AMENDED AND RESTATED VOTING TRUST AGREEMENT
Exhibit
9
AMENDED AND
RESTATED
THIS AMENDED AND RESTATED VOTING TRUST
AGREEMENT (the “Agreement”) dated as
of March ___, 2008, among Fonix Corporation, a Delaware corporation (the
“Company”);
Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, who are shareholders in the Company
(collectively the “Shareholders”);
Xxxxxx X. Xxxxxxx (the “Original Trustee”);
and Xxxxx X. Xxxxxx, as Trustee (“Trustee”).
RECITALS
A. The
Shareholders, the Company, Xxxxxxx X. Xxxxxxxx, and the Original Trustee
executed a Voting Trust Agreement originally dated December 10, 1993, which has
been amended from time to time. The term “Original Agreement”
shall refer to the December 10, 1993 Voting Trust Agreement and all subsequent
amendments and/or restatements of the Voting Trust Agreement prior to the
execution of this Agreement.
B. The
Original Trustee, on behalf of the Shareholders, and the Company executed an
Amended and Restated Revolving Line of Credit Agreement (the “LOC Agreement”)
pursuant to which the Company could borrow up to $1,000,000 from the
Shareholders and (ii) a Promissory Note (the “Note”) in the
original principal amount of $1,000,000.
C. The
Note provides that the debt owed by the Company to the Shareholders shall be
convertible to shares of the Company’s common stock.
D. The
Company, Shareholders and Original Trustee, desiring to make the terms of the
Original Agreement compatible with the terms of the Note, and to change the
Trustee from Xxxxxx X. Xxxxxxx to Xxxxx X. Xxxxxx, have agreed to amend and
restate the Original Agreement so as to supersede the Original Agreement, and
any and all amendments thereto, with this Amended and Restated Trust
Agreement.
NOW, THEREFORE, the Original Agreement,
and any all amendments thereto, shall be replaced with the following Amended and
Restated Voting Trust Agreement:
AGREEMENT
1. Agreement. Copies
of this Agreement, and of any amendments or restatements of this Agreement,
shall be filed in the principal office of the Company in Salt Lake City, Utah,
and shall be open to the inspection of any stockholder of the Company, daily
during business hours. All voting trust certificates issued as
hereinafter provided shall be issued, received, and held subject to all of the
terms of this Agreement. The Shareholders shall be bound by the
provisions of this Agreement.
2. Creation of Voting
Trust. The Shareholders shall deposit with the Trustee
certificates for the shares of the Company’s common stock (the “Stock Certificates”) to be held by
“Xxxxx X. Xxxxxx, as Voting Trustee” in a voting trust in accordance with the
terms and conditions of this Agreement. The Stock Certificates shall
be endorsed, or accompanied by such instruments of transfer as to enable the
Trustee to cause such Stock Certificate to be transferred into the name of the
Trustee, as hereinafter provided. On receipt by the Trustee of the
Stock Certificates for the Shares and the transfer of the same into the name of
the Trustee, the Trustee shall hold the same subject to the terms of this
Agreement, and shall thereupon issue and deliver to the Shareholder a voting
trust certificate representing the Trustee’s receipt of the Stock Certificates
from the Shareholders (the “Voting Trust
Certificates”).
3. Voting Trust
Certificates. The Voting Trust Certificates shall be in the
form provided in Exhibit A attached
hereto and incorporated herein by this reference.
4. Transfer of
Certificates.
a. The
Voting Trust Certificates shall be transferable at the principal office of the
Trustee in Salt Lake City, Utah (and at such other office as the Trustee may
designate by an instrument in writing signed by him and sent by mail to the
registered holders of Voting Trust Certificates), on the books of the Trustee,
by the registered owner thereof, either in person or by a duly appointed manager
or officer of the registered owner, or by attorney thereto duly authorized, upon
surrender thereof, according to the rules established for that purpose by the
Trustee; and the Trustee may treat the registered holder as owner thereof for
all purposes whatsoever, but he shall not be required to deliver stock
certificates hereunder without the surrender of such Voting Trust
Certificates.
b. If
a Voting Trust Certificate is lost, stolen, mutilated, or destroyed, the
Trustee, in his discretion, may issue a duplicate of such certificate upon
receipt of (1) evidence of such fact satisfactory to him; (2) indemnity
satisfactory to him; (3) the existing certificate, if mutilated; and (4) his
reasonable fees and expenses in connection with the issuance of a new Voting
Trust Certificate. 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 him.
