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Exhibit 9
VOTING TRUST AGREEMENT
AGREEMENT made as of the ___ day of ________, 1998, by and among ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter sometimes
collectively referred to, together with any successor trustees, as the
"Trustees"); Softworks, Inc., a Delaware corporation (the "Company"); and
Computer Concepts Corp. (the "Parent" and, together with each "affiliate,"
within the meaning of Rule 405 promulgated under the Securities Act of 1933
(each, an "Affiliate"), of the Parent, other than the Company, that becomes a
Holder (as defined in Section 3) as provided herein, the "Stockholders").
WHEREAS, the Company is currently a majority-owned subsidiary of the
Parent;
WHEREAS, the Company and the Parent intend to conduct a public offering
(the "Public Offering") of a portion of the Company's common stock, par value
$.001 per share (the "Common Stock");
WHEREAS, immediately following the Public Offering, the Parent is expected
to continue to hold ________ shares or ______% of the outstanding shares of
Common Stock (all shares of Common Stock now or hereafter owned by the
Stockholders, to the extent that the certificates for such shares are required
to be deposited with the Trustees pursuant to this Agreement, are referred to
herein as the "Trust Shares");
WHEREAS, the Parent believes that the interests of the Company and its
interests as a holder of the Common Stock can best be served if specific
arrangements are established whereby voting power over the Trust Shares is
granted to the Trustees;
WHEREAS, for this purpose the Parent is hereby requesting the Trustees to
take and hold legal title to the Trust Shares for the purpose of creating a
voting trust; and
WHEREAS, the Trustees have consented to act under this Agreement for the
purposes hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good, valuable and sufficient consideration, the receipt and
adequacy of which is hereby acknowledged by all parties hereto, the parties
hereto promise, covenant, undertake and agree as follows:
1. TRANSFER OF STOCK TO TRUSTEE. The Parent, upon execution of this
Agreement, hereby assigns and transfers to the Trustees and deposits with the
Trustees all the certificates for all Trust Shares currently held by the Parent
for the purpose of vesting in the Trustees the right to vote and act and to
exercise other rights pertaining to the Trust Shares, as and to the extent, and
upon the terms and conditions and for the period set forth, in this Agreement.
The Parent hereby represents that the Trust Shares deposited by it hereunder
represent all of the shares of Common Stock of which the Parent is the record or
beneficial owner and that the Parent is the sole record, legal and beneficial
owner of all Trust Shares deposited by it hereunder. The Parent agrees to cause
any Affiliate of the Parent other than the
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Company (each, a "Parent Affiliate") that becomes the holder of Common Stock or
other voting securities of the Company, other than shares of Common Stock issued
upon the exercise of stock options granted to Parent Affiliates in accordance
with the Company's employee stock option plans, to deposit the certificates for
such securities with the Trustees. In the event that any Stockholder or Parent
Affiliate becomes the holder of additional Trust Shares after the date hereof,
it shall, within five business days of becoming the holder of such additional
Trust Shares, deposit with the Trustees certificates representing such
additional Trust Shares or shall direct the Company to issue such Trust Shares
directly to the Trustees which Trust Shares shall thereupon be subject to the
terms of this Agreement. All such stock certificates, unless issued by the
Company directly to the Trustees, shall be so endorsed, or accompanied by such
instruments of transfer as to enable the Trustees to cause such certificates to
be transferred into the name of the Trustees and to enable the Trustees to
become the record owner of the Trust Shares represented thereby in accordance
with the terms and provisions hereof, which the Trustees shall forthwith cause
to be done as hereinafter provided. Upon receipt by the Trustees of the
certificates for any such Trust Shares and, if necessary, the transfer of the
same into the name of the Trustees, the Trustees shall hold the same subject to
the terms of this Agreement and shall thereupon issue and deliver to the
Stockholder depositing Common Stock hereunder, or for whose benefit such Common
Stock was deposited, Voting Trust Certificates representing such Stockholders'
respective interests in the Common Stock deposited pursuant to this Agreement.
