EXHIBIT 10.29
VOTING TRUST AGREEMENT
Dated ____________, 1999
The parties to this agreement are YouthStream Media Networks, Inc.,
a Delaware corporation (the "Company"), Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx and
Xxxx Xxxxxx (collectively, the "Stockholders"), and Xxxxxx X. Xxxxx, as voting
trustee (in that capacity, the "Trustee").
The Company has today acquired, in exchange for shares of the
Company's common stock, $.01 par value ("Shares"), all of the membership
interests (other than membership interests owned by Network Event Theater, Inc.)
of Common Places, LLC, a Delaware limited liability company of which the
Stockholders were members. Bassi, Xxxxxxxx and Xxxxxx acquired in the
transaction ______, _____ and _______ Shares, respectively. This agreement
provides for the transfer by each of the Stockholders to the Trustee of 50% of
the Shares acquired by him in exchange for his membership interests in Common
Places, LLC. Simultaneously with the execution of this agreement, the
Stockholders are executing and delivering a stockholders agreement
("Stockholders Agreement") among the Company, Bassi, Townsend, Palmer, and
Xxxxx, individually and as voting trustee.
Accordingly, the parties agree as follows:
1. Shares Held in Trust.
1.1 Transfer of Shares to Voting Trustee. Simultaneously with
the execution of this agreement, (a) Bassi, Xxxxxxxx and Xxxxxx are delivering
to the secretary of the Company, for cancellation, stock certificates (together
with stock powers executed in blank) for ____, ____, and ____ Shares,
respectively, free and clear of any claim, lien, security interest or other
encumbrance (a "Lien"), and (b) the Company is issuing and delivering to the
Trustee three stock certificate for the respective number of Shares delivered by
Bassi, Xxxxxxxx and Xxxxxx, each of which is registered in the name of the
Trustee, in his capacity as such, and legended to indicate those Shares are
subject to this agreement (which fact also shall be stated in the stock ledger
of the Company). (The Shares so issued to the Trustee, together with any
additional securities referred to in section 3, are referred to collectively as
the "Trust Shares.") The Trustee shall hold and vote (including, for all
purposes of this agreement, the giving of consent) the Trust Shares in
accordance with this agreement and may not transfer any of the Trust Shares
except as provided in this agreement. The legend on all certificates evidencing
Trust Shares shall read:
"The shares of stock represented by this certificate are
subject to a certain Voting Trust Agreement dated _____, 1999
among the Company, the Trustee and the beneficial owners of
the shares. A copy of that agreement will be provided without
charge upon request."
1.2 Voting Trust Certificates. Simultaneously with the
execution of this agreement, the Trustee is issuing and delivering to each
Stockholder a trust certificate (a "Trust Certificate") for the number of Shares
delivered by that Stockholder under section 1.1(a). The Trustee shall cause
accurate records to be kept setting forth the name and address of each holder of
Trust Certificates, the number of Trust Shares represented by each Trust
Certificate, any dividends or other payments or distributions made in respect of
the Trust Shares and transfers of the Trust Shares. That list and record shall
be open at all reasonable times to inspection by the Company's stockholders and
the holders of Trust Certificates. Each Trust Certificate shall be in the form
of exhibit A.
2. Authority of Trustee to Vote the Trust Shares
2.1 Authority. The Trustee shall have full and exclusive power
and authority to vote the Trust Shares in person or by proxy (or to refrain from
voting) at all meetings of the stockholders of the Company or by written consent
in lieu of such meetings with respect to all matters for which the Shares are
entitled to vote, including, without limitation, for the election of directors.
The Trustee shall inform the Stockholders in writing of the manner in which he
votes the Shares promptly after each vote, and shall see to it that copies of
all material sent by the Company to its stockholders are sent to the
Stockholders.
2.2 Other Matters. Subject to sections 5.1 and 5.2, the
Trustee's power to vote (or refrain from voting) the Trust Shares at any meeting
or by the execution of a written consent shall be irrevocable. The Trustee also
shall have the right to waive notice of any meeting of the Company's
stockholders and to take all other action associated with the exercise of the
voting power of the Trust Shares. The Trustee may exercise any power or perform
any act under this agreement by proxy or through an agent or attorney.
