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EXHIBIT 4.7
VOTING TRUST AGREEMENT
DATE: November 13, 1996
PARTIES: Xxxxxxx X. Xxxxxxx ("Trustee"); and
The owners and holders of Common Stock of Piranha Interactive
Publishing, Inc., who are listed and whose signatures appear
on Exhibit A attached hereto, (collectively "Shareholders").
RECITALS:
(A) The Shareholders own and hold an aggregate of
825,000 shares of Common Stock, $.001 par value, of PIRANHA
INTERACTIVE PUBLISHING, INC., a Nevada corporation (the
"Company"), as set forth in Exhibit A attached hereto. The
Shareholders believe it to be in their respective best
interests that all of such shares be voted by the Trustee for
the period commencing with the date first set forth above and
terminating five (5) years thereafter, as more particularly
hereinafter set forth.
(B) The Shareholders believe that such objective can
best be accomplished by giving to the Trustee, as agent and
attorney-in-fact for each Shareholder, such irrevocable powers
as are set forth under the terms and conditions of this Voting
Trust Agreement ("Agreement").
AGREEMENTS:
The parties hereto mutually agree as follows:
1. Transfer of Shares to Trustee.
(a) The Shareholders hereby assign and transfer to
Trustee 825,000 shares of Common Stock, $.001 par value
("Shares") of the Company, which Shareholders own, such shares
to be held in escrow pursuant to an Escrow Agreement between
American Stock Transfer & Trust Company ("Escrow Agent") and
the Shareholders (the "Escrow Agreement"). The ownership of
the Shares by the Shareholders is set forth on Exhibit A
attached hereto. The Shareholders, respectively, have properly
endorsed or shall properly endorse to the Trustee, the stock
certificates for such 825,000 Shares; the Trustee has
deposited or shall deposit the stock certificates representing
such 825,000 Shares with the Escrow Agent pursuant to the
Escrow Agreement; and the Shareholders, respectively, have
received or shall receive in exchange for such 825,000 shares,
Voting Trust Certificates substantially in the form attached
hereto as Exhibit B, all 825,000 of which Shares shall be
governed by this Voting Trust Agreement. The 825,000 Shares
represented by the stock certificates so deposited by the
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Shareholders ("Shares Deposited") shall be transferred upon
the books of the Company to the name of the Trustee and the
Trustee is hereby authorized and empowered to cause such
transfers to be made. During the term of this Agreement, the
Trustee shall possess the legal title to the Shares Deposited.
The Trustee shall be entitled to exercise all rights of every
kind and nature, arising under the Shares Deposited,
including, but not limited to, the right to vote in person or
by proxy and execute consents with respect to any or all of
the Shares Deposited on all matters which may properly be
voted on by stockholders of the Company, including, but not
limited to, dissolution, liquidation, merger, or consolidation
of the Company or the sale of all, or substantially all, of
its assets.
(b) The Trustee may vote in favor of the election of
himself as a director and an officer of the Company and of,
and in favor of, the ratification and approval of the acts of
himself as a director and an officer in the general conduct of
the business affairs of the Company.
2. Dividends.
The holders of Voting Trust Certificates issued by the Trustee
shall be entitled to receive payments of all dividends, other than (i)
dividends consisting of voting stock or (ii) distributions of or
conversions into additional voting shares of capital stock of the
Company, with respect to the Shares Deposited. Upon the declaration of
any dividend, other than (i) dividends consisting of voting stock or
(ii) distributions of or conversions into additional voting shares of
capital stock of the Company by the Company with respect to the Shares
Deposited, the Trustee shall distribute or cause all such dividends to
be distributed by the Company to the Shareholders of the Shares
Deposited pursuant to this Agreement. Any dividends consisting of (i)
voting stock or (ii) distributions of or conversions into additional
voting shares of capital stock of the Company shall be subject to the
terms of this Agreement on the same basis as the respective Shares on
which such dividends were declared.
3. Term.
The term of this Agreement shall commence on the date first
above set forth and continue until and include the earlier of:
(a) 5:00 p.m., Phoenix, Arizona time, on November 13,
2001; or
(b) the date on which the Trustee shall cease to be
employed by the Company, resign as Trustee hereunder or die;
or
(c) upon the unanimous written consent of the holders
of no less than all of the Shares Deposited and subject to
this Agreement, other than those owned by the Trustee; or
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(d) upon the effective date of any (i) sale of all or
substantially all of the assets of the Company or (ii) merger
or consolidation involving the Company, as a result of which
the Company is not the surviving entity.
