EXHIBIT 10.7
VOTING TRUST AGREEMENT
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THIS VOTING TRUST AGREEMENT (the "Trust Agreement") is made as of this 30th
day of September, 1996, by, between and among Evergood Products Corporation (the
"Company"), Xxxxxxx X. Xxxxx (the "Stockholder"), and Xxx Xxxx (the "Trustee").
W I T N E S S E T H :
WHEREAS, in order to secure the continuity and stability of the Company's
policy and management, the Stockholder deems it advisable to deposit all of his
stock in the Company with the Trustee under the terms and conditions hereinafter
set forth, and
WHEREAS, the Trustee has consented to act under this Trust Agreement for
the purposes herein provided,
NOW, THEREFORE, in consideration of the premises herein set forth, the
parties hereto hereby agree as follows:
1. Trust Agreement. Copies of this Trust Agreement, and of every
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supplemental or amendatory agreement, shall be filed in
the Company's offices located at Hicksville, New York. All such copies shall be
open to the inspection of the Company's stockholders daily during business
hours. All voting trust certificates issued as hereinafter provided shall be
issued, received, and held subject to all the terms of this Trust Agreement.
Every person, firm, or corporation entitled to receive voting trust certificates
representing shares of capital stock, and their transferees and assigns, upon
accepting the voting trust certificates issued hereunder, shall be bound by the
provisions of this Trust Agreement.
2. Transfer of Stock to Trustee. (a) The Stockholder shall deposit with
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the Trustee a certificate or certificate(s) for his Company stock as set forth
after his signature to this Trust Agreement. The Stockholder may at any time
deposit additional certificate for the Company's stock with the Trustee, and
shall be required to deposit certificates for all of his stock. No stock shall
be deposited hereunder except stock having general voting powers, as provided in
the Certificate of Incorporation. All such stock certificates shall be endorsed,
or accompanied by such instruments of transfer as to enable the Trustee to cause
such certificates to be transferred into the name of the Trustee for the purpose
of voting the shares
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represented by the stock certificates, as hereinafter provided. On receipt by
the Trustee of the certificates for any such shares and their transfer into the
name of the Trustee, the Trustee shall hold them subject to the terms of this
Trust Agreement, and shall thereupon issue and deliver to the Stockholder voting
trust certificates for the shares so deposited.
(b) All certificates for stock of the Company transferred and
delivered to the Trustee pursuant to this Trust Agreement shall be surrendered
by the Trustee to the Company and cancelled, and new certificates therefor shall
be issued to and held by the Trustee in the name of "Xxx Xxxx as Voting
Trustee".
3. Voting Trust Certificates. The voting trust certificates shall be in
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the following form:
No. ________________ ______ Shares
Evergood Products Corporation
A Delaware Corporation
Voting Trust Certificate for Capital Stock
This certifies that Xxxxxxx X. Xxxxx or registered assigns is entitled
to all the benefits arising from the deposit with the Trustee under the
Voting Trust Agreement
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hereinafter mentioned, of certificates for ______ shares of the capital
stock of Evergood Products Corporation, a Delaware corporation (the
"Company"), as provided in such 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 the Company's common or other stock having general voting powers
shall be payable in voting trust certificates, in form similar hereto.
Until the Trustee has delivered the stock held under such Trust Agreement
to the holders of the trust certificates, or to the Company, as specified
in such Trust Agreement, the Trustee shall possess and 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 his assigns,
under this certificate or any agreement, expressed or implied.
This certificate is issued, received, and held under,
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and the rights of the owner hereof are subject to, the terms of a Voting
Trust Agreement dated ___________ __, 1996, by, between and among the
Company, Xxxxxxx X. Xxxxx and Xxx Xxxx and their successors in trust, and
various holders of similar certificates. (Copies of the Voting Trust
Agreement, and of every agreement amending or supplementing it, are on file
in the Company's principal office in Hicksville, New York and shall be open
to the inspection of the Company's stockholders daily during business
hours.) The holder of this certificate, by acceptance hereof, assents and
is bound to all the provisions of the Voting Trust Agreement as if he had
signed it in person.
In the event of the dissolution or total or partial liquidation of the
Company, the moneys, securities, or
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property received by the Trustee in respect of the stock deposited under
such Trust Agreement shall be distributed among the registered holders of
trust certificates in proportion to their interests as shown by the books
of the Trustee.
In the event that the Trustee receives any dividend or distribution
other than in cash or Company stock having general voting powers, 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, pursuant to the provisions of paragraph 6 of the
Trust Agreement. 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 Trust Agreement as provided therein.