All certificates for the Company's capital stock transferred and delivered to
the Trustees pursuant hereto (unless issued directly to the Trustees as set
forth above) shall be surrendered by the Trustees to the Company and cancelled
and new certificates therefor shall be issued to and held by the Trustees in
their own names "As Trustees". The Trustees may designate a bank or trust
company as custodian to hold possession of any certificate delivered to the
Trustees pursuant hereto. The Parent hereby agrees and covenants that during the
term of this Agreement, it shall remain the sole beneficial owner within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of all shares of Common Stock or other securities
deposited or to be deposited by it hereunder and all Voting Trust Certificates
issued hereunder.
2. AGREEMENT. Copies of this Agreement and of every amendment or
supplement hereto shall be provided to each person depositing stock with the
Trustees under this Agreement and to the Company, and shall be filed in the
registered office of the Company in the State of Delaware, and shall be open to
inspection by any beneficiary of the trust under this Voting Trust, daily during
business hours. All Voting Trust Certificates shall be issued, received and held
subject to all of the terms of this Agreement. All persons, firms, corporations,
trusts, or organizations for whose benefit stock is deposited hereunder who
accept a Voting Trust Certificate issued hereunder, and their transferees and
assigns, shall be bound by the provisions of this Agreement with the same effect
as if they had executed this Agreement.
3. VOTING TRUST CERTIFICATES. Each Voting Trust Certificate to be issued
and delivered by the Trustees, as hereinbefore provided, shall state the number
of Trust Shares which it represents, shall be signed by the Trustees and shall
be in substantially the same form as EXHIBIT I hereto. The Trustee shall
maintain a Voting Trust Certificate register which will identify each holder of
a Voting Trust Certificate issued under this Agreement (each such person, a
"Holder") and the number of Trust Shares represented by each Voting Trust
Certificate.
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4. TRANSFER OF CERTIFICATES.
(a) Transfer of any Voting Trust Certificate shall be subject to any
restrictions, provisions and conditions applicable to the Common Stock which it
represents, whether imposed by law, specified on such stock certificates or
specified in this Agreement or in any other agreement. Subject to the foregoing,
the Voting Trust Certificates shall be freely transferable on the books of the
Trustees, at such office as the Trustees may designate, by the registered owner
thereof, either in person or by attorney duly authorized, upon surrender
thereof, according to the rules established for that purpose by the Trustees. If
a transfer of Voting Trust Certificates is so permitted, the Holder shall notify
the Trustee of the details of such transfer, including the name, address and
social security or tax identification number of the transferee and number of
Voting Trust Certificates being transferred, and shall surrender to the Trustee
the Voting Trust Certificate or Voting Trust Certificates being transferred,
properly endorsed for transfer. The Trustee, upon receipt of such notice and
Voting Trust Certificate(s), shall transfer the Voting Trust Certificate(s) on
the Voting Trust Certificate registry and issue a new Voting Trust Certificate
to the transferee. Until so transferred, the Trustee may treat the record Holder
as the owner of each Voting Trust Certificate for all purposes, notwithstanding
any notice to the contrary. As a condition to making any transfer or delivery of
Voting Trust Certificates, the Trustee may require compliance by the transferee
with any applicable federal or state statute and the payment of a sum sufficient
to pay for any stamp tax or other governmental charge in connection therewith.
Except as otherwise provided in this Agreement, no transfer of a Voting Trust
Certificate shall in any way remove the Trust Shares represented by such Voting
Trust Certificate from being held by the Trustee under this Agreement and any
transferee, by accepting such transfer, hereby consents to be bound by the terms
of this Agreement, and upon becoming a Holder shall be deemed to be a party
hereto as though an original signatory hereto. The Trustee shall not be required
to recognize any transfer of a Voting Trust Certificate not made in accordance
with the provisions hereof, unless the person claiming such ownership shall have
produced indicia of title satisfactory to the Trustee, and shall in addition
deposit with the Trustee indemnity satisfactory to the Trustees. Nothing set
forth herein shall be deemed to limit the ability of the Stockholders to grant a
pledge of the Voting Trust Certificates to any person.