5. Rights upon Termination of Voting
Trust.
a. Upon
the termination of this Agreement at any time, as hereinafter provided, the
Trustee, at such time as he may choose during the period commencing 20 days
before and ending 20 days after such termination, shall mail written notice of
such termination to the registered owner of the Voting Trust Certificate, at the
address appearing on the transfer books of the Trustee. After the
date specified in any such notice (which date shall be fixed by the Trustee),
the Voting Trust Certificate shall cease to have any effect, and the holder of
such Voting Trust Certificate shall have no further rights under this Agreement
other than to receive certificates for shares of stock of the Company or other
property distributable under the terms hereof and upon the surrender of such
Voting Trust Certificate.
b. Within
30 days after the termination of this Agreement, the Trustee shall deliver, to
the registered holders of all Voting Trust Certificates, certificates for the
number of shares of the capital stock of the Company represented thereby, upon
the surrender thereof properly endorsed, such delivery to be made in each case
at the office of the Trustee.
c. At
any time subsequent to 30 days after the termination of this Agreement, the
Trustee may deposit with the Company stock certificates representing the number
of shares of capital stock represented by the Voting Trust Certificates then
outstanding, with authority in writing to the Company to deliver such stock
certificates in exchange for the Voting Trust Certificates representing a like
number of shares of the capital stock of the Company; and upon such deposit all
further liability of the Trustee for the delivery of such stock 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.
6. Power
and Authority of Trustee. The
Trustee shall possess and be entitled to exercise all of the voting rights
and voting powers of an absolute owner of the shares of common stock of the
Company including, but not limited to, the power to vote (i) for election
or removal of directors, (ii) for amendments to the Company’s Certificate of
Incorporation or Bylaws, and (iii) to merge, consolidate, liquidate
or dissolve the Company or sell all or substantially all of the assets of
the Company.
a. Term. The trust
hereby created shall terminate upon the earlier to occur of (i)(a) the sale of
all of the shares of common stock of the Company issued and issuable to the
Shareholders upon conversion of the entire unpaid of the Note in accordance with
the terms and conditions of the Note and the LOC Agreement; and (b) sale or
distribution of the Shares Certificates to the Shareholders; or (ii)(a)the
payment in full of the Note in accordance with the terms and conditions of the
Note and the LOC Agreement; and (b) sale or distribution of the Shares
Certificates to the Shareholders.
7. Shareholder’s Right to Sell Shares. A
Shareholder shall have the right, at any time, to cause the Trustee to convert a
portion of the balance due under the Note, which amount is owned or due such
Shareholder, and/or withdraw shares from the voting trust created hereunder if
he intends to immediately sell such stock, either privately or publicly;
provided that such sale (i) is made pursuant to the terms and conditions of
any agreement entered into between the Company and the Stockholders restricting
the transfer or resale of the Company’s capital stock, (ii) does not violate any
sate or federal securities laws and (iii) is not in violation of the provisions
of Section 8(a), below. If a Shareholder shall elect to
exercise such right, the Trustee shall use all reasonable efforts to
withdraw the shares from the voting trust as soon as practicable to permit
such sale; provided that if such sale is not effected, the Shareholder
shall promptly return and redeposit any such Shares with the Trustee
and such Shares shall, until such sale, continue to be subject to the terms and
conditions of this Agreement.
a. During
the term of this Agreement, the Shareholders shall not be permitted to
do, either directly or indirectly, any of the following:
i. knowingly
sell any of the shares to any person or group (within the meaning of
Section 13(d) of the Exchange Act and related rules) who has publicly indicated
the desire or intention to acquire the Company by merger, consolidation or
other form of business combination or to acquire any or all or substantially all
of the assets of the Company; or
ii. knowingly
become a member of a group other than with any related person(s) for the
purpose of acquiring, holding, disposing or voting of securities of the
Company (within the meaning of Section 13(d) of the Exchange Act and
related rules); unless, in the event (i) the Trustee, in his
capacity as Chairman of the Board of Directors of the Company or otherwise,
shall have indicated his intention to sell to such group; and (ii) the Board
of Directors of the Company shall not have rejected the offer of such group
to acquire the stock or assets of the Company.
b. Upon
the sale of the shares in accordance with the terms and conditions hereof,
such shares shall cease to be subject to this Agreement as voting trust
stock.
