Exhibit 5.1
VOTING TRUST AGREEMENT
With Respect to
CERTAIN COMMON SHARES
Par Value $.0001 per share
of
MILLENNIUM DIRECT, INC.
Dated July 5, 2000
This Agreement, dated July 5, 2000, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ and his
successor (or successors) as Voting Trustee hereunder (hereinafter called the
"Voting Trustee"); and certain holders of Common Shares of Millennium Direct,
Inc., a Delaware corporation (hereinafter sometimes called the "Corporation"),
listed on Schedule A attached hereto;
WHEREAS, the shareholders of Common Shares listed on Schedule A
attached hereto (hereinafter sometimes for convenience called "Depositing
Shareholders") own the number of shares of Common Shares set forth opposite
their respective names on Schedule A; and
WHEREAS, with a view to the competent management of the Corporation,
the Depositing Shareholders are desirous that the voting power of their Common
Shares be vested in the Voting Trustee to the extent and upon the terms and
conditions stated in the voting trust created by this Agreement,
NOW, THEREFORE, the parties hereto agree as follows:
1. Certain Definitions. The term "Common Shares" shall mean the Common
Shares of Millennium Direct, Inc. listed on Schedule A; any other Common Shares
of Millennium Direct, Inc. of which any of the individual parties hereto may
hereinafter become the owner, whether by bequest, gift, purchase, transfer or
otherwise ("Additional Shares"); and any other of its shares, or of any
successor corporation, in substitution for the shares listed on Schedule A or in
substitution for the Additional Shares at any time outstanding having general
voting power. The term "Agreement" shall mean this Voting Trust Agreement.
2. Agreement by Depositing Shareholders. Each Depositing Shareholder
simultaneously with the execution of this Agreement will deliver to the Voting
Trustee certificates representing the number of Common Shares of the Corporation
set forth opposite his or her name on Schedule A, duly endorsed by him or her or
on his or her behalf in blank for transfer to the Voting Trustee or accompanied
by proper instruments duly executed by him or her or on his or her behalf in
blank for transfer thereof to the Voting Trustee, and shall do all things
necessary for the transfer to the Voting Trustee of his or her respective shares
on the books of the Corporation, and accepts in exchange therefor Voting Trust
Certificates substantially in the form attached as Exhibit I hereto.
Each Depositing Shareholder represents to the Corporation and to the
Voting Trustee that the Voting Trust Certificates issued to him or her hereunder
are being acquired by him or her for the purpose of investment and not with a
view to or in connection with any distribution thereof.
3. Issue of Shares to Voting Trustees. The Voting Trustee shall cause
all certificates representing Common
Shares delivered to the Voting Trustee pursuant to Section II hereof to be
surrendered to, and cancelled by, the Corporation, and a new certificate or
certificates therefor to be issued in the name of, and delivered to, the Voting
Trustee. Said new certificate(s) shall state that they are issued under this
Agreement. In addition, the entry of such ownership in the records of the
Corporation shall also note that the new certificate(s) were issued to the
Voting Trustee under this Agreement. Except as herein provided, all certificates
for Common Shares of the Corporation so issued and delivered to the Voting
Trustee pursuant to this Section III shall at all times be and remain in the
possession of the Voting Trustee.
4. Issue of Voting Trust Certificates. The Voting Trustee, in exchange
for certificates for Common Shares delivered to him pursuant to Section II
hereof by the Depositing Shareholders, and as promptly as possible after receipt
of such certificates, will cause to be issued and delivered to or upon the order
of each such Depositing Shareholder, one or more Voting Trust Certificates,
representing in the aggregate the number of Common Shares represented by the
certificates so delivered by such Depositing Shareholder. The Voting Trustee may
cause to be issued hereunder temporary typewritten or printed Voting Trust
Certificates conforming generally to the form attached as Exhibit I hereto, and
may cause the same to be exchanged for definitive Voting Trust Certificates when
prepared.
5. Transfer and Replacement of Voting Trust Certificates.
i. Voting Trust Certificates shall be transferred only to a Depositing
Shareholder, provided that the transferee of the Voting Trust Certificates
delivers to the Voting Trustee an investment covenant similar to that set forth
in the second paragraph of Section II hereof.
ii. The Voting Trustee shall keep or cause to be kept a record of all
Voting Trust Certificates issued by him, whether as an original issue or upon
transfer in exchange for Voting Trust Certificates surrendered, and shall also
fix and determine a place at which such record shall be kept and at which Voting
Trust Certificates may be transferred or exchanged. The record so kept or caused
to be kept by the Voting Trustee shall conform, as nearly as may be practicable,
to the form of a record of shareholders which would be used by a corporation or
its transfer agent under similar circumstances.