(b) If a Voting Trust Certificate is lost, stolen, mutilated or
destroyed, the Trustees, in their discretion, may issue a duplicate of such
certificate upon receipt of: (a) evidence of such fact satisfactory to the
Trustees; (b) indemnity satisfactory to the Trustees; (c) the existing
certificate, if mutilated; and (d) the Trustees' reasonable fees and expenses in
connection with the issuance of a new trust certificate. The Trustees shall not
be required to recognize any transfer of a Voting Trust Certificate not made in
accordance with the provisions hereof, unless the person claiming such ownership
shall have produced indicia of title satisfactory to the Trustees and shall, in
addition, deposit with the Trustees indemnity satisfactory to them.
5. WITHDRAWAL OF COMMON STOCK IN ORDER TO EFFECT A SALE. Under the limited
circumstances set forth in this Section 5, shares of Common Stock represented by
Voting Trust Certificates may be withdrawn from this Voting Trust in order to
permit such shares to be sold (i) through NASDAQ or the principal national
securities exchange or automated quotation system upon which or through which
shares of Common Stock are then listed or quoted or (ii) in a private
transaction to a person or entity which is not a Parent Affiliate. At any
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time after the earlier of (i) one year after the closing of the Public Offering
or (ii) the date that SoundView Financial Group, Inc., the representative of the
underwriters of the Public Offering, releases such Holder from its "lock-up"
restrictions, such Holder who desires to sell shares of Common Stock represented
by its Voting Trust Certificates in accordance with the preceding sentence shall
direct the Trustees in writing to make such a sale on its behalf ("Sale
Notice"). The Trustees shall thereafter obtain a stock certificate for Common
Stock from the Company in the appropriate denomination and shall sell the shares
represented by such certificate, subject to any conditions relating to minimum
sales price or other matters which shall be set forth in the Sale Notice. If any
such conditions cannot be satisfied, the Holder shall be so advised, and the
Trustees shall be under no further obligation to make such a sale until a
subsequent Sale Notice is received. If the Trustees are successful in making the
requested sale, all net sale proceeds shall be remitted to the Holder upon
presentation and surrender of the Voting Trust Certificate or portion thereof
representing an interest in such sold shares, accompanied by properly executed
assignments thereof to the Trustees. Such sold shares shall no longer be
considered Trust Shares and shall no longer be subject to this Voting Trust,
except to the extent that such shares are acquired by Parent Affiliates.
6. TERMINATION PROCEDURE. Upon the termination of the Voting Trust at any
time as provided in Section 15, the Trustees shall mail within five business
days of such termination written notice of such termination to the registered
Holders at the addresses appearing on the transfer books of the Trustees. From
the date specified in any such notice (which date shall be fixed by the Trustees
in accordance with the provisions of this Agreement) the Voting Trust
Certificates shall cease to have any effect, and the Holders shall have no
further rights under this Voting Trust other than to receive certificates for
Trust Shares of stock of the Company or other property distributable under the
terms hereof upon the surrender of such Voting Trust Certificates. Within ten
business days after surrender for cancellation of Voting Trust Certificates by a
registered Holder, properly endorsed or accompanied by properly endorsed
instruments of transfer, if appropriate, at the place designated by the
Trustees, the Trustees shall deliver to such Holder, stock certificates for the
number of shares of such class or classes of the Company's capital stock or
other securities represented thereby as to which such Holder shall be entitled.
At any time subsequent to 30 days after the termination of this Agreement, the
Trustees may deposit certificates with Company representing the number of shares
of such class or classes of the Company's capital stock or other securities
represented by the Voting Trust Certificates then outstanding, with authority in
writing to Company to deliver such certificates in exchange for Voting Trust
Certificates. Upon such deposit all further liability of the Trustee for the
delivery of such certificates and the delivery or payment of dividends upon
surrender of the Voting Trust Certificates shall cease, and the Trustee shall
not be required to take any further action hereunder.
