VOTING TRUST AGREEMENT
THIS
VOTING TRUST AGREEMENT (“Agreement”) is made and entered into by and between Xxx
Xxxx (the “Holder”), shareholder of China Infrastructure Construction
Corporation (the “Corporation”), and Xxxx Xxxx (the “Voting Trustee”) as of
October 14, 2009.
RECITALS:
WHEREAS,
the Holder owns an aggregate of 7,031,344 shares (the “Shares”) of the
Corporation’s common stock, with no par value (the “Common Stock”) as of the
date hereof; and
WHEREAS,
pursuant to a Call Option Agreement dated October 8, 2008 and another Call
Option Agreement dated as of the date hereof between the Voting Trustee and the
Holder (altogether, hereinafter referred to as “Call Option Agreements”), the
Voting Trustee has the right to acquire all of the Holder’s Shares.
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
obligations set forth herein, the parties agree as follows:
1. Voting Trust.
1.1.
Creation of Voting Trust. The
Voting Trustee, is hereby appointed voting trustee under the voting trust
created by this Agreement. During the term of this Agreement, the Voting Trustee
shall act as voting trustee in respect to the Shares, with all the powers,
rights and privileges and subject to all the conditions and covenants
hereinafter set forth.
1.2.
Deposit of
Shares. Within ten days after the execution and delivery of this
Agreement, the Holder will assign and transfer, or cause to be assigned and
transferred, to Guzov Ofsink, LLC, as collateral agent (the “Collateral Agent”),
all shares of the Shares. The Holder shall deposit with the Collateral Agent the
certificates representing such Shares, duly endorsed in blank or accompanied by
stock powers or other instruments of assignment duly executed in blank, free and
clear of any liens, claims, encumbrances or other rights of third
parties.
1.3.
Delivery of Voting Trust
Certificates. Upon receipt by the Collateral Agent of the certificates
for the Shares, the Shares shall be held in trust by the Voting Trustee, through
the Collateral Agent, subject to the terms and conditions of this Agreement and
shall deliver or cause to be delivered to Holder one or more voting trust
certificates (“Voting Trust Certificates” or “Certificates”), in the form
provided for in Section 2.1, representing in the aggregate the total number of
Shares deposited by Holder.
1.4.
Issue of Share Certificates To
Voting Trustee. The certificates representing the Shares shall be
surrendered by the Voting Trustee to the Corporation and cancelled, and new
certificates representing the Shares shall be issued by the Corporation to and
in the name of the Voting Trustee, and the fact that such certificates are
issued pursuant to this Agreement shall be noted by the Corporation on its stock
transfer records. The Voting Trustee is authorized and empowered to cause to be
made any further transfers of the Shares which may become necessary through the
occurrence of any change of persons holding the office of Voting
Trustee.
1.5.
Acceptance of
Trust. The Voting Trustee accepts the trust created hereby in accordance
with all of the terms and conditions contained in this Agreement. The Shares
shall be held by the Voting Trustee for the purposes of and in accordance with
this Agreement, and none of the Shares, or any interest therein, shall be sold
or otherwise disposed of, pledged or encumbered by the Voting Trustee, except as
provided in this Agreement and in the Call Option Agreements to which the Shares
are subject (the “Option”).
2.
Voting Trust
Certificates.
2.1.
Form. The Voting Trust
Certificates to be issued and delivered by the Voting Trustee under this
Agreement in respect of the Shares shall be substantially in the following form,
with such changes therein consistent with the provisions of this Agreement as
the Voting Trustee and the Holder may from time to time approve:
THIS
CERTIFICATE AND THE SECURITIES REPRESENTED BY IT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE AND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
OFFERED FOR SALE OR OTHERWISE DISPOSED OF UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT OR OTHER QUALIFICATION RELATING TO THE CERTIFICATE AND
SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE CORPORATION AND VOTING TRUSTEES RECEIVE AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION AND VOTING TRUSTEES THAT SUCH
REGISTRATION OR OTHER QUALIFICATION UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
TRANSFER, SALE, OFFER OR DISPOSITION.
