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Exhibit 9.3
AMENDED AND RESTATED VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT, made and entered into
at Solon, Ohio, as of the 1st day of October, 1999 by and between XXXXX X.
XXXXXXX as voting trustee (the "Voting Trustee") of the voting trust created by
this Agreement, and such owners of common stock, $.001 par value, of ADVANCED
LIGHTING TECHNOLOGIES, INC., an Ohio corporation (the "Company") whose names are
listed on Exhibit "A" attached hereto (hereinafter sometimes separately referred
to as a "Shareholder" and collectively as the "Shareholders").
W I T N E S S E T H:
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WHEREAS, the Voting Trustee and the Shareholders desire to amend and
restate in its entirety the Voting Trust Agreement dated as of October 10, 1995,
as amended, among the Voting Trustee, the Shareholders, and Xxxxx Xxxxxxxx;
WHEREAS, the Shareholders desire that all of their shares of common
stock, $.001 par value of the Company set forth opposite their names on Exhibit
"A", and any other shares delivered to the Voting Trustee pursuant to Section
1(a) at the option of any Shareholder (the "Shares") be subject to the terms of
this Voting Trust Agreement;
WHEREAS, the Shareholders desire that all of the Shares be made subject
to the terms and conditions of this Agreement; and
WHEREAS, the Shareholders deem this Agreement to be in the best
interest of the Company and all of the Shareholders.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEPOSIT OF VOTING SHARES; ISSUANCE OF VOTING TRUST CERTIFICATES.
(a) The Shareholders agree to (i) forthwith deposit with the Voting
Trustee the certificate(s) evidencing all of the Shares owned by each such
Shareholder (the "Share Certificates"), duly endorsed for transfer to the Voting
Trustee or accompanied by proper instruments duly executed to effect the
transfer of such Shares to the Voting Trustee, and to accept in exchange
therefor a Voting Trust Certificate representing the number of Shares deposited
by such Shareholder or (ii) deliver to the Voting Trustee a duly executed
irrevocable proxy, substantially in the form of Exhibit "C" (a "Shareholder
Proxy"), with respect to any shares which are Pledged Shares as defined in
Section 7(e).
(b) Upon receipt of the Share Certificates pursuant to subsection
(a)(i) of this Section, the Voting Trustee shall cause to be issued and
delivered to each Shareholder a Voting Trust Certificate, substantially in the
form of Exhibit "B" with the blanks therein appropriately completed,
representing the number of Shares evidenced by the Share Certificates deposited
by each Shareholder. Voting Trust Certificates issued upon the transfer of, in
exchange for, or in addition to such Voting Trust Certificates, as provided in
this Agreement, shall be substantially in the form attached hereto as Exhibit
"B" with such appropriate variations, omissions, and insertions as may be
required.
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2. ISSUANCE OF VOTING SHARES TO THE VOTING TRUSTEE. The Voting Trustee
shall cause all Share Certificates deposited with him pursuant to Section 1
above to be surrendered to and cancelled by the Company, and shall cause the
Company to issue and deliver to the Voting Trustee new share certificates
representing the Shares in the name of the Voting Trustee, as voting trustee,
which shall contain a legend stating that the Share Certificates are issued
pursuant and subject to the provisions of this Agreement. The Company's stock
ledger and journal shall indicate that such share certificates are subject to
the provisions of this Agreement. Except as herein provided, all share
certificates issued and delivered to the Voting Trustee pursuant to this Section
2 shall at all times be and remain in the possession of the Voting Trustee or a
depository designated by the Voting Trustee. The Voting Trustee shall not
transfer any certificates representing Shares other than as provided in this
Agreement.
3. RECORDS OF VOTING TRUST CERTIFICATES.
(a) RECORDS. The Voting Trustee shall keep or cause to be kept books of
record of all Voting Trust Certificates issued pursuant to this Agreement, and
shall also fix and determine a place at which such books of record shall be kept
and at which Voting Trust Certificates may be transferred.
(b) INSPECTION OF RECORDS OF VOTING TRUST CERTIFICATES. Any owner of a
Voting Trust Certificate shall have the right to inspect the books of record of
the Voting Trust Certificates to be maintained by the Voting Trustee pursuant to
subsection (a) of this Section at the place at which such records are kept at
any reasonable time.