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This certificate is transferable on the books of the Trustee at his
office in Hicksville, New York (or elsewhere as designated by the Trustee),
by the holder hereof, either in person 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. 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
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properly endorsed.
This certificate shall not be valid for any purpose until duly signed
by the Trustee.
The word "Trustee" as used in this certificate means the Trustee
acting under such Voting Trust Agreement.
IN WITNESS WHEREOF the Trustee has signed this certificate on
____________ __, 1996.
______________________________
Trustee
(Form of Assignment)
For value received Xxxxxxx X. Xxxxx hereby assigns the within
certificate, and all rights and interests represented thereby, to Xxx Xxxx
and appoints Xxx Xxxx attorney to transfer this certificate on the books of
the Trustee mentioned therein, with full power of substitution.
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Dated:
______________________________(SEAL)
In presence of:
_______________________
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.
4. Transfer of Certificates. (a) The voting trust certificates shall be
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transferable at the Trustee's principal office in Hicksville, New York (and at
such other office as the Trustee may designate by an instrument 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
attorney thereto duly authorized, upon
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surrender thereof, according to the rules established for that purpose by the
Trustee. The Trustee may treat the registered holder as owner thereof for all
purposes, 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
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 has produced indicia of title
satisfactory to the Trustee, and has in addition deposited with the Trustee
indemnity satisfactory to him.
5. Termination Procedure. (a) Upon the termination of this Trust
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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
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the registered owners of the voting trust certificates, at the addresses
appearing on the Trustee's transfer books. After the date specified in any such
notice (which date shall be fixed by the Trustee), the voting trust certificates
shall cease to have any effect, and their holders shall have no further rights
under this Trust Agreement other than to receive certificates for shares of the
Company's stock or other property distributable under the terms hereof and upon
the surrender of such voting trust certificates.
(b) Within 30 days after the termination of this Trust Agreement, the
Trustee shall deliver, to the registered holders of all voting trust
certificates, certificates for the number of shares of the Company's capital
stock represented thereby, upon the surrender thereof properly endorsed, such
delivery to be made in each case at the Trustee's office.
(c) At any time subsequent to 30 days after the termination of this
Trust 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 voting trust certificates
representing a like number of shares of the capital stock of the Company. Upon
such deposit all
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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. Dividends. (a) Prior to the termination of this Trust Agreement,
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the holder of the voting trust certificate shall be entitled to receive payments
equal to the cash dividends, if any, received by the Trustee upon a like number
and class of shares of the Company's capital stock as is called for by each such
voting trust certificate. If any dividend in respect of the stock deposited with
the Trustee is paid, in whole or in part, in the Company's stock having general
voting powers, the Trustee shall likewise hold, subject to the terms of this
Trust Agreement, the certificates for stock which are received by him on account
of such dividend. The holder of the voting trust certificate representing stock
on which such stock
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dividend has been paid shall be entitled to receive a voting trust certificate
issued under this Trust Agreement for the number of shares and class of stock
received as such dividend with respect to the shares represented by such voting
trust certificate. The holder entitled to receive the dividends described above
shall be those registered as such on the Trustee's transfer books at the close
of business on the day fixed by the Company for the taking of a record to
determine those holders of its stock entitled to receive such dividends, or if
the Trustee has fixed a date, as hereinafter in this paragraph provided, for the
purpose of determining the holders of voting trust certificates entitled to
receive such payment or distribution, then registered as such at the close of
business on the date so fixed by the Trustee.
(b) If any dividend in respect of the stock deposited with the Trustee
is paid other than in cash or in capital stock having general voting powers,
then the Trustee shall distribute the same among the holder of the voting trust
certificate registered as such at the close of business on the day fixed by the
Trustee for taking a record to determine the holders of voting trust
certificates entitled to receive such distribution. Such distribution shall be
made to such holders of voting trust certificates ratably, in accordance with
the number of shares
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represented by their respective voting trust certificates.
(c) The Trustee may temporarily close its transfer books for a period
not exceeding 20 days preceding the date fixed for the payment or distribution
of dividends or the distribution of assets or rights, or at any other time in
the Trustee's discretion. In lieu of providing for the closing of the books
against the transfer of voting trust certificates, the Trustee may fix a date
not exceeding 20 days preceding any date fixed by the Company for the payment or
distribution of dividends, or for the distribution of assets or rights, as a
record date for the determination of the holders of voting trust certificates
entitled to receive such payment or distribution. The holder of voting trust
certificate of record at the close of business on such date shall exclusively be
entitled to participate in such payments or distribution.
