Exhibit 1
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (the "Agreement"), dated as of April
15, 2000, by and among XxxXxxxxx.xxx, Inc. a Delaware corporation (the
"Company"), Xxxxxx Xxxxxxx (the"Voting Trustee") and the Xxxxxxx Trust (the
"Shareholder").
WHEREAS, the Shareholder owns an aggregate of nineteen million
two hundred fifty one thousand two hundred thirty three (19,251,233) shares of
the common stock of the Company, $.001 par value per share (the "Shares"); and
WHEREAS, it is in the best interest of the Company for the
Shareholder to deposit the Trust Shares (as defined in Section 1B below) with
the Voting Trustee in order to promote continuity and stability of policy and
management of the Company; and
WHEREAS, the Voting Trustee has consented to act as the Voting
Trustee under this Voting Trust Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. DEFINITIONS. The following words and phrases, when used in this
Agreement, unless the context clearly indicates otherwise, shall have the
following respective meanings:
A. TRUST CERTIFICATE: A voting trust certificate in the form attached
hereto as Exhibit A.
B. TRUST SHARES: The number of Shares the Shareholders shall deposit
with the Voting Trustee.
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2. FILING. A counterpart of this Agreement shall be filed in the
principal office of the Company, 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, and
shall be open to inspection by any stockholder of the Company , either in person
or by agent or attorney, during business hours for any proper purpose. Such
filing shall constitute authority to the Company to conform to and carry out the
directions contained herein.
3. TRANSFER OF STOCK TO VOTING TRUSTEE.
A. Upon the execution of this Agreement by the parties hereto, the
Shareholder will transfer the Trust Shares to the Voting Trustee and the Company
shall instruct the transfer agent of the Company (if any) to issue to the Voting
Trustee stock certificates representing the Trust Shares. The Voting Trustee
shall hold the same subject to the terms of this Agreement and shall thereupon
issue and deliver to the Shareholder Trust Certificates, for the number of Trust
Shares so deposited.
B. All stock certificates delivered hereunder shall be so endorsed or
accompanied by such instruments of transfer as will enable the Voting Trustee to
cause such certificates to be transferred to him as Voting Trustee pursuant to
this Agreement and such certificates shall be surrendered by the Voting Trustee
to the Company and canceled, and new certificates shall be issued to the Voting
Trustee who shall hold the same subject to the terms of this Agreement and shall
thereupon issue and deliver to the Shareholder Trust Certificates, for the
number of Trust Shares so deposited.
4. RECORDATION. Only the Shareholder shall be recognized by the Voting
Trustee as having any rights, title or interest in the Trust Shares. The Voting
Trustee shall keep a book or books in which he shall record the issuance and
transfer of Trust Certificates and which shall contain the names and address of
the Shareholder and the number of Trust Shares represented thereby.
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5. TRANSFER BOOKS; RECORD DATE. Whenever the stock transfer books of
the Company are closed for any proper purpose, the Voting Trustee shall close
the transfer books for Trust Certificates for such period, and whenever a record
date is properly fixed by the Company as a record date in lieu of closing the
stock transfer books of the Company, the Voting Trustee shall use the same
record date for any rights consequent thereon.
6. REPLACEMENT OF VOTING TRUST CERTIFICATES. If a Trust Certificate is
lost, stolen, mutilated or destroyed, the Voting Trustee, in his discretion, may
cause to be issued a duplicate Trust Certificate therefor upon receipt of:
A. Evidence of such fact satisfactory to him;
B. Indemnity satisfactory to him or
C. The existing Trust Certificate, if mutilated.
7. TRUSTEE TO VOTE TRUST SHARES. The Voting Trustee shall vote in
person or by proxy the Trust Shares as a unit. The Voting Trustee is hereby
fully empowered and authorized to vote the Trust Shares, in his unrestricted
discretion, at all meetings of the stockholders of the Company, as fully as any
stockholders might do if personally present, to waive notice of meetings, and to
otherwise act in respect of all Trust Shares.
8. RIGHTS TO SUBSCRIBE, PURCHASE OR ACQUIRE STOCK. If rights to
subscribe to or purchase or acquire any Shares or other assets of the Company
should inure to the Voting Trustee in respect of the Trust Shares, the Voting
Trustee, promptly upon receipt of notice thereof, shall send a copy of such
notice, pursuant to Paragraph 20 hereof, to the Shareholder. Upon receipt by the
Voting Trustee, at least three (3) business days prior to the date of the
expiration of such rights, of a written request from the Shareholder (i) to
subscribe on its behalf for a stated number of such Shares or other assets (not
in excess of the number of such Shares or proportion of such assets subscribable
in respect of the Trust Shares, together with the money, if any, required to
make payment therefor, or (ii) to sell or otherwise dispose of all or any of
such rights, the Voting
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Trustee shall make such subscription or shall sell such rights or otherwise
dispose of them, all as may be directed by the Shareholder. Upon receiving from
the Company a certificate for any Shares so subscribed for, the Voting Trustee
shall cause to be issued and delivered to the Shareholder, Trust Certificates in
respect thereof. Any other assets received upon such subscription and any cash
received from the sale of such rights shall be promptly paid or delivered to the
Shareholder. Any such rights as to which no instructions are received at least
three (3) business days prior to their expiration shall be sold by the Voting
Trustee at public or private sale in such manner and upon such terms as the
Voting Trustee may determine and the net proceeds of such sale shall be
distributed to the Shareholder. Any taxes and charges that may be payable in
connection with any such exercise or sale of rights shall be paid by the
Shareholder on whose account such taxes or charges are incurred or shall be
deducted from any moneys in the hands of the Voting Trustee as the result of
such exercise or sale of rights. The Voting Trustee shall be under no liability
for any omission to exercise the rights referred to herein.
