VOTING TRUST AGREEMENT
Exhibit
10.1
THIS
VOTING TRUST AGREEMENT (the “Agreement”) is dated as of October 15, 2007, by and
among Xxxxxx Xxxxxxxx (the “Stockholder”), Collexis Holdings, Inc., a Nevada
corporation (the “Company”) and Xxxxxxx X. Xxxxxxxx, Chief Executive Officer of
the Company (the “Trustee”).
RECITALS
A. The
Stockholder currently owns 30,999,456 shares (the “Initial
Shares”)
of the
Company’s Common Stock (the “Common
Stock”).
The
Stockholder currently owns no other shares of the Company’s capital
stock.
B. The
Initial Shares constitute approximately 48.8% of the outstanding Common Stock
as
of the date of this Agreement.
C. The
Stockholder believes that it is in her best interests and in the best interests
of the Company to transfer all of the Trust Shares (as hereinafter defined)
to
the Trustee in trust for the purpose of permitting the Trustee to vote those
shares as provided in this Agreement.
D. In
accordance with the provisions of this Agreement, the Stockholder has agreed
to
deposit, or cause to be deposited, into the Trust: (i) the Initial Shares;
and
(ii) any other shares of the Company’s capital stock that the Stockholder
hereafter acquires (including, without limitation, any shares of capital stock
of the Company that may be issued upon the exercise of rights, warrants or
options to purchase, or other securities convertible into or exchangeable for,
the Common Stock) (collectively, the “Additional
Shares”).
E. The
Stockholder desires to empower the Trustee to vote all of the shares of the
Company’s capital stock that become subject to the terms and conditions of this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the agreements contained
in
this Agreement, the parties hereby agree as follows:
1. Definitions.
For all
purposes of this Agreement, except as otherwise expressly provided in this
Agreement or unless the context otherwise requires:
(i)
capitalized
terms defined in the Recitals to this Agreement have the meanings assigned
to
them there;
(ii) capitalized
terms defined in other Sections of this Agreement have the meanings assigned
to
them there;
(iii) all
capitalized terms defined in this Agreement include the plural as well as the
singular and vice versa, when the context requires; and
(iv) where
appropriate, all references to the masculine in this Agreement include both
the
feminine and the neuter, and vice versa, when the context requires.
“Xxxxxxxx
Affiliate”
means:
(i) a Chassman Family Member; (ii) an individual that is supported, directly
or
indirectly, to a material extent by Xxxxxxxx or any Xxxxxxxx Family Member;
(iii) an individual that is (or has been during the past three months) employed
directly or indirectly by Xxxxxxxx or any Xxxxxxxx Family Member; (iv) an
individual or entity that is (or has been during the past three months) retained
by Xxxxxxxx or any Chassman Family Member as a consultant generally operating
at
the direction of Xxxxxxxx or such Xxxxxxxx Family Member; or (v) an entity
that
controls, is controlled by, or is under common control with, the Stockholder
or
any Chassman Family Member. Notwithstanding the foregoing, the following shall
not be deemed to be a Xxxxxxxx Affiliate for purposes of Section 3(c) and,
pursuant to such Section 3(c), shall not be required to deposit shares of the
Company into the Trust: officers, directors and employees of the Company who
would not otherwise meet the definition of a Xxxxxxxx Affiliate but for their
position as an officer, director or employee of the Company or any subsidiary
of
the Company, including but not limited to any joint venture in which the Company
has an interest.
“Xxxxxxxx
Family Member”
means
any former, existing or future spouse, parent, child, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law
of
the Stockholder.
“control”
(including the terms “controlled by” and “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction
of
the management and policies of any entity, whether through the ownership of
voting securities, by contract or otherwise.
“Excluded
Shares”
means:
all shares of the Company’s capital stock acquired by all Xxxxxxxx Affiliates in
the aggregate on or after the date of this Agreement until the number of shares
so acquired equals one percent (1%) of the Company’s issued and outstanding
capital stock. Conversely, all shares of the Company’s capital stock acquired by
all Xxxxxxxx Affiliates in the aggregate on or after the date of this Agreement
that are in excess of one percent (1%) of the Company’s issued and outstanding
capital stock shall not constitute Excluded Shares.
“Trust
Beneficiary”
means
the Stockholder and any other beneficial owner of shares of the Company’s
capital stock who or that becomes subject to the terms and conditions of this
Agreement.
