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UNIFIED HOLDINGS, INC.
VOTING TRUST AGREEMENT
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THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into
this 10th day of October, 1997, by and among XXXXXXX X. XXXXXXX, as voting
trustee (in such capacity, the "Voting Trustee"), and each of the undersigned
stockholders of Unified Holdings, Inc. (the "Stockholders") who have
executed this Agreement on the signature pages hereto.
W I T N E S S E T H :
WHEREAS, the Stockholders are holders of certain issued and outstanding
shares of common stock of Unified, par value $0.01 per share ("Common
Stock");
WHEREAS, the Stockholders desire to transfer title to their shares of
Common Stock to the Voting Trustee in return for voting trust certificates as
herein provided;
WHEREAS, the Voting Trustee is willing to serve as voting trustee with
respect to the Common Stock as herein provided;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the parties
hereto agree as follows:
1. Shares to be Held in Trust.
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(a) Establishment of Voting Trust. Each of the Stockholders
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and the Voting Trustee hereby establish and constitute a voting trust (the
"Voting Trust") with respect to the shares of Common Stock (such shares of
Common Stock hereinafter are referred to collectively as the "Trust Shares").
Such Voting Trust shall be administered on the terms set forth in this
Agreement.
(b) Actions to be Taken. Upon execution of this Agreement,
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the following actions shall be taken by each of the parties hereto:
(i) Each of the Stockholders shall instruct Unified in
writing, as soon as practicable after the execution of this agreement,
that all certificates evidencing shares of Common Stock held in their
name, shall be reissued to and in the name of the Voting Trustee
pursuant to this Agreement. The Voting Trustee hereby is authorized to
receive and to hold, in the name of the Voting Trustee for the benefit
of the Stockholders, the Trust Shares. Each Stockholder represents and
warrants that he or she is the sole record and beneficial owner of the
number of shares of Common Stock set forth beneath his or her signature
on the signature pages to this Agreement.
(ii) Immediately following the transfer of the Trust
Shares to the Voting Trustee, the Voting Trustee shall issue to the
Stockholders one or more
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voting trust certificates in the form of Exhibit A attached hereto (each
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a "Voting Trust Certificate") evidencing the number of Trust Shares held
by the Voting Trustee for his, her or its benefit.
(c) Voting Securities Subsequently Acquired. The parties hereto
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acknowledge that, if any additional voting securities of Unified are issued
with respect to the Trust Shares, whether by reason of a stock split, stock
dividend, share exchange or similar transaction, or if any additional voting
securities of Unified are acquired by a party hereto in any manner
whatsoever, certificates representing such additional voting securities shall
be delivered to the Voting Trustee, and such additional voting securities
shall constitute "Trust Shares" hereunder. The Voting Trustee shall execute
and deliver one or more Voting Trust Certificates to the Voting Trust
Certificate holder delivering such additional voting securities to represent
his, her, or its interest in such additional voting securities. For purposes
of this Agreement, "voting securities" shall mean any equity securities of
Unified (or any corporate successor) which may be entitled by law to vote at
any time with respect to any matter, whether or not such equity securities
are accorded voting rights under the certificate or articles of incorporation
of Unified (or such successor).
(d) Legend. All certificates representing the Trust Shares, and
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all warrants and options exercisable for equity securities which shall become
Trust Shares as set forth herein, shall bear a legend substantially to the
effect that "The shares of stock of the corporation [represented
hereby/receivable upon exercise hereof] are subject to the terms of a certain
Voting Trust Agreement dated October 10, 1997, as the same may be amended
and/or restated from time to time, a copy of which is on file with the
corporation."
2. Voting Trust Shares. Subject to the provisions of this
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Agreement, the Voting Trustee, as such, shall have full power and discretion
to vote the Trust Shares for the election and removal of directors of Unified
and on any and all other matters with respect to which holders of the voting
securities of Unified are entitled to vote (including but not limited to
amendments of Unified's articles of incorporation, by-laws, mergers,
consolidations, share exchanges, dissolution of Unified, or a sale or other
disposition of all or substantially all of the assets or stock of Unified or
any subsidiary thereof), whether such matters are considered in a meeting of
such holders or in a unanimous written consent to be executed by them.
3. Voting Trustee.
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(a) The Voting Trustee shall have the right to resign as
Voting Trustee hereunder during his lifetime at any time by notice to the
Voting Trust Certificate holders, such resignation to be effective at such
time as a successor Voting Trustee accepts this Agreement pursuant to Section
3(c).
(b) In the event of the resignation or inability of the
Voting Trustee to serve for any reason, the successor to the Voting Trustee
shall be the person appointed by the Voting Trustee to serve as successor to
the Voting Trustee. Upon the death of the Voting Trustee without his having
appointed a successor, the holders of Voting Trust Certificates shall hold a
meeting within sixty (60) days after the death of the Voting Trustee for the
purpose of electing a successor, or as soon thereafter as practicable.
