Exhibit 10.3.1
POOLING TRUST AGREEMENT
THIS POOLING TRUST AGREEMENT (this "Agreement") is made on December 28, 1998
between Tristan Libischer ("Beneficiary") and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Pooling
Trustee").
BACKGROUND
The Beneficiary and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (collectively, the "Vianet
Stockholders") are the holders of all the issued and outstanding capital stock
of Vianet EDV Dienstleistungs AG, an Austrian corporation ("Vianet"), consisting
of 1,000,000 shares of voting common stock, par value 1 ATS (the "Vianet
Stock").
The Vianet Stockholders and Cybernet Internet Services International, Inc.,
("Cybernet") entered into a Stock Purchase Agreement as of June 17, 1998 (the
"Stock Purchase Agreement") providing for that the Vianet Stockholders will sell
to Cybernet and Cybernet will purchase from the Vianet Stockholders all of the
Vianet Stockholders' right, title and interest in the Vianet Stock.
At the Closing of the Stock Purchase Agreement (the "Closing") the Pooling
Trustee will receive 150,000 shares of the common voting stock, par value $0.001
of Cybernet (the "Trust Stock"), to be issued to the Beneficiary as part of the
consideration for the Vianet Stock.
Furthermore, the Stock Purchase Agreement provides that the Beneficiary will
have executed a pooling trust agreement with the Pooling Trustee providing that
the Cybernet shares making up a part of the Purchase Price shall be held by the
Pooling Trustee and not sold until released by the Pooling Trustee, that twenty
percent (20%) of such Cybernet shares shall be released on the first anniversary
of the Closing Date, that twenty percent (20%) of such Cybernet shares shall be
released on the second anniversary of the Closing date, that twenty percent
(20%) of such Cybernet shares shall be released on the third anniversary of the
Closing date, that twenty percent (20%) of such Cybernet shares shall be
released on
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the fourth anniversary of the Closing date and that twenty percent (20%) of such
Cybernet shares shall be released on the fifth anniversary of the Closing date.
Furthermore, the Stock Purchase Agreement provides that the Trust Stock received
by the Pooling Trustee on behalf of the Beneficiary and to the extent as not
released by the Pooling Trustee (as provided in Section 2 below) will be
retransferred from the Pooling Trustee to Cybernet if (i) the Employment
Agreement (as enclosed in Exhibit 1) with the Beneficiary is terminated by
Vianet or Cybernet for cause according to Section 75 para 4 of the Austrian
Stock Corporation Act ("Aktiengesetz") or Section 27 of the Austrian Employment
Act ("Angestelltengesetz") or (ii) the Beneficiary resigns.
AGREEMENT
In consideration of the above and the mutual agreements hereinafter set forth,
the parties agree as follows:
1. Fiduciary Relationship. The Pooling Trustee will receive on the Closing
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date and hold thereafter in trust for the Beneficiary the Trust Stock and all
funds and dividends it receives in connection therewith, and will account for
and remit all such funds and dividends to the Beneficiary, as applicable. The
Fiduciary Relationship is entered into with respect to the obligations of the
Beneficiary towards Cybernet in accordance with the Stock Purchase Agreement.
2. Release and Transfer of Trust Stock to the Beneficiary. Subject to the
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retransfer of the Trust Stock to Cybernet as provided in section 3 hereinafter,
the Trust Stock to be held by the Pooling Trustee shall be released and
transferred to the Beneficiary at the earliest as follows:
- Twenty percent (20%) of the Trust Stock on the first
anniversary of the Closing date,
- an additional twenty percent (20%) of the Trust Stock on the
second anniversary of the Closing date,
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- an additional twenty percent (20%) of the Trust Stock on the
third anniversary of the Closing date,
- an additional twenty percent (20%) of the Trust Stock on the
fourth anniversary of the Closing date, and
- the remainder of the Trust Stock on the fifth anniversary of
the Closing date.
3. Retransfer of Trust Stock to Cybernet. Promptly following receipt of a
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notice from Cybernet that (i) the Employment Agreement (as enclosed in Exhibit
1) with the Beneficiary has been terminated by Vianet or Cybernet for cause
according to Section 75 para 4 of the Austrian Stock Corporation Act
("Aktiengesetz") or Section 27 of the Austrian Employment Act
("Angestelltengesetz") or (ii) the Beneficiary has resigned (accompanied by
evidence of the termination or resignation reasonably satisfactory to the
Pooling Trustee) the Trust Stock held by the Pooling Trustee and to the extent
as not released by the Pooling Trustee (as provided in Section 2 above) will be
retransferred from the Pooling Trustee to Cybernet
4. Duties of the Pooling Trustee. The Pooling Trustee shall forward any and
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all information received from Cybernet regarding the Trust Stock to the
Beneficiaries. Except as mutually agreed upon by the parties the Pooling Trustee
is not obliged to make efforts to any investigations, research or any other kind
of obtaining information with respect to the Trust Stock or Cybernet. The
Pooling Trustee shall ask for instructions of the Beneficiary before acting as
shareholder, including but without limitation to meeting of shareholders.
