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Exhibit 4.4
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "Agreement") dated as of December 3, 1999,
between Xxxxxx Xxxxx ("Xxxxx" or "Shareholder"), Stockpoint, Inc., a Delaware
corporation ("Stockpoint") and U.S. Bank, National Association (the "Voting
Trustee").
WHEREAS, Xxxxx holds 246,000 shares of common stock and 1600 Shares of
Series B Preferred Stock of Stockpoint (the "Shares") and warrants ("Warrants")
to purchase an additional 500,000 shares of Stockpoint"s common stock (the
"Warrant Shares");
WHEREAS, Xxxxx deems it to be in the best interests of Stockpoint to vest
voting power of the Shares and the Warrant Shares issuable upon exercise of the
Warrants, in the Voting Trustee as provided in this Agreement; and
WHEREAS, the Voting Trustee is willing to act in such capacity pursuant to
the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Delivery of Shares. Concurrently with the execution of this Agreement,
Xxxxx shall deliver to the Voting Trustee stock certificates evidencing the
Shares. Xxxxx shall also deliver to the Voting Trustee stock certificates
evidencing the Warrant Shares issued upon exercise of the Warrants. Xxxxx hereby
agrees that any shares of common stock issued upon exercise of the Warrants
shall be issued directly in the name of the Voting Trustee for retention
pursuant to this Agreement. All certificates delivered to the Voting Trustee
shall be properly endorsed for transfer on the books of Stockpoint.
2. Voting Trust Certificates. Upon receipt from Xxxxx of a stock
certificate or certificates for Shares or Warrant Shares issued upon exercise of
the Warrants (together, the "Xxxxx Shares"), the Voting Trustee shall deliver or
cause to be delivered to Xxxxx a voting trust certificate or certificates for
the number of shares represented by the certificate or certificates so deposited
with the Voting Trustee, which voting trust certificate or certificates shall be
in substantially the following form:
VOTING TRUST CERTIFICATE
For Shares of Common Stock of
STOCKPOINT, INC.
No. _____________ _______________ Shares
This certifies that Xxxxxx Xxxxx has deposited ____________
shares of __________ stock of Stockpoint, Inc. (the "Company"),
with the Voting Trustee hereinafter named, pursuant to a voting
trust agreement dated December ___,1999, between Xxxxxx Xxxxx, a
shareholder of Stockpoint and _____________ as Voting Trustee
(the "Agreement"). This certificate and the interest represented
thereby is transferable only on the books of the Voting Trustee
upon the surrender of this certificate, properly endorsed. The
holder of this certificate shall be subject to all the terms and
conditions of the Agreement and shall be entitled to the benefits
thereof.
IN WITNESS WHEREOF, the Voting Trustee have caused this
certificate to be signed this ______ day of ________________,
______.
________________________________________
Voting Trustee
________________________________________
Voting Trustee
Record ownership of the Xxxxx Shares shall be vested in the Voting Trustee and
shall be transferred to the Voting Trustee upon the books and records of
Stockpoint. In the event of a stock split, stock dividend, distribution of
shares of any class of Stockpoint or recapitalization, the Voting Trustee shall
issue additional or substitute certificates to Xxxxx, which additional
certificates shall be modified as necessary to indicate the class of shares so
represented and to reflect Xxxxx'x interest in such shares.
3. Transfer of Xxxxx Shares. The Voting Trustees shall have no right or
power to sell, pledge or otherwise transfer the Xxxxx Shares except as
specifically provided in Section 4 of this Agreement.
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4. Powers of Voting Trustee. The record ownership of the Xxxxx Shares shall
be vested in the Voting Trustee and shall be transferred into the names of the
Voting Trustee upon the books of Stockpoint.
(a) Subject to Section 5, the Voting Trustee shall, with respect to
the Xxxxx Shares, be entitled to exercise all shareholders" rights of every
kind, including the right to vote and express a consent and the right to
take part in any meeting. The holders of voting trust certificates shall
not have any right to vote or express a consent with respect to the Xxxxx
Shares or to take part in any meeting.
(b) The Voting Trustee may deliver certificates representing the Xxxxx
Shares to Stockpoint for exchange or surrender pursuant to any amendment to
the articles of incorporation or any plan of reclassification, merger,
consolidation, exchange, liquidation or dissolution of Stockpoint.
