof and upon the surrender of such voting trust
certificate.
(b) Within thirty (30) days after the termination of this
Agreement, the Trustee shall deliver to the Shareholder, certificates for the
number of shares of the Company represented thereby, upon the surrender of such
voting trust certificate duly endorsed, such delivery to be made at the place
designated by the Trustee.
(c) At any time following the termination of this Agreement,
the Trustee shall deposit with the Company stock certificates for the number of
shares of capital stock represented by the voting trust certificate then
outstanding, with authority in writing to the Company to deliver such stock
certificates in exchange for the voting trust certificate representing a like
number of shares of the capital stock of the Company. Upon such deposit all
further liability of the Trustee for the delivery of such stock certificates and
the delivery or payment of dividends upon surrender of the voting trust
certificate shall cease, and the Trustee shall not be required to take any
further action hereunder.
(d) Notwithstanding the foregoing, upon notification of intent
to sell on the open market or upon a bona fide judicial settlement, the Trustee
shall deliver within 48 hours the Securities so as to permit such sale upon
delivery of documentation reasonably satisfactory to the Trustee evidencing
shareholders intent for open market sale of the securities or a bona fide
judicial settlement.
7. DIVIDENDS.
(a) Prior to the termination of this Agreement, the
Shareholders shall be entitled to receive payments equal to the cash dividends,
if any, received by the Trustee upon a like number and class of shares of
capital stock of the Company as is called for by the voting certificate. If any
dividend in respect of the shares deposited with the Trustee is paid, in whole
or in part, in stock of the Company having general voting powers, the Trustee
shall likewise hold, subject to the terms of this Agreement, the certificates
for stock which are received by him on account of such dividend, and the
Shareholders of the voting trust certificate representing stock on which such
stock dividend has been paid shall be entitled to receive a voting trust
certificate issued under this Agreement for the number of shares and class of
stock received as such dividend with respect to the shares represented by such
voting trust certificate.
(b) If any dividend in respect of the shares deposited with
the Trustee is paid other than in cash or in capital stock having general voting
powers, then the Trustee shall distribute the same to the Shareholders. Such
distribution shall be to the Shareholders, in accordance with the number of
shares represented by their voting trust certificate.
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(c) The transfer books of the Trustee may be closed
temporarily by the Trustee for a period not exceeding twenty (20) days preceding
the date fixed for the payment or distribution of dividends or the distribution
of assets or rights, or at any other time in the discretion of the Trustee.
8. DISSOLUTION OF THE COMPANY. In the event of the dissolution or total
or partial liquidation of the Company, whether voluntary or involuntary, the
Trustee shall receive the monies, securities, rights or property to which the
Shareholders of the shares of the Company deposited hereunder are entitled, and
shall distribute the same to the Shareholders in proportion to their interest,
as shown by the books of the Trustee, or the Trustee may in his discretion
deposit such monies, securities, rights or property with any bank or trust
company, with authority and instructions to distribute the same as above
provided and upon such deposit all further obligations or liabilities of the
Trustee in respect of all such monies, securities, rights or property so
deposited shall cease.
9. REORGANIZATION OF COMPANY. In case the Company is merged into or
consolidated with another corporation, or all or substantially all of the assets
of the Company are transferred to another corporation, then in connection with
such transfer the term "Company" for all purposes of this Agreement shall be
taken to include such successor corporation, and the Trustee shall receive and
hold under this Agreement any stock of such successor corporation received on
account of the ownership, as Trustee hereunder, of the stock held hereunder
prior to such merger, consolidation and transfer. The voting trust certificate
issued and outstanding under this Agreement at the time of such merger,
consolidation or transfer may remain outstanding, or the Trustee may, in his
discretion, substitute for such voting trust certificate a new voting trust
certificate in appropriate form, and the terms "Shares", "stock" and "capital
stock" as used herein shall be taken to include any stock which may be received
by the Trustee in lieu of all or any part of the capital stock of the Company.
10. COMPENSATION AND REIMBURSEMENT OF TRUSTEE. The Trustee shall serve
without compensation. The Trustee shall have the right to incur and pay such
reasonable expenses and charges and to employ and pay such agents, attorneys,
and counsel as he may deem necessary and proper for carrying this Agreement into
effect. Any such expenses or charges incurred by and due to the Trustee may be
deducted from the dividends or other monies or property received by the Trustee
on the stock deposited hereunder. Nothing herein contained shall disqualify the
Trustee or successor Trustees or incapacitate them from serving the Company or
any of its subsidiaries as officer or director, or in any other capacity, or
from receiving compensation in any such capacity.
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11. RESIGNATION AND DEATH OF TRUSTEE.
(a) The Trustee may, at any time, resign by mailing to the
Shareholders and the Company a written resignation, to take effect ten (10) days
thereafter or upon the prior acceptance thereof.
