Exhibit 5.1
VOTING TRUST AGREEMENT
This Voting Trust Agreement (the "Agreement"), by and between ___________,
a ____________________ corporation (the "Stockholder"), and X. Xxxxxx Mo and his
successors in trust (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the parties hereto believe it in the best interests of NexMed,
Inc., a Nevada corporation (the "Company"), and its stockholders, in order to
assure continuity and stability of policy and management of the Company, for the
Stockholder to deposit its stockholdings of ______________ shares of common
stock of the Company, $.001 par value (the "Shares") with the Trustee in
accordance with provisions hereinafter provided:
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, do hereby agree as follows:
1. Transfer of Stock to Trustee. The Stockholder shall, simultaneously
with the execution of this Agreement, assign and deliver its stock certificates
to the Trustee, and the Shares represented by the stock certificates so
delivered shall be transferred on the books of the Company to the Trustee, as
voting Trustee. The Trustee is hereby fully authorized and empowered to cause
such transfer to be made and also to cause any further transfers of the Shares
to be made which become necessary through any change of the person holding the
office of Trustee, as hereinafter provided.
2. Voting Trust Certificates. The Trustee shall issue and deliver to the
Stockholder a voting trust certificate for the Shares transferred by the
Stockholder to the Trustee, in substantially the form attached to this Agreement
as Exhibit A.
3. Voting By Trustee. The Trustee shall have the exclusive right to vote
all Shares held pursuant to this Agreement, in person or by proxy, at all
meetings of the stockholders of the Company and in all proceedings where the
vote or written consent of stockholders may be required or authorized by law.
The Trustee in its sole discretion shall determine the manner in which such
Shares shall be voted. The Trustee may vote in favor of the election of the
Trustee as a director or officer of the Company and may act as such.
4. Trust Provisions.
(a) The trustee shall hold the Shares transferred to the Trustee in
trust hereunder for the benefit of the Stockholder under the terms and
conditions set forth herein.
(b) Notwithstanding any provision hereof, the Stockholder shall have
the right to sell, assign, transfer or pledge any or all of the Shares to third
parties and the Trustee shall use reasonable efforts to cause any Shares so
sold, assigned, transferred or hypothecated to be transferred promptly to the
purchaser, assignee, transferee or pledgee thereof against delivery of the
voting trust certificates representing the Shares; provided (i) in the case of a
pledge, that the pledgee shall not have any right to vote the Shares, (ii) in
the case of Shares sold, assigned, transferred or hypothecated to an affiliate
of the Stockholder or via a private placement transaction, the Shares shall
remain in trust hereunder subject to the terms of this Agreement; and (iii) in
the event that the Shares are sold, assigned, transferred or hypothecated to an
unaffiliated third party in a "brokered transaction", as defined in the
Securities Act of 1933, as amended, if such third party is not subject to the
reporting requirements under Section 13(d) of the Exchange Act of 1934, as
amended, the Shares shall be sold, assigned, transferred or hypothecated to such
third parties and released from the trust upon such sale or transfer, otherwise
the Shares shall remain in trust hereunder subject to the terms of this
Agreement. A third party shall be deemed "affiliated" for purposes of this
Section 4(b) if such third party is controlled by, controls or under common
control with the Stockholder or a member of the immediate family of the
Stockholder, is retained by the Stockholder or a member of the immediate family
of the Stockholder as a consultant generally operating at the direction of such
person, is employed, directly or indirectly, by such person, or has made
substantial business investments of any nature in any entity with the
Stockholder or a member of the immediate family of the Stockholder.
5. Successor Trustee. In the event of the resignation of the Trustee, the
Trustee shall have the power to appoint his successor, prior to his resignation,
by a written instrument signed by him and delivered to the successor Trustee. In
the event of failure to so appoint, or in the event of the death or incapacity
to act of the Trustee, the President of the Company shall appoint a successor
Trustee.
6. Dividends. The holders of voting trust certificates issued by the
Trustee shall be entitled to receive payment of all dividends and the Trustee
shall cause all such dividends to be distributed by the Company to such holders,
provided, however, that a pro rata distribution of additional voting securities
of the Company by way of stock dividend or partial liquidation, if any, declared
by the Company with respect to the Shares transferred to the Trustee pursuant to
this Agreement shall be issued in the name of the Trustee as additional deposits
hereunder and the Trustee shall issue additional voting trust certificates
therefor.
7. Term. This Agreement shall terminate five (5) years from the date
hereof unless earlier terminated by the Trustee. Upon termination, the Trustee
shall, upon surrender of the voting trust certificates, cause to be delivered to
the holders thereof, shares of capital stock of the Company equivalent in amount
to the shares represented by the voting trust certificates surrendered.
8. Responsibility of Trustee. The Trustee agrees to use its best judgment
in voting the stock held by the Trustee in the manner considered by the Trustee
to be in the best interests of the Company and all of its stockholders. The
Trustee shall not be held liable for any act taken in good-faith attempt to
effectuate such purpose.
9. Additional Parties. The Trustee is authorized to permit such other
stockholders to become parties to this Agreement as the Trustee sees fit.
10. Parties Bound. This Agreement shall bind the parties hereto and their
respective heirs, legal representatives, successors and assigns.
11. Filing of the Agreement. Upon execution of this Agreement by the
Stockholder and the Trustee, the Trustee shall cause a copy of this Agreement to
be filed in the registered office of the Company in the State of Nevada.
12. Governing Law. This Agreement shall be governed by the laws of the
State of Nevada.
13. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one in the same instrument.
[Signature page follows, remainder of page is intentionally blank]
IN WITNESS WHEREOF, the undersigned Trustee, as evidence of the acceptance
of the trust hereby created, have signed and sealed this Agreement, and the
undersigned Stockholder has signed and sealed this Agreement, and set opposite
the signature of its authorized representative, the number of shares held or
owned by the Stockholder.
DATED as of the ________ day of ______________________, 199__.
STOCKHOLDER:
_____________________________
Number of shares owned by
the Stockholder _________ By:__________________________
Name:
Title:
TRUSTEE:
_____________________________(SEAL)
Name: X. Xxxxxx Mo
Title: Trustee
EXHIBIT A
NEXMED, INC.
VOTING TRUST CERTIFICATE
CERTIFICATE NO.________
___________SHARES
This is to certify that __________________________ is the owner of ______
shares of capital stock of NexMed, Inc. (the "Company"), held by the undersigned
as Trustee subject and pursuant to the terms, conditions and stipulations of a
Voting Trust Agreement, dated _____________, 1996 (the "Agreement"), a copy of
which Agreement is on file in the registered office of the Company in
California, references being had thereto as to all the terms, conditions, and
requirements of said Agreement.
This certificates is transferable only on the books of the Trustee by the
holder thereof in person or by attorney upon the surrender of this certificates
properly endorsed.
Capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the Trustee have cause this certificate to be signed
this ____ day of ___________ 199__.
________________________(SEAL)
Name:
Title: Trustee