4. TRANSFER OF VOTING TRUST CERTIFICATES.
(a) All transfers of Voting Trust Certificates shall be recorded on the
books of record kept by the Voting Trustee. The Voting Trustee may treat the
record holder of the respective Voting Trust Certificates as the absolute owner
thereof for all purposes whatsoever and shall not be bound to recognize any
equitable interest in or claim to any such Voting Trust Certificate or the
Shares represented thereby on the part of any other party until transferred on
such books of record. The Voting Trustee shall not be required to make any
transfer of a Voting Trust Certificate upon such books of record except upon
surrender of a Voting Trust Certificate to be transferred, properly assigned in
such form as shall be acceptable to the Voting Trustee, accompanied by such
evidence as the Voting Trustee may reasonably require as to the authority of any
person other than the record holder thereof who may seek to effect any such
transfer and as to the genuineness of the appropriate signatures. Upon each such
transfer, the Voting Trust Certificates surrendered for transfer shall be
cancelled and the Voting Trustee shall issue a new Voting Trust Certificate to
the transferee and the transferee shall, by acceptance thereof, assent to the
terms and conditions of this Agreement. Any such transferee shall be required to
execute a supplemental copy of this Agreement.
(b) REPLACEMENT OF VOTING TRUST CERTIFICATES. In the event any Voting
Trust Certificate shall become mutilated, lost, or destroyed, the Voting
Trustee, under such conditions with respect to indemnity or otherwise as he, in
his discretion, may prescribe, may provide for the issuance of a new Voting
Trust Certificate in lieu of such lost or destroyed Voting Trust Certificate or
in exchange for such mutilated Voting Trust Certificate.
5. POWERS AND DUTIES OF VOTING TRUSTEE.
(a) RIGHT TO VOTE. The Voting Trustee shall be entitled to exercise all
shareholder rights of the Shareholders in respect of the Shares, including, but
not limited to, the right to exercise the voting rights of such Shares on each
matter submitted to the Company's shareholders for their vote, consent, waiver,
release, or other action and the right to take part in any corporate or
shareholders' action of the Company,
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whether ordinary or extraordinary, by proxy or otherwise. The right of the
Voting Trustee to exercise the voting rights of the Shares in accordance with
the terms hereof includes, but is not limited to, the exercise of voting rights
relating to fixing the number and the election of directors of the Company, the
changing of the Company's capital structure, the amendment of the Company's
Articles of Incorporation or Code of Regulations, the reclassification of the
Shares, the purchase of assets by the Company, and the merger, consolidation,
liquidation or dissolution of the Company. The Voting Trustee shall also have
the power to execute and deliver an irrevocable proxy (the "GE Proxy") with
respect to any Shares, including any Pledged Shares, to General Electric
Company, its successors and assigns ("GE"), or the designee of GE (the "GE
Proxyholder"). The owners of Voting Trust Certificates shall not have any right
under such Voting Trust Certificates or under this Agreement or otherwise, to
exercise the voting rights of such Shares or to take part in any corporate or
shareholders' action or to do or perform any act or thing that shareholders of
the Company are now or may hereafter become entitled to do or to perform, for so
long as the Shares owned by each such Shareholder are held by the Voting
Trustee, except to receive cash dividends and distributions when declared and
paid and to review the books and records of the Company during normal business
hours. Notwithstanding anything to the contrary, the Voting Trustee shall not
have the right to sell or otherwise transfer the Shares of any Shareholder.
(b) DISCRETION OF VOTING TRUSTEE. In exercising the voting rights of
the Shares, or in doing any act with respect to the control or management of the
Company or its affairs, or otherwise acting hereunder, the Voting Trustee shall
be free to exercise his full discretion and, if the Voting Trustee executes and
delivers an irrevocable proxy pursuant to subsection (a) of this Section, the GE
Proxyholder shall be free to exercise its full discretion. Notwithstanding
anything to the contrary, the Voting Trustee shall not have the right to sell or
otherwise transfer the Shares of any Shareholder.
(c) ACTING AS DIRECTOR OR OFFICER. The Voting Trustee and the GE
Proxyholder, or any representative of either of them, may act as a director, an
officer or an employee of the Company and may vote for himself as such and may
have an ownership interest in the Company. The Voting Trustee and the GE
Proxyholder, or any person with whom or which either of them may be associated,
or any entity of which any such person may be a member, or any corporation of
which any such person may be a shareholder, director, or officer, may contract
with the Company or otherwise have a financial interest in any matter or
transaction to which the Company may be a party or in which the Company may be
in any way concerned, as though he were not Voting Trustee or the GE
Proxyholder, but otherwise subject to law.
