EXHIBIT 9.2
XXXXXX
VOTING TRUST AGREEMENT
(RE: XXXX, XXXXXX & ASSOCIATES, INC.)
THIS AGREEMENT is entered into and effective this 17th day of January,
1996, between and among the following persons all of whom are shareholders of
XXXX, XXXXXX & ASSOCIATES, INC., a California corporation (hereinafter referred
to as the "Corporation"): XXXXXXX XXXXXX XXXXXX as custodian for XXXXX XXXXXX
XXXXXX under the California Uniform Transfers to Minors Act; XXXXXXX XXXXXX
XXXXXX as custodian for XXXXXXXX XXXXXX XXXXXX under the California Uniform
Transfers to Minors Act; XXXXXXX XXXXXX XXXXXX as custodian for XXXXXXX XXXXXX
XXXXXX under the California Uniform Transfers to Minors Act; XXXXXXX XXXXXX
XXXXXX and XXXXXXX XXXXXXXXX XXXXXX; XXXXXXXX XXXXXX XXXXXX; XXXXXX XXXXXX; XXXX
NAIL; XXXX XXXXXXXXXXXX; and XXXX XXXXXXX (hereinafter referred to as
"Shareholders" and sometimes as "Certificate Holders"); and XXXX XXXXXX
(hereinafter referred to as "Trustee").
1. EXCHANGE OF SHARES FOR VOTING TRUST CERTIFICATES.
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a. Simultaneously with execution of this Agreement, the
Shareholders shall deliver to the Trustee properly endorsed certificates for the
number of common shares of the Corporation shown opposite their respective names
below (hereinafter referred to as the "Shares"). The Trustee shall hold the
Shares transferred to him in trust, subject to the terms of this Agreement. The
Shareholders shall have no right to withdraw their Shares prior to termination
of this Agreement as hereinafter provided.
b. The Trustee shall cause the Shares to be transferred to him
on the Corporation's books and records and shall issue and deliver to each of
the Shareholders a voting trust certificate, in the form shown in Exhibit A to
this Agreement, for the number of shares transferred to the Trustee.
2. TRUSTEE'S POWERS AND DUTIES.
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a. VOTING OF SHARES. During the existence of this trust, the
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Trustee shall have the exclusive right to vote all Shares transferred to him in
person or by proxy at all shareholder meetings and in all proceedings in which
the vote or consent of shareholders may be required or authorized, and shall
have all the rights, privileges, and powers of a shareholder except as otherwise
provided in this Agreement. With respect to the election of the Corporation's
directors, and as to all other matters of any character whatsoever on which a
shareholder vote or approval is required by the articles or bylaws of the
Corporation or as a matter of law, or which is submitted to the shareholders for
approval, the Trustee shall exercise such voting rights as he determines in the
sound exercise of his discretion.
b. NUMBER AND PERCENTAGE VOTE. The number of Trustees under
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this Agreement shall be one.
c. OTHER TRUSTEE ACTIVITIES. The Trustee may also be a party to
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this Agreement as share owner holding voting trust certificates. Additionally,
he may serve the Corporation as officer or director or in any other capacity,
and may receive compensation from the Corporation for such services.
d. SALE OF SHARES. The Trustee shall have no authority to sell
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or otherwise dispose of any shares transferred to him under this Agreement;
provided, however, Certificate Holder may require that all or a portion of his
or her Shares be sold by the Trustee (i) only in accordance with prior written
instructions from the Certificate Holder and (ii) only after or in conjunction
with an initial public offering of the Corporation's shares or in the event of a
sale of all or substantially all of the business of the Corporation. In the
event of a sale of Shares in accordance herewith, and in exchange for the net
sales proceeds from the sale of said Shares, the Certificate Holder shall
surrender to the Trustee his or her voting trust certificate properly endorsed.
e. COMPENSATION. The Trustee shall receive no compensation for
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his services except for reimbursement, by the Certificate Holders, of expenses
incurred in the administration of his duties. However, this paragraph shall not
affect the right of the Trustee to compensation from the corporation for
services performed on its behalf in some other capacity (as officer, director,
employee or otherwise).
f. TRUSTEE'S LIABILITY. The Trustee shall not be liable for any
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error of judgment or mistake of fact or law, or for any act or omission made in
good faith in connection with his powers and duties under this Agreement, except
for the Trustee's own willful misconduct or gross negligence. No Trustee shall
be liable for the acts or omissions of any other Trustee or Trustee or for the
acts or omissions of any employee or agent of any other Trustee or Trustee. The
Trustee shall not be liable in acting on any notice, consent, certificate,
instruction, or other paper or document or signature believed by him to be
genuine and to have been signed by the proper party or parties. The Trustee may
consult with legal counsel, and any of his acts or omissions made in good faith
in accordance with the opinion of legal counsel shall be binding and conclusive
on the parties to this Agreement.
g. REPLACEMENT OF TRUSTEE. The Trustee may be removed from
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office by the vote of holders of voting trust certificates representing at least
two-thirds (2/3rds) of the beneficial interests. In case of the Trustee's death,
resignation, or inability to act, the holders of voting trust certificates
representing at least two-thirds (2/3rds) of the beneficial interests shall
elect a Successor Trustee.