7. DIVIDENDS.
(a) If any dividend or distribution in respect of the Trust Shares
or other securities deposited with the Trustees is paid, in whole or in part, in
securities of the Company having voting powers of any nature, the Trustees shall
likewise hold, subject to the terms of this Agreement, the securities which are
received by it on account of such dividend or distribution (such securities,
together with the Trust Shares, the "Trust Securities"), and the Holder of each
Voting Trust Certificate representing securities on which such dividend or
distribution has been
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paid shall be entitled to receive a Voting Trust Certificate issued under this
Agreement representing such Trust Securities. Holders entitled to receive the
dividends or distributions referred to above shall be those registered as such
on the transfer books of the Trustees at the close of business on the day fixed
by the Company or by law for the taking of a record to determine those holders
of the Company's stock entitled to receive such dividends or distributions.
(b) If any dividend or distribution in respect of the Trust
Securities is paid other than in securities of the Company having voting powers
of any nature, then the Trustees shall promptly distribute the same among the
Holders registered as such at the close of business on the day fixed by the
Company or by law for the taking of a record to determine the holders of stock
entitled to receive such dividend or distribution. Such distribution shall be
made to such Holders ratably, in accordance with the number of Trust Securities
represented by their respective Voting Trust Certificates.
(c) Until the termination of this Agreement, each Holder shall be
entitled to receive from the Trustees payments equal to all cash dividends or
distributions upon the Trust Securities. In lieu of receiving such cash
dividends or distributions and paying the same to the Holders pursuant to the
provisions of this Agreement, the Trustees may instruct the Company in writing
to pay such dividends or distributions directly to the Holders of the Voting
Trust Certificates specified by the Trustees. Upon receipt of such written
instructions, the Company shall pay such dividends or distributions directly to
the Holders. The Trustees may at any time before such payment revoke such
instructions and by written notice to the Company direct it to make dividend or
distribution payments to the Trustees. The Company shall not be liable to any
Holder or any person claiming to be entitled to any such dividends or
distributions by reason of adhering to any written instructions by the Trustees.
8. SUBSCRIPTION RIGHTS. If any stock or other securities of the Company
are offered for subscription to the Holders of the Trust Securities, the
Trustees promptly, upon receipt of notice of such offer, shall mail a copy
thereof to each of the Holders. Upon receipt by the Trustees, at least three
days prior to the last day fixed by the Company for subscription and payment
(but in no event affording the Holder less than 10 days to consider such
subscription offer), of a request from any such Holder to subscribe in his
behalf (accompanied when due in accordance with the terms of the subscription
offer by the sum of money required to pay for such stock or securities), the
Trustees shall make such subscription and payment, and upon receipt from the
Company of the certificates for Trust Shares or securities so subscribed for,
shall issue to such Holder a Voting Trust Certificate in respect thereof if the
same be stock having voting powers of any nature, but if the same be securities
other than stock having voting powers of any nature, the Trustees shall mail or
deliver such securities to the Holder in whose behalf the subscription was made,
or may instruct the Company to make delivery directly to the Holder entitled
thereto.
9. DISSOLUTION OF THE COMPANY. In the event of the dissolution or total or
partial liquidation of the Company, whether voluntary or involuntary, the
Trustees shall receive the moneys, securities, rights, or property to which the
Holders are entitled, and shall distribute the same among the Holders in
proportion to their interests, as shown by the transfer books of the Trustees,
or the Trustees may in its discretion deposit such moneys, securities, rights,
or property
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with any bank or trust company as the Trustees may select, with authority and
instructions to distribute the same as above provided, and upon such deposit,
all further obligations or liabilities of the Trustees in respect of such
moneys, securities, rights, or property so deposited shall cease.