2.3 No Disqualification. Nothing in this agreement shall be
deemed to prevent the Trustee from serving the Company or any of its
subsidiaries as an officer, director, employee or in any other capacity and
receiving compensation for that service or from engaging in any transaction
with, or providing any service to, the Company or any of its subsidiaries.
2.4 No Authority to Transfer Shares. The Trustee shall have no
power or authority to transfer the Trust Shares, except in accordance with
section 6, and any other transfer or attempted transfer shall be void and of no
effect.
3. Additional Securities. Any stock certificates for any voting
securities of the Company (or of any successor to all or substantially all of
the business of the Company by merger or otherwise) issued by way of dividend,
stock split, recapitalization, reorganization, merger (other than a Terminating
Merger), consolidation, conversion or any other change or adjustment in respect
of the Trust Shares shall be delivered by the Company to the Trustee, who shall
hold those securities in accordance with this agreement, and the Trustee shall,
immediately following receipt, issue and deliver, or cause to be issued and
delivered, Trust Certificates for such changed or additional securities to the
appropriate holders of the Trust Certificates.
4. Dividends; Preemptive Rights. Except as otherwise provided in
section 3
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with respect to voting securities, if the Company pays any dividend on, or
distributes any other securities or property in respect of, the Trust Shares,
the Company shall pay or distribute such securities or property to the Trustee,
who shall collect and receive such securities or property, and shall promptly
deliver such securities or property, without offset or deduction of any kind, to
the holders of the then outstanding Trust Certificates in proportion to their
interest in the Trust Shares as shown on the books of the Trustee, so that such
dividend or distribution is identical to the dividend or distribution each
holder of a Trust Certificate would have received if the holder had been the
holder of record of the securities represented by that Trust Certificate. If the
Company offers to all of its stockholders the right to buy stock in the Company,
the Stockholders shall be given the opportunity to exercise that right in their
sole discretion; upon any such purchase of stock, 50% of the shares acquired in
the purchase shall be deposited with the Trustee and held by the Trustee
pursuant to the terms of this agreement.
5. Termination
5.1 Termination Date. Subject to section 5.2, this agreement
shall terminate (the "Termination Date") on the earliest of (a) the effective
date of a Terminating Merger or of the dissolution of the Company, (b) the date
that Xxxxxx X. Xxxxx ceases to own of record or beneficially at least 10% of the
number of Shares he so owns on the date of this agreement (excluding any Shares
owned of record pursuant to this agreement), (c) the death of Xxxxxx X. Xxxxx or
(d) Xxxxxx X. Xxxxx ceasing to serve as at least one of the following: the
chairman of the board, president, chief executive officer or chief operating
officer of the Company (or any office performing analogous functions) . For the
purpose of this agreement, the term "Terminating Merger" means a merger,
consolidation or combination of the Company with another business, if, as a
result of that transaction, Xxxxxx X. Xxxxx does not hold the position of
chairman of the board, president, chief executive officer or chief operating
officer (or any office performing analogous functions) of the merged,
consolidated or combined entity.
5.2 Termination Upon Transfer of Shares. Notwithstanding
anything in this agreement to the contrary, this agreement shall terminate with
respect to any Trust Shares transferred in accordance with section 6 at the time
of the transfer (except that this agreement shall not terminate with respect to
any Trust Shares transferred pursuant to section 3.2(a) of the Stockholders
Agreement until those Trust Shares are transferred by the transferee in
accordance with section 6).
5.3 Transfer of Shares from Voting Trustee. Upon the
termination of this agreement in accordance with section 5.1, (a) each holder of
Trust Certificates shall promptly deliver to the Trustee any outstanding Trust
Certificates held by that holder, (b) promptly thereafter the Trustee shall
deliver to the secretary of the Company or, at the direction of the Company, to
the Company's transfer agent, for cancellation, stock certificates (together
with stock powers executed in blank and any requisite stock transfer stamps) for
all the Trust Shares then held by the Trustee, and (c) the Company shall cause
to be issued to each holder of Trust Certificates stock certificates for a
number of Shares equal to the number of Trust Shares represented by the Trust
Certificates delivered pursuant to clause (a) above, free and clear of any Lien
(other than any Lien imposed by the Stockholders Agreement, by operation of law
or by the holder of the Trust Certificates
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(collectively, "Permitted Liens")) and without any legend (except any legend
relating to transfer restrictions arising under any applicable securities laws
(an "Applicable Securities Law Legend")). The Trustee and the Company shall take
such actions as the holders of the Trust Certificates may reasonably request to
effect such issuances.