(c) The Voting Trustee shall transfer certificates representing the
Xxxxx Shares to any person designated by both Xxxxx and Stockpoint and the
shares represented by such voting trust certificates shall no longer be
subject to this Agreement. Xxxxx and the Company shall provide the Voting
Trustee with written notice of consent to transfer signed by both parties
and authorizing the transfer by the Voting Trustee of any Xxxxx Shares
transferred in accordance with this Agreement. The Voting Trustee shall be
entitled to rely upon such written notice of consent with respect to the
delivery and transfer of any Xxxxx Shares (as evidenced by a voting trust
certificate or certificates) hereunder, as evidenced, with respect to
Stockpoint, by a notice signed by any two individuals holding the title of
Chief Executive Officer, President, Chief Operating Officer, Chief
Technology Officer, Vice President--Finance, General Counsel, Vice
President--Sales, or similar position.
(d) The Voting Trustee shall have all other rights and obligations
specifically provided elsewhere in this Agreement or as otherwise
reasonably necessary to carry out the provisions of this Agreement.
5. Exercise of Voting Rights by Voting Trustee; Appointment of Proxy.
(a) The Voting Trustee shall vote on all matters that may come before
any shareholders" meeting and may express consent as shareholder. With
respect to any matter submitted to Stockpoint"s shareholders for approval
at any regular or special meeting of the shareholders or by written action
in lieu of such meeting, the Voting Trustee shall vote the Xxxxx Shares in
the same proportion as the shares of Stockpoint not held by the Voting
Trustee voting on such matter shall vote.
(b) To secure the Voting Trustee" obligations to vote the Xxxxx Shares
in accordance with the provisions of Section 5(a) hereof, the Voting
Trustee hereby appoints Stockpoint, Inc. and its officers, or any one or
more of them, as the Voting Trustee"s proxy and attorney, with full power
of substitution, to vote all of the Xxxxx Shares which the Voting Trustee
is entitled to vote in accordance with Section 5(a) hereof at any meeting
of the shareholders and to transact such other business as may come before
any such meeting or any adjournment thereof or that may be taken by written
action of the shareholders in lieu of a meeting. The proxies granted by the
Voting Trustee pursuant to this Section 5(b) are coupled with an interest
and are given to secure performance of the Voting Trustee"s agreements
under this Agreement. Such proxies are irrevocable and shall survive the
death and disability of the Voting Trustee and the merger, reorganization,
consolidation or dissolution of any Voting Trustee that is a corporation or
other entity.
6. Distributions. Xxxxx or any transferee of the Xxxxx Shares, shall be
entitled to receive, from time to time, their pro rata share of the dividends or
distributions payable in cash or property (other than shares of any class of
Stockpoint), if any, received by the Voting Trustee in respect of the Xxxxx
Shares subject to the ratable payment of expenses of the Voting Trustee. The
Voting Trustee shall promptly deliver to Xxxxx any tax forms relating to the
Xxxxx Shares that are received by the Voting Trustee.
7. Exculpation; Indemnification. The Voting Trustee shall not be liable for
any error of judgment or mistake of law, or other mistake, except for his or her
own willful misconduct or gross negligence. Xxxxx shall indemnify the Voting
Trustee against all expenses, liabilities and other costs incurred by the Voting
Trustee which arise out of actions or omissions relating to their duties under
this Agreement. The Voting Trustee shall not be liable for transferring Xxxxx
Shares in reliance on written notice of consent to transfer delivered pursuant
to Section 4(c) hereof.
8. Compensation; Expense Reimbursement. The Voting Trustee shall be
reimbursed by Xxxxx for any expenses, liabilities or other costs incurred by the
Voting Trustee in connection with its duties under this Agreement or in
connection with any lawsuit brought against any of the Voting Trustee for which
they are entitled to be indemnified under Section 7, including the disbursements
and reasonable compensation of their agents, attorneys, employees and officers
whom they may employ in carrying out the terms and provisions of this Agreement.
Further the Voting Trustee shall be entitled to compensation for its services in
accordance with the schedule attached hereto. The Voting Trustee shall be
entitled to reimburse itself for all expenses incurred in the performance of
their duties, and to deduct any compensation due the Voting Trustee, out of any
monies held or received by it as distributions with respect to the Xxxxx Shares.
In the event that Xxxxx fails to promptly pay such compensation or fees of the
Voting Trustee, Stockpoint agrees to pay the same, and Stockpoint shall
thereafter be entitled to recover the same from Xxxxx or from any monies held or
distributions received by the Trustee under this Agreement.