10. REORGANIZATION OR RECAPITALIZATION OF COMPANY. In the event Company is
merged into or consolidated with another corporation, or all or substantially
all of the assets of Company are transferred to another corporation pursuant to
a plan requiring Company's assets to be distributed in liquidation, or all the
Common Stock of Company is to be exchanged in connection with a reorganization
or recapitalization of Company, then in connection with such transaction or
series of transactions the term "Company" for all purposes of this Agreement
shall be taken to include any successor entity, and the Trustees shall receive
and hold under this Agreement any stock of, or other interests in, such
successor entity received on account of the ownership, as Trustees hereunder, of
the Trust Securities held hereunder prior to such merger, consolidation,
transfer, reorganization or recapitalization. Voting Trust Certificates issued
and outstanding under this Agreement at the time of such merger, consolidation,
transfer, reorganization or recapitalization may remain outstanding, or the
Trustee shall have the discretion to substitute for such Voting Trust
Certificates new Voting Trust Certificates in appropriate form, and the terms
"stock," "Common Stock" and "capital stock" as used herein shall be taken to
include any stock or evidence of an interest which may be received by the
Trustees in lieu of all or any part of the capital stock of Company.
In case any reduction of the Trust Shares or reorganization affecting
Trust Shares shall have been duly authorized, the Trustees are hereby authorized
to make such surrender of Trust Shares held by the Trustees hereunder, pro rata
on behalf of all Holders, as may be required under the terms pursuant to which
such reduction or reorganization is to be effected, and to receive and hold any
and all Common Stock or other securities of Company issued in exchange for such
surrendered Trust Shares. Following any such action, the Voting Trust
Certificates issued and outstanding pursuant hereto shall be deemed to represent
proportionately the number of Trust Securities resulting from such reduction or
reorganization.
11. RIGHTS, POWERS AND DUTIES OF TRUSTEES.
(a) Until the actual delivery to the Holders of stock certificates
in exchange for Voting Trust Certificates, and until the surrender of the Voting
Trust Certificates for cancellation, title to all the Company's stock deposited
hereunder shall be vested in the Trustees, and the Trustees shall have the
right, acting as hereinafter provided, to exercise, in person or by their
nominees or proxies, all stockholders' rights and powers in respect of all stock
deposited hereunder, including the right to vote thereon and to take part in or
consent to any corporate or stockholders' action of any kind whatsoever, whether
ordinary or extraordinary, to the extent they relate to any of the Approval
Actions (as defined below). The Holders, and not the Trustees, will have the
right to vote for the election of directors and all other matters submitted for
stockholder vote except for the Approval Actions, except that, if an independent
Trustee leaves office for any reason (including upon the expiration of his or
her term of office as a director) or is required to resign as a director of the
Company in accordance with Section 12 hereof due to such Trustee's failure to
remain "independent" (as such term is defined in Section 12(a) hereof), the
remaining independent Trustee or Trustees will have the right to vote for the
election of a successor director, which Trustee or Trustees will take direction
from the holders of
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a majority of the shares of the Common Stock not held by the Stockholders.