5.4 Death or Incompetence of Holder. The death, disability or
incompetence of a holder of a Trust Certificate shall not affect the validity or
enforceability of this agreement.
6. Transfers of Trust Shares and Trust Certificates
6.1 Transfer of Trust Shares. Each holder of Trust
Certificates may, by notice given to the Trustee (a "Transfer Request"), direct
the Trustee to transfer any Trust Shares represented by that holder's Trust
Certificates in accordance with, and to the extent permitted under, the
Stockholders Agreement. No transfer of Trust Shares pursuant to section 3.2(a)
of the Stockholders Agreement shall be permitted (and any transfer in
contravention of this provision shall be void and of no effect), unless, prior
to the transfer, the proposed transferee executes and delivers to the Trustee a
copy of this agreement, the signature page of which shall specify that the
transferee is bound by and takes the Trust Shares subject to all the terms of
this agreement applicable to the transferor (it being understood that,
notwithstanding anything to the contrary in this agreement, the Trustee shall
retain possession of any Trust Shares so transferred and shall issue to the
transferee appropriate Trust Certificates in respect of those Trust Shares).
Each Transfer Request (other than a Transfer Request relating to a transfer to a
Permitted Transferee) shall be accompanied by evidence reasonably satisfactory
to the Trustee that the number of Trust Shares subject to the Transfer Request
equals 50% of the total number of Shares then being transferred by the
Stockholder (other than pursuant to section 3.2(a) of the Stockholders
Agreement).
6.2 Transfer Mechanics. In order to effect a transfer of Trust
Shares at the request of a holder of Trust Certificates pursuant to section 6.1,
(a) the holder shall deliver to the Trustee, together with the Transfer Request,
any Trust Certificates representing the Trust Shares to be transferred, (b) the
Trustee shall promptly thereafter deliver to the secretary of the Company or, at
the direction of the Company, to the Company's transfer agent, for cancellation,
stock certificates (together with stock powers executed in blank and any
requisite stock transfer stamps) representing the number of Trust Shares to be
transferred and (c) the Company shall cause to be issued to the transferee(s)
specified in the Transfer Request stock certificates for a number of Shares
equal to the number of Trust Shares represented by the Trust Certificates
delivered pursuant to clause (a) above, free and clear of any Lien (except
Permitted Liens) and without any legend (except any Applicable Securities Law
Legend). The Trustee and the Company shall take such actions as the holders of
Trust Certificates may reasonably request to effect such issuances.
6.3 Transfer of Trust Certificates. The Trust Certificates may
be transferred only as permitted by this agreement or in the same manner and to
the same extent as the Trust Shares may be transferred in accordance with the
Stockholders Agreement, and only if, in the case of a transfer pursuant to
section 3.2(a) of the Stockholders Agreement, the transferee executes and
delivers to the Trustee a copy of this agreement, the signature page of which
shall specify that the Transferee is bound by and takes the Trust Certificates
subject to all the terms of this agreement
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applicable to the transferor.
7. Compensation and Expenses. The Trustee shall not be entitled to
any compensation or other consideration for performance of his duties or acting
as voting trustee under this agreement. No holder of Trust Certificates shall be
liable or obligated for payment of any such expenses.
8. Miscellaneous
8.1 Governing Law. This agreement shall be governed by and
construed in accordance with the law of the state of Delaware applicable to
agreements made and to be performed wholly in Delaware.
