**Exhibit 9.1**

 

**VOTING TRUST AGREEMENT**

 

THIS AGREEMENT is made this 28thday of February, 2005, by and among SANFORD D. GREENBERG (“Greenberg”), EARNESTMATHIS (as initial voting trustee hereunder and his successors as votingtrustee hereunder, collectively referred to as the “Voting Trustee”) andVITACUBE SYSTEMS HOLDINGS, INC., a Nevada corporation (the “Corporation”).  This Agreement will not take effect unlessand until the Corporation’s securities are listed for trading on the AmericanStock Exchange.

 

BACKGROUND

 

A.                                   Greenberg is thebeneficial owner of the shares of common stock, par value $.001 per share, ofthe Corporation set forth in Annex 1 (the “Shares”).

 

B.                                     The Corporationhas filed a registration statement on Form SB-2 with the Securities and ExchangeCommission on December 7, 2004, covering the public offering of its securities(the “Public Offering”) and has applied to list its securities on the AmericanStock Exchange.

 

C.                                     As an inducementto The Shemano Group, Inc, and any other underwriters that may participate inthe Public Offering to continue their efforts in connection with the PublicOffering, Greenberg is willing to have the Shares voted during the term of theVoting Trust by the Voting Trustee.

 

NOW, THEREFORE, Greenberg, in order to assure the voting of the Sharesby the Voting Trustee does hereby transfer all of the Shares to the VotingTrustee for the purpose of vesting in the Voting Trustee the right to votethereon and to act in respect thereof, upon the following terms and conditions:

 

**1.****                                      Transfer of Shares to Voting Trustee.**  Greenberg agrees immediately to assign andtransfer to Voting Trustee the Shares for the purpose of vesting in VotingTrustee, as trustee of an active trust, the right to vote thereon and act inrespect thereof, for a period commencing on the date of this Agreement andterminating on the fifth-anniversary of the closing date of the PublicOffering, subject to earlier termination pursuant to Section 8. Greenbergagrees that all stock of all classes hereafter issued to him by Corporationduring the term of this Agreement shall be subject to this Agreement.  All shares of the Corporation so transferredto the Voting Trustee under this Agreement may be registered in the name of theVoting Trustee or in the name of “Voting Trustee of Shares of VitaCube SystemsHoldings, Inc. under Voting Trust Agreement dated February 28, 2005.”

 

**2.****                                      Voting Trust Certificate.**

 

2.1.                              Uponsurrender and cancellation of the stock certificates representing the Sharesheld by Greenberg, the Voting Trustee shall cause to be issued, in respect ofthe

 

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stock of the Corporation held by Greenberg,pursuant to the terms of this Agreement, a voting trust certificate insubstantially the following form:

 

This Voting Trust Certificate is subject tothe terms, restrictions, and conditions of a Voting Trust Agreement on filewith VitaCube Systems Holdings, Inc., dated February 28, 2005.  The securities represented by this VotingTrust Certificate have not been registered under the Securities Act of 1933(the “Act”) or applicable state securities laws (the “State Acts”), and shallnot be sold, pledged, hypothecated, donated or otherwise transferred (whetheror not for considerations) by the holder except upon the issuance to the VotingTrustee of a favorable opinion of holder’s counsel or submission to the VotingTrustee of such other evidence as may be satisfactory to counsel to the VotingTrustee, to the effect that any such transfer shall not be in violation of theAct and the State Acts.

 

VITACUBE SYSTEMS HOLDINGS, INC.