(b) The Company agrees that the following actions (the "Approval
Actions") will not be taken without the approval of the Trustees:
(i) the sale, lease, encumbrance, assignment, transfer or
conveyance of all or substantially all of the assets or capital stock of the
Company to an acquiring party, or the merger or consolidation of the Company
into or with another corporation, if the Parent or a Parent Affiliate is a party
to such transaction;
(ii) any filing by the Company or a subsidiary for relief as a
debtor under any bankruptcy, insolvency, reorganization or similar law, any
application by the Company or a subsidiary for the appointment of a receiver,
trustee, custodian or similar fiduciary for a substantial portion of the
consolidated assets of the Company and its subsidiaries, or the consent by the
Company or a subsidiary to any petition or application seeking similar relief
which is filed against the Company or the subsidiary, or the voluntary
liquidation, dissolution or winding up of the Company;
(iii) the declaration or payment of any dividends on any
capital stock of the Company;
(iv) the incurrence of any lien upon any significant portion
of the property of the Company, except (a) liens for taxes or (b) any statutory
lien;
(v) the acquisition of any equity security, or any right to
acquire any equity security, of any other corporation, other than the Company's
formation of one or more wholly-owned subsidiaries (or subsidiaries in which a
de minimis number of shares are held by a third party in order to comply with
local law), if such other corporation is the Parent or a Parent Affiliate;
(vi) the acquisition of assets from the Parent or a Parent
Affiliate;
(vii) except as set forth in this Agreement, any transaction
or proposed transaction between the Company and any "person," as such term is
used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company,
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company, or any corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company), pursuant to which such person becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities;
(viii) any transaction or proposed transaction between the
Company and an Affiliate or any transaction or proposed transaction between the
Company and the Parent for an aggregate consideration in excess of $1 million
unless a fairness opinion is obtained from SoundView Financial Group, Inc. or
any other independent investment banking institution of national standing
appointed by the Company; or
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(ix) any other transaction which requires stockholder approval
under Delaware law to the extent that any of the parties hereto have been
advised in writing by counsel that the transaction presents an actual conflict
of interest between the Stockholders and the other holders of the Common Stock.
(c) The Trustees shall not be responsible with respect to any action
taken pursuant to, or act committed or omitted to be done under this Agreement,
including without limitation, voting or giving written consents with respect to
the Trust Shares of stock held by it hereunder, provided such action or
commission or omission does not amount to gross negligence or willful misconduct
on their part. No Trustee shall be responsible for any vote or act committed or
omitted to be done by any predecessor or successor Trustee or otherwise except
for his own individual gross negligence or willful misconduct. No Trustee shall
be responsible for (i) management of the Company or (ii) any actions taken by
any person elected as a director of the Company or by the Company pursuant to
any vote cast or consent given by the Trustees. The Trustees may, in their
discretion, consult with legal counsel, who may also be legal counsel to the
Company, and any action taken in good faith by the Trustees in reliance upon the
advice of legal counsel shall be conclusive in favor of the Trustees against all
Holders and all other interested parties.
(d) Unless otherwise agreed by the Trustees, action by the Trustees
shall be taken at a meeting of Trustees or by a unanimous written consent in
lieu of a meeting. Meetings of the Trustees shall be held whenever called by any
Trustee. Any Trustee may participate in any meeting of the Trustees, be counted
for the purpose of determining a quorum thereof and exercise all rights and
privileges to which such Trustee might be entitled if such Trustee was
personally in attendance, including the right to vote, or any other rights
attendant to presence in person at such meeting, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. A majority of the Trustees
shall be necessary to constitute a quorum for the transaction of business and,
subject to the next paragraph, the acts of a majority of the Trustees shall be
the acts of the Trustees under this Voting Trust Agreement.
(e) A certificate signed by the Trustees shall be conclusive
evidence to all persons as to who are then serving as Trustees and as to any
action taken by the Trustees.
12. SUCCESSOR TRUSTEES.
(a) Any Trustee may resign effective 30 days after delivery of
written notice to all Holders and the Company. In the event of the death, legal
incapacity or resignation of [Parent trustee] or his successor, the Parent may
select and appoint a successor Trustee. If a successor is not selected within 20
days following the delivery of the notice referred to in the first sentence of
this Section 12 or the death or determination of legal incapacity of a Trustee,
as the case may be, a majority of the independent directors of the Company shall
select and appoint a successor Trustee. All Trustees selected and appointed
pursuant to this Section 12 must be directors of the Company. "Independent"
means any director of the Company who does not derive in excess of $60,000 of
compensation from the Parent or any Parent Affiliate. The Company covenants that
it will use is best efforts to insure that there are at least two independent
directors at any given time.
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(b) If at any time either ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇ or a
successor to either of them ceases to be independent, any such Trustee shall
resign as a Trustee and as a director of the Company. To the extent that any
such resignation is not tendered, a majority of any remaining independent
directors of the Company shall remove such Trustee in its capacity as Trustee.