(d) COMPENSATION. The Voting Trustee shall serve without compensation.
The Voting Trustee shall be reimbursed for all reasonable expenses,
disbursements and advances incurred or made by the Voting Trustee in performance
of his duties hereunder. The owners of the Voting Trust Certificates agree to
reimburse and indemnify the Voting Trustee for all reasonable claims, expenses,
and liabilities incurred by him in connection with the discharge of his duties
under this Agreement. Any such claims, expenses, or liabilities shall be charged
to the Voting Trust Certificate owners, pro rata, and may be deducted from
dividends or other distributions to them, or may be made a charge payable as a
condition to the delivery of Share Certificates following the surrender to the
Voting Trustee of the Voting Trust Certificates, and the Voting Trustee shall be
entitled to a lien therefor on the Shares, funds, or other property in his
possession. The Voting Trustee shall disclose in reasonable detail on an annual
basis, all reimbursements received for reasonable expenses, disbursements,
advances incurred or made by the Voting Trustee in performance of his duties
hereunder.
(e) IMMUNITIES OF THE VOTING TRUSTEE. The Voting Trustee shall incur no
responsibility in his capacity as voting trustee, as a shareholder, or
otherwise, by reason of any error of judgment or mistake of law or other
mistake, for any act or omission of any agent or attorney, for any
misconstruction of this Agreement, or for any action of any sort taken or
omitted hereunder or believed by him to be in accordance
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with the provisions and intent hereof or otherwise, except solely for his own
individual willful misconduct. In the discharge of his duties hereunder, the
Voting Trustee shall be fully protected in acting in reliance upon any
instrument, document, or paper believed by him to be genuine and to have been
executed by the proper parties; and, shall likewise be fully protected in
issuing any Voting Trust Certificate or in taking or refraining from taking any
action hereunder in reliance upon any certificate or certificates purporting to
be duly signed, as to the existence or non-existence of any fact or facts or the
performance or non-performance of any act or acts, and may accept as conclusive
any statement made in any such certificate. The Voting Trustee shall not be
required to give bond or security for the discharge of his duties under this
Agreement. The Voting Trustee, may in his discretion, consult with counsel to be
selected by him and shall incur no liability in respect of any action taken on
the advice of any such counsel.
(f) DIVIDENDS. The record owner of each Voting Trust Certificate shall
be entitled to receive his pro rata share of any dividends paid or distributed
by the Company upon the Shares represented by the Voting Trust Certificates and
all other corporate distributions made by the Company in respect of such Voting
Shares; provided, however, that, if any such dividend or distribution includes
shares of capital stock of the Company with voting rights, the certificates
representing such shares of stock shall be deposited with the Voting Trustee
subject to the terms of this Agreement, and the owner of the Voting Trust
Certificate evidencing the Shares upon which such dividend or distribution is
made shall be entitled to receive new Voting Trust Certificates representing
such newly-deposited shares of capital stock with voting rights.
The record date fixed by the Company for the purpose of the payment of
any dividend or for the making of any other distribution shall be the record
date for the purpose of payment or distribution to the owners of Voting Trust
Certificates, and whenever any such record date shall be fixed, the owners of
record of Voting Trust Certificates at the date so fixed shall exclusively be
entitled to participate in the payment or distribution. Upon receipt by the
Voting Trustee of any dividend or other distribution in respect of any Shares
held by the Voting Trustee, the Voting Trustee shall promptly distribute the
funds or property so received by him to the owners of Voting Trust Certificates
to whom such funds or property should have been distributed by the Company if
the foregoing provisions hereof had been observed.
Notwithstanding the foregoing provisions of this Section 5, if the
Company shall reclassify its Shares, reorganize, sell all or substantially all
of its assets with or without dissolution, consolidate with or merge into
another corporation, or if another corporation shall merge into the Company, the
shares of capital stock into which the Shares then on deposit hereunder shall be
reclassified and any shares of capital stock issued in exchange or substitution
for the Shares then on deposit hereunder shall, if they are non-voting shares,
be distributed in accordance with the provisions of this Agreement directly to
the record owners of outstanding Voting Trust Certificates, issued in respect of
such Shares; or, if they are voting shares, they shall become subject to the
terms and conditions of this Agreement as if such voting shares had been
originally deposited hereunder, and shall be deposited with the Voting Trustee,
and the owner of outstanding Voting Trust Certificates shall be entitled to
receive new Voting Trust Certificates representing such newly deposited shares
of capital stock with voting rights.
