VOTING TRUST AND STOCKHOLDERS' AGREEMENT
AGREEMENT, made as of this 1st day of January, 1997 by and among WEBFEAT
INC., a Delaware corporation (the "Corporation"), XXXX XXXXX ("Xxxxx" or "Voting
Trustee") and the other stockholders of the Corporation listed on the signature
page hereof (the "Stockholders").
W I T N E S S E T H :
WHEREAS, the Stockholders own, of record and beneficially, 275 shares of
common stock, $.01 par value (the "Shares"), of the Corporation; and
WHEREAS, the Stockholders deem it necessary and advisable and in their best
interests to deposit the Shares with the Voting Trustee on the terms and
conditions hereinafter set forth in order, inter alia, to assure the continuity
and stability of policy and management of the Corporation.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, it is hereby agreed as
follows:
1. Term. The term of this Agreement shall commence on the date hereof and
continue for a period of three years thereafter.
2. Transfer of Shares to Voting Trustee. Each of the Stockholders,
simultaneously with the execution and delivery of this Agreement, has delivered
or caused to be delivered to the Voting Trustee a stock certificate representing
such Stockholder's Shares (receipt of which is hereby acknowledged by the Voting
Trustee). The parties shall immediately take such actions as are necessary or
appropriate to effect the transfer of the Shares to the Voting Trustee on the
books of the Corporation, including the immediate filing of a copy of this
Agreement at the registered office of the Corporation in the State of Delaware.
The Voting Trustee shall hold in trust the Shares, as stockholder of record,
subject to the terms and conditions of this Agreement.
3. Issuance of Voting Trust Certificate. Promptly after the execution
hereof, the Voting Trustee shall issue to each of the Stockholders, in exchange
for the Shares delivered or caused to be delivered by such Stockholder
hereunder, a voting trust certificate substantially in the form annexed as
Exhibit A hereto (a "Voting Trust Certificate").
4. Transfer of a Voting Trust Certificate. Subject to the terms of this
Agreement, a Voting Trust Certificate shall be transferable only on the books of
the Voting Trustee and upon proper endorsement and surrender thereof. Until a
Voting Trust Certificate is transferred on the books of the Voting Trustee, the
Voting Trustee may, for all purposes whatsoever, treat the registered holder of
such Voting Trust Certificate as its owner. Subject to the terms of this
Agreement, all or part of the interest in a Voting Trust Certificate may be
transferred by a registered holder thereof; provided, however, that any
transferee (including one by operation of law) must first agree to be bound by
the terms of this Agreement. The term "Stockholders," as used herein, shall be
deemed to include any such transferee.
5. Receipt of Additional Stock Certificates. In the event that the Voting
Trustee shall receive any stock certificates of the Corporation or any other
corporation issued by way of a dividend, split-up, recapitalization, exchange,
reorganization, merger, consolidation, or any other change or adjustment
involving the Shares held by him pursuant to this Agreement, the Voting Trustee
shall hold such additional or changed stock certificates subject to the terms of
this Agreement and shall issue additional or substitute Voting Trust
Certificates therefor. In the event that any Stockholder receives any stock
certificates of the Corporation or any other corporation by reason of any such
change or adjustment involving the Shares, such Stockholder agrees to deliver
such certificates to the Voting Trustee. The term "Shares," as used herein,
shall include, in addition to the Shares originally deposited into the Voting
Trust, all shares of stock of the Corporation or any other corporation deposited
in the Voting Trust pursuant to this Paragraph 5 and the term "Corporation," as
used herein, shall include any successor to the Corporation resulting from the
events described in this Paragraph 5.
6. Authority of Voting Trustee to Vote the Shares. The Voting Trustee shall
have full power and authority, and is hereby fully and exclusively empowered and
authorized, to vote in person or by proxy the Shares deposited hereunder and
transferred to the Voting Trustee at meetings of stockholders of the Corporation
or to execute written consents in lieu of any such meetings. Such power to vote
and execute consents shall be irrevocable for the term of this Agreement and
shall extend to the election of directors, to the waiver of notice of meetings,
and to any and all other matters and questions which may be properly brought
before any stockholders' meeting.
7. Dividends and Distributions. The Voting Trustee shall collect all
dividends and distributions on account of the Shares and shall promptly
distribute the same to the holder(s) of Voting Trust Certificate(s), except as
otherwise provided by Paragraph 5 hereof.
8. No Compensation; Expenses. The Voting Trustee shall serve without
compensation. The Voting Trustee shall have the right to incur and pay such
reasonable expenses and charges and to employ such professional counsel as he
may deem necessary and proper in the performance of his duties hereunder. Any
such charges or expenses incurred may be charged pro rata to the holder(s) of
Voting Trust Certificate(s) who shall then promptly pay such amounts to the
Voting Trustee.