9. DIVIDENDS. Any dividend or distribution in cash or property (other
than stock of the Company) at any time declared and paid to the Voting Trustee
on Trust Shares shall be held in trust by the Voting Trustee for the benefit of
the Shareholder and shall be promptly delivered by the Voting Trustee to the
Shareholder, in accordance with its interest as it shall appear in the Voting
Trustee's records. In lieu of such receipt and distribution of cash or property,
the Voting Trustee shall instruct the Company in writing to pay dividends or
distributions (other than stock of the Company) on Trust Shares directly to the
Shareholder. Upon such instructions being given by the Voting Trustee with
respect to such dividends or distributions, the responsibilities of the Voting
Trustee with respect thereto shall cease. The Voting Trustee may at any time
revoke such instructions by written notice and direct the Company to pay such
dividends to the Voting Trustee.
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10. REORGANIZATION OF THE COMPANY. If there are issued in any
recapitalization, merger or other reorganization any stock in respect of the
Trust Shares subject to this Agreement, or if any stock dividend shall be paid
or stock distribution made in respect of the Trust Shares subject to this
Agreement, then any such shares shall be held by the Voting Trustee in the same
manner and upon the same terms and conditions as other shares of stock of the
Company deposited under this Agreement. Thereupon appropriate Trust Certificates
shall be issued to the Shareholder as of the date of such recapitalization,
merger, reorganization, dividend or distribution, in accordance with its
interest as it shall appear in the Voting Trustee's records.
11. EXPENSES. The Company will pay (i) the transfer taxes, if any, in
connection with the transfer of the Trust Shares to the Voting Trustee; (ii) all
transfer taxes, if any, on the transfer of any Trust Shares out of the Voting
Trust upon termination of this Agreement, and (iii) all other expenses of the
Voting Trustee for administration of the trust.
12. VOTING TRUSTEE AS AN OFFICER OR DIRECTOR. The Voting Trustee is and
may continue to serve as an officer and a director of the Company or any
subsidiary or other affiliate of the Company.
13. POWERS. The Voting Trustee may from time to time appoint agents and
counsel and may do and perform all such other acts and things as in his judgment
may be necessary or convenient to carry out the purposes of this Agreement.
The Voting Trustee may adopt such reasonable rules or regulations (not
inconsistent with the provisions of this Agreement) for the management of the
trust hereby created as the Voting Trustee, in his discretion, shall determine.
14. COMPENSATION. The Voting Trustee shall not receive any compensation
for services in such capacity.
15. DISABILITY, DEATH OR RESIGNATION OF A VOTING TRUSTEE. In the event
of the resignation, disability, death, adjudication of insanity or bankruptcy of
the Voting Trustee or if
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the Voting Trustee ceases to be a director and/or an officer of the Company, the
Board of Directors of the Company shall appoint a successor Voting Trustee or
Trustees. The successor Voting Trustee or Trustees shall have sole power to
exercise all the rights, authorities and powers of the Voting Trustee hereunder.
16. RESPONSIBILITY OF VOTING TRUSTEE. The Voting Trustee assumes no
responsibility with respect to the validity or genuineness of any of the stock
certificates (or other securities received in lieu thereof) deposited with him
hereunder or of any notice, request, assignment, power of attorney,
acknowledgment or other paper or document, and he shall be entitled to assume
that any stock certificates (or other securities) deposited with him and any
such other paper or document are genuine and valid and what they purport to be
and have been signed by the proper parties or party and that any endorsements
and assignments thereof are genuine and legal.
17. CONTINUATION AND TERMINATION OF VOTING TRUST AGREEMENT. A. This
Agreement shall remain in effect until the earlier of : (i) the tenth
anniversary from the date of the execution of this Agreement; (ii) upon the
mutual consent of the Shareholder and the Voting Trustee to terminate this
Agreement; (iii) the sale by the Company of all or substantially all of its
assets or mergers or consolidations in which the Company is not the survivor; or
(iv) the sale or exchange of all or substantially all of the outstanding shares
of the Company's common stock (including by way of merger, consolidation, etc.)
B. Upon termination of this Agreement, written notice of such
termination shall forthwith be sent, in accordance with Paragraph 20, to the
Shareholder. From the date fixed in such notice the Trust Certificates shall
cease to have any effect and the Shareholder shall have no further rights under
this Agreement except to receive certificates for Trust Shares and other
property distributable hereunder upon the surrender of Trust Certificates
properly endorsed.