8. Trustee’s Duties and Immunities. The
Trustee of this Agreement shall be Xxxxx X. Xxxxxx. In voting the
shares of common stock of the Company represented by Share Certificates, taking
any action in connection with the collection, payment, amendment modification or
compromise of the obligation evidence by the Note or the LOC Agreement or in
doing any act with respect to the control or management of the Company or its
affairs, either in person or by proxy, the Trustee shall act in a
commercially reasonable manner. The Shareholders hereby waive any
conflict of interest that the Trustee may personally have so long as the
Trustee has acted in a commercially reasonable manner with respect to any
transaction of the Company in which the Trustee has a conflict of
interest. The Trustee shall not be liable for any error of judgment
or mistake of law or other mistake, and shall not be responsible for any act or
omission with respect to his duties and responsibilities as Trustee, or for
any losses that may result therefrom, unless such losses can be proven by clear
and convincing evidence to be the result of willful misconduct,
gross negligence or bad faith.
9. Trustee’s
Indemnity. The Trustee shall be entitled to be
indemnified fully against all costs, charges, expenses and other
liabilities properly incurred by the Trustee in the exercise of any
power conferred upon him by these presents; and the
Shareholders hereby covenant with the Trustee to hold harmless and indemnify
Trustee from all loss or damage that he may sustain or be put to by reason
of anything he may lawfully do in the execution of this
Agreement.
10. Appointment of Substitute
Trustee. In
the event that the individual serving as Trustee shall cease to serve as such
due to his death, disability, resignation or retirement, then the Board of
Directors of the Company shall appoint a replacement Trustee to serve in the
place of the individual no longer serving as Trustee. Any person so
appointed shall thereupon be vested with all the duties, powers and
authority of the Trustee hereunder as if originally named
herein.
11. Reports. The
Trustee is hereby authorized and instructed to prepare and file any reports with
respect to the Shares as may be required under state or federal securities
laws. The Shareholder will cooperate in any way as may
be reasonably necessary for the preparation and filing of any such
reports.
12. General. This
Agreement contains the entire understanding and agreement of the parties
with respect to the subject matter hereto. No amendment or supplement to
this Agreement or waiver hereof shall be binding unless reduced to writing
and signed by all of the parties hereto. Words shall be construed to
be of such number and gender as the circumstances require. This
Agreement shall inure to the benefit of and be legally binding upon the parties
hereto and the heirs, executors, administrators, successors, assigns, and
transferees of them and each of them. This Agreement shall be
construed and enforced in accordance with the laws of the State of Utah
applicable to contracts made and to be performed solely in the State of
Utah. This Agreement may be executed in one or more
counterparts, each of which so executed shall be deemed to be an original and
such counterparts shall, together, constitute and be one and the same
document.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
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Company:
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Fonix
Corporation,
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a
Delaware corporation
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By_________________________________
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Xxxxxx
X. Xxxxxxx, its CEO
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Shareholders:
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___________________________________
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Xxxxxx
X. Xxxxxxx
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___________________________________
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Xxxxx
X. Xxxxxx
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Original
Trustee: :
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___________________________________
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Xxxxxx
X. Xxxxxxx
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Trustee:
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___________________________________
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Xxxxx
X. Xxxxxx
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Exhibit
A
Form
of
Voting
Trust Certificate
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No.
__________________
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__________________
Shares
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Fonix
Corporation
a
Delaware corporation
Voting
Trust Certificate for Capital Stock
This certifies that
________________________________, or registered assigns is entitled to all the
benefits arising from the deposit with the Trustee under the Voting Trust
Agreement hereinafter mentioned, of certificates for _____________ shares of the
capital stock of Fonix Corporation, a Delaware corporation (the “Company”), as
provided in such Voting Trust Agreement and subject to the terms
thereof. The registered holder hereof, or assigns, is entitled to
receive payment equal to the amount of cash dividends, if any, received by the
Trustee upon the number of shares of capital stock of the Company in respect of
which this certificate is issued. Dividends received by the Trustee
in common or other stock of the Company having general voting powers shall be
payable in voting trust certificates, in form similar hereto. Until
the Trustee shall have delivered the stock held under such Voting Trust
Agreement to the holders of the voting trust certificates, or to the Company, as
specified in such Voting Trust Agreement, the Trustee shall possess and shall be
entitled to exercise all rights and powers of an absolute owner of such stock,
including the right to vote thereon for every purpose, and to execute consents
in respect thereof for every purpose, it being expressly stipulated that no
voting right passes to the owner hereof, or its assigns, under this certificate
or any agreement, expressed or implied.