(g) DEDUCTIONS FOR DISTRIBUTIONS. There shall be deducted and withheld
from every distribution of every kind under this Agreement any taxes,
assessments, or other charges that may be required by law to be deducted or
withheld, as well as expenses and charges incurred pursuant to Section 5(e), to
the extent that the expenses and charges remain unpaid or unreimbursed.
6. RESIGNATION OF VOTING TRUSTEE.
(a) RESIGNATION OF VOTING TRUSTEE. The Voting Trustee may at any time
resign by delivering to (i) the owners of the Voting Trust Certificates and
Pledged Shares and (ii) GE, his resignation
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in writing, to take effect not less than ten (10) days after delivery. Promptly
following the effectiveness of such resignation, the Voting Trustee shall
transfer any property held by the Voting Trustee to the successor Voting
Trustee.
(b) DEATH OR DISABILITY OF VOTING TRUSTEE. The rights and duties of the
Voting Trustee shall terminate on his death or disability and no interest in any
of the property owned or held hereunder nor any of the rights or duties of the
Voting Trustee may be transferred by will, devise, succession, or in any manner,
except as provided in this Agreement. The heirs, administrators, and executors
of the Voting Trustee shall, however, have the right and absolute duty to convey
any property held by the Voting Trustee to the successor Voting Trustee, if any,
or promptly to the Shareholders promptly upon termination of this Agreement. For
purposes of this Agreement, disability shall mean the inability of the Voting
Trustee to perform satisfactorily his duties hereunder for a period of 120 days
in the aggregate out of 150 consecutive days as a result of a physical or mental
illness or other disability, which, in the written opinion of a physician
resident of recognized ability and reputation, makes it highly likely that such
illness or disability will continue for a significant period of time.
(c) SUCCESSOR VOTING TRUSTEE. If, for any reason, the Voting Trustee
ceases to be Voting Trustee, a successor Voting Trustee shall be designated by
GE. If GE fails to designate a successor Voting Trustee, or if such successor
fails to accept the rights and duties of the Voting Trustee, within 45 days of
notice of the death, disability, or resignation of the Voting Trustee, the
Shareholders owning a majority of the Shares may designate the successor Voting
Trustee. If the Shareholders fail to so designate a successor Voting Trustee
within 60 days following notice of the death, disability, or resignation of the
Voting Trustee, any Shareholder may petition any court of competent jurisdiction
in the County of Cuyahoga, State of Ohio for appointment of a successor Voting
Trustee. Upon acceptance of designation as successor Voting Trustee, the
successor Voting Trustee shall have all of the rights and duties of the Voting
Trustee hereunder.
7. TERMINATION.
(a) DURATION. Except as otherwise provided in Sections 7(b) and (c),
this Agreement shall terminate on the earlier of: (i) April 1, 2009; or (ii) the
date upon which all of the Shares are acquired by the Company and/or any
shareholders of the Company that are not a party to this Agreement.
(b) TERMINATION BY VOTING TRUSTEE. This Agreement may, at any time, be
terminated by the Voting Trustee with the prior written consent of GE. Written
notice of such termination shall be given by the Voting Trustee to all of the
owners of the outstanding Voting Trust Certificates and Pledged Shares pursuant
to the provisions of Section 8 of this Agreement. Such notice shall specify the
time and manner of delivery of certificates representing Shares following the
surrender and cancellation of the respective Voting Trust Certificates and
Shareholder Proxies as described in Section 7(d) below.
(c) TERMINATION UPON SALE. Upon the transfer for value of economic
beneficial ownership of any Shares to anyone other than a Shareholder, provided
such Shares transferred are either registered or are exempt from registration
under the Securities Act of 1933, as amended, and such transfer is made in
accordance with any agreements entered into by the Company or the Shareholder
with any underwriters which may restrict the transfer of such Shares for certain
periods of time, such transferred Shares shall no longer be subject to this
Agreement.