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C. Within ten (10) days after the termination of this Agreement, the
Voting Trustee shall cause certificates for the Trust Shares represented by the
Trust Certificates to be delivered to the Shareholder upon surrender of such
Trust Certificates properly endorsed. Such delivery shall be made in each case
at the office of the Company.
D. At any time after the expiration of ten (10) days following the
termination of this Agreement, the Voting Trustee may deposit with the Company
stock certificates for the Trust Shares represented by the Trust Certificates
then outstanding, with written authority to the Company to deliver such stock
certificates in exchange for Trust Certificates representing a like number of
shares of stock of the Company. Upon such deposit, all further liability of the
Voting Trustee for the delivery of such stock certificates or payment of
dividends or distributions thereon shall cease and the Voting Trustee shall not
be required to take any further action hereunder.
18. WITHDRAWAL OF SHARES. The Shareholder shall have the right to
withdraw any or all Trust Shares from the restrictions of this Agreement for
sale or transfer to an unaffiliated third party, subject to the requirements as
set forth in the Securities Act of 1933, as amended. The Shareholder shall
provide the Voting Trustee with notice of such proposed withdrawal. The
transferee of Shares shall hold such Shares free of the restrictions of this
Agreement. The Voting Trustee shall, as soon as practicable, but not later than
five (5) days after receipt of notice of withdrawal of Trust Shares, assign and
deliver a Trust Certificate or Certificates representing the portion of the
Trust Shares so withdrawn, properly endorsed to such unaffiliated third party as
the Shareholder may direct in writing.
19. DISSOLUTION OF THE COMPANY. In the event of the dissolution or
total liquidation of the Company, other than one in connection with a
transaction in which a successor organization
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shall acquire all or substantially all of the assets and business of the
Company, the Shareholder, shall receive the moneys, securities, rights or
property to which the holder of Trust Shares shall be entitled.
20. NOTICE. Unless otherwise specifically provided in this
Agreement, any notice to or communication with the Shareholders shall be deemed
sufficient, if mailed by regular mail at any post office or post office box in a
post-paid sealed envelope addressed to such holders at the address of the
Shareholder appearing on the transfer books of the Voting Trustee and if a copy
thereof is similarly mailed to the principal office of the Company, addressed to
the attention of the Secretary of the Company; every notice so given shall be
effective, whether or not received, and the date of mailing shall be the date
such notice shall be deemed to be given for all purposes. Any notice to the
Voting Trustee shall be sufficient if similarly mailed to the Voting Trustee at
the registered office of the Company, addressed to the attention of the
Secretary of the Company. All distributions of cash, securities or other
property hereunder by the Voting Trustee to the Shareholder may be made in the
discretion of the Voting Trustee (regular or registered mail) in the manner as
herein provided for giving notice to the Shareholder.
21. GOVERNING LAW. This Agreement shall be governed by and its
provisions construed according to the laws of the State of New York. If any
provision of this Agreement shall be held or deemed, as applied in any
particular case, to the inoperative or unenforceable in any jurisdiction because
it conflicts with the provisions of any constitution, statute, rule of law, or
public policy, or for any other reason, such provision shall not be held or
deemed inoperative or unenforceable in any other case for that reason, nor shall
any such action render invalid, inoperative or unenforceable any other provision
of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed an original and such
counterparts together shall constitute a single instrument and all executed
counterparts shall be deposited with the Voting Trustee.
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This Agreement shall become effective when a counterpart hereof, which
need not be the same counterpart executed by any other party hereto, is executed
and delivered to each of the other parties hereto.
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IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of April 15, 2000.
APPONLINE. COM, INC.
By: /S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, CEO
VOTING TRUSTEE
By:/S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, Voting Trustee
THE SHAREHOLDER
The Xxxxxxx Trust
By: /S/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Trustee
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EXHIBIT A
VOTING TRUST CERTIFICATE
THIS CERTIFIES THAT the the Xxxxxxx Trust (the "Shareholder") has
deposited nineteen million two hundred fifty one thousand two hundred thirty
three (19,251,233) shares of the common stock, $.001 par value per share (the
"Shares"), of XxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company"), with
the undersigned voting trustee (the "Voting Trustee") pursuant to a Voting Trust
Agreement dated April 15, 2000 among the Company, the Voting Trustee and the
Shareholder, a copy of which Voting Trust Agreement is on file in the office of
the Company at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxx Xxx Xxxx 00000. This Certificate
and the interest represented thereby is transferable, subject to the terms and
conditions of the Voting Trust Agreement on the books of the Voting Trustee,
upon its surrender properly endorsed. The holder of this Certificate takes the
same subject to all the terms and conditions of the aforesaid Voting Trust
Agreement and by acceptance of this Certificate acknowledges that receipt of the
same is for investment purposes and not with a view toward distribution.
IN WITNESS WHEREOF, the Voting Trustee has signed this Certificate on
April 15, 2000.
/S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, Voting Trustee