(d) In lieu of receiving cash dividends upon the capital stock of the
Company and paying the same to the holders of voting trust certificates pursuant
to the provisions of this Trust Agreement, the Trustee may instruct the Company
in writing to pay such dividends to the holders of the voting trust
certificates. Upon receipt of such written instructions, the Company shall pay
such dividends directly to the holders of the voting trust certificates. Upon
such instructions being given
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by the Trustee to the Company, and until revoked by the Trustee, all liability
of the Trustee with respect to such dividends shall cease. The Trustee may at
any time revoke such instructions and by written notice to the Company direct it
to make dividend payments to the Trustee.
7. Subscription Rights. If any stock or other securities of the Company
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are offered for subscription to the holders of its capital stock deposited
hereunder, the Trustee, promptly upon receipt of notice of such offer, shall
mail a copy thereof to each holder of the voting trust certificates. Upon
receipt by the Trustee, at least five days prior to the last day fixed by the
Company for subscription and payment, of a request from any such registered
holder of voting trust certificates to subscribe in his behalf, accompanied with
the sum of money required to pay for such stock or securities (not in excess of
the amount subject to subscription in respect of the shares represented by the
voting trust certificate held by such certificate holder), the Trustee shall
make such subscription and payment. Upon receiving from the Company the
certificates for shares or securities so subscribed for, the Trustee shall issue
to such holder a voting trust certificate in respect thereof if the shares or
securities do not have general voting
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powers, the Trustee shall mail or deliver such securities to the certificate
holder in whose behalf the subscription was made, or may instruct the Company to
make delivery directly to the certificate holder entitled thereto.
8. Dissolution of Company. In the event of the dissolution or total or
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partial liquidation of the Company, whether voluntary or involuntary, the
Trustee shall receive the moneys, securities, rights, or property to which the
holders of the Company's capital stock deposited hereunder are entitled, and
shall distribute the same among the registered holders of voting trust
certificates in proportion to their interests, as shown by the books of the
Trustee. Alternatively, the Trustee may in his discretion deposit such moneys,
securities, rights, or property with any federally insured bank or trust company
doing business in New York, New York, with authority nd instructions to
distribute the same as above provided, and upon such deposit all further
obligations or liabilities of the Trustee in respect of such moneys, securities,
rights, or property so deposited shall cease.
9. Reorganization of Company. If the Company is merged into or
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consolidated with another corporation, or all or
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substantially all of its assets are transferred to another corporation, then in
connection with such transfer the term "Company" for all purposes of this Trust
Agreement shall be deemed to include such successor corporation, and the Trustee
shall receive and hold under this Trust Agreement any stock of such successor
corporation received on account of the ownership, as Trustee hereunder, of the
stock held hereunder prior to such merger, consolidation, and transfer. Voting
trust certificates issued and outstanding under this Trust Agreement at the time
of such merger, consolidation, or transfer may remain outstanding, or the
Trustee may, in his discretion, substitute for such voting trust certificates
new voting trust certificates in appropriate form, and the terms "stock" and
"capital stock" as used herein shall be taken to include any stock which may be
received by the trustee in lieu of all or any part of the Company's capital
stock.
10. Rights of Trustee. (a) Until the actual delivery to the holder of
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the voting trust certificate issued hereunder of stock certificates in exchange
therefor, and until the surrender of the voting trust certificates for
cancellation, the Trustee shall have the rights, subject to the provisions of
this paragraph hereinafter set forth, to exercise, in person or by
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his nominees or proxies, all stockholders' voting rights and powers in respect
of all stock deposited hereunder, and to take part in or consent to any
corporate or stockholders' action of any kind whatsoever. The right to vote
shall include the right to vote for the election of directors, and in favor of
or against any resolution or proposed action of any character whatsoever, which
may be presented at any meeting or require the consent of the Company's
stockholders. Without limiting such general right, it is understood that such
action or proceeding may include, upon terms satisfactory to the Trustee or to
his nominees or proxies thereto appointed by him, mortgaging, creating a
security interest in, and pledging of all or any part of the Company's property,
the lease or sale of all or any part of its property, for cash, securities, or
other property, and the dissolution of the Company, or its consolidation,
merger, reorganization, or recapitalization.
