Exhibit 1
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (the "Agreement"), dated as of April
15, 2000, by and among AppOnline. com, 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.
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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.
10. REORGANIZATION OF THE COMPANY. If there are issued in any
recapitalization,
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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
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properly endorsed.
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
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a single instrument and all executed counterparts shall be deposited with the
Voting Trustee.
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
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