“Trust
Shares”
means
the Initial Shares, the Additional Shares and any other shares of the Company’s
capital stock that become subject to the terms and conditions of this Agreement
(including, without limitation, any Initial Shares or Additional Shares or
other
shares of the Company’s capital stock that are acquired by a Xxxxxxxx Affiliate
on or after the date of this Agreement), provided,
however,
that
all Excluded Shares acquired on or after the date of this Agreement shall not
be
included in the definition of “Trust Shares” and will not be subject to the
terms and conditions of this Agreement.
2. Appointment
of the Trustee.
The
Stockholder hereby appoints the Trustee to serve as the Trustee of the Collexis
Holdings, Inc. Voting Trust, the trust established by this Agreement (the
“Trust”), and the Trustee hereby accepts such appointment and agrees to act as
Trustee of the Trust in accordance with the terms of this Agreement.
3. Deposit
of Shares.
(a) Deposit
of Initial Shares.
Concurrently with the execution of this Agreement, the Stockholder will endorse
in blank and assign and deliver to the Trustee all certificates for the Initial
Shares and shall do all things necessary for the transfer of the Initial Shares
to the Trustee on the books of the Company.
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(b) Deposit
of Additional Shares.
For so
long as this Agreement remains in effect, the Stockholder agrees to deliver
to
the Trustee certificates for all Additional Shares hereafter acquired by the
Stockholder or any Chassman Family Member immediately upon becoming the record
or beneficial owner of those shares, duly endorsed for transfer or accompanied
by duly executed instruments of transfer.
(c) Deposit
of Shares to be Acquired by a Xxxxxxxx Affiliate.
For so
long as this Agreement remains in effect, the Stockholder agrees to cause any
Xxxxxxxx Affiliate who intends to acquire any Trust Shares (hereinafter, a
“Xxxxxxxx
Affiliate Stockholder”):
(i)
to become a party to this Agreement; and (ii) to consent to the registration,
transfer and issuance of those shares in the name of the Trustee (for the
benefit of such Xxxxxxxx Affiliate Stockholder). Thereafter, such Xxxxxxxx
Affiliate Stockholder shall be included within the definition of “Trust
Beneficiary”
for
all
purposes of this Agreement.
(d) Release
of Shares from Trust.
If the
Stockholder or any Xxxxxxxx Affiliate Stockholder sells or transfers any of
the
Trust Shares to a third party (other than to the Stockholder, a Xxxxxxxx Family
Member, a Xxxxxxxx Affiliate or a Xxxxxxxx Affiliate Stockholder), then, upon
the closing of such transaction or upon written notice thereafter, the Trust
Shares so transferred shall be released from this Trust.
4. Trustee’s
Powers and Duties.
(a) Voting
Powers.
Until
the termination of this Agreement in accordance with Section 8, the Trustee
shall have the right, in person or by proxy, to exercise all voting rights
and
powers in respect of the Trust Shares, and to take part in or consent to any
corporate or stockholder’s 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 kind or character that may
be
presented at any meeting of the stockholders of the Company (whether at an
annual or special meeting of stockholders of the Company or by written consent
action of the stockholders of the Company), including without limitation the
dissolution, consolidation, merger, reorganization or recapitalization of the
Company.
(b) Voting
Procedures.
With
regard to any matter submitted to the Company’s stockholders for a vote
(including by written consent), the Trustee shall give instructions to the
Company (which may be done by executing and delivering a proxy) to the effect
that the Trust Shares are being voted on such matter “on a pro rata basis
proportionate to all other votes actually cast.” The Trustee shall vote the
Trust Shares on a pro rata basis proportionate to all other votes, other than
the Trust Shares, actually cast on the particular matter, except with respect
to
matters that under current or future Nevada law require approval by a class
of
outstanding shares of the Company, which class includes the Trust Shares, and
in
such event the Trust Shares shall be voted on a pro rata basis proportionate
to
all other votes of Shares of such class actually cast, other than Trust Shares,
actually voting on the particular matter.
5. Sales
of Trust Shares.
The
Trustee shall have no authority to sell or otherwise dispose of or to pledge,
encumber or hypothecate any of the Trust Shares. Subject to compliance with
applicable securities laws and any contractual restrictions to which any Trust
Beneficiary or the Trust Shares may be subject, the Trust Beneficiaries shall
have the right, in their sole discretion, to sell or otherwise dispose of or
to
pledge, encumber or hypothecate, any of the Trust Shares, provided,
however,
that
any such transfer to a Xxxxxxxx Affiliate shall be subject to the condition
precedent that such Xxxxxxxx Affiliate agrees in writing to be bound by this
Agreement.
6. Dividends
and Distributions on the Trust Shares.