(b) Any vacancy in the office of trustee hereunder, whether
due to the death, incapacity, resignation or otherwise, of the Trustee, a
successor trustee shall assume the position of trustee hereunder. Such successor
trustee shall be the individual designated by the Board of Directors of the
Company, in writing, prior to the occurrence of the vacancy, or if no successor
trustee has been designated by the Board of Directors of the Company, the
successor trustee shall be designated by the President of the Company. In the
event of the failure to designate a successor trustee as provided in this
paragraph, then this Voting Trust Agreement shall terminate and the provisions
of Paragraph 7 hereof shall be in effect for purposes of establishing the
termination procedures applicable hereto.
12. NOTICE.
(a) Unless otherwise specifically provided herein, any notice
to or communication with the Shareholders shall be in writing and shall be
deemed to be sufficiently given or made if hand delivered or three (3) days
after deposit in the United States Certified Mail, Return Receipt Requested, or
by overnight delivery with receipt properly acknowledged, and properly addressed
to the Shareholders at their address appearing on the transfer books of the
Trustee, or if to the Trustee, the address furnished by the Trustee to the
Company, or, if no such address is furnished, to the Trustee in care of the
Company. The address of the Shareholders, as shown on the transfer books of the
Trustee, shall in all cases be deemed to be the address of such Shareholders for
all purposes under this Agreement, without regard to what other or different
addresses the Trustee may have for the Shareholders on any other books or
records of the Trustee.
(b) All distributions of cash, securities, or other property
hereunder by the Trustee to the Shareholder may be made, in the discretion of
the Trustee, in the same manner as hereinabove provided for the giving of
notices to the Shareholder.
13. HEADINGS. The section and subsection headings herein are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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15. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida.
16. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
17. ENTIRE AGREEMENT. This Agreement is the entire agreement of the
parties covering everything agreed upon or understood in the transaction. There
are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof.
18. SEVERABILITY. If any part of this Agreement is determined by a
court of competent jurisdiction to be unenforceable the balance of the Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
HARBOR VIEW FUND, INC.
By:
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Name:
Its:
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XXXXXXX XXXXXXXX
REGISTRY MAGIC INCORPORATED
By:
-----------------------------------
Name:
Its:
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EXHIBIT "A"
NO. __________ __________ SHARES
REGISTRY MAGIC INCORPORATED
A Florida Corporation
Voting Trust Certificate for Common Stock
This certifies that __________ (the "Shareholder") is entitled to all
the benefits arising from the deposit with the Trustee under the Voting Trust
Agreement (the "Agreement") herein mentioned, of certificates for _____ shares
of Common Stock (the "Common Stock") of REGISTRY MAGIC INCORPORATED, a Florida
corporation (hereinafter called the "Company"), as provided in such Agreement
and subject to the terms thereof. Until the Trustee shall have delivered the
stock held under such Agreement to the holder of this voting trust certificate,
or to the Company, as specified in such Agreement, the Trustee shall possess and
shall be entitled to exercise all rights and powers of an absolute owner of such
stock, including the right to vote thereon for every purpose, it being expressly
stipulated that no voting right passes to the owner hereof, or his assigns,
under this certificate or any agreement, expressed or implied.
This certificate is issued, received and held under, and the rights of
the owner hereof are subject to, the terms of a Voting Trust Agreement dated May
__, 1998, between the Company, Harbor View Fund, Inc., and Xxxxxxx Xxxxxxxx
(copies of which agreement, and of every agreement amending or supplementing the
same, are on file in the principal offices of the Company in the State of
Florida, and at the Company's registered office in any other state where so
required and shall be opened to the inspection of any shareholder of the Company
daily during business hours), and to all the provisions of which Agreement the
holder of this certificate, by acceptance hereof, assents and is bound as if
such Voting Trust Agreement had been signed by him in person.
The Agreement shall continue in full force and effect until such time
as the Shareholder divests its ownership in the Common Stock.
This certificate, the stock ownership represented hereby, any
disposition hereof and the rights of any holder hereof are limited, controlled
by and subject to the terms of the Agreement which is on file at the offices of
the Company in the State of Florida, and in any other state where so required.
No transfer or attempted transfer hereof or of any interest herein shall be
valid or effective. A copy of the Agreement will be furnished without charge to
the record holder of this certificate upon written request to the Company at its
principal place of business. The holder hereof agrees that at any time, the
holder may transfer, devise or otherwise dispose of the shares underlying this
voting trust certificate, at which time the shares shall not be subject to the
Agreement, and, additionally, the shares shall convert into
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ordinary Common Stock of the Company in proportion to the number of shares
represented by the voting trust certificate.
This certificate shall not be valid for any purpose until duly signed
by the Trustee.
The word "Trustee" as used in this certificate means the Trustee acting
under such Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustee has signed this certificate on
____________, 1998.
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, Trustee
For value received and subject to the terms and conditions of the
Agreement, the undersigned Shareholder hereby assigns the within certificate,
and all rights and interests represented thereby, to Xxxxxxxx Xxxxx, Trustee and
appoints such Trustee as his attorney to transfer this certificate on the books
of the Trustee with full power of substitution.
DATED: May ___, 1998
______________, Shareholder
By:
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Name:
Its:
__________________________(Seal)
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