iii. Any holder of Voting Trust Certificates may exchange such Voting
Trust Certificates for Voting Trust Certificates of other denominations
representing the same aggregate number of Common Shares in accordance with such
rules as may be established by the Voting Trustee for that purpose.
iv. Subject to the provisions of Paragraph (1) of this Section V, the
Voting Trust Certificates and the rights represented thereby shall be
transferable on the books of the Voting Trustee by the holders of record
thereof, either in person or by attorney thereunto duly authorized, in
accordance with such rules as may be established for that purpose by the Voting
Trustee, and the Voting Trustee may treat the holder of record of any Voting
Trust Certificate as the absolute owner thereof for all purposes whatsoever,
unaffected by any notice to the contrary. A Depositing Shareholder transferring
his or her Voting Trust Certificates as permitted under this Agreement will pay
or reimburse the Voting Trustee for any stamp tax or other governmental charge
incident to any transfer of a Voting Trust Certificate. Each transferee of a
Voting Trust Certificate issued hereunder shall, by his or her acceptance
thereof, assent to and become a party to this Agreement with respect to such
Voting Trust Certificate.
v. In case any Voting Trust Certificate shall become mutilated, lost,
stolen, or destroyed, the Voting Trustee, under such conditions with respect to
indemnity and otherwise as he, in his discretion, may prescribe, may provide for
the issuance of a new Voting Trust Certificate in lieu of such lost, stolen, or
destroyed Voting Trust Certificate or in exchange
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for such mutilated Voting Trust Certificate.
6. Powers and Duties of Voting Trustee.
1. While this Agreement is in effect, the Voting Trustee, in his
unrestricted discretion, in person or by his proxies, shall have the full and
unqualified right and power to vote the Common Shares held by him hereunder, to
waive notice of meetings, and otherwise to act in respect of any and all such
Common Shares. No other person shall have any voting right in respect of any
such Common Shares so long as this Agreement is in effect and such shares are
registered in the name of the Voting Trustee on the books of the Corporation.
2. The Voting Trustee shall keep a record of all proceedings and may
adopt his own rules of procedure. He may employ counsel and such agents as he
may deem desirable, may remove them at pleasure, and may fix the powers, duties,
and compensation of such agents and attorneys.
3. The Voting Trustee will serve without compensation as trustee, but
the Voting Trustee may, in his individual capacity, serve as a director or
officer or agent of the Corporation, or any subsidiary or controlled or
affiliated company, and receive compensation therefor. The Voting Trustee may,
as an individual for his own account to the extent herein permitted to other
Depositing Shareholders, purchase or sell Voting Trust Certificates, and he also
may purchase or sell any securities of the Corporation or any subsidiary or
controlled or affiliated company, and may purchase any property owned by the
Corporation or any such other company, or be interested in any such purchase or
sale, and no such act of the Voting Trustee shall be rendered invalid because of
any such interest. No contract or other transaction between the Corporation or
any subsidiary or controlled or affiliated company and the Voting Trustee, or a
firm or corporation wherein the Voting Trustee may be interested, shall be
rendered invalid by the fact that the Voting Trustee is a contracting party, or
is interested in such firm or other corporation, and the Voting Trustee is
hereby relieved from any liability that might otherwise exist by reason of the
making of any contract or participating in any other transaction wherein the
Voting Trustee, or any firm or corporation, may be interested. If the Voting
Trustee is also a Depositing Shareholder, he shall have and may exercise in
respect of his Voting Trust Certificates all the rights and powers (including
the right to surrender the same in exchange for Common Shares) herein given to
the other Voting Trust Certificate holders.
4. The Voting Trustee shall act in person, except that (a) he may,
without a meeting, act by a written instrument signed by him, or by telegram,
cablegram, telephonic facsimile or radiogram, and (b) at any meeting of
shareholders of the Corporation, he may vote by proxy.
5. In case the Voting Trustee shall receive any certificate or
certificates for Common Shares as a distribution upon Common Shares held by him
under this Agreement, or as a split-up or combination of Common Shares held by
him under this Agreement, he shall hold the certificate or certificates for such
Common Shares subject to the terms of this Agreement ratably for the respective
registered holders of Voting Trust Certificates.
6. In any case where the Voting Trustee, as shareholder of the
Corporation, is entitled to receive (a) any cash dividend, (b) any dividend
payable in shares or other property, other than a distribution of Common Shares,
or any other distribution to shareholders, or (c) any rights or warrants to
subscribe for securities, he shall furnish to the Corporation a certified list
of the names and addresses of the registered holders of Voting Trust
Certificates, which list shall contain the number of shares represented by the
Voting Trust Certificates registered in the name of each such holder, all as
shown by the records of the Voting Trustee at the time fixed by the Corporation
for the taking of a record to determine those holders
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of its Common Shares entitled to receive such dividends, rights, or warrants,
with the request (with which the Corporation hereby agrees to comply) that the
Corporation pay or issue directly to such registered holders of Voting Trust
Certificates any such dividends, rights, or warrants, which they may be entitled
respectively to receive in respect of the shares represented by the Voting Trust
Certificates registered in their names.