Upon
the declaration of any dividends or the payment of any other distribution of
the
Company with respect to Trust Shares held for the benefit of the Trust
Beneficiaries (other than pro rata distributions of additional voting shares
of
the Company, which shall be deposited into the Trust), the Trustee shall
distribute or cause the Company to distribute all such dividends and
distributions to the Trust Beneficiaries. In the event of the dissolution,
liquidation or winding up of the Company during the term of this Agreement
in
such manner as to entitle the Trust Beneficiaries to liquidating dividends
in
respect of the Trust Shares, the Trustee shall distribute or cause the Company
to distribute all such liquidating dividends with respect to the Trust Shares
to
the Trust Beneficiaries.
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7. The
Trustee.
(a) Company’s
Chief Executive Officer as Trustee.
The
Trustee is the Company’s Chief Executive Officer as of the date of this
Agreement, and he shall continue to serve as Trustee for as long as he serves
as
the Company’s Chief Executive Officer. Effective immediately on the retirement,
removal or resignation of the Trustee from his position as Company’s Chief
Executive Officer, the Trustee shall be deemed to have resigned from his
position as Trustee, and in such event the Trustee’s successor as the Company’s
Chief Executive Officer shall automatically become the Trustee, provided,
however,
that if
for any reason there shall not be an immediate successor to the position of
Chief Executive Officer, then the Company’s Secretary (and in the absence of the
Secretary, the Company’s Chairman of the Board of Directors) shall thereupon
assume the position of Trustee until a successor Chief Executive Officer is
properly appointed or elected. Any successor Trustee shall enjoy all the rights,
powers, interests and immunities of the Trustee as originally designated, and
the title to the Trust Shares of any Trustee who may be replaced as provided
above shall, upon such replacement, vest in the successor Trustee.
(b) Relationship
of Parties.
The
Trust created by this Agreement is not intended to be, and shall not be deemed
to be, and shall not be treated as, a general partnership, limited partnership,
joint venture, corporation, or joint stock company or association. The
relationship of the Trust Beneficiaries to the Trustee shall be solely that
of
stockholder and beneficiary of the Trust created by this Agreement, and their
rights shall be limited to those conferred by this Agreement.
(c) Consultation
with Outside Advisors.
The
Trustee may consult with legal counsel, which may be counsel to the Company
or
any of its affiliates or any of its or its affiliates’ officers, directors or
partners.
(d) Liability
of Trustee.
In
voting on all matters that may come before any meeting of stockholders of the
Company, the Trustee shall vote the Trust Shares in the manner prescribed by
this Agreement, and it is understood that the Trustee shall not incur
responsibility by reason of any error of judgment or of law or by any matter
or
thing done or omitted under this Agreement, except for his own individual gross
negligence or willful misconduct. The Trustee shall always be protected and
free
from liability in acting upon any notice, request, consent, instruction,
certificate, declaration, telefax, guarantee, affidavit, or other paper or
document or signature reasonably believed by him to be genuine and to have
been
signed by the proper party or parties or by the party or parties purporting
to
have signed the same.
(e) Trustee’
Indemnity.
The
Company shall indemnify, defend and hold harmless the Trustee against any and
all losses, damages, liabilities, obligations, claims, demands, judgments,
settlements, governmental investigations, costs and expenses of any nature
whatsoever, including the reasonable fees and expenses of attorneys, accountants
and consultants (collectively, “Damages”),
incurred in connection with or arising from the performance of his duties under
this Agreement (except for the Trustee’s gross negligence or willful
misconduct). Such indemnification shall be paid as incurred and on demand,
subject to an undertaking by the Trustee to repay if it is ultimately determined
that he is not entitled to such indemnification. If any Trust Beneficiary shall
request the Trustee to bring an action on his or her behalf, then such Trust
Beneficiary shall pay in advance all the expense of prosecuting such action
and
shall indemnify, defend and hold harmless the Trustee against all Damages
incurred in connection with such action. The Trustee shall have no obligation
to
commence or proceed with such suit unless he is satisfied that all necessary
monies have been paid in advance for this purpose.
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8. Continuance
and Termination of Trust.
(a) Term
and Termination.
This
Agreement shall become effective as of the date of this Agreement and shall
terminate on the earlier of: (i) the 10th anniversary of the date of this
Agreement; (ii) at such time as the aggregate Trust Shares represent, in the
aggregate, less than 19% of the voting interest of the Company’s outstanding
capital stock; provided,
however,
that
notwithstanding the foregoing, this Agreement shall not terminate if its
continued existence is required by a third party regulatory authority (e.g.,
if
required as a condition to the continued listing of the Company’s, or any
successor’s, equity securities on the principal trading market for such equity
securities). Except as otherwise provided in this Agreement, the Trust created
by this Agreement is hereby expressly declared to be irrevocable.