In addition, a majority of any remaining independent directors of the Company
shall appoint a successor Trustee to replace any such Trustee who has resigned,
been removed, died or been declared legally incapable. The removal of a Trustee
and appointment of a successor Trustee shall each be effective 30 days after
delivery of written notice to all Holders and the Company.
(c) Each Trustee shall affix his or her signature to this Agreement
and each successor Trustee shall accept appointment or election hereunder by
affixing his or her signature to this Agreement, or a counterpart hereof, within
the 30-day period referred to in subsection (a) or (b), as applicable, of this
Section 12. By affixing its signatures to this Agreement, the Trustees and each
successor Trustee agree to be bound by the terms hereof.
13. INDEMNIFICATION OF TRUSTEE. The Trustees shall be entitled to be fully
indemnified by the Company to the fullest extent permitted by law, against all
costs, charges, expenses, loss, liability and damage (other than those for which
it is responsible under Section 13 hereof) incurred by it in the administration
of the Voting Trust or in the exercise of any power conferred upon the Trustees
by this Agreement. The Stockholders, and each of them, hereby covenant with the
Trustees that in the event that the assets of the Company or the proceeds of
insurance policies then in effect, if any, are insufficient to indemnify the
Trustees in accordance with the preceding sentence, the Stockholders, and each
of them, will in proportion to the amount of their respective Trust Shares of
capital stock subject to this Agreement, hold harmless and keep indemnified the
Trustees of and from all loss or damage which the Trustees may sustain or be put
to by reason of anything it may lawfully do in the execution of this Trust other
than as a result of its gross negligence or willful misconduct.
14. COMPENSATION AND REIMBURSEMENT OF TRUSTEE. The Trustee shall serve
without compensation, but it is expressly agreed that the Trustee shall have the
right to incur and pay such reasonable expenses and charges, to employ and pay
such agents, attorneys, and counsel as the Trustee may deem necessary and proper
with respect to the Trustee carrying out any of the Trustee's anticipated
activities or duties under this Agreement or interpreting or exercising any of
the Trustee's powers under this Agreement. Any such expenses or charges incurred
by and due to the Trustee that are paid by Company, where Company deems it
appropriate to its interests, may be deducted pro rata in the discretion of the
Trustee from the dividends or other moneys or property received by the Trustee
on the stock deposited hereunder. Nothing herein contained shall disqualify the
Trustee or successor Trustees, or incapacitate any of them from serving the
Company or any of its subsidiaries as officer or director, or in any other
capacity, and in any such capacity receiving compensation.
15. TERMINATION. This Agreement shall terminate upon the first to occur
of:
(i) the Stockholders ceasing to collectively hold 25% or more of the
Common Stock or other voting capital stock of the Company;
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(ii) any person other than the Stockholders or their Affiliates acquiring
a greater percentage of the Common Stock or other voting capital
stock of the Company than is then held by the Stockholders; or
(iii) the date that is 10 years after the date hereof.
16. SALE AND TRANSFER OF COMPANY'S STOCK. Except as otherwise provided in
this Agreement, the Trustees shall not sell, hypothecate, pledge, assign or
otherwise transfer the stock of the Company, or any interest whatsoever therein,
held pursuant to this Agreement.
17. NOTICES; DISTRIBUTIONS. Unless otherwise specifically provided in this
Agreement, any notice to or communication with the Holders hereunder shall be
deemed to be sufficiently given or made if (i) personally delivered or mailed,
postage prepaid, to such Holders at their respective addresses appearing on the
Voting Trust Certificate registry, which shall in all cases be deemed to be the
addresses of Holders for all purposes under this Agreement or (ii) sent by
facsimile to the facsimile number set forth on the Voting Trust Certificate
registry and confirmed by letter sent to the appropriate address set forth in
clause (i) above.