3. TERMINATION.
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a. This Agreement shall terminate five (5) years after the
effective date of this Agreement or on any later date to which the term is
extended, as provided below, without notice by or to, or action on the part of,
the Trustee or the Certificate Holders.
b. This Agreement may be terminated at an earlier date by the
vote or written consent of Certificate Holders representing one hundred percent
(100%) of the shares subject to this Agreement, upon ten days' written notice to
the Trustee.
c. As soon as practicable after termination of this Agreement,
the Trustee shall redeliver share certificates representing the appropriate
number of shares, properly endorsed for transfer, to the respective Certificate
Holders of record, and the Certificate Holders shall surrender to the Trustee
their voting trust certificates properly endorsed, together with payment of sums
sufficient to cover any taxes and other expenses relating to the transfer or
delivery of the share certificates.
d. If any Certificate Holder refuses to surrender voting trust
certificates in exchange for shares, or cannot be located, the Trustee may
deliver the share certificates due that Certificate Holder to any bank or trust
company in California, or to the Secretary of the Corporation, for the benefit
of the person or persons entitled thereto, and thereupon shall be fully
discharged with respect to those share certificates.
4. EXTENSION OF AGREEMENT.
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a. The term of this Agreement, as prescribed in Paragraph 3,
may be extended from the original termination date of this Agreement or from the
termination date as last extended in accordance with this paragraph, provided
that within two years before the date as originally fixed or as last extended,
one or more Certificate Holders, by written agreement, and with the Trustee's
written consent, extend the term of this Agreement with respect to their shares
for an additional term not to exceed ten years from the expiration date then in
effect.
b. In the event of extension, duplicate copies of this
Agreement and of the extension agreement shall be filed with the secretary of
the Corporation and shall be open for inspection on the same conditions as the
Corporation's record of shareholders.
5. WITHDRAWAL OF SHARES.
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No Certificate Holder may withdraw his or her shares from this
Agreement until termination of this Agreement or unanimous consent of the
Certificate Holders. Upon withdrawal of shares, the Certificate Holder shall
surrender his or her voting trust certificates to the Trustee. The Trustee shall
deliver the withdrawn shares properly endorsed for transfer as in the case of
termination under Paragraph 3 above.
6. NOTICES, DIVIDENDS, AND DISTRIBUTIONS.
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a. The Trustee shall promptly forward copies of all notices,
reports, statements, and other communications received from the Corporation to
the Certificate Holders, indicating the date of receipt.
b. The Trustee shall promptly distribute all dividends and
other distributions received from the Corporation to the Certificate Holders in
proportion to their respective interests.
c. If any dividend or stock split consists of additional shares
having voting rights, the Trustee shall hold these shares in trust subject to
the terms of this Agreement, and shall issue new voting trust certificates,
representing the additional shares, to the Certificate Holders in proportion to
their respective interests .
7. VENTURE CAPITAL FINANCING
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The Shares subject to this Agreement shall be subject to all the
terms, conditions, and covenants required by any venture capital, bank, or other
financing which the Corporation may obtain.
8. NAME OF TRUST
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The trust created by this instrument shall be referred to as the
XXXXXX VOTING TRUST.
9. GOVERNING LAW
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It is the parties' intention that this Agreement meet the
statutory requirements of California Corporations Code (S)706(b) and that this
Agreement be construed in accordance therewith and under the laws of the State
of California. If any action or proceeding is brought arising out of, in
connection with, or by reason of this Agreement, the laws of the State of
California shall apply and shall govern to the exclusion of the law of any other
forum, without regard to the jurisdiction in which any action or proceeding may
be initiated.
Dated: January 17,1996
TRUSTEE
/s/ Xxxx Xxxxxx
_________________________
XXXX XXXXXX
SHAREHOLDERS & CERTIFICATE HOLDERS: NUMBER OF SHARES DEPOSITED: 33,000
/s/ Xxxxxxx Xxxxxx Xxxxxx
_________________________________________
XXXXXXX XXXXXX XXXXXX as Custodian for
XXXXX XXXXXX XXXXXX under the California
Uniform Transfers to Minors Act 33,000
/s/ Xxxxxxx Xxxxxx Xxxxxx
_________________________________________
XXXXXXX XXXXXX XXXXXX as Custodian for
XXXXXXXX XXXXXX XXXXXX under the California
Uniform Transfers to Minors Act 33,000
/s/ Xxxxxxx Xxxxxx Xxxxxx
__________________________________________
XXXXXXX XXXXXX XXXXXX as Custodian for
XXXXXXX XXXXXX XXXXXX under the California
Uniform Transfers to Minors Act 20,000
/s/ Xxxxxxx Xxxxxx Xxxxxx and
Xxxxxxx Xxxxxxxxx Xxxxxx
__________________________________________
XXXXXXX XXXXXX XXXXXX and
XXXXXXX XXXXXXXXX XXXXXX 30,000
/s/ Xxxxxxxx Xxxxxx Xxxxxx
__________________________________________
XXXXXXXX XXXXXX XXXXXX 20,000
/s/ Xxxxxx Xxxxxx
__________________________________________
XXXXXX XXXXXX 10,000
/s/ Xxxx Nail
__________________________________________
XXXX NAIL 10,000
/s/ Xxxx Xxxxxxxxxxxx
__________________________________________
XXXX XXXXXXXXXXXX 10,000
/s/ Xxxx Xxxxxxx
__________________________________________ -------
XXXX XXXXXXX TOTAL 199,000
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