8.2 Notices. The Company shall give each Stockholder and
others who are holders of Trust Certificates copies of any notice given
generally to stockholders of the Company. Any notice or other communication
under this agreement shall be in writing and shall be considered given when
delivered personally or mailed by registered mail, return receipt requested, at
the following addresses (or at such other address as a party may designate by
notice given to the others) or at such addresses as holders of Trust
Certificates may designate by notice given to the others:
if to the Company or the Trustee, to it or him at:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Executive Vice President and
Chief Financial Officer and Xxxxxx X. Xxxxx
if to Xxxxxxxx Xxxxx, to him at
00 Xxxxxxxx Xxxx
Xxxxxxxx, X.X. 00000
Fax No.: (000) 000-0000
if to Xxxxxxx Xxxxxxxx, to him at
0 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
if to Xxxx Xxxxxx, to him at:
00 Xxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
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with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
8.3 Counterparts. This agreement may be executed in
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
8.4 Equitable Relief. The parties acknowledge that the remedy
at law for breach of this agreement would be inadequate and that, in addition to
any other remedy a party may have for a breach of this agreement, that party
shall be entitled to an injunction restraining any such breach or threatened
breach, or a decree of specific performance, without the necessity of showing
actual damages and without any bond or other security being required. The remedy
provided in this section 8.4 is in addition to, and not in lieu of, any other
rights or remedies a party may have.
8.5 Separability. If any provision of this agreement is
invalid or unenforceable, the balance of this agreement shall remain in effect,
and, if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
8.6 Entire Agreement; Amendments. This agreement contains a
complete statement of all the arrangements among the parties with respect to its
subject matter, supersedes all existing agreements among them with respect to
that subject matter and may not be changed or terminated except by written
agreement signed by the Company, the Trustee, and holders of Trust Certificates
representing a majority of the Trust Shares, provided that no such amendment or
modification may adversely affect the rights or obligations of any holder of
Trust Certificates without that holder's prior written consent, unless the
amendment or modification similarly affects all holders of Trust Certificates.
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8.7 Assignment. The Trustee may not assign any of his rights
under this agreement.
YOUTHSTREAM MEDIA NETWORKS, INC.
By:________________________________
___________________________________
Xxxxxxxx Xxxxx, Individually
___________________________________
Xxxxxxx Xxxxxxxx, Individually
___________________________________
Xxxx Xxxxxx, Individually.
___________________________________
Xxxxxx X. Xxxxx, As Voting Trustee
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No. ___ EXHIBIT A
VOTING TRUST CERTIFICATE
YOUTHSTREAM MEDIA NETWORKS, INC.
This is to certify that _______________________________ is entitled
to receive, on the terms set forth in the Voting Trust Agreement referred to
below, a certificate or certificates representing ________________ shares of
common stock of YouthStream Media Networks, Inc., a Delaware corporation (the
"Company"), or such other securities, if any, as may be deliverable in respect
of such shares of common stock of the Company in accordance with the Voting
Trust Agreement, and, in the meantime, is entitled to receive payment of any
dividends or distributions, other than those in the form of voting securities of
the Company, received by the Trustee in respect of such shares of common stock
of the Company.
On the terms set forth in the Voting Trust Agreement, the Trustee
shall have full and exclusive power and authority to vote in person or by proxy
(or to refrain from voting) at all meetings of the stockholders of the Company
and to execute consents with respect to all shares of capital stock of the
Company held by the Trustee, for any purpose.
This certificate is issued pursuant to the Voting Trust Agreement
dated___________, 1999, among the Company, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx,
Xxxx Xxxxxx, and Xxxxxx X. Xxxxx, as voting trustee. A copy of the Voting Trust
Agreement is on file at the principal office of the Company at 000 Xxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The holder of this certificate, by the
acceptance of this certificate, agrees to all the terms of the Voting Trust
Agreement.
This certificate is transferable only on the books of the Trustee
upon delivery of this certificate at the office of the Trustee properly endorsed
for transfer by the registered holder of this certificate, either in person or
by attorney duly authorized, in accordance with the Voting Trust Agreement. The
Trustee shall not be obligated to recognize any person as the owner of this
certificate, other than the person in whose name this certificate is registered
on the books of the Trustee.
In witness whereof, the Trustee has executed this instrument this
___ day of ______, 1999.
___________________________________
Xxxxxx X. Xxxxx, As Voting Trustee
