VOTING TRUST AGREEMENT
This Agreement is entered into on ___________, 1997, by and among
____________, ("Trustee"), Pacific Rim Entertainment, Inc. (the "Corporation")
and the Stockholders of the Corporation as set forth on Schedule I attached
hereto and made a part hereof (the "Stockholders").
WHEREAS, the Stockholders each own shares of the Common Stock of the
Corporation; and
WHEREAS, pursuant to a Merger Agreement dated November 5, 1997 (the
"Merger Agreement") between the Corporation, PR Acquisition Corp., a Delaware
corporation (the "Sub"), Osage Computer Group, Inc., an Arizona corporation
("Osage") and certain stockholders of Osage (the "Osage Shareholders"), the
Stockholders have agreed to place certain shares of their Common Stock of the
Corporation in a voting trust upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto do
hereby bind themselves and their heirs, executors, administrators and permitted
assigns, and the Trustee does hereby bind himself, and agree as set forth below.
All capitalized terms not defined herein shall have the meaning ascribed thereto
in the Merger Agreement.
1. Transfer of Stock to Trustee. Each of the Stockholders hereby
transfers and assigns to the Trustee the number of shares of the Corporation's
Common Stock set forth opposite his or her name on Schedule I attached hereto
(the "Trust Shares") and hereby authorizes and directs the Corporation's
transfer agent, upon receipt of a copy of this Agreement, to transfer the Trust
Shares from the named Stockholders into the name of the Trustee as "Voting
Trustee" on the books of the Corporation. The Trustee shall hold the Trust
Shares for the benefit of the Stockholders under the terms and conditions of
this Agreement.
2. Issuance of Voting Trust Certificates. Upon receipt of the
certificates representing the Trust Shares, the Trustee shall issue to each of
the Stockholders a Voting Trust Certificate, in the form attached hereto as
Exhibit "A", for the number of Trust Shares transferred by the Stockholder to
the Trustee. The Trustee shall keep a list of all Trust Shares transferred to
him hereunder, and a list of all Voting Trust Certificates issued, which records
shall include the names and addresses of all Voting Trust Certificate holders
and the number of shares represented by each Certificate.
3. Transfer of Voting Trust Certificates. Each Voting Trust Certificate
shall not be transferable during the term of this Agreement without the consent
of the Board of Directors of the Corporation. The Voting Trust Certificates
shall be deemed to represent shares beneficially owned by the respective
Stockholders.
4. Trustee to Vote Stock. The Trustee shall vote the Trust Shares in
person or by proxy at all meetings of the Stockholders of the Corporation, and
in all proceedings wherein the vote or written consent of Stockholders may be
required or authorized by law. The Trustee shall vote the Trust Shares for the
election of such directors, and in favor of or against any resolution or
proposed action presented at any meeting or requiring the consent of the
Corporation's stockholders, as directed in writing by the holders of the
Corporation's Series B $3.00 Convertible Preferred Stock.
5. Dividends.
(a) All cash dividends or other distributions which may accrue as to
the Trust Shares shall be paid directly to the Stockholders in proportion to the
number of Trust Shares beneficially owned by them as shown on the outstanding
Voting Trust Certificates.
(b) All stock dividends which may accrue to the Trust Shares shall
be placed in the Trust and held by the Trustee and administered in the same
manner as all other Trust Shares.
6. Release of Trust Shares. The Trust Shares shall be released from
this Agreement, and the Trustee shall transfer the Trust Shares to the
respective Stockholders or the Osage Shareholders, as follows:
(a) Pursuant to Section 1.3(b)(v) of the Merger Agreement, in the
event that shares of Additional Acquiror Common Stock are required to be issued
to the Osage Shareholders to satisfy a Deficit, and the Corporation's financial
statements covering the most recent three month period ended prior to the
respective Valuation Dates, as the same are included within a report filed with
the Securities and Exchange Commission, reflect that the Corporation has
remained in compliance with the performance criteria (the "Performance
Criteria") identified at subsection 1.3(b)(viii) of the Merger Agreement during
such three month period, the Trustee shall promptly release the Trust Shares to
the Osage Shareholders in an amount equal to the shares of Additional Acquiror
Common Stock necessary to satisfy the Deficit. The Stockholders hereby authorize
and direct the transfer agent and the Trustee, upon receipt of written direction
from the Corporation's Board of Directors, to transfer and release such Trust
Shares in an amount necessary to satisfy the Deficit (determined on a pro rata
basis among the Stockholders with stock held in the Voting Trust) to the Osage
Shareholders in satisfaction of the Merger Consideration.