(d) OBLIGATIONS OF VOTING TRUSTEE UPON TERMINATION OR TRANSFER. Upon
the termination of this Agreement or transfer of Shares pursuant to subsection
(c) of this Section, the owners of the Voting Trust Certificates shall surrender
their respective Voting Trust Certificates to the Voting Trustee or, upon the
Voting Trustee's death or disability, the Secretary of the Company who shall
deliver to the Company the
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certificates representing Shares, and the Secretary of the Company shall then
issue or cause to be issued certificates representing the Shares to the
appropriate respective owners of the Voting Trust Certificates. If, at the
expiration of four months after termination of this Agreement, any Voting Trust
Certificate shall not have been surrendered to the Voting Trustee he may, in his
discretion, and if acceptable to the Secretary of the Company, deliver the
certificates representing such Shares to the Secretary of the Company to be held
by the Company for the owners of any such Voting Trust Certificates to be
delivered to such owners upon surrender of their respective Voting Trust
Certificates, whereupon all responsibilities of the Voting Trustee with respect
thereto shall cease; provided, however, if the Voting Trustee shall have died or
become disabled, the shares shall be held by the Company for the owners of any
such Voting Trust Certificates to be delivered to such owners upon surrender of
their respective Voting Trust Certificates whereupon all responsibilities of the
Company with respect thereto shall cease. Notwithstanding the termination of
this Agreement, the Voting Trustee or upon the Voting Trustee's death or
disability, the Secretary shall thereafter have the power to take or cause to be
taken such further and other action as he may deem necessary or desirable to
conclude promptly the duties imposed upon him in this Agreement; provided
however, that after the termination of this Agreement, he shall have no
authority to exercise any voting rights of the Shares.
(e) PLEDGING OF SHARES. The Shareholders may pledge any portion of
their Shares ("Pledged Shares") to secure the loans ("Loans") and such Pledged
Shares shall not be subject to the restrictions contained herein provided that
any such Shareholder delivers to the Voting Trustee a duly executed Shareholder
Proxy with respect to such Shares. Upon the repayment of such Loans and the
cancellation of such pledge, the Pledged Shares shall again be subject to the
terms of this Agreement and the restrictions contained herein. In connection
with the pledging of Shares, the owners of the Voting Trust Certificates shall
surrender their Voting Trust Certificates to the Voting Trustee or, upon the
Voting Trustee's death or disability, the Secretary of the Company, who shall
deliver to the Company the certificates representing the Pledged Shares, and the
Secretary of the Company shall issue or cause to be issued certificates
representing the Pledged Shares to the appropriate respective owners of the
Voting Trust Certificates to be delivered to such owners upon surrender of their
respective Voting Trust Certificates. Upon repayment of the Loans and the
cancellation of such pledge and the return of the Pledged Shares to the
Shareholder, such Shareholder shall immediately deliver the Pledged Shares to
the Voting Trustee in accordance with Section 1 of this Agreement. The Voting
Trustee or upon the Voting Trustee's death or disability, the Secretary shall
have the power to take or cause to be taken such further and other action as he
may deem necessary or desirable to conclude promptly the duties imposed upon him
in this Section; provided however, he shall have no authority to exercise any
voting rights of the Shares.
8. NOTICE.
(a) NOTICE TO OWNERS OF VOTING TRUST CERTIFICATES AND PLEDGED SHARES.
All notices to be given to owners of Voting Trust Certificates and Pledged
Shares may be given by personally delivering or mailing the same to such record
owners at the last addresses furnished in writing by such owners to the Voting
Trustee, and any notice when so delivered or mailed shall be considered as
served on the respective owners of Voting Trust Certificates and Pledged Shares.
(b) NOTICE TO VOTING TRUSTEE. Any notice required or permitted to be
given hereunder to the Voting Trustee shall be given by personally delivering or
mailing the same to Xxxxx X. Xxxxxxx, 0000 X. Xxxxxx Xxxx, Xxxxx Xxx, Xxxxxxxxx,
Xxxx 00000 or such other address as shall be furnished in writing by the Voting
Trustee to the owners of Voting Trust Certificates and Pledged Shares.
9. PAYMENT OF TAXES. If at any time any tax is payable by the Voting
Trustee in respect of the ownership of the Voting Shares held by him or in
respect of any dividends, distributions, or other rights in respect of the
Shares, the tax may be paid out of any assets of the Voting Trust created by
this
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Agreement or any dividends or distributions received by the Voting Trustee;
provided, however, that the Voting Trustee shall be fully reimbursed by the
Shareholders, on a pro rata basis based upon Share ownership, for any such
payments by the Voting Trustee not satisfied out of the assets of the Voting
Trust or dividends or distributions received by the Voting Trustee.