(b) Consolidation,
Exchange, Recapitalization.
In the
event of a consolidation, share-for-share exchange, recapitalization or other
reorganization involving the Company, this Agreement shall be effective and
shall remain in force for its full term, substituting, where appropriate, (i)
new Trust Shares for the shares issued in such consolidation, exchange,
recapitalization or other reorganization, and (ii) the successor’s Chief
Executive Officer as the Trustee.
(c) Actions
Following Termination.
(i) As
soon
as practicable after the termination of this Agreement, the Trustee shall by
formal assignment of the Trust Shares cause the Company to deliver to the Trust
Beneficiaries share certificates or securities representing the number of Trust
Shares (together with any other property distributed in respect of such Trust
Shares and not yet delivered to the relevant Trust Beneficiary).
(ii) If
any
Trust Beneficiary cannot be located, the Trustee may in his discretion deliver
the appropriate Trust Shares and/or other property to the Company for the
benefit of the person or persons entitled to those Trust Shares and/or other
property. Upon any such delivery, the Trustee shall be fully acquitted and
discharged with respect to the delivery of those Trust Shares and/or other
property.
9. Inspection
of Records.
The
Trustee shall keep at the Company’s principal executive office (the
“Executive
Office”),
correct books of account of all business and transactions conducted under this
Agreement, and a record of the names of all persons who are subject to this
Agreement, showing their places of residence and the number and type of shares
they delivered to the Trustee as provided in this Agreement.
10. Miscellaneous.
(a) Filing
of Agreement.
The
Trustee shall cause to be filed a copy of this Agreement, and every amendment
or
supplement to it, in the registered office of the Company and at the Executive
Office, which Agreement shall be open to the inspection by any Trust Beneficiary
or any stockholder of the Company, or the attorney of agent of either, during
business hours of the Company.
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(b) Successors
and Assigns.
This
Agreement shall bind the Trustee, the Company and the Trust Beneficiaries and
each and all of their respective heirs, executors, administrators, personal
representatives, successors, assigns and permitted transferees, and shall inure
to the benefit of the Trustee, the Company and the Trust Beneficiaries and
their
respective heirs, executors, administrators, personal representatives,
successors, assigns and permitted transferees.
(c) Notices.
Unless
otherwise expressly provided in this Agreement, all notices, requests, demands,
instructions, documents and other communications to be given under this
Agreement by any party to another shall be in writing, shall be sent to the
address/fax number set forth below (provided that any party may at any time
change its address for notice or other such information by giving written notice
thereof in accordance with this Section), and shall be deemed to be duly given
upon the earliest of: (i) hand delivery; (ii) the first business day after
sending by reputable overnight delivery service for next-day delivery; (iii)
the
fifth business day after sending by first class United States mail, postage
prepaid; (iv) the time of successful facsimile transmission (or in the event
the
time of receipt of the fax in the city where the fax is received is not during
regular business hours on a business day, then at the customary hour for the
opening of business on the next business day); or (v) the date actually received
by the other party:
If
to the Stockholder:
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(to
be provided)
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If
to theTrustee:
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Xxxxxxx
X. Xxxxxxxx
Chief
Executive Officer
0000
Xxxx Xxxxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
TEL:
(000) 000-0000
FAX:
(000) 000 0000
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If
to the Company:
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0000
Xxxx Xxxxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
TEL:
(000) 000-0000
FAX:
(000) 000 0000
ATTN:
Corporate Secretary
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(d) Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original but all of which taken together shall constitute one
instrument.
(e) Enforceability.
If in
any judicial proceedings, a court shall refuse to enforce any of the provisions
of this Agreement, then such unenforceable provision shall be deemed modified
or
limited so as to effectuate, to the maximum extent possible, the parties’
expressed intent, and, if no such modification or limitation could render it
enforceable, it shall be eliminated from this Agreement, and, in any event,
the
remaining provisions of this Agreement shall remain in full force and effect.
Each of the parties to this Agreement shall take any and all actions necessary
for the enforceability of this Agreement under Nevada law, including without
limitation any necessary filings or actions required by Section 78.365 of the
Nevada Revised Statute.
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(f) Entire
Agreement.