Subject to the Escrow Agreement, at the end of the term as set
forth in subparagraphs 4(a), (b), (c) or (d) above, the Trustee shall deliver
the Certificates for the Shares Deposited to the respective Shareholders as
their respective sole property.
4. Restrictions on Transfer.
(a) Anything contained in this Agreement to the
contrary notwithstanding, for the period from the date of this
Agreement until the Effective Date of a Registration Statement
to be filed by the Company under the Securities Act of 1933,
as amended, relating to the registration and sale of Units,
each Unit consisting of a share of the Company's Common Stock
and a Class A and a Class B Warrant, by X. X. Xxxxx Investment
Banking Corp. (the "Underwriter"), and for the further period
commencing with such Effective Date and ending thirteen (13)
months thereafter (the "lock-up" period for such Common Stock
required by the Underwriter) the Shareholder may not withdraw
any Shares Deposited from the Trust. Upon the expiration of
such thirteen (13) month period, any Shareholder, on ten (10)
days' prior written notice to the Trustee, accompanied by the
Voting Trust Certificate therefor, may withdraw from the
Shares Deposited any or all of the shares of Common Stock of
the Company represented by such Voting Trust Certificate,
provided that such Shares Deposited are not then subject to
the Escrow Agreement or, if subject to the Escrow Agreement,
are released in accordance therewith and which the Shareholder
intends and is permitted to sell in accordance with the
Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder. The Depositor shall notify
the Trustee of any such sale and the Trustee shall in a timely
manner deliver a certificate for the Shares sold to the
Depositor free of the legend required by the terms of this
Agreement. Any such released stock may not be voted by the
Shareholder but only by the transferee of such stock from the
Shareholder. Any released shares which are not sold or
otherwise transferred beyond the control of the Shareholder
within thirty (30) days of the release shall be deemed
redeposited by the Shareholder with the Trustee. The Trustee
shall return the certificate(s) representing all Shares
withdrawn in accordance herewith and provide a new Voting
Trust Certificate for all Shares Deposited which remain
deposited following such withdrawal.
(b) All certificates representing the Shares subject
to this Agreement shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS OF A VOTING TRUST
AGREEMENT, DATED AS OF NOVEMBER 13, 1996, A
COPY
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OF WHICH IS ON FILE AND MAY BE INSPECTED AT
THE OFFICES OF THE COMPANY.
5. Dissolution of the Company.
In the event of dissolution or liquidation of the Company
during the term of this Agreement, in such manner as to entitle the
holders of shares of any class of its stock to liquidation dividends in
respect thereof, the Trustee shall cause all such liquidation dividends
to be distributed by the Company pro rata to the holders of Voting
Trust Certificates for the Shares Deposited hereunder.
6. Merger of the Company.
In the event of a merger or consolidation involving the
Company, the termination date hereof shall be accelerated to the
effective date of such merger or consolidation and the securities or
other proceeds of any such merger or consolidation payable to the
Shareholder shall be distributed pro rata to the holders of the Voting
Trust Certificates in accordance with the number of Shares Deposited
hereunder.
7. Compensation of Trustee.
The Trustee shall not be entitled to any compensation for
acting as Trustee.
8. Liability of Trustee.
The Trustee shall be liable only for his own willful
misfeasance and his own bad faith and shall not be answerable for any
misfeasance or non-feasance of any attorney, auditor, appraiser,
accountant, agent, or employee, if selected by him with reasonable
care. The Trustee is hereby authorized and empowered to construe this
Agreement and his construction made in good faith shall be binding upon
the Shareholders and other parties interested.
9. Resignation of Trustee.
The Trustee may at any time resign by mailing to the Company
at its principal office in Tempe, Arizona, his written resignation to
take effect ten (10) days thereafter or upon the prior written
acceptance thereof by the Company or some later date specified in such
notice. Upon such resignation and as a condition thereof, the Trustee
and the Company shall instruct the Escrow Agent to deliver the
certificates for all shares then held in escrow to the Transfer Agent
with instructions that such shares are to be reissued in the
appropriate names of the owners thereof in the number of shares owned
by each such person and thereupon delivered to the Escrow Agent to be
held pursuant to the Escrow Agreement.