Notice of such meeting shall be delivered to each Voting Trust Certificate
Holder not less than ten (10) days prior thereto. The successor to the
Voting Trustee shall be the person appointed by the affirmative vote of the
holders of a majority of the then outstanding Voting Trust Certificates.
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(c) Any person appointed as a successor Voting Trustee
hereunder shall become a Voting Trustee only upon written acceptance of this
Agreement and the rights, powers, duties and obligations of the Voting
Trustee hereunder, and the delivery of such acceptance to the preceding
Voting Trustee (if then living) and the Voting Trust Certificate holders.
Each successor Voting Trustee shall have the same rights, powers, duties and
obligations as the Voting Trustee whom such successor succeeds.
4. Dividends; Stockholder Materials. During the term of this
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Agreement, the Voting Trust Certificate holders shall continue to remain
entitled to receive any cash and in kind dividends declared and paid with
respect to the Trust Shares (except in kind dividends of voting securities),
and any informational materials distributed by Unified to all holders of
voting securities of the Unified. The Voting Trustee shall be solely
responsible for the delivery of such informational materials and cash in kind
dividends to, and the division thereof among, the Voting Trust Certificate
holders.
5. Termination. This Agreement and the Voting Trust created
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herein shall terminate upon the first to occur of (a) the execution of an
instrument terminating this Agreement by the holders of not less than seventy
percent (70%) of the then outstanding Voting Trust Certificates, or (b)
October 31, 1998.
6. Transfer and Distribution of Trust Shares.
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(a) If any Voting Trust Certificate holder transfers all or
part of the Trust Shares relating to his, her, or its Voting Trust
Certificate to an Affiliate (as defined below) of the transferor, or to a
person who immediately prior to the transfer is a holder of Voting Trust
Certificates, then upon the Voting Trustee's receipt of a duly endorsed
Voting Trust Certificate specifying the number of Trust Shares being
transferred, the Voting Trustee shall issue to such transferee one or more
Voting Trust Certificates representing such transferee's interest in the
transferred Trust Shares, and shall issue to such transferor one or more new
Voting Trust Certificates representing the untransferred Trust Shares. For
purposes of this Agreement, the term "Affiliate" shall mean and include all
of the following:
(i) any family member of a transferor which is described
in Section 267(c)(4) of the Internal Revenue Code of 1986 as presently in
effect ("Family Member");
(ii) any trust of which the transferor or a Family
Member of the transferor is a trustee or a material beneficiary;
(iii) if the transferor is a trust, any beneficiary
thereof; and
(iv) any corporation, partnership, limited partnership,
limited liability company or other entity in which the transferor or any
Family Member of the Transferor has a material financial interest.
(b) In the event any Voting Trust Certificate holder
transfers all or part of the Trust Shares relating to his, her, or its Voting
Trust Certificate in a bona fide transfer to a person who is not an Affiliate
of the transferor, and who immediately prior to the transfer is not a holder
of Voting
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Trust Certificates, then upon the Voting Trustee's receipt of a duly endorsed
Voting Trust Certificate specifying the number of Trust Shares being
transferred, the Voting Trustee shall issue to such transferee one or more
certificates representing the Trust Shares so transferred, and shall issue to
such transferor one or more new Voting Trust Certificates representing the
untransferred Trust Shares. Such transferee shall take the transferred Trust
Shares free from the provisions of this Agreement.
(c) Upon termination of this Agreement and the Voting Trust
created herein, each holder of a Voting Trust Certificate shall surrender to
the then acting Voting Trustee all of such holder's Voting Trust Certificates,
duly endorsed for transfer. The Voting Trustee shall as soon as practicable
thereafter distribute to such holder, free from trust, one or more certificates
representing the Trust Shares to which such holder is entitled, which
certificates shall not contain the legend contained in Section 1(d) hereof.
7. Compensation of Voting Trustee. The Voting Trustee shall
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receive no compensation for his or her services as Voting Trustee hereunder,
but this provision shall not limit in any way the compensation or benefits
which a Voting Trustee may receive in his or her capacity as an officer,
director or attorney of Unified.
8. Liability of Voting Trustees. It is the intention of the
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parties that the Voting Trustee have unfettered discretion to vote the Trust
Shares as he or she deems appropriate. No Voting Trustee shall be liable to
Stockholder or any other person for any loss arising out of or in connection
with his or her voting of any of the Trust Shares or any other action or
inaction as Voting Trustee hereunder, unless such loss was caused by his or
her gross negligence or willful misconduct. The Voting Trustee may consult
with counsel of his or her choice, and shall have full and complete
authorization and protection for any action taken or suffered by the Voting
Trustee under this Agreement in good faith and in accordance with the opinion
of such counsel.
9. Notices. All notices and other communications shall be in
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writing and shall be personally delivered or delivered by certified mail,
return receipt requested, addressed to such party at its address hereinafter
set forth, or such other address as such party may hereafter specify by
notice given pursuant to this Section 9. Each such notice or other
communication shall be effective (i) if personally delivered, on the date of
such delivery; and (ii) if given by certified mail, return receipt requested,
48 hours after deposit in the mail with appropriate certified postage
prepaid, addressed as aforesaid.