7. The Voting Trustee will exercise the powers and perform the duties
of the Voting Trustee hereunder according to his best judgment in the interest
of the Corporation and its shareholders.
8. The Voting Trustee shall not incur any responsibility as
shareholder, trustee, or otherwise for any mistake, act, or omission of any
agent or attorney or by reason of any action of any kind taken or omitted by
himself, except for his own dereliction of duty. The Voting Trustee shall not be
required to give bond or security for the discharge of his duties under this
Agreement.
VII. Resignation of Voting Trustee and Appointment of Successor. The
Voting Trustee may at any time resign by delivering to the Corporation his
resignation, in writing, to take effect thirty (30) days after the date thereof.
In the event that the Voting Trustee shall die, resign, become
incapacitated or unable to serve as the Voting Trustee, the successor Voting
Trustee shall be appointed by the majority vote of the Depositing Shareholders.
Any such appointment of a successor Voting Trustee or Voting Trustees under the
provisions of this Section VII shall be made by the filing at the principal
office of the Corporation of a written instrument of appointment executed by the
persons entitled to make such appointment.
Any successor Voting Trustee or Voting Trustees shall be deemed to have
qualified as a Voting Trustee hereunder when he or they shall have executed a
counterpart of this Agreement and such counterpart shall have been filed in the
principal office of the Corporation, and when there shall have been filed with
the Corporation at its principal office a written instrument designating him or
them as successor as above provided. Each successor Voting Trustee shall upon
his or her qualification vested with all the duties, powers and authority of the
Voting Trustee hereunder as if originally named.
If more than one successor Voting Trustee is appointed under this
Section VII, all voting and acts of the Voting Trustees shall be by a majority
of all them.
VIII. Termination of Voting Trust Agreement.
1. This Agreement and the trust created thereunder shall terminate
twenty-one (21) years from the date as of which this Agreement becomes effective
pursuant to Section XIV hereof.
2. Upon the termination of this Agreement, the Voting Trustee shall
forthwith deliver, or cause to be delivered to each holder of a Voting Trust
Certificate or Certificates, a certificate or certificates for the Common Shares
represented by his or her Voting Trust Certificate or Certificates, upon
surrender of his or her Voting Trust Certificate or Certificates. Each Voting
Trust Certificate holder shall pay any state tax or other governmental charge
incident to such delivery of his or her Voting Trust Certificate or Certificates
for the Common Shares represented by such Certificate or Certificates.
3. Notice of the termination of this Agreement, if such termination is
to take place before the time set forth in Paragraph 1 of Section VIII, shall be
given to the holders of Voting Trust Certificates at least thirty (30) days in
advance
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of such termination, and a copy of said notice shall be filed with the
Corporation at its principal office.
4. Notwithstanding the termination of this Agreement, the Voting
Trustee shall thereafter have the power to take or cause to be taken such
further or other action as he may deem necessary or desirable to conclude the
duties imposed upon him in this Agreement, provided, however, that after the
termination of this Agreement he shall have no authority to vote any Common
Shares deposited with him hereunder.
5. At any time within two (2) years prior to the time of expiration of
this Agreement as originally fixed or as extended as herein provided, one or
more beneficiaries of the trust created hereunder may, by agreement in writing
and with the written consent of the Voting Trustee, extend the duration of this
Agreement with regard to the shares subject to their beneficial interest for an
additional period not exceeding twenty-one (21) years. The Voting Trustee shall,
prior to the time of expiration of this Agreement, as originally fixed or as
previously extended, as the case may be, file in the registered office of the
Corporation an executed counterpart of such extension agreement and of their
consent thereto, and thereupon the duration of this Agreement shall be extended
for the period fixed in such extension agreement; but no such extension
agreement shall affect the rights or obligations of persons not parties thereto.
IX. Notice to Holders of Voting Trust Certificates.
All notices to be given to holders of Voting Trust Certificates
hereunder may be given by mailing the same to the registered holders at their
respective addresses set forth below their respective signatures to this
Agreement, and any notice when so mailed shall be considered as served on the
holders of Voting Trust Certificates to whom mailed. The Voting Trustee may
change his address for purposes of this Section IX by written notices in
accordance with this Section IX to the holders of Voting Trust Certificates, and
any holder of a Voting Trust Certificate may change his or her address for the
purpose of this Section IX by written notice to the Voting Trustee in accordance
with this Section IX.