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10. Deposits of Additional Shares.
From time to time after execution hereof, the Trustee may
receive deposits of any additional certificates representing fully paid
and non-assessable shares of common or other general voting stock of
the Company upon the terms and under the conditions of this Agreement
and, in respect of all such deposits so received, the Trustee shall
issue and deliver Voting Trust Certificates in the form specified
herein in accordance with the provisions of this Agreement. Any (i)
dividends consisting of voting stock or (ii) distributions of or
conversions into additional voting shares with respect to the Shares
Deposited shall be issued in the name of the Trustee as additional
deposits hereunder and the Trustee shall issue additional Voting Trust
Certificates therefor.
11. Acts of Trustee.
(a) The Trustee may act by a written instrument,
without a meeting, signed by the Trustee.
(b) The Trustee may vote or may act in person or by
proxy. The Trustee may vote by proxy at any meeting of
shareholders of the Company if he so elects.
12. Trustee's Relation with the Company.
The Trustee may act as, and receive compensation as, a
director, an officer, an agent of the Company, or a member of any
committee of the Company, or of any controlled, subsidiary, or
affiliated entity of the Company, or be otherwise associated therewith.
Additionally, the Trustee or any firm of which he may be a member, or
any corporation or association of which he may be a stockholder,
director, or officer, or any such firm, corporation or association in
which he may be otherwise directly or indirectly interested, may, to
the extent permitted by law and without liability in any way or under
any circumstances by reason thereof, contract with the Company or with
any controlled, affiliated, or subsidiary entity, or be or become
pecuniarily interested in any matter or transaction to which the
Company, or any controlled, affiliated, or subsidiary entity of the
Company, may in any way be concerned, as fully as though he were not a
Trustee.
13. No Security for Performance.
Trustee shall not be required to give any bond or security for
the discharge of his duties.
14. Counterparts.
This Agreement may be executed in any number of copies and all
such counterparts taken together shall be deemed to constitute one and
the same Agreement.
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15. Notices. All notices hereunder shall be in writing and
delivered personally or sent by registered or certified mail, postage
prepaid.
If to Shareholder: at his address shown on the
books and records of the Company
If to the Trustee: c/o the address of the Company
If to the Company: 0000 Xxxx Xxxxx
Xxxxx X
Xxxxx, Xxxxxxx 00000
Either party may change the address to which notices are to be sent to
it by giving ten (10) days written notice of such change of address to the other
parties in the manner above provided for giving notice. If delivered in person,
then such notice shall be effective immediately; if mailed, then seventy-two
(72) hours after deposit, postage prepaid.
16. Shareholder's Grant.
By their respective signatures on Exhibit A, each of the
Shareholders expressly grant to the Trustee all of the rights set forth
herein, subject to the terms of this Agreement.
17. Trustee's Acceptance.
The Trustee, by signing this Agreement or a counterpart
thereof, accepts the trust herein created.
Executed the day and year first above written.
AGREED AND ACCEPTED:
TRUSTEE
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
PIRANHA INTERACTIVE PUBLISHING, INC.
By: /s/ J. Xxxx Xxxxxxxxx XX
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Name: J. Xxxx Xxxxxxxxx XX
Title: Secretary
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EXHIBIT A
Dated: November 13, 1996
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ J. Xxxx Xxxxxxxxx XX
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J. Xxxx Xxxxxxxxx XX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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EXHIBIT B
VOTING TRUST CERTIFICATE
Certificate No. ___ Number of Shares _____
PIRANHA INTERACTIVE PUBLISHING, INC.,
a Nevada corporation
This certifies that ("Depositor") is entitled to all of the benefits
arising from the deposit with the Trustee, under the Voting Trust Agreement
hereinafter mentioned, of certificate(s) for shares of the capital stock of
PIRANHA INTERACTIVE PUBLISHING, INC., a Nevada corporation (the "Company"),
as provided in the Voting Trust Agreement, dated as of November ___, 1996,
between Xxxxxxx X. Xxxxxxx, as Trustee, the Company, Depositor and the
holders of Common Stock of the Company who are listed on Exhibit A thereto
(together with the Depositor, the "Shareholders") (the "Voting Trust
Agreement"), and subject to the terms and conditions thereof. All such
shares are further subject to an Escrow Agreement between the Shareholders
of the Company and American Stock Transfer & Trust Company, as Escrow
Agent, (the "Escrow Agreement"). The registered holder or his or her
permitted assign(s), is entitled to receive payment equal to the amount of
cash dividends, if any, and non-voting shares of capital stock of the
Company received by the Trustee upon the number of shares of capital stock
of the Company in respect of which this Certificate is issued. Dividends
received by the Trustee in common or other shares of capital stock of the
Company having general voting powers, including, but not limited to, shares
released from the Escrow Agreement, shall be represented by Voting Trust
Certificates, in form similar hereto. Until the Trustee has delivered the
stock held under such Voting Trust Agreement to the holders of the Voting
Trust Certificates, as specified in such Voting Trust Agreement, the
Trustee shall possess and shall be entitled to exercise all rights and
powers of an absolute owner of such shares, including the right to vote
thereon for every purpose, and to execute consents in respect thereof for
every purpose, it being expressly stipulated that no voting right passes to
the owner hereof under this Certificate or any agreement, expressed or
implied.