5. Liability of the Pooling Trustee. Any Liability of the Pooling Trustee
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under this Agreement will be limited in all respects solely to gross negligence
or willful misconduct on its part. The Pooling Trustee will not be liable for
any actions taken or omitted upon the advice of counsel or upon a reasonable
interpretation of any instructions or documents provided to it by Cybernet or
the Beneficiary that it reasonably believes to be genuine or duly authorized.
The Pooling Trustee may decline to act if it is in doubt as to its duties under
this Agreement and will not be liable for such failure to act
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6. Indemnification of the Pooling Trustee. The Beneficiary agrees to
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indemnify the Pooling Trustee in respect of, and hold the Pooling Trustee
harmless from and against, any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including but without limitation to interest,
court costs, fees of attorneys, accountants and other experts or other expenses
of litigation or other proceedings) suffered, incurred or sustained by the
Pooling Trustee, resulting from, arising out of or relating to the Trust Stock.
7. Reimbursement of Expenses. The Pooling Trustee will be entitled to be
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reimbursed for expenses incurred in performing the obligations hereunder.
8. Term and Termination. The term of this Agreement shall commence on the
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date of this Agreement and will continue for an indefinite period of time. The
Beneficiary and Cybernet or the Pooling Trustee may terminate this Agreement
with or without cause on thirty (30) days notice to the other. Upon termination
of this Agreement for any reason, the Pooling Trustee will promptly transfer the
Trust Stock to any Pooling Trustee as jointly named by the Beneficiaries and
Cybernet.
9. Confidentiality. During the Term of this Agreement the parties will
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maintain in confidence, and will not use to the detriment of another party any
written, oral, or other information obtained in confidence from another party in
connection with this Agreement, unless (a) such information is already known to
such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated hereby, or (c) the furnishing or use of such
information is required by legal proceedings.
10. Notice. All notices, requests, demands and other communications required
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or permitted hereunder must be in writing and deemed given and effective when
personally delivered or sent by facsimile with confirmation of receipt or when
deposited in the mail with postage prepaid to the party to which the same is
directed at the following addresses (or at such other addresses as will be given
in writing by the parties to one another):
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If to the Beneficiary: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Tel. ▇▇-▇-▇▇▇▇▇▇
Fax ▇▇-▇-▇▇▇▇▇▇▇
If to the Pooling Trustee: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Tel. ▇▇-▇-▇▇▇▇▇▇▇
Fax ▇▇-▇-▇▇▇▇▇▇▇▇▇
If to Cybernet: Cybernet Internet Services International; Inc.
Attn.: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tel: ▇▇-▇▇-▇▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇▇▇▇▇▇
With a copy to: Besner ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tel: ▇▇-▇▇-▇▇▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇▇▇▇▇▇
11. Actions by the Beneficiary and Cybernet. Any action or remedy of the
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Beneficiary and Cybernet under this Agreement, including without limitation,
modifications, amendments, supplements or termination, must be exercised jointly
by the Beneficiary and Cybernet.
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12. Miscellaneous.
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(a) Assignment. The Pooling Trustee may not assign any rights or
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delegate any duties it has assumed hereunder without the prior written consent
of the other party. This Agreement is personal to the Pooling Trustee.
(b) Governing Law and Choice of Forum. This Agreement will be governed
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by and construed in accordance with the internal laws of Austria. The parties
agree that any appropriate court located in Munich will have exclusive
jurisdiction of any case or controversy arising under or in connection with this
Agreement and will be a proper forum in which to adjudicate such case or
controversy. The parties expressly consent to personal jurisdiction and venue in
such courts.
(c) Entire Agreement/Amendment. This Agreement embodies the entire
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agreement of the parties hereto relating to the subject matter hereof and
supersedes all oral agreements, and to the extent inconsistent with the terms
hereof, all other written agreements. This Agreement may not be modified,
amended, supplemented or terminated except by a written instrument executed by
the Pooling Trustee, the Beneficiary and Cybernet.
(d) Severability. Each of the covenants and agreements herein above
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contained will be deemed separate, severable and independent covenants, and in
the event that any covenant will be declared invalid by any court of competent
jurisdiction, such invalidity will not in any manner affect or impair the
validity or enforceability of any other part or provision of such covenant or of
any other covenant contained herein.
(e) Captions and Section Headings. Captions and section headings used
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herein are for convenience only and are not a part of this Agreement and will
not be used in construing it.
(f) Fax Execution. This Agreement may be executed by delivery of
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executed signature pages by fax and such fax execution will be effective for all
purposes.
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EXECUTED AS OF DECEMBER 28, 1998.
/s/ Tristan Libischer
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[Tristan Libischer]
/s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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[▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇]