9. Indemnification of Voting Trustee. The Voting Trustee shall not be
liable by reason of any matter arising out of or in relation to this Agreement,
except for such loss or damage as any Voting Trust Certificate holder may suffer
by reason of the Voting Trustee's willful misconduct or gross negligence, and,
without limiting the foregoing, the Voting Trustee shall not be liable for any
action taken, or omitted to be taken, by him in reliance upon and in conformity
with the advice of legal counsel. The Voting Trustee shall be indemnified and
held harmless by each Voting Trust Certificate holder from and against any and
all liabilities, costs, claims, damages and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) arising out of the
Voting Trustee's actions or failures to act hereunder or his status as Voting
Trustee, except such arising from Voting Trustee's willful misconduct or gross
2
negligence. The Voting Trustee shall not be required to post a bond or other
security for the faithful performance of his duties as such.
10. No Disqualification. Nothing herein contained shall disqualify the
Voting Trustee from voting for himself to serve or from serving the Corporation
or any subsidiaries or affiliates as an officer or director or in any other
capacity and from voting for himself to receive and receiving compensation for
such services.
11. Successor Trustee. If the Voting Trustee shall resign, die, or become
physically or mentally unable to serve as a Voting Trustee, then Xxxxxxxxx X.
Xxxxxxxxx, if he is then living and willing to serve as such, shall succeed him
as the Voting Trustee hereunder.
12. Delivery of Stock Certificates Upon Termination. Upon the termination
of this Agreement, the Voting Trustee shall deliver a stock certificate to the
holder of each Voting Trust Certificate for the number and type of shares
represented thereby upon surrender of the Voting Trust Certificate.
13. General Limitation on Sales. Except as expressly provided for in this
Agreement and except for any sale or other transfer to Xxxxx, each Stockholder
hereby agrees that he shall not at any time during the term of this Agreement
sell, or in any other way directly or indirectly transfer, assign, distribute,
devise, encumber or otherwise dispose of, either voluntarily or involuntarily
and whether or not for consideration, any Shares, Voting Trust Certificate or
interest in either thereof (hereinafter collectively referred to as a "Sale of
Shares"). This Agreement shall not restrict in any way the right of Xxxxx to
engage in any Sale of Shares.
14. Right of First Refusal.
a. In the event any Stockholder receives a bona fide offer from a
third party (hereinafter called the "Paragraph 14 Offeror") to purchase
from such Stockholder any Shares, including by way of purchase of the
related Voting Trust Certificate or interest therein (hereinafter called a
"Paragraph 14 Offer"), such stockholder (the "Selling Stockholder") shall
not effectuate such Sale of Shares unless he shall first have complied with
the terms of this Paragraph 14. The Selling Stockholder shall promptly
forward to Xxxxx a notice setting forth all material terms and provisions
of the Paragraph 14 Offer (a "Paragraph 14 Offer Notice"). The Paragraph 14
Offer Notice shall constitute an irrevocable offer to sell to Xxxxx all or
any part of the Shares or interest therein proposed to be sold (the
"Offered Shares") on terms identical to those described in the Paragraph 14
Offer Notice (the "Offered Terms"). Xxxxx shall have a period of 30 days
after his receipt of the Paragraph 14 Offer Notice to exercise the
aforesaid option by delivery, on or prior to such 30th day, of a notice to
the Selling Stockholder setting forth the number of Offered Shares which he
elects to purchase (a "Notice of Acceptance"). All purchases provided for
in this subsection shall be made not later than 30 days after the date as
of which Xxxxx shall have given the Notice of Acceptance, at a closing at
the principal place of business of the Corporation, or at such other place
and on such other date as the parties to the purchase shall agree. Each
Stockholder hereby warrants that any Shares sold by him pursuant to the
terms of this Paragraph 14a shall be free of any claims, liens, security
interests or other such encumbrances, that he shall
3
then be the sole and exclusive owner of such shares and that he shall then
have all right, power and authority to effectuate such sale. Any shares
which the Stockholder shall have been entitled, but shall have declined, to
sell to the Paragraph 14 Offeror may not be sold until they are again
offered to Xxxxx under this Paragraph 14.
b. In the event that Xxxxx does not give a Notice of Acceptance within
the aforesaid 30 day period, the Stockholder may consummate the Sale of
Shares described in the Paragraph 14 Notice upon the Offered Terms;
provided, however, that such Sale of Shares shall be subject to all of the
terms of this Agreement and any new Stockholder shall, prior to becoming a
Stockholder, execute and deliver to the Corporation and Xxxxx an
appropriate agreement, prepared by Xxxxx and the Corporation, to be bound
by the terms and provisions of this Agreement to the extent and in the same
manner as the Stockholder (including, without limitation, with respect to
this Paragraph 14), and each Stockholder prior to any Sale of Shares by it
to any other person or entity pursuant to this Paragraph 14 shall ensure
that such an agreement has been executed and delivered to the Corporation.