X. Payment of Expenses. Each Depositing Shareholder shall pay all stamp
taxes and other governmental charges incident to the transfer of his or her
Common Shares from him or her to the Voting Trustee. Each Depositing
Shareholder, in proportion that the number of his or her respective Common
Shares bears to all the Common Shares, shall pay all expenses incurred by the
Voting Trustee and not otherwise provided for in this Agreement, including the
compensation of agents and attorneys employed by him incident to the performance
of his duties hereunder.
To the extent that it is lawful to do so, the Corporation will
indemnify and hold harmless the Voting Trustee against any and all losses,
claims, damages, or liabilities, joint or several to which the Voting Trustee
may become subject by reason of any action taken by him, as Voting Trustee,
under this Agreement.
XI. Merger, etc. In case the Corporation is merged into or consolidated
with another corporation, the term "Corporation" for all purposes of this
Agreement shall be taken to apply to such successor corporation, and the Voting
Trustee shall receive and hold under this Agreement any shares having general
voting power of such successor corporation received by him on account of the
Common Shares held by him hereunder prior to the time of such merger or
consolidation. In case the Common Shares of the Corporation shall be
reclassified, the Voting Trustee shall receive and hold under this Agreement any
shares having general voting power of the Corporation received by him on account
of the Common Shares held by him hereunder prior to the time of such
reclassification. Voting Trust Certificates issued and outstanding under this
Agreement at the time of any such merger, consolidation, or reclassification may
remain outstanding, but the Voting Trustee may, in his discretion, substitute
for such Voting Trust Certificates new Voting Trust Certificates in appropriate
form.
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XII. Filing of Voting Trust Agreement. Simultaneously with the
execution of this Agreement, an executed counterpart hereof shall be filed at
the registered office of the Corporation.
XIII. Miscellaneous.
1. The Voting Trustee accepts the trust hereunder and agrees to perform
the same upon the terms and conditions hereof.
2. The Corporation is a party hereto only for purposes of the second
unnumbered Paragraph of Section II; Paragraph 6 of Section VI; Section X;
Section XIV; this Paragraph 2 of Section XIII; and Section XV.
3. This Agreement may be executed in several counterparts, each of
which when so executed shall be deemed to be an original, and such counterparts
shall together constitute one and the same instrument. The Depositing
Shareholders may sign separate counterparts of this Agreement.
4. Wherever necessary, the Voting Trustee may issue Voting Trust
Certificates for fractional shares.
5. The validity of this Agreement, or of any part hereof, and of the
Voting Trust Certificates, and the interpretation of all provisions hereof,
shall be governed by the internal laws of the State of New York, that is,
without regard to its conflict of laws rules.
6. The invalidity of any term or provision of this Agreement shall not
affect the validity of the remainder of this Agreement.
XIV. Effectiveness. This Agreement shall become effective as of the day
and year first above written only when (i) it is executed and delivered by the
Voting Trustee, the Corporation, and each of the Depositing Shareholders
personally or by his or her attorney-in-fact, (ii) the Depositing Shareholders
have delivered their certificates pursuant to Section II, and (iii) an executed
counterpart of this Agreement has been filed at the registered office of the
Corporation.
XV. Assigns, etc. This Agreement shall bind and benefit the parties
hereto and the heirs, administrators, executors, successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ ▇▇▇▇▇ has executed this Agreement as Voting
Trustee; and each of the holders of Common Shares of Millennium Direct, Inc.
listed on Schedule A have signed the same personally or by his or her
attorney-in-fact, and Millennium Direct, Inc. has caused this Agreement to be
signed by its Chief Executive Officer, President or one of its Vice Presidents.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as Voting Trustee,
with an address at c/o
Millennium Direct, Inc.,
▇▇▇ ▇▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as a Depositing
Shareholder listed on Schedule A
attached hereto, with an address at c/o
Millennium Direct, Inc., ▇▇▇ ▇▇-▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, as a Depositing
Shareholder listed on Schedule A
attached hereto, with an address at c/o
Millennium Direct, Inc., ▇▇▇ ▇▇-▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MILLENNIUM DIRECT, INC.,
only to the extent provided in
Paragraph 2 of Section XIII
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, as Chief
Executive Officer
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SCHEDULE A
TO
VOTING TRUST AGREEMENT
With Respect to
CERTAIN COMMON SHARES
Par Value $.0001 per share
of
MILLENNIUM DIRECT, INC.
Dated July, 2000
VOTING TRUST AGREEMENT
Name of Depositing Number of All Common Shares Presently
Shareholder Owned By Each Depositing Shareholder
------------------ --------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ 54,254
▇▇▇▇▇ ▇▇▇▇▇ 474,833
Total Common Shares subject
to the Voting Trust Agreement
exclusive of Additional Shares: 529,087