COMMON STOCK VOTING TRUST CERTIFICATE

 

THIS IS TO CERTIFY that on the      day of               ,2010, Sanford D. Greenberg shall be entitled to receive a stock certificate orcertificates, expressed to be fully paid and non-assessable, for                  shares of the common stock, of VitaCube Systems Holdings, Inc. (the “CommonStock”), and, in the meantime, to receive payments equal to the amount ofdividends or other distributions, if any, collected by the Voting Trustee upona like number of such shares standing in his name, subject to the terms andconditions of the Voting Trust Agreement dated February 28, 2005 (the “Agreement”).Until the actual transfer of such stock certificate or certificates, the VotingTrustee shall possess and shall be entitled subject to the terms of theAgreement, to exercise the right to vote in respect of any or all of suchCommon Stock except as in the Agreement expressly limited; it being expresslyagreed that no voting right shall pass to others by or under this certificate,or by or under any agreement express or implied. This certificate is issuedpursuant to, and the rights of the holder are subject to and limited by, theterms and conditions of the Agreement, which Agreement is on file in the principaloffice of the Corporation. The holder hereof, his guardians, personal and legalrepresentatives and assigns, by the acceptance hereof, expressly assent to allof the terms and conditions of the Agreement, including the assumption of suchobligations and liabilities as are mentioned therein. The shares represented bythis Certificate may be transferred as provided in the Agreement by theregistered holder hereof in person or by duly authorized attorney, uponsurrender of this certificate properly endorsed. Until so transferred, theVoting Trustee may treat the registered holder as owner hereof for all purposesexcept as otherwise provided in the Agreement. This certificate is not validunless duly signed by the Voting Trustee as of the date of issuance hereof.

 

No assignment, transfer, sale or alienation of this certificate or theshares represented hereby shall be valid or effective unless all terms,conditions and provisions hereof and in the Agreement above referred to shallhave been fully complied with.

 

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IN WITNESS WHEREOF, the undersigned Voting Trustee has signed thisCertificate, this       day of                 ,20  .

 

 
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|   | Voting Trustee |   |

 

(Form of Assignment)

 

FOR VALUE RECEIVED,             hereby sells, assigns, and transfers unto                 whose address is                                                                ,                shares of the Common Stock of the Corporation represented by this Voting TrustAgreement and hereby directs and instructs the Voting Trustee to transfer theshares on the books of the Corporation.

 
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|                                                                                                                                | [Signature] |

 

2.2.                              Theholder of any voting trust certificate shall immediately notify the VotingTrustee of any mutilation, loss or destruction thereof, and Voting Trustee may,in his discretion, cause one or more new certificates representing the samenumber of shares in the aggregate, to be issued to such holder upon thesurrender of the mutilated certificate, or in case of loss or destruction, uponsatisfactory proof of such loss or destruction, and the deposit of indemnity byway of bond or otherwise, in such form and amount and with such surety orsureties as Voting Trustee may require to indemnity him against loss orliability by reason of the issuance of such new certificate.

 

**3.****                                      Stock Dividends.** In the event thatthe Voting Trustee shall receive any additional stock certificates of theCorporation by way of dividend upon stock held by him under this Agreement, theVoting Trustee shall hold such stock certificates likewise subject to the termsof this Agreement, and shall issue voting trust certificates representing suchstock certificates to Greenberg.

 

**4.****                                      Distributions and Other Payments.**  Until the termination of this AgreementGreenberg shall be entitled to receive promptly from the Voting Trusteepayments equal to the amount of dividends (other than dividends represented bycapital stock of the Corporation) or other distributions, if any, collected bythe Voting Trustee upon the Shares, and any payment representing the amountreceived upon redemption or sale of any common stock represented by the votingtrust certificate or certificates held by Greenberg, subject, however, to theterms and conditions of this Agreement.

 

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**5.****                                      Recapitalization; Merger; Dissolution.**  In case any recapitalization of the stock ofCorporation shall have been duly authorized, Voting Trustee is herebyauthorized to surrender the Shares, as may be required under the terms pursuantto which such recapitalization is to be effected, and to receive and hold anyand all stock of Corporation issued in exchange for such surrendered stock.Following any such action, the voting trust certificates issued and outstandingpursuant hereto shall be deemed to represent a proportionately reduced numberof shares. Upon any duly authorized agreement of merger or share exchangebecoming effective, the Voting Trustee is authorized to surrender the Shares asmay be required thereby, and to receive and hold hereunder any and all stock orsecurities issued to him in exchange for such surrendered stock or otherwise.The voting trust certificates shall thereupon be deemed to represent thesecurities then received in exchange by the Voting Trustee. In the event of thedistribution of the assets of the Corporation upon the dissolution thereof,Voting Trustee shall promptly distribute the amount thereof received by him toGreenberg, upon the surrender of the voting trust certificates held by him.Upon the distribution of such assets by Voting Trustee, as aforesaid, thisAgreement shall terminate and all liability of the Voting Trustee for thedelivery of stock certificates hereunder shall cease and terminate.