10. AMENDMENT. If, at any time, the Voting Trustee, with the prior
written consent of GE, shall deem it desirable to amend this Agreement in any
respect, he shall give notice of such proposed amendment to the owners of the
outstanding Voting Trust Certificates and Pledged Shares. Such amendment shall
become effective upon the written consent of the owners of a majority in
interest of the (i) outstanding Voting Trust Certificates based on the number of
Shares represented by such Voting Trust Certificates and (ii) the Pledged
Shares, or at a meeting of Shareholders. If the Voting Trustee deems it
desirable to have a meeting to approve any proposed amendment, the Voting
Trustee shall give notice, which shall be in writing and be given at least
fifteen (15) days prior to the proposed meeting, shall state that the purpose of
the meeting is to consider the amendment of this Agreement and shall be
accompanied by a copy of the proposed amendment. If at such meeting the proposed
amendment or any modification thereof shall be approved by the owners of a
majority in interest of the (i) outstanding Voting Trust Certificates based on
the number of Shares represented by such Voting Trust Certificates and (ii) the
Pledged Shares, a certificate to that effect shall be made and verified by a
Secretary elected at such meeting and filed with the Voting Trustee. Upon such
written consent or approval and the filing of such written consents or said
certificate with the books of record kept by the Voting Trustee, the proposed
amendment or modification thereof shall become a part of this Agreement with
like force and effect as if originally incorporated herein.
11. MISCELLANEOUS.
(a) ACCEPTANCE BY VOTING TRUSTEE. The Voting Trustee accepts the trust
hereunder and agrees to perform the same upon the terms and conditions hereof.
(b) PARTIES TO AGREEMENT. This Agreement shall be binding upon and
shall operate for the benefit of the Shareholders and the Voting Trustee and
their respective heirs, estates, personal representatives, successors and
permitted assigns, and shall be binding upon any transferee of Shares or Voting
Trust Certificates from a Shareholder. Subject to the terms of Section 7(c), the
name of any transferee of Shares or Voting Trust Certificates from a Shareholder
shall be added or be deemed to be added to the attached Exhibit "A" and such
persons shall be considered Shareholders for purposes of this Agreement.
(c) ENTIRE AGREEMENT. This Agreement contains the entire understanding
among the parties and supersedes any prior understanding and agreements between
them respecting the within 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.
(d) SURVIVAL. This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators successors, and assigns of the
parties hereto.
(e) 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.
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(f) FRACTIONAL SHARES. Whenever necessary, the Voting Trustee may issue
Voting Trust Certificates for fractional Shares.
(g) GENDER; NUMBER. Whenever the context of this Agreement requires,
the masculine gender includes the neuter or feminine, and the singular number
includes the plural.
(h) EFFECTIVENESS OF AGREEMENT AND AMENDED AND RESTATED AGREEMENT. This
Agreement shall become effective when it shall be signed by the Voting Trustee
and on behalf of each Shareholder. This Amended and Restated Voting Trust
Agreement shall become effective upon approval of this Amended and Restated
Voting Trust Agreement, at a meeting of Shareholders, in accordance with the
Agreement as in effect on the date of such meeting, whether or not this Amended
and Restated Voting Trust Agreement is executed by any individual Shareholder.
(i) 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 Ohio.
(j) INVALIDITY. The invalidity of any term or provisions of this
Agreement shall not affect the validity of the remainder of this Agreement and
this Agreement shall be enforced to the greatest extent permitted by law.
(k) HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(l) GE RIGHTS. The obligation to obtain GE's consent in Sections 7 and
10, and the rights of GE to notice and to designate a successor Voting Trustee
in Section 6 shall be effective on and after the date on which GE makes an
equity investment in the Company in an amount not less than $20,000,000, and
shall terminate as provided in the agreements related to such equity investment,
at all other times such references to GE shall be of no force and effect.
IN WITNESS WHEREOF, the parties hereto have signed the attached
counterpart signature pages of this Agreement as of the day and year first above
written.