In the case of the Voting Trustee, to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
In the case of any holder of Voting Trust Certificates, to such
person's address specified on the signature page hereof, or such other
address of which such party has given notice in accordance with the
provisions of this Section.
10. Amendment. This Agreement may be amended or modified in whole
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or in part only by a document in writing signed by the Voting Trustee and
each other party against whom such amendment or modification is to be
enforced.
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11. Counterparts. This Voting Trust Agreement may be executed in
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one or more counterparts, each of which shall constitute an original, and all
of which taken together shall constitute one instrument.
12. Severability. If any one or more of the provisions contained
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in this Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application thereof
shall not in any way be affected or impaired thereby.
13. Headings. The headings in this Agreement are inserted for
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convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties hereto.
14. Binding Effect. This Agreement shall be binding on, inure to
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the benefit of, and be enforceable by and against the Voting Trustee, the
other parties hereto, and their respective heirs, personal representatives,
distributees, successors and assigns.
15. Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Delaware.
[THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
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Xxxxxxx X. Xxxxxxx, as Voting Trustee
Address:
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Xxxxxxx X. Xxxxxxx
63,656 Shares
Address:
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Xxxxxxxx X. Xxxxx
5,967 Shares
Address:
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Xxxx X. Xxxxxxxxxx
6,490 Shares
Address:
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Xxxxx X. Xxxxxxx
35,070 Shares
Address:
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Xxxxxxx X. Xxxxxx
2,638 Shares
Address:
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Xxxx X. Xxxxxx
7,809 Shares
Address:
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Xxxx X. Xxxxxx
7,950 Shares
Address:
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Xxxxxxx X. Xxxxxx
18,305 Shares
Address:
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Xxxxxx X. Xxxxxx
18,000 Shares
Address:
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Xxxxxxx X. Xxxxxxx
30,453 Shares
Address:
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Xxxx Xxx Xxxxxx
9,585 Shares
Address:
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Xxxxx X. Xxxxxxxxx
15,354 Shares
Address:
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Xxxxxxx X. Xxxxxxxxx, Xx.
28,895 Shares
Address:
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Xxxxxx X. Xxxx
7,574 Shares
Address:
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Xxxx Xxxx Xxxxx
3,100 Shares
Address:
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Xxxxx X. Xxxxxx
25,111 Shares
Address:
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Xxxx X. Xxxxx
20,610 Shares
Address:
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Xxxxx X. Xxxx
6,631 Shares
Address:
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Xxxx X. Xxxxxxxx
4,592 Shares
Address:
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Xxxxxxx Xxxxxxxx
5,543 Shares
Address:
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Xxx X. Xxxxxx
5,414 Shares
Address:
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Xxxxxx X. Xxxxxxxx
62,949 Shares
Address:
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Xxxx X. Xxxxx
18,000 Shares
Address:
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Xxxxx X. Xxxxx
23,160 Shares
Address:
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Xxxxx X. Xxxxx
4,269 Shares
Address:
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Xxxxx X. Xxxxxxx
8,512 Shares
Address:
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Xxxxx X. Xxxxx
5,857 Shares
Address:
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Xxxxx X. Xxxxx
16,856 Shares
Address:
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Xxxx X. Xxxxx
7,698 Shares
Address:
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Xxxxx X. Xxxxxxxx
5,391 Shares
Address:
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Xxxxxx Xxxxx Xxxxxx
7,400 Shares
Address:
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Xxxxxx X. Xxxxxx
19,716 Shares
Address:
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Xxxx X. Xxxx
64,213 Shares
Address:
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Exhibit A
to
Voting Trust Agreement
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No. Shares
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UNIFIED HOLDINGS, INC.
a Delaware corporation
Voting Trust Certificate
This certifies that:
(1) A certificate representing shares of Common Stock of
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UNIFIED HOLDINGS, INC., a Delaware corporation ("Company") has been deposited
with the undersigned, as Voting Trustee under the Voting Trust Agreement (the
"Voting Trust Agreement") dated as of October 10, 1997, between Xxxxxxx X.
Xxxxxxx, as Voting Trustee; and the stockholders of the Company identified
therein.
(2)
----------------------------------------------------, or the
registered assigns thereof, is entitled to all of the benefits arising from the
deposit of such shares, subject to the terms and conditions set forth in the
Voting Trust Agreement.
Subject to the limitations set forth in the Voting Trust Agreement, and
subject to limitations imposed by applicable law from time to time (if any),
this certificate and the rights of the registered holder may be transferred
on the records maintained by the Voting Trustee under the Voting Trust
Agreement. In the event of such a transfer, the Voting Trustee shall cause
appropriate evidence thereof to be endorsed hereon or shall, in the
discretion of the Voting Trustee, cause another certificate (or additional
certificates) to be issued in replacement for this certificate to reflect the
transfer appropriately.
IN WITNESS WHEREOF, the undersigned Voting Trustee has executed this
certificate this 10th day of October, 1997.
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Xxxxxxx X. Xxxxxxx, Voting Trustee
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