Any notice to the Trustees or Company hereunder shall be sufficient if
personally delivered or mailed, postage prepaid, by certified or registered
mail, at the following addresses, or sent by facsimile to the following
facsimile numbers and confirmed by letter:
The Trustees:
The Company:
Any party to this Agreement may change his or its address or facsimile
number for the giving of notices by giving notice of such changed address or
facsimile number in the manner set forth above. All notices given hereunder
shall be deemed given as of the date of personal delivery or two days after the
date of mailing, as the case may be, except that any notice of change of address
or any notice delivered by facsimile shall be deemed given when received.
All distributions of cash, securities, or other property hereunder by the
Trustees to the Holders may be made, in the discretion of the Trustees, by mail
(regular, registered or certified mail, as the Trustees may deem advisable), in
the same manner as hereinabove provided for the giving of notices to the
Holders.
18. MISCELLANEOUS.
(a) BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto, including future
Holders, and their respective heirs, personal representatives, successors and
assigns. No party may sell, assign, transfer or encumber such party's rights or
obligations under this Agreement, the Voting Trust Certificates or the Trust
Securities represented thereby, without the prior written consent of the other
parties hereto, except to the extent expressly permitted in this Agreement.
Neither the death, disability nor incapacity of a Holder shall in any way remove
the Trust Securities represented by such Holder's Voting Trust Certificate from
the Voting Trust or the
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terms of this Agreement.
(b) ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties and supersedes any prior understanding and
agreements between them respecting the subject matter hereof. There are no
representations, agreements, arrangements, or understandings, oral or written,
between or among the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument. The
execution by any one party of any counterpart shall be sufficient execution by
that party, whether or not the same counterpart has been executed by any other
party.
(d) GOVERNING LAW. The validity of this Agreement or any part
hereof, and the interpretation and enforcement of all provisions hereof, shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware.
(e) INVALIDITY. The invalidity of any term or provision of this
Agreement shall not affect the validity of the remainder of this Agreement and
this Agreement shall be enforced to the greatest extend permitted by law.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement under
seal, all as of the day and year first above written.
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
SOFTWORKS, INC.
By:
--------------------------
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[Name]
[Title]
COMPUTER CONCEPTS CORP.
By:
--------------------------
[Name]
[Title]
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EXHIBIT I
FORM OF VOTING TRUST CERTIFICATE
SOFTWORKS, INC.
VOTING TRUST CERTIFICATE NUMBER ____
_____________Shares
This certifies that the undersigned Trustees have received a certificate
or certificates in the name of ____________________ evidencing ownership of
________ shares of the Common Stock, $.001 par value per share, of SOFTWORKS,
INC. (the "Company "), a Delaware corporation, and that said shares are held
subject to all of the terms and conditions of a certain Voting Trust Agreement
dated as of the __ day of __________, 1998, by and among the Company, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter sometimes
collectively referred to, together with any successor trustees, as the
"Trustees") and certain stockholders of the Company (the "Agreement") and are
entitled to all of the benefits set forth in the Agreement. Copies of the
Agreement and of every amendment and supplement thereto are on file at the
office of the Company and shall be available for the inspection of every
beneficiary thereof during normal business hours. The holder of this
certificate, which is issued, received and held under the Agreement, by
acceptance hereof, assents to and is bound by the Agreement.
This Voting Trust Certificate has not been registered under the Securities
Act of 1933, as amended, and may not be sold or otherwise transferred unless (a)
covered by an effective registration statement under the Securities Act of 1933,
as amended, or (b) the Trustees and the Company have been furnished with an
opinion of counsel satisfactory to them to the effect that no registration is
legally required for such transfer.
Subject to the provisions of the foregoing, this certificate is
transferable only on the books of the Trustees, by the registered holder in
person or his duly authorized attorney, and the holder hereof, by accepting this
certificate, manifests his consent that the Trustees may treat the registered
holder hereof as the true owner for all purposes, except the delivery of stock
certificates, which delivery shall not be made without the surrender of this
certificate or otherwise pursuant to the aforesaid Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustees have hereunto executed this certificate
as of the _____ day of ________, 1998.
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., as Trustee
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as Trustee
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee
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