 

**6.****                                      Subscription Rights.**  If any stock or other securities of theCorporation are offered for subscription to the holders of the Corporation’scommon stock, the Voting Trustee, promptly upon receipt of notice of suchoffer, shall mail a copy to Greenberg.  Upon receipt by the Voting Trustee of arequest by Greenberg to subscribe on his behalf to the securities so offeredaccompanied by the sum of money required to pay for the securities subject tothe subscription, the Voting Trustee shall make such subscription andpayment.  Upon receiving from theCorporation the certificates for the securities so subscribed for, the VotingTrustee shall issue to Greenberg a voting trust certificate with respect to thesecurities if the securities received have general voting powers.  If the securities received do not havegeneral voting powers, the Voting Trustee shall mail or deliver the securitiesto Greenberg, or may instruct the Corporation to make delivery directly toGreenberg.

 

**7.****                                      Acquisition of Additional Shares. **Greenberg will not, without theprior approval of the board of directors, acquire any additional shares ofcommon stock of the Corporation including any shares under Section 6, exceptfor shares of common stock acquired upon the exercise of existing stock optionsheld by Greenberg or stock options hereafter granted to Greenberg provided thatsuch options were approved by the Corporation’s compensation committee or boardof directors.

 

**8.****                                      Transfer of Voting Trust Certificates andUnderlying Shares.**

 

8.1.                              Subjectto the limitations set forth below and in compliance with federal and statesecurities law, Greenberg may sell, gift, donate, hypothecate, assign, orotherwise transfer the shares of the Corporation represented by the votingtrust certificate or certificates.  As acondition of transfer, the Corporation may require a favorable opinion ofholder’s counsel or submission to the Corporation of such other evidence as maybe satisfactory to counsel to the Corporation, to the effect that any suchtransfer shall not be in violation of the securities laws.  The Voting Trustee may rely on thedeterminations of the Corporation in this regard. The number of Shares that maybe sold or otherwise transferred

 

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under this provision is limited to the numberof shares that may be sold under Rule 144(e)(1) of the Act.  This limitation shall not apply to anytransfer in connection with any bridge financing in connection with the PublicOffering.  The transfer of the Shares shallbe restricted as provided in the lock-up agreement with The Shemano Group,Inc., as amended by the lock-up extension agreement, copies of which areattached as Annex 2.  Promptly uponreceipt of a request to transfer the shares of the Corporation represented bythe voting trust certificate and upon surrender of the certificate properlyendorsed, the Voting Trustee will submit a transfer request to the Corporation’stransfer agent to so transfer the shares held by the Voting Trustee.

 

8.2.                              Thevoting trust certificates may be transferred to any trust, limited liabilitycompany, or other person or entity controlled by Greenberg, where Greenbergremains the beneficial owner of the Shares under the Act.  Upon surrender of the voting trustcertificate duly endorsed by Greenberg, the Voting Trustee shall issue a votingtrust certificate to the transferee. Every transferee of any voting trust certificate shall by acceptance ofsuch trust certificate or certificates become a party to this Agreement withlike effect as though an original party. Such transferees shall be included within the term “Greenberg.”