This
Agreement is the entire agreement of the parties with respect to the subject
matter of this Agreement, and supersedes all prior and contemporaneous
negotiations, understandings, arrangements and agreements. The Stockholder
represents and warrants that this Agreement is fully integrated and not in
need
of parol evidence to reflect the intention of the parties. Moreover, the
Stockholder acknowledges: (i) that she intends the literal words of the
Agreement to govern and for all prior and contemporaneous negotiations, drafts
and other extrinsic communications to have no significance or evidentiary
effect; and (ii) that this Agreement has been fully negotiated by the parties
and that accordingly it shall be construed “evenly” and not for or against any
party. By signing this Agreement, the Stockholder further acknowledges that
she
has consulted with legal counsel about the effect of this Section and
understands its effect.
(g) Compensation
of Trustee; Payment of Costs.
The
Trustee shall not be entitled to any compensation for his services as Trustee.
The Trustee agrees that the Trust Beneficiaries shall have no obligation to
pay
to the Trustee any amount whatsoever as fees or in respect to the Trustee’s
costs or expenses related to this Agreement, except as provided in Sections
7(e)
and 10(k). The Trustee will look solely to the Company for reimbursement of
any
amounts he incurs or expends in connection with his duties under this Agreement,
except as provided in Sections 7(e) and 10(k), and expressly waives any rights
that he might otherwise have to charge the trust corpus for any costs, fees
or
expenses related to this Agreement, or to withhold any amounts from or set
off
any amounts against the shares he receives in trust or any distributions on
those shares.
(h) Amendment
and Modification.
This
Agreement may not be amended without: (i) the prior written consent of the
Company, acting by unanimous vote of the independent members of its Board of
Directors; (ii) the written approval of the independent certified accounting
firm that is at the time engaged as the Company’s primary outside auditor; and
(iii) with respect to any proposed amendment to the definition of “Trust Shares”
in Section 1, or to Section 3(d), Section 5, Section 6 or Section 8 only, a
majority in interest of the Trust Beneficiaries; provided,
however,
that
the parties to this Agreement may enter into any amendment of this Agreement,
without regard to this Section, and each Trust Beneficiary hereby agrees to
enter into such amendment, if that amendment is in the opinion of legal counsel
to the Company necessary or appropriate to maintain compliance of this Agreement
with the laws of the State of Nevada. Notwithstanding the foregoing, the
substitution of a Trustee under this Agreement, the substitution, addition
or
subtraction of one or more Trust Beneficiaries under this Agreement, or the
transfer or issuance of additional Trust Shares under this Agreement after
the
original date of execution of this Agreement, shall not be considered an
amendment or modification requiring the prior approval specified in this Section
10(h).
(i) Governing
Law.
This
Agreement shall be governed by the internal laws of the State of Nevada without
regard to its conflict of laws principles.
(j) Section
78.365 of the Nevada Revised Statute.
This
Agreement is intended to create a voting trust pursuant to and subject to
Section 78.365 of the Nevada Revised Statute. If for any reason the voting
trust
so established is determined to be invalid or unenforceable, this Agreement
and
the relationship of the parties under this Agreement shall be deemed to be
and
shall be reconstituted as a voting agreement under Section 78.365(3) of the
Nevada Revised Statute, and all provisions of this Agreement shall apply to
the
maximum extent possible to effectuate the intention of the parties that the
substantive provisions of this Agreement shall govern the voting of Trust Shares
by or for the parties to this Agreement.
(k) Equitable
Remedies.
Each of
the parties hereby acknowledges and agrees that the legal remedies available,
if
the covenants and agreements made in this Agreement are violated, would be
inadequate and that any party shall be entitled, without posting any bond or
other security, to temporary, preliminary and permanent injunctive relief,
specific performance and other equitable remedies in the event of such a
violation, in addition to any other remedies that such party may have at law
or
in equity.
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(l) COUNSEL.
THE
STOCKHOLDER ACKNOWLEDGES THAT SHE HAS HAD THE OPPORTUNITY TO CONSULT WITH HER
OWN LEGAL ADVISORS AND THAT THE LAW FIRM OF XXXXXX XXXXXXX XXXXX &
SCARBOROUGH LLP REPRESENTS THE COMPANY AND NOT THE STOCKHOLDER.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered by their proper and duly authorized representatives as of the day
and
year first above written.
“THE
TRUSTEE”
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/s/ Xxxxxxx X. Xxxxxxxx | ||
Xxxxxxx
X. Xxxxxxxx
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“THE
STOCKHOLDER”
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/s/ Xxxxxx Xxxxxxxx | ||
Xxxxxx
Xxxxxxxx
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“THE
COMPANY”
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Xxxxxxx
X. Xxxxxxxx
Chief
Executive Officer
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