9. Filing of this Agreement. A copy of this Agreement shall be filed by the
Voting Trustee with
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Stockpoint.
10. Amendment. The Voting Trustee may submit an amendment to this Agreement
to Xxxxx and Stockpoint for their approval at a meeting called for that purpose
upon at least 10 days" prior written notice. If the proposed amendment is
approved by both Xxxxx and the Board of Directors of Stockpoint, a certificate
to that effect shall be made and certified by the Voting Trustee and filed in
the offices in which a copy of this Agreement is required to be filed.
11. Term; Termination.
(a) This Agreement shall automatically terminate upon the earliest of
any of the following events to occur:
(i) the Voting Trustee has resigned, died, or dissolved and no
substitute Voting Trustee is selected by Stockpoint within 30 days
after the date of resignation or death of the Voting Trustee;
(ii) Stockpoint is dissolved and liquidated;
(iii) voting trust certificates representing all of the Xxxxx
Shares have been transferred to one or more transferees pursuant to
Section 4, except in the event such voting trust certificates are held
by a custodian or trustee for the benefit of Xxxxx;
(iv) Stockpoint has commenced a voluntary case under any
applicable bankruptcy law or has had an involuntary case under any
such law filed in its name;
(v) Xxxxx and Stockpoint mutually agree in writing to terminate
this Agreement; or
(vi) Upon the later to occur of December 31, 2002 or the date
that Xxxxx beneficially owns (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) less than five percent (5%) of the
outstanding common stock of Stockpoint.
(b) At any time after such termination, the holders of voting trust
certificates shall be entitled, upon surrender of such certificates to the
Voting Trustee for cancellation, to receive certificates for the number of
Xxxxx Shares of Stockpoint"s common stock or other securities then
represented by their respective voting trust certificates. Upon delivery of
certificates representing the shares of common stock or other securities
represented by any voting trust certificate by the Voting Trustee, this
Agreement shall no longer be in force or effect with respect to such
securities. The Voting Trustee shall deliver to each person who surrendered
a voting trust certificate the certificate(s) therefor properly endorsed
for transfer on the books of Stockpoint.
12. Successor Trustees. In the event of the death, dissolution or
resignation of the Voting Trustee, Stockpoint shall select a replacement Voting
Trustee. If the Voting Trustee shall be declared incompetent by any court of
competent jurisdiction, such Voting Trustee shall be deemed to have resigned.
Stockpoint may replace the Voting Trustee, with or without cause, at any time.
The Voting Trustee may resign upon 30 days" prior written notice to Stockpoint.
13. Acceptance by Voting Trustee. The Voting Trustee hereby accepts the
trust created by the terms of this Agreement and agree to perform their duties
hereunder.
14. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations, written
or oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken
together shall constitute one and the same agreement, and any party hereto
may execute this Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule, the
validity, legality and enforceability of the other provision of this
Agreement will not be affected or impaired thereby.
(d) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives and successors and assigns.
(e) Modification, Amendment, Waiver or Termination. No provision of
this Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No course of
dealing between the parties will modify, amend, waive or terminate any
provision of this Agreement or any rights or obligations of any party under
or by reason of this Agreement.
(f) Headings. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
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(g) Governing Law. ALL MATTERS OF CORPORATE LAW UNDER THIS AGREEMENT
SHALL BE GOVERNED BY THE DELAWARE GENERAL CORPORATION LAW. ALL OTHER
MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS
THEREOF.
(h) Third-Party Benefit. This Agreement is for the benefit of the
parties hereto and their permitted successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any other person
any rights, remedies, obligations or liabilities of any nature whatsoever.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the date set forth in the first paragraph of this Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Voting Trustee
By:_______________________________________
Its:______________________________________
STOCKPOINT, INC.
By:_______________________________________
Its:______________________________________
XXXXXX XXXXX
__________________________________________
SHAREHOLDER
Name and Address No. of Shares
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Xxxxxx Xxxxx 246,000 shares of common stock as evidenced by Certificates Nos. ________;
1600 shares of Series B preferred Stock as evidenced by
Certificate No.______
________________
________________ Warrant to purchase an aggregate of 312,500 shares of Common Stock dated as of
the date of this Agreement and that certain Warrant to Purchase Common Stock of
Neural Applications Corporation dated June 1, 1996 representing the right
to purchase 187,500 shares of Common Stock.