This Certificate is issued, received, and held hereunder, and the
rights of the owner hereof are subject to, the terms of the Voting Trust
Agreement, copies of which, and every agreement amending or supplementing
the same, are on file in the principal office of the Company in Tempe,
Arizona, and all of which shall be open to the inspection of any
stockholder of the Company, or any permitted beneficiary of the trust under
such agreement, daily, upon reasonable notice during normal business hours.
All of the provisions of which Voting Trust Agreement the holder of this
Certificate, by acceptance hereof, assents.
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If any dividend or distribution in cash or stock of the Company not
having general voting powers is received by the Trustee, the Trustee shall
distribute the same to the registered holder of the Voting Trust
Certificate on the date of such distribution, or the registered Certificate
holder at the close of business on the date fixed by the Trustee for taking
a record to determine the Certificate holder is entitled to such
distribution. Such distribution shall be made to the Certificate holders
ratably in accordance with the number of shares represented by Shares
Deposited as set forth in their respective Voting Trust Certificates. Any
(i) dividends consisting of voting stock or (ii) distributions of or
conversions into additional voting shares with respect to the Shares
Deposited shall be issued in the name of the Trustee as additional deposits
under the Voting Trust Agreement and the Trustee shall issue additional
Voting Trust Certificates therefor.
Stock certificates issued in the name of the Depositor or his or her
designee and representing the number of shares of capital stock then
represented by this Certificate shall be due and deliverable hereunder upon
the termination of such Voting Trust Agreement as provided therein.
The Voting Trust Agreement shall continue in full force and effect
until five (5) years from the date thereof, unless terminated prior
thereto, as provided therein.
For the period from the date hereof and until the Effective Date of a
Registration Statement under the Securities Act of 1933, as amended, to be
filed by the Company for the sale of Units, each Unit consisting of a share
of the Company's Common Stock and a Class A and a Class B Warrant, by X.X.
Xxxxx Investment Banking Corp. (the "Underwriter"), and for the further
period commencing with such Effective Date and ending thirteen (13) months
thereafter (the "lock-up" period for such Common Stock required by the
Underwriter), the Depositor may not withdraw any Shares Deposited from the
Voting Trust. Upon the expiration of such thirteen (13) month period, the
Depositor, on ten (10) days' prior written notice to the Trustee,
accompanied by the Voting Trust Certificate therefor, may withdraw from the
Shares Deposited such shares of stock of the Company as have been released
from the Escrow Agreement and which the Depositor intends and is permitted
to sell under the Securities Act of 1933. Any such released stock may not
be voted by the Depositor but only by the purchaser of such stock from the
Depositor. Any released stock which is not sold or otherwise transferred
beyond the control of the Depositor within thirty (30) days of the release
shall be redeposited by the Depositor with the Trustee. The Voting Trustee
shall return to Depositor, certificates of stock for the stock withdrawn
and a new Voting Trust Certificate for such Shares Deposited as may remain
deposited following any such withdrawal. The Depositor may, subject to the
restrictions set forth in this paragraph, similarly withdraw from the
Shares Deposited any stock following release of such stock from the terms
and conditions of the Escrow Agreement.
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IN WITNESS WHEREOF, the Trustee has executed this Certificate this 13th
day of November, 1996.
TRUSTEE
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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