15. Third-Party Offer.
a. In the event that Xxxxx shall receive a bona fide offer (a
"Paragraph 15 Offer") from one or more third parties (a "Paragraph 15
Offeror") to purchase or otherwise acquire all of his Shares of the
Corporation, Xxxxx shall have the right to cause each Stockholder to sell
or otherwise transfer to such third party or parties all Shares owned by
such Stockholder on the terms and conditions set forth in the Stockholders
Third Party Notice (defined below). Upon receipt of the Paragraph 15 Offer,
Xxxxx shall have the right to deliver a notice to the Corporation and each
Stockholder which shall: (i) describe the material terms and provisions of
the Paragraph 15 Offer, and (ii) identify the Paragraph 15 Offeror (the
"Stockholders Third Party Notice").
b. The closing with respect to the sale by Xxxxx and the Stockholders,
of all their Shares to the Paragraph 15 Offeror hereunder (the "Paragraph
15 Sale"), shall occur no later than 45 days after the date on which the
Stockholders Third Party Notice is given. The closing date may be extended
beyond the 45 days at the discretion of Xxxxx. The closing shall be held at
the principal place of business of the Corporation, or at such other place
to be determined by Xxxxx and the Paragraph 15 Offeror. The Stockholders
agree that they shall take any and all reasonable action necessary and/or
appropriate to cause the consummation of the Paragraph 15 Sale.
c. Each Stockholder hereby warrants and shall warrant to the Paragraph
15 Offeror with respect to such sale that any and all Shares sold by him to
the Paragraph 15 Offeror hereunder shall be free of any claims, liens,
security interests or other such encumbrances, that he shall then be the
sole and exclusive owner of such shares and that he shall then have all
right, power and authority to effectuate such sale.
16. Confidentiality. Each of the Stockholders agrees that he will not
willfully, either during the term of this Agreement or subsequent thereto,
commit any act, or in any way
4
assist others to commit any act, for the purpose of injuring the Corporation,
and, without limiting the generality of the foregoing, he will not, except in
connection with the benefit of, or his duties to, the Corporation (a) divulge or
make available to others any confidential information or know-how, trade secrets
or inventions, or documents, files, customer lists, surveys or other papers or
things concerning the business or financial affairs of the Corporation or of any
affiliate of the Corporation ("Confidential Information"), or (b) remove any
such Confidential Information from the premises of the Corporation or any
affiliate.
17. Notices. All notices, advice and communications to be given or
otherwise made to any party to this Agreement shall be contained in a written
instrument delivered in person (which shall include express couriers, such as
Federal Express) or duly sent by first class registered or certified mail,
postage prepaid, addressed to such party at the address set forth below or at
such other address as may hereafter be designated in writing by the addressee to
all other parties hereto:
If to the Corporation:
Webfeat Inc.
000 Xxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to Xxxxx:
Xxxx Xxxxx
0 Xxxxx Xxxx
Xxxxx, Xxx Xxxx 00000
If to the Stockholders:
At their respective addresses set forth on the signature pages
attached hereto.
All notices, advice and communications sent as aforesaid shall be deemed to have
been received on the date of such delivery.
18. Modification. The provisions of this Agreement may be amended at any
time and from time to time, with and only with an agreement or consent in
writing signed by the parties hereto.
19. Captions. The captions herein are inserted for convenience only and
shall not define, limit, extend or describe the scope of this Agreement or
affect the construction hereof.
5
20. Nouns and Pronouns. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of names and pronouns shall include the plural and vice versa.
21. Severability; Governing Law. If any provision of this Agreement shall
be determined to be illegal and unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware.
22. Benefits of Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns, legal
representatives and heirs; provided, however, that the rights of the
Stockholders provided herein shall be transferable only in connection with a
Sale of Shares and any purported transfer of rights or Sale of Shares in
violation hereof shall be null and void ab initio. The death, disability or
incompetency of the Stockholders during the term of this Agreement shall in no
way affect the validity or enforceability of this Agreement or a Voting Trust
Certificate issued pursuant hereto.
23. Merger Provision. This Agreement constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
therewith.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have duly executed this Voting Trust
Agreement as of the day and year first above written.
WEBFEAT INC.
By: ______________________________
Xxxx Xxxxx
President
VOTING TRUSTEE:
______________________________
Xxxx Xxxxx
RESIDENCE: STOCKHOLDERS:
0000 X. Xxxxxxx Xxxxxx ______________________________
Xxx Xxxxxxx, XX 00000 Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxxxx, #0X ______________________________
Xxx Xxxx, XX 00000 Xxxxxxx Xxxxx Xxxxxx
00 Xxxxxx Xxxx ______________________________
Xxxx Xxxxxx, XX 00000 Xxxxxx X. Xxxxx
00 Xxxxx 00xx Xxxxxx ______________________________
Xxxxxxxxxx, XX 00000 Xxxxxx X. Xxxxx
00 Xxxx Xxx Xxx., #00X ______________________________
Xxx Xxxx, XX 00000 Xxxxxxx Xxxxxx
0000 Xxxx 00xx Xxxxxx ______________________________
Xxxxxxxx, XX 00000 Xxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxx ______________________________
Xxxxx Xxxxxx, XX 00000 Xxxxxxxxx X. Xxxxxxxxx
7