(b) In voting the stock held by him hereunder either in person or by
his nominees or proxies, the Trustee shall exercise his best judgment to select
suitable directors of the Company, and shall otherwise, insofar as he may as a
stockholder of the Company, and shall otherwise, insofar as he may as a
stockholder of the Company, take such part or action in respect to the
management of its affairs as he may deem necessary so as
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to be kept advised on the affairs of the Company and its management. In voting
upon any matter that may come before him at any stockholders' meeting, the
Trustee shall exercise like judgment. The Trustee, however, shall not be
personally liable for any action taken pursuant to his vote or any act committed
or omitted to be done under this Trust Agreement, provided that such commission
or omission does not amount to willful misconduct on his part and that he at all
times exercises good faith in such matters.
11. Trustee. Xxx Xxxx may resign as Trustee. In the event of his death,
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this Trust Agreement shall terminate.
12. Term. This Trust Agreement shall continue in effect until the
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death of the Trustee and may also terminate at any time if any of the following
event occur: (a) the execution and
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acknowledgment (as deeds for the conveyance of real estate are required to be
acknowledged under the laws of New York then in effect) by the Trustee hereunder
of a deed of termination, duly filed in the Company's office in Hicksville, New
York; or (2) the execution and acknowledgement (as deeds for the conveyance of
real estate are required to be acknowledged under the laws of New York then in
effect) of a deed of termination by the registered holders of all the voting
trust certificates outstanding under this Trust Agreement, duly filed in the
Company's principal office in Hicksville, New York; or (c) the removal of
Stockholder from the Board of Directors of Company or its successor for any
reason other than malfeasance or negligence.
13. Compensation and Reimbursement of Trustee. The Trustee shall serve
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without compensation. The Trustee shall have the right to incur and pay such
reasonable expenses and charges, to employ and pay such agents, attorneys, and
counsel as he may deem necessary and proper to effectuate this Trust Agreement.
Nothing herein contained shall disqualify the Trustee or successor Trustees, or
incapacitate him or them from serving the
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Company or any of its subsidiaries as officer or director, or in any capacity,
and in any such capacity receiving compensation.
14. Notice. (a) Unless otherwise specifically provided herein, any
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notice to or communication with the holders of the voting trust certificate
hereunder shall be deemed to be sufficiently given or made if enclosed in
postpaid envelopes (regular not registered mail) addressed to such holders at
their respective addresses appearing on the Trustee's transfer books, and
deposited in any post office or post office box. The addresses of the holders
of voting trust certificates, as shown on the Trustee's transfer books, shall in
all cases be deemed to be the addresses of voting trust certificate holders for
all purposes under this Trust Agreement, without regard to what other or
different addresses the Trustee may have for any voting trust certificate holder
or any other books or records of the Trustee. Every notice so given shall be
effective, whether or not received, and the date of mailing shall be the date
such notice is deemed given for all purposes.
(b) Any notice to the Company hereunder shall be sufficient if
enclosed in a postpaid envelope and sent by registered mail to the Company
addressed as follows: Evergood Products Corporation, 000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxx
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11801 or to such other address as the Company may designate by notice in writing
to the Trustee.
(c) Any notice to the Trustee hereunder may be enclosed in a postpaid
envelope and sent by registered mail to the Trustee, addressed to him at such
addresses as he may from time to time furnish in writing to the Company, and if
no such address has been so furnished by the Trustee, then to him in care of the
Company.
(d) All distributions of cash, securities, or other property hereunder
by the Trustee to the holders of voting trust certificates may be made, in the
Trustee's discretion, by mail (regular or registered mail, as the Trustee may
deem advisable), in the same manner as hereinabove provided for the giving of
notices to the holders of voting trust certificates.
15. Entire Trust Agreement. This Trust Agreement supersedes all prior
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agreements between the parties relating to its subject matter. There are no
other understandings or agreements between them concerning the subject matter.
16. Non-Waiver. No delay or failure by a party to exercise any right
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under this Trust Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any
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other right, unless otherwise expressly provided herein.
17. Headings. Headings in this Trust Agreement are for convenience only
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and shall not be used to interpret or construe its provisions.
18. Governing Law. This Trust Agreement shall be construed in accordance
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with the laws of the State of New York.
19. Binding Effect. The provisions of this Trust Agreement shall be
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binding upon and inure to the benefit of each of the parties and their
respective legal representatives, successors and assigns.
IN WITNESS WHEREOF the Company and the Trustee have signed and sealed this
Trust Agreement, and the Stockholder has signed this Trust Agreement and have
stated the number of shares of capital stock of the Company deposited
respectively by them.
Corporate Seal Evergood Products
Corporation
Attest:
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By: __________________________ By: ____________________________
Secretary Its
Xxx Xxxx
_____________________________
Trustee
Number of Shares Shareholder:
__________________________ _____________________________
Xxxxxxx X. Xxxxx
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