(b) Notwithstanding the foregoing, to the extent that during any
three month period no Deficit arises, 250,000 of the Trust Shares shall be
released to the Stockholders (distributed on a pro rata basis) based upon the
total number of shares of such Stockholders that are held in the Voting Trust.
Upon release from the Trust, the transfer agent is hereby directed and
authorized to transfer the Trust Shares back into the name of the respective
Stockholders or as otherwise directed in writing by such Stockholder(s).
7. Indemnification. The Corporation and the Stockholders hereby agree
to indemnify and hold the Trustee harmless from any loss, expense or damages
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which he may sustain by reason of anything he may lawfully do under the terms of
this Agreement except for any loss, expense or damages resulting from willful
misconduct and gross negligence of the Trustee.
8. Term. This Voting Trust Agreement shall terminate upon the earlier
of: (i) the eighteen-month anniversary of the Effective Date of the Registration
Statement; or (ii) such earlier date when all the Trust Shares have been
released to the Stockholders or allocated to the Osage Shareholders in
satisfaction of a Deficit.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
It supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(b) Amendment. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
(c) Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of each of the parties and their
respective legal representatives, successors and assigns.
(f) Transfer Cost. All transfer and other costs of the Trustee
directly related to the administration of this Agreement shall be borne equally
by the Corporation and the Stockholders.
(g) Deposit of Trust Shares. In the event of any dispute by or among
some or all of the parties to this Voting Trust Agreement, which may result in
conflicting instructions being given to Trustee, or in the event that the
Trustee is uncertain how to interpret the instructions which may be received, or
the parties hereto shall fail to properly instruct Trustee, then and in either
of such events, Trustee may refuse to follow any instructions received and may
interplead as a stakeholder in any Arizona court of competent jurisdiction
within Maricopa County, Arizona, and may deposit with the Clerk of such court
each and all of the certificates representing Trust Shares which have been
entrusted to Trustee, and upon making such deposit, Trustee shall be relieved of
all responsibilities or duties hereunder, or in the event Trustee is joined in
any action by any person to a law suit commenced in which any of the parties
hereto may be a plaintiff or defendant, or concerning the property entrusted to
Trustee, then in that event, Trustee may likewise deposit into court whatever
may be in his possession belonging to
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the parties hereto and such action shall relieve Trustee of any further or other
responsibilities or duties hereunder; and further provided that the parties
hereto shall be jointly and severally liable for all Trustee's fees or
attorney's fees and court costs in connection therewith, and all such monies
owed to the Trustee shall bear interest at the rate of twelve percent (12%) per
annum from the date incurred until paid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PACIFIC RIM ENTERTAINMENT, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: President
STOCKHOLDERS
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TRUSTEE:
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Name:
Title:
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SCHEDULE I
Stockholder No. of Shares Certificate No.
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EXHIBIT "A"
VOTING TRUST CERTIFICATE
PACIFIC RIM ENTERTAINMENT, INC.
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Voting Trust Certificate Number Number of Shares Represented
VOTING TRUST CERTIFICATE
THIS CERTIFIES THAT _______________ is the legal and beneficial owner
of shares of the Common Stock of Pacific Rim Entertainment, Inc., a Delaware
corporation (the "Corporation"), said shares having been deposited with the
undersigned Trustee in accordance with a Voting Trust Agreement entered into by
certain Stockholders of the Corporation and the Trustee named hereunder, dated
as of __________, 1997, copies of which are filed in the registered office of
the Corporation in the State of Delaware and in the Corporation's principal
offices at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. This
Voting Trust Certificate is issued in accordance with the terms of the Voting
Trust Agreement and is subject to the provisions thereof.
TRUSTEE
[ ]
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Dated: By:
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Name:
Title:
