VOTING TRUST AGREEMENT
DATE: _______ __, 1997
PARTIES: Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx
Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx and their
successors or additional Trustees appointed
pursuant to this Agreement ("Trustees"); and
The owners and holders of Common Stock of Infosafe
Systems, Inc., who are listed and whose signatures
appear on Exhibit A attached hereto (collectively,
"Shareholders").
RECITALS: (A) The Shareholders beneficially own and hold
an aggregate of 2,245,490 shares of Class A Common
Stock, Class B Common Stock, Class E-1 Common Stock
and Class E-2 Common Stock (collectively, the
"Common Stock") of Infosafe Systems, Inc.
("Company"), as set forth in Exhibit A attached
hereto.
(B) As a condition to the bridge financing and
public offering (the "Public Offering") pursuant to
the letter of intent dated January 9, 1997 between
the Company and X.X. Xxxxx Investment Banking Corp.,
the Shareholders have agreed to deposit the shares
of Common Stock beneficially owned by them in a
voting trust and give to the Trustees, as agents and
attorney-in-fact for each Shareholder, such
irrevocable powers as are set forth under the terms
and conditions of this Voting Trust Agreement
("Agreement").
AGREEMENTS:
The parties hereto mutually agree as follows:
1. Transfer of Shares to Trustees.
(a) The Shareholders hereby assign and transfer to
Trustees 2,245,490 shares of the Common Stock ("Shares") of the
Company, which Shareholders beneficially own. The ownership of
the Shares by the Shareholders is set forth on Exhibit A attached
hereto. The Shareholders, respectively, have properly endorsed
or shall properly endorse to the Trustees, the stock certificates
for such 2,245,490 Shares; the Trustees shall deliver to the
Shareholders in exchange for such Shares, voting trust
certificates substantially in the form attached hereto as Exhibit
B. The Shares represented by the stock certificates so deposited
by the Shareholders ("Shares Deposited") shall be transferred
upon the books of the Company to the name of the Trustees and the
Trustees are hereby authorized and empowered to cause such
transfers to be made. During the term of this Agreement, the
Trustees shall possess the legal title to the Shares Deposited.
The Trustees shall be entitled to exercise all rights of every
kind and nature, arising under the Shares Deposited, including,
but not limited to, the right to vote in person or by proxy and
execute consents with respect to any or all of the Shares
Deposited on all matters which may properly be voted on by
stockholders of the Company, except for the following matters, as
to which the Voting Trustees shall vote the Shares Deposited in
accordance with the direction received from each of the
Shareholders with respect to the Shares Deposited by such
Shareholders: (i) dissolution or liquidation of the Company,
(ii) merger or consolidation of the Company (other than a merger
or consolidation in which the Common Stock holders receive
securities of the surviving corporation having substantially
similar rights to the Common Stock, and stockholders of the
Corporation immediately prior to such transaction are holders of
at least a majority of the voting securities of the surviving
corporation immediately thereafter), or (iii) the sale of all, or
substantially all, of the assets.
(b) The Trustees may vote in favor of the election of
themselves as directors and officers of the Company and on, and
in favor of, the ratification and approval of the acts of
themselves as directors and officers in the general conduct of
the business and affairs of the Company.
2. Appointment of Proxy Holder and Grant of Proxy.
(a) Each Shareholder, respectively, hereby appoints
the Trustees to act as the proxy of such respective Shareholder,
and grants the Trustees the power to vote cumulatively or
otherwise, any and all Shares set opposite the Shareholder's
respective name and signature on Exhibit A hereto, to the extent
any of such Shares are not deposited in the voting trust, and any
additional Shares acquired subsequent to the date hereof at any
annual or special meeting of stockholders of the Company, or any
adjournment or adjournments thereof at which the Shares would be
entitled to vote.
(b) This Proxy is coupled with an interest and is
irrevocable, except as specifically hereinafter set forth.
(c) The Trustees may vote the Shares subject to this
Agreement in favor of the election of themselves as directors of
the Company and of, and in favor of, the ratification and
approval of the acts of themselves as directors and officers in
the general conduct of the business and affairs of the Company.
3. Dividends and Distributions.
The holders of Voting Trust Certificates issued by the
Trustees shall be entitled to receive payments of all dividends
and other distributions with respect to the Common Stock, other
than (i) dividends or distributions consisting of voting stock
shares of capital stock of the Company with respect to the Shares
Deposited. Upon the declaration of any dividend, other than (i)
dividends consisting of voting stock or (ii) distributions of or
conversions into additional voting shares of capital stock of the
Company by the Company with respect to the Shares Deposited, the
qqa Trustees shall distribute or cause all such dividends or
other distributions to be distributed by the Company to the
Shareholders of the Shares Deposited pursuant to this Agreement.
Any dividends or other distributions consisting of (i) voting
stock or (ii) distributions of or conversions into additional
voting shares of capital stock of the Company shall be subject to
the terms of this Agreement on the same basis as the respective
Shares on which such dividends were declared.
4. Term.
The term of this Agreement shall commence on the date
first above set forth and continue until the earlier of:
(a) 5:00 p.m., New York time, on the third anniversary
of the effective date of the Public Offering; or
(b) the first anniversary of the date hereof, if the
public offering referred to in (a) has not been closed by such
date.
At the end of the term as set forth in subparagraphs 4(a) or
(b) above, the Trustees shall deliver the Certificates for the
Shares Deposited to the respective Shareholders as their
respective sole property.
5. Restrictions on Transfer.
(a) The voting trust certificates issued by the Voting
Trustees may be transferred on the books of the Voting Trustees
upon the surrender of any and all certificates, properly indorsed
by the registered holders. The voting trust certificates have
not been registered under the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations thereunder. No
transfer of the voting trust certificates shall be made except in
accordance with an applicable exemption to registration
hereunder. Every transferee of a voting trust certificate shall
by the acceptance of such certificate become a party to this
Voting Trust Agreement with the same effect as though an original
party to this Voting Trust Agreement and shall be included within
the meaning of the term "Shareholders" whenever used herein.
As a condition of permitting any transfer or delivery
of stock certificates or voting trust certificates, the Trustees
may require the payment of any stamp tax or other governmental
charge in connection with such transfer.
(b) Any Shareholder, on ten (10) days' prior written
notice to the Trustees, accompanied by the Voting Trust
Certificate therefor, may withdraw from the Shares Deposited any
or all of the shares of Common Stock of the Company represented
by such voting trust certificate, which the Shareholder intends
and is permitted to sell in accordance with the Act pursuant to
the exemption under Rule 144, provided such sales are to third
parties who are not affiliated or associated with, and are not
relatives of, the Shareholder. The Shareholder shall notify the
Trustees of any such sale and the Trustees shall in a timely
manner deliver a certificate for the Shares sold by the
Shareholder free of the legend required by the terms of this
Agreement. Any such released stock may not be voted by the
Shareholder but only by the permitted transferee of such stock
from the Shareholder and the Trustees shall retain the right to
vote such Shares until the sale. Any released shares which are
not sold as permitted by this Section 5 within thirty (30) days
of the release shall be deemed redeposited by the Shareholder
with the Trustees. The Shareholder shall return the
certificate(s) representing all Shares withdrawn in accordance
herewith and not sold and the Trustees shall provide a new Voting
Trust Certificate for all Shares Deposited which remain deposited
following such withdrawal.
(c) All certificates representing the Shares subject
to this Agreement shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS OF A VOTING TRUST
AGREEMENT, DATED AS OF ______________, 1997, A
COPY OF WHICH IS ON FILE AND MAY BE INSPECTED
AT THE OFFICES OF THE COMPANY.
6. Dissolution of the Company.
In the event of dissolution or liquidation of the Company
during the term of this Agreement, in such manner as to entitle
the holders of shares of any class of its stock to liquidating
dividends or distributions in respect thereof, the Trustees shall
cause all such liquidating or dividends or distributions to be
distributed by the Company pro rata to the holders of voting
trust certificates for the Shares Deposited hereunder.
7. Merger of the Company.
In the event of a merger or consolidation involving the
Company, the securities or other proceeds of any such merger or
consolidation payable to the Shareholder other than distributions
consisting of voting stock, which shall be held by the Trustees
on the same basis as the respective Shares in respect of which
the distributions are made, shall be distributed pro rata to the
holders of the voting trust certificates in accordance with the
number of Shares Deposited hereunder.
8. Compensation of Trustees.
The Trustees shall not be entitled to any compensation for
acting as Trustees.
9. Liability of Trustees.
The Trustees shall not be liable to any Shareholders or any
other persons for, and each of the Shareholders hereby releases
each Trustee from, any loss, liability or claim by reason of any
matters relating to or arising out of the Trustees serving as
Trustees hereunder, or any action taken as Trustee hereunder
except to the extent any of the foregoing shall result from such
Trustee's own willful misfeasance or his own bad faith. In no
event shall any Trustee be liable for any misfeasance or non-
feasance of any attorney, auditor, appraiser, accountant, agent,
or employee, or of any of the other Trustees. The Trustees are
hereby authorized and empowered to construe this Agreement and
their construction made in good faith shall be binding upon the
Shareholders and other parties interested.
10. The Trustees.
Any of the Trustees may at any time resign by mailing to the
Company at its principal office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, his written resignation to take effect ten (10)
days thereafter or upon the prior written acceptance thereof by
the Company or some later date specified in such notice.
11. Successor and Additional Trustees.
In the event any of the Trustees shall cease to be an
"Independent Director", or in the case of Xxxxxx X. Xxxxxx, Xx.
Xxxxxx shall cease to be President and Chief Executive Officer of
the Company, then such person shall cease to be a Trustee. Any
person elected after the date hereof as an Independent Director
shall upon execution of an instrument agreeing to be bound by
this Agreement become a Trustee hereunder with the same force and
effect as though originally named herein. As used herein,
"Independent Director" shall mean a director who is not an
officer or employee of the Company and has not previously served
as an officer or employee of the Company.
12. Deposits of Additional Shares.
From time to time after execution hereof, the Trustees may
receive deposits of any additional certificates representing
fully paid and non-assessable shares of common or other general
voting stock of the Company upon the terms and under the
conditions of this Agreement and, in respect of all such deposits
so received, the Trustees shall issue and deliver Voting Trust
Certificates in the form specified herein in accordance with the
provisions of this Agreement. Any (i) dividends or distributions
consisting of voting stock or (ii) distributions of or
conversions into additional voting shares with respect to the
Shares Deposited shall be issued in the name of the Trustees as
additional deposits hereunder and the Trustees shall issue
additional Voting Trust Certificates therefor.
13. Acts of Trustees.
(a) The Trustees may act at a meeting, including
telephonic meetings, or act by a written instrument, without a
meeting, signed by the requisite number of Trustees. All actions
to be taken by the Trustees hereunder shall be a approved by the
vote or consent of a majority of the Trustees.
(b) The Trustees may vote or may act in person or by
proxy. The Trustees may vote by proxy at any meeting of
shareholders of the Company. Any such proxy or consent shall be
executed by the requisite number of Trustees required for
approval of such action as set forth in Section 13 (a).
14. Trustees' Relation with the Company.
The Trustees may act as, and receive compensation as,
directors, officers (in the case of Xx. Xxxxxx) or agents of the
Company, or members of any committee of the Company, or of any
controlled, subsidiary, or affiliated entity of the Company, or
be otherwise associated therewith. Additionally, the Trustees or
any firm of which he may be a member, or any corporation or
association of which he may be a stockholder, director, or
officer, or any such firm, corporation or association in which he
may be otherwise directly or indirectly interested, may, to the
extent permitted by law and without liability in any way or under
any circumstances by reason thereof, contract with the Company or
with any controlled, affiliated, or subsidiary entity, or be or
become pecuniarily interested in any matter or transaction to
which the Company, or any controlled, affiliated, or subsidiary
entity of the Company, may in any way be concerned, as fully as
though he were not a Trustee.
15. No Security for Performance.
The Trustees shall not be required to give any bond or
security for the discharge of their duties.
16. Counterparts.
This Agreement may be executed in any number of counterparts
and all such counterparts taken together shall be deemed to
constitute one and the same Agreement.
17. Notices. All notices hereunder shall be in writing and
delivered personally or-sent by registered or certified mail,
postage prepaid.
If to Shareholder: at his address shown on the books and
records of the Company
If to the Trustee: c/o the address of the Company
Either party may change the address to which notices are to
be sent to it by giving 10 days written notice of such change of
address to the other parties in the manner above provided for
giving notice. If delivered in person, then such notice shall be
effective immediately; if mailed, then 72 hours after deposit,
postage prepaid.
18. Shareholder's Grant.
By their respective signatures below, each of the
Shareholders expressly grant to the Trustees all of the rights
set forth herein, subject to the terms of this Agreement.
19. Trustees' Acceptance.
The Trustees, by signing this Agreement or a counterpart
thereof, accepts the trust herein created.
Executed the day and year first above written.
AGREED AND ACCEPTED:
TRUSTEES
/s/_______________________________
Xxxxxx X. Xxxxxx, President and
Chief Executive Officer
/s/_______________________________
Xxxxxxx X. Xxxxxx, Director
/s/_______________________________
Xxxxx Xxxxxx, Xx., Director
/s/_______________________________
Xxxxxxx X. Xxxxxxxx, Director
SHAREHOLDERS:
/s/______________________________ /s/______________________________
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Timergazina
/s/______________________________ /s/______________________________
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
/s/______________________________ /s/______________________________
Xxxxxxxx Xxxxxxx Xxxxx X. Xxxxxxxx
/s/______________________________
Xxxx X. Xxxxxx
EXHIBIT A
B SHARES
-----------------------------
NON TOTAL E-1 E-2 TOTAL TOTAL
ESCROW ESCROW B SHARES VOTING VOTING E VOTING A VOTING SHARES
------- ------- --------- ------- ------- -------- -------- ---------
XXXXXX X. XXXXXXXX 427,410 385,716 813,126 410,312 410,312 820,624 - 1,633,750
XXXXX X. XXXXXXXX 21,020 19,338 40,358 20,179 20,179 40,358 - 80,716
XXXXXXXX XXXXXXX 21,020 19,338 40,358 20,179 20,179 40,358 - 80,716
TOTAL XXXXXXXX 469,450 424,392 893,842 450,670 450,670 901,340 - 1,795,182
------- ------- --------- ------- ------- -------- -------- ---------
XXXX X. XXXXXX 94,591 20,773 115,364 87,682 87,682 175,364 - 290,728
XXXXXXX X. TIMERGAZINA 18,218 - 18,218 17,488 17,488 34,976 - 53,194
XXXXXX X. XXXXXX 18,218 - 18,218 17,488 17,488 34,976 - 53,194
XXXXX X. XXXXXXXX 18,218 - 18,218 17,488 17,488 34,976 - 53,194
------- ------- --------- ------- ------- --------- -------- ---------
TOTAL XXXXXX 149,244 20,773 170,017 140,146 140,146 280,292 - 450,309
------- ------- --------- ------- ------- --------- -------- ---------
TOTAL XXXXXXXX
& XXXXXX 618,693 445,165 1,063,858 590,816 590,816 1,181,632 - 2,245,490
------- ------- --------- ------- ------- --------- -------- ---------
EXHIBIT B
VOTING TRUST CERTIFICATE
Certificate No. Number of Shares
INFOSAFE SYSTEMS, INC.
a Delaware corporation
This certifies that ____________________ ("Depositor") is
entitled to all of the benefits arising from the deposit with the
Trustee, under the Voting Trust Agreement hereinafter mentioned,
of certificate(s) for shares of the capital stock of INFOSAFE
SYSTEMS, INC., a Delaware corporation (the "Company") as provided
in the Voting Trust Agreement, dated as of _____________, 1997,
among _______________________ and their successors or additional
persons who may be appointed as Trustees, as Trustees, Depositor
and the holders of Common Stock of the Company who are listed on
Exhibit A thereto (together with the Depositor, the
"Shareholders") (the "Voting Trust Agreement"), and subject to
the terms and conditions thereof. The registered holder or his or
her permitted assign(s), is entitled to receive dividends and
other distributions received by the Trustee upon the number of
shares of capital stock of the Company in respect of which this
Certificate is issued, other than dividends or other
distributions received by the Trustee in common or other shares
of capital stock of the Company having general voting powers.
Any such Common or other shares of capital stock having general
voting powers shall be represented by voting trust certificates,
in form similar hereto. Until the Trustees have delivered the
stock held under such Voting Trust Agreement to the holders of
the Voting Trust Certificates, as specified in such Voting Trust
Agreement, the Trustee shall possess and shall be entitled to
exercise all rights and powers of an absolute owner of such
shares, including the right to vote thereon for every purpose,
and to execute consents in respect thereof for every purpose,
subject to such limitations as shall be provided in the Voting
Trust Agreement, it being expressly stipulated that no voting
right passes to the owner hereof under this Certificate or any
agreement, expressed or implied.
This Certificate is issued, received, and held hereunder,
and the rights of the owner hereof are subject to, the terms of
the Voting Trust Agreement, copies of which, and every agreement
amending or supplementing the same, are on file in the principal
office of the Company in New York, New York, and all of which
shall be open to the inspection of any stockholder of the
Company, or any permitted beneficiary of the trust under such
agreement, daily, upon reasonable notice during normal business
hours. All of the provisions of which Voting Trust Agreement the
holder of this Certificate, by acceptance hereof, assents.
If any dividend or distribution in cash or stock of the
Company not having general voting powers is received by the
Trustees, the Trustees shall distribute the same to the
registered holder of the Voting Trust Certificate on the date of
such distribution, or the registered Certificate holder at the
close of business on the date fixed by the Trustees for taking a
record to determine the Certificate holders entitled to such
distribution. Such distribution shall be made to the Certificate
holders ratably in accordance with the number of shares
represented by Shares Deposited as set forth in their respective
voting trust certificates. Any (i) dividends consisting of voting
stock or (ii) distributions of or conversions into additional
voting shares with respect to the Shares Deposited shall be
issued in the name of the Trustees as additional deposits under
the Voting Trust Agreement and the Trustees shall issue
additional voting trust certificates therefor.
Stock certificates issued in the name of the Depositor or
his or her designee and representing the number of shares of
capital stock then represented by this Certificate shall be due
and deliverable hereunder upon the termination of such Voting
Trust Agreement as provided therein.
The Voting Trust Agreement shall continue in full force and
effect for the term provided in the Voting Trust Agreement.
THIS VOTING TRUST CERTIFICATE IS SUBJECT TO LIMITATIONS ON
TRANSFER SET FORTH IN THE VOTING TRUST AGREEMENT AND MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE
VOTING TRUST AGREEMENT.
IN WITNESS WHEREOF, the Trustees have executed this
Certificate this ____ day of ___________________, 1997.
TRUSTEES:
___________________________________
___________________________________
___________________________________