(Agreement and Signature Lines Continue on Following Pages)
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
VOTING TRUSTEE:
/s/ Xxxxx X. Xxxxxxx
--------------------
XXXXX X. XXXXXXX
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxx X. Xxxx
-----------------
XXXXX X. XXXX
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxx Xxxxx
---------------
XXXXX XXXXX
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXX X. XXXXXX
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxx Xxxxx Xxxxxx Trust dated August 24, 1995
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxxxxxx Xxxx Xxxxxxx Trust dated August 24, 1995
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxxxxxx Xxx Roller Trust dated August 24, 1995
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxx Xxxxx Xxxxxx Long-Term Trust
dated September 24, 1995
Date: October 1, 1999
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17
This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxxxxxx Xxxx Xxxxxxx Long Term Trust
dated September 24, 1995
Date: October 1, 1999
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18
This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
XXXXXX X. XXXXXX as Co-Trustee
of the Xxxxxxxx Xxx Roller Long Term Trust
dated September 24, 1995
Date: October 1, 1999
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19
This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxx X. Xxxxxxx
--------------------
XXXXX X. XXXXXXX
Date: October 1, 1999
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20
This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxx X. Xxxxxxx
-------------------
XXXX X. XXXXXXX
Date: October 1, 1999
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21
This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, Voting Trustee, and certain Shareholders of the Company on October 1,
1999. The undersigned parties hereby agree to be bound by the terms thereof.
SHAREHOLDER:
/s/ Xxxxxxxxx Xxxxxxx
---------------------------
XXXXXXXXX XXXXXXX
Date: October 1, 1999
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This page constitutes a counterpart signature page to the Amended and
Restated Voting Trust Agreement made and entered into by and among Xxxxx X.
Xxxxxxx, as executor of the Estate of Xxxxx X. Xxxxxx, Voting Trustee, and
certain Shareholders of the Company on October 1, 1999. The undersigned parties
hereby agree to be bound by the terms thereof.
SHAREHOLDER:
National City Bank, as executor
of the Estate of Xxxxx X. Xxxxxx
By: /s/ A. S. Xxxxxxxx,
--------------------------------
Name: National City Bank, Executor
------------------------------
Title: A.S. Xxxxxxxx, Vice President
------------------------------
Date: April 13, 1999
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EXHIBIT "A"
SHAREHOLDERS NUMBER OF SHARES
------------ ----------------
Xxxxxx X. Xxxxxx 254,398
Estate of Xxxxx X. Xxxxxx 268,917
Xxxxx X. Xxxx 296,917
Xxxxx Xxxxx 330,874
Xxxxx X. Xxxxxxx 155,262
Xxxx X. Xxxxxxx 146,239
Xxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxx 306,377
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxx Xxxxx Xxxxxx Trust) 4,708
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxxxxxx Xxxx
Xxxxxxx Trust) 4,208
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxxxxxx Xxx
Roller Trust) 9,708
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxx Xxxxx Xxxxxx
Long-Term Trust) 17,261
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxxxxxx Xxxx Xxxxxxx
Long-Term Trust) 17,261
Xxxxxx X. and Xxxxxxxx X. Xxxxxx
(Co-Trustees of Xxxxxxxx Xxx Roller
Long-Term Trust) 17,268
24
EXHIBIT "B"
VOTING TRUST CERTIFICATE
ADVANCED LIGHTING TECHNOLOGIES, INC.
------------------------------------
No. _______________ _____ Shares of
Common Stock
XXXXX X. XXXXXXX, the Voting Trustee under an Amended and Restated
Voting Trust Agreement dated _________, 1999 (the "Agreement"), having received
certain shares of common stock of Advanced Lighting Technologies, Inc., an Ohio
corporation (the "Company"), pursuant to the Agreement, hereby certifies that
_________________________ will be entitled to receive a certificate for
__________ fully paid shares of common stock, without par value, of the Company,
on the expiration or termination of the Agreement.
IN WITNESS WHEREOF, the Trustee has executed this Certificate this ____
day of __________, ______.
------------------------------------- --------------------------------
XXXXX X. XXXXXXX, Voting Trustee
Name:________________________________
-------------------------------------
Name:________________________________
STATE OF OHIO )
) SS:
COUNTY OF ______ )
The foregoing instrument was acknowledged before me this _____ day of
____________, _____, by _____________________, an individual, as his free act
and deed.
---------------------------------
Notary Public
25
EXHIBIT "C"
IRREVOCABLE PROXY
ADVANCED LIGHTING TECHNOLOGIES, INC.