 

**9.****                                      Termination.**  This Agreement shall terminate, in any event,on the fifth-anniversary of the closing date of the Public Offering.  This Agreement will terminate earlier on thehappening of any of the following events (1) the Corporation withdraws theRegistration Statement covering the Public Offering prior to it becomingeffective; (2) the number of shares of common stock of the Corporationbeneficially owned by Greenberg is less than 5% of the outstanding shares ofcommon stock of the Corporation; (3) the death of Greenberg; or (4) if afterthe closing of the Public Offering the Corporation’s securities are no longerlisted on the American Stock Exchange. Upon termination of this Agreement, theVoting Trustee, in exchange for, or upon surrender of, any voting trustcertificate then outstanding, shall, in accordance with the terms hereof, andout of the stock held by him hereunder, deliver proper certificates of stock ofthe Corporation to Greenberg and thereupon all liability of Voting Trustee, forthe delivery of said stock certificates shall cease and terminate.

 

**10.****                               Powers of Voting Trustee.**

 

10.1.                        Until theactual transfer of stock certificates to Greenberg hereunder the Voting Trusteeshall have the right, subject to the provisions of Section 9.2, to exercise, inperson or by his nominees or proxies, all stockholders’ voting rights andpowers in respect of the Shares, and to take part in or consent to anycorporate or stockholders’ action of any kind whatsoever.  The right to vote shall include the right tovote for the election of directors, and in favor of or against any resolutionor proposed action of any character whatsoever, which may be presented at anymeeting or require the consent of the Corporation’s stockholders. The VotingTrustee is specifically authorized by way of example, without limiting hisrights hereunder, to vote the Shares for, or to consent in respect thereof to,any increase or reduction of the stock of the Corporation, any agreement ofmerger, share exchange or the sale or other disposition of all, substantiallyall, or any part

 

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of the property, assets and franchises ofCorporation, or the dissolution of Corporation. The Voting Trustee shall have no right to sell or hypothecate theShares.

 

10.2.                        In votingthe Shares, the Voting Trustee shall vote the stock as directed in writing bythe Voting Trust Committee.  The VotingTrust Committee shall consist of all of the Corporation’s independentdirectors.  Directors of the Corporationwill be deemed to be independent if (a) they meet the definition of independentdirector for purposes of serving on the audit committee under the rules establishedby the American Stock Exchange, (b) they have no family relationship withGreenberg, and (c) they have no business relationship with Greenberg other thanin connection with the Corporation.   Theaction of a majority of the independent directors, acting at a meeting, or by awriting, without a meeting, shall constitute the action of the Voting TrustCommittee.  At any meeting of the VotingTrust Committee any member may vote in person or by proxy given to any othermember; and any member may give a power of attorney to any other member to signfor him in case of action of the Voting Trust Committee taken in writingwithout a meeting. If the Voting Trust Committee is deadlocked or fails todirect the Voting Trustee with respect to any action to be taken, the VotingTrustee shall vote the Shares in the same manner as the majority of votesreceived by the Corporation with respect to the matter.

 

**11.****                               Qualifications: Successor Voting Trustee.**   If a Voting Trustee shall cease to qualifyas the Voting Trustee, the Voting Trust Committee will appoint a successorVoting Trustee. The successor Voting Trustee may be the Chief ExecutiveOfficer, the President, the Chief Financial Officer, or one of the Corporation’sindependent directors.  An officer of theCorporation will qualify to serve as Voting Trustee so long as such personcontinues to serve as an officer of the Corporation and provided that suchperson is not a family member of Greenberg and does not have a businessrelationship with Greenberg outside the Corporation.  An independent director of the Corporationwill qualify to serve as Voting Trustee so long as such person continues to bean independent director of the Corporation. The right, powers, and obligations of the Voting Trustee shall be possessedby any successor Voting Trustee as though such successor had originally been aparty to this Agreement.