This certificate is issued, received,
and held under, and the rights of the owner hereof are subject to, the terms of
an Amended and Restated Voting Trust Agreement dated February ____, 2008, among
the Company and Xxxxx X. Xxxxxx, as Trustee, and the holder of this certificate
or holders of certificates similar to this certificate (copies of which Amended
and Restated Voting Trust Agreement, and of every agreement amending or
supplementing the same, are on file at the principal office of the Company in
Salt Lake City, Utah, and shall be open to the inspection of any stockholder of
the Company, daily during business hours); to all the provisions of which
Amended and Restated Voting Trust Agreement the holder of this certificate, by
acceptance hereof assents and is bound as if such Amended and Restated Voting
Trust Agreement had been signed by the holder hereof in person.
In the event of the dissolution or
total or partial liquidation of the Company, the moneys, securities, or property
received by the Trustee in respect of the stock deposited under such Amended and
Restated Voting Trust Agreement shall be distributed among the registered
holders of voting trust certificates in proportion to their interests as shown
by the books of the Trustee.
In the event that any dividend or
distribution other than in cash or stock of the Company having general voting
powers is received by the Trustee, the Trustee shall distribute the same to the
registered holders of voting trust certificates, on the date of such
distribution, or to the registered certificate holders at the close of business
on the date fixed by the Trustee for taking a record to determine the
certificate holders entitled to such distribution. Such distribution
shall be made to the certificate holders ratably in accordance with the number
of shares represented by their respective voting trust
certificates.
Stock certificates for the number of
shares of capital stock then represented by this certificate, or the net
proceeds in cash or property of such shares, shall be due and deliverable
hereunder upon the termination of such Amended and Restated Voting Trust
Agreement as provided therein.
The Amended and Restated Voting Trust
Agreement shall continue in full force and effect until terminated as set forth
in Section 7 thereof.
This certificate is transferable on the
books of the Trustee at his office in Salt Lake City, Utah (or elsewhere as
designated by the Trustee), by the holder hereof, either by its duly appointed
manager or by attorney duly authorized, in accordance with the rules established
for that purpose by the Trustee and on surrender of this certificate properly
endorsed. Title to this certificate when duly endorsed shall, to the
extent permitted by law, be transferable with the same effect as in the case of
a negotiable instrument. Each holder hereof agrees that delivery of
this certificate, duly endorsed by any holder hereof, shall vest title hereto
and all rights hereunder in the transferee; provided, however, that the Trustee
may treat the registered holder hereof, or when presented duly endorsed in blank
the bearer hereof, as the absolute owner hereof, and of all rights and interests
represented hereby, for all purposes whatsoever, and the Trustee shall not be
bound or affected by any notice to the contrary, or by any notice of any trust,
whether express or implied, or constructive, or of any charge or equity
respecting the title or ownership of this certificate, or the share of stock
represented hereby; provided, however, that no delivery of stock certificates
hereunder, or the proceeds thereof, shall be made without surrender hereof
properly endorsed.
This certificate shall not be valid for
any purpose until duly signed by the Trustee.
The term “Trustee” as used in this
certificate means the Trustee or any replacement or successor thereof acting
under such Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustee has
signed this certificate on the _____ day of March, 2008.
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Xxxxx
X. Xxxxxx
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(Form of
Assignment)
For value received,
______________________ hereby assigns the within certificate, and all rights and
interests represented thereby, to ______________________ and appoints
______________________ attorney to transfer this certificate on the books of the
Trustee mentioned therein, with full power of substitution.
DATED
this _____ day of __________________, 20___.
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By_________________________________
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_______________,
its _________________
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Attest:
___________________________
___________________________
Note: The
signature to this assignment must correspond with the name as written upon the
face of this certificate in every particular, without alteration, enlargement,
or any change whatever. All endorsements, in the discretion of the
Trustee, shall be guaranteed by a bank or trust company satisfactory to the
Trustee.