------------------------------------
1. The undersigned shareholder ("Shareholder"), holder of the number of
shares of common stock of Advanced Lighting Technologies, Inc., an Ohio
corporation (the "Company"), indicated opposite his signature, hereby
irrevocably appoints and constitutes XXXXX X. XXXXXXX ("Proxy Holder")
as his attorney and proxy to exercise all shareholder rights of the
Shareholder in respect of the Shares, including, but not limited to,
the right to exercise the voting rights of such Shares on each matter
submitted to the Company's shareholders for their vote, consent,
waiver, release, or other action and the right to take part in any
corporate or shareholders' action of the Company, whether ordinary or
extraordinary, by proxy or otherwise. The right of the Proxy Holder to
exercise the voting rights of the Shares in accordance with the terms
hereof includes, but is not limited to, the exercise of voting rights
relating to fixing the number and election of directors of the Company,
the changing of the Company's capital structure, the amendment of the
Company's articles of Incorporation or Code of Regulations, the
reclassification of the Shares, the purchase of assets by the Company,
and the merger, consolidation, liquidation or dissolution of the
Company. The Proxy Holder shall also have the power to execute and
deliver an irrevocable proxy (the "GE Proxy") with respect to the
Shares to General Electric Company, its successors and assigns ("GE"),
or the designee of GE (the "GE Proxyholder"). The Shareholder shall not
have any right to exercise the voting rights of such Shares or to take
part in any corporate or shareholders' action or to do or perform any
act or thing that shareholders of the Company are now or may hereafter
become entitled to do or to perform, for so long as the Shares owned by
such Shareholder are subject to this Irrevocable Proxy pursuant to
Section 3 hereof, except to receive cash dividends and distributions
when declared and paid and to review the books and records of the
Company during normal business hours. Notwithstanding anything to the
contrary, the Proxy Holder shall not have the right to sell or
otherwise transfer the Shares of the Shareholder. The power and duties
of the Proxy Holder shall be identical to the power and duties of the
Proxy Holder in his capacity as Voting Trustee under a certain Amended
and Restated Voting Trust Agreement dated _______, 1999 ("Voting Trust
Agreement") as set forth in Sections 5 and 6 of the Voting Trust
Agreement, which are hereby incorporated by reference.
2. In exercising the voting rights of the Shares, or in doing any act with
respect to the control or management of the Company or its affairs, or
otherwise acting hereunder, the Proxy Holder shall be free to exercise
his full discretion and, if the Proxy Holder executes and delivers an
irrevocable proxy pursuant to Section 1 hereof, the GE Proxyholder
shall be free to exercise its full discretion. Notwithstanding anything
to the contrary, the Proxy Holder shall not have the right to sell or
otherwise transfer the Shares of the Shareholder.
3. In compliance with Ohio Revised Code, Section 1701.48 this Irrevocable
Proxy is made irrevocable and executed in consideration of the release
of the Shares from the Voting Trust Agreement to permit Shareholder to
obtain a margin loan from ___________________ ("Lender") provided,
however, upon repayment of the Margin Loan and release of the shares by
Lender, the Shares shall again become subject to the Voting Trust
Agreement. This proxy is made irrevocable so as to secure the Proxy
Holder's right as Voting Trustee under the Voting Trust Agreement to
vote the Shares upon the release of the Shares from the Voting Trust
Agreement and to secure Shareholder's agreement that the Shares shall
again become subject to the Voting Trust Agreement upon repayment
26
of the Margin Loan and release of the Shares by Lender.
4. Any additional shares issued to the Shareholder shall be subject to
this Irrevocable Proxy only to the extent such additional shares would
be subject to the Voting Trust Agreement.
5. This Proxy for all or a portion of the Shares shall terminate upon the
earlier to occur of (a) the Lender has exercised its rights upon an
event of default under the Margin Loan, (b) the repayment of the Margin
Loan and release of the Shares by Lender, and the Shares becoming
subject to the Voting Trust Agreement or (c) the termination of the
Voting Trust Agreement pursuant to Section 7 of the Voting Trust
Agreement.
6. In the event of a dispute or controversy arising out of or relating to
this Irrevocable Proxy, or performance hereof, Proxy Holder shall be
entitled to vote the shares pursuant to this Irrevocable Proxy during
the pendency of such dispute.
This Irrevocable Proxy may be executed in one or more counterparts, each of
which shall constitute an original document, but all of which together shall be
one and same Irrevocable Proxy.
SHAREHOLDER:
No. of Shares Subject to
this Irrevocable Proxy: ________
--------------------------------
--------------------------------
Dated: _____________ ___, ______
ACCEPTED AND AGREED TO:
PROXY HOLDER
--------------------------------
Xxxxx X. Xxxxxxx
Dated: _____________ ___, ______
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