 

**12.****                               Liability of Voting Trustee/Voting TrustCommittee.** In directing the voting of the Shares, the members of theVoting Trust Committee shall exercise their best judgment to the end that thebusiness and affairs of the Corporation shall be properly managed; but theyassume no responsibility in respect of any action taken by them or the VotingTrustee under their direction.  Neitherthe Voting Trustee nor any member of the Voting Trust Committee shall incur anyresponsibility by reason of any error of law, or of any matter or thing done orsuffered or omitted, except for his own individual willful misconduct.  Neither the Voting Trustee nor any member ofthe Voting Trust Committee shall be required to give any bond or other securityfor the discharge of his duties under this Agreement.

 

**13.****                               Compensation; Indemnification.** Theperson acting as Voting Trustee shall not be entitled to any compensation forhis services as such.  The person actingas Voting Trustee shall be reimbursed for, and indemnified against and savedharmless from, any and all liabilities, costs, damages and expenses includingattorneys’ fees arising out of his ownership in trust of the Shares; and theVoting Trustee shall be entitled from time to time to be reimbursed by theCorporation for

 

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any such liabilities, costs,damages and expenses.  The members of theVoting Trustee Committee shall be reimbursed for, and indemnified against andsaved harmless by the Corporation from, any and all liabilities, costs, damagesand expenses including attorneys’ fees arising out of their direction of thevoting of the Shares under this Agreement.

 

**14.****                               Notices.** All notices to be givento the holders of voting trust certificates may be given by mailing the same tothe registered holders thereof at the addresses furnished by them to the VotingTrustee.  Any notice when mailed asherein provided shall be taken as though personally served on all the holdersof voting trust certificates, and such mailing shall be the only noticerequired to be given under any provisions of this Agreement.

 

**15.****                               Governing Law.**   This Agreement shall be governed by andconstrued under the laws of the state of Colorado.

 

**16.****                               Succession.**   This Agreement shall be binding upon andshall inure to the benefit of the parties, their heirs, successors, assigns andlegal representatives.

 

**17.****                               Entireties.**   This Agreement constitutes the entireagreement between the parties relating to its subject matter. No modificationshall be binding upon the parties unless in writing and approved by all partiesand consented to by all of the then members of the Voting Trust Committee.

 

**18.****                               Access to Trust Records.**  Atany reasonable time, the American Stock Exchange (or its legal representative)shall have the right to demand a copy of the Voting Trustee’s accounts. TheCorporation shall comply with all reasonable requests from the American StockExchange for documentation concerning actions taken by the Voting Trustee orany decisions made by the Voting Trustee Committee affecting the common stockof the Corporation, or its successors or assigns, subject to this Agreement.

 

**19.****                               Severability.**   If any provision of this Agreement is foundto be illegal or unenforceable for any reason whatsoever, this Agreement shallbe interpreted and construed without reference to such provision, and thebalance of this Agreement shall remain in full force and effect.

 

**20.****                               Paragraph Headings.**  The paragraph headings are inserted in thisAgreement for convenience only and are not intended to affect the terms of thisAgreement.

 

**21.****                               Survival.**  The respective agreements, covenants,representations, warranties, and other statements made by the parties to thisAgreement, and their respective obligations to be performed under thisAgreement, shall survive and remain in full force and effect following theexecution and closing of this Agreement.

 

**22.****                               Counterparts; Facsimiles.**   This Agreement may be executed incounterparts, each of which shall be deemed an original and which togethershall constitute a single instrument. This Agreement may be executed and delivered by facsimile transmission,all with

 

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the same force and effect as ifthe same was a fully executed and delivered original manual counterpart.

 

DATED as of the day and year first above mentioned.

 

 
| /s/ Sanford D. Greenberg          |                                               |
|-----------------------------------|----------------------------------------------------|
| Sanford D. Greenberg              |
|                              |
|                              |
| /s/ Earnest Mathis                |                                               |
| Earnest Mathis, as Voting Trustee |
|                              |
|                              |
| VITACUBE SYSTEMS HOLDINGS, INC.   |
|                              |
|                              |
| By:                               | /s/ Mary Pat O’Halloran                       |   |
|                              | Mary Pat O’Halloran, Chief Financial  Officer |
|                                   |                                                    |  |

 

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