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No.
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_________________________Shares
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VOTING
TRUST CERTIFICATE FOR COMMON
STOCK OF
[CORPORATION], (the “Corporation”)
THIS IS
TO CERTIFY THAT:
1. This
voting trust certificate is issued pursuant to, and the rights of the holder
hereof are subject to the terms and conditions of, a Voting Trust Agreement (the
“Voting Trust Agreement”) dated [DATE] among [SHAREHOLDERS] (“Holder”) as
shareholders of [CORPORATION] (“Corporation”), and [TRUSTEE] (“Voting Trustee”).
Copies of the Voting Trust Agreement are kept on file by the Voting Trustee in
their offices at [ADDRESS], have been deposited with the Corporation at its
registered office (or with the officer or agent having charge of its stock
transfer books), and are open to inspection in accordance with the requirement
of law.
2. By
acceptance of this certificate, the Holder thereof, and every transferee, agrees
to be bound by the terms of this certificate and of the Voting Trust
Agreement.
3. Upon
the termination of the Voting Trust Agreement, the Holder shall be entitled to
receive a certificate or certificates for shares upon the release of such shares
pursuant to Section 8 of the Voting Trust Agreement. Until such receipt or
release the Holder shall from time to time be entitled to receive from the
Voting Trustee dividends and distributions payable in cash and property other
than voting stock of the Corporation, if any, received by or for the account of
the Voting Trustee upon such shares. If the Voting Trustee shall receive any
additional shares issued by way of dividend upon, or in exchange for the
certificates for shares represented by this certificate, the Voting Trustee
shall hold such shares in accordance with the terms of the Voting Trust
Agreement and shall issue Voting Trust Certificates in respect
thereof.
4. Until
the re-transfer to the Holder hereof of certificates for the shares represented
by this certificate, the Voting Trustee shall possess and be entitled to
exercise all rights and powers to vote the shares as provided in the Voting
Trust Agreement, and no Holder of this certificate shall in such capacity have
any rights or powers to vote such shares.
5. This
certificate is transferable only on the books of the Voting Trustee to be kept
by them, or their agents, upon surrender hereof (duly endorsed in blank or
accompanied by a proper instrument or assignment duly executed in blank,
together with all requisite transfer tax stamps attached thereto and an amount
sufficient to pay all Federal, state and local taxes or other governmental
charges, if any, then payable in respect of such transfer) by the registered
Holder in person or by such Holder's duly authorized attorney. Until this
certificate is so transferred, the Voting Trustee may treat the registered
Holder hereof as the absolute owner hereof for all purposes whatsoever. The
rights and powers to transfer this certificate are expressly limited by and
subject to the transfer restrictions contained in the Voting Trust
Agreement.
6. This
certificate is not valid unless signed by the Voting Trustee.
The
undersigned Voting Trustee have caused this certificate to be signed this
[DATE].
________________________________
_________________________,
Trustee
________________________________
_________________________,
Trustee
2.2. Restrictions on Certificate
Transfers
2.2.1. Applicability of
Restrictions. The restrictions on transfer of Voting Trust Certificates
are intended to apply during the term of the voting trust created under in this
Agreement.
2.2.2. Restriction on Lifetime
Disposition. Holder shall not dispose of (and the terms “dispose of” and
“disposition” as used in this Agreement mean any sale, transfer, assignment,
pledge, mortgage, distribution or other form of disposition or conveyance,
whether voluntary, involuntary, or by operation of law, and whether testamentary
or inter vivos) all or any part of his interest in a Voting Trust Certificate
issued hereunder except under the conditions set forth in this Agreement. Until
the termination of this Agreement, each Voting Trust Certificate shall remain
subject to this Agreement even though an offer or offers are made under this
Agreement but not accepted. Any transfer of a Voting Trust Certificate shall
result in its immediate cancellation.
3. Dividends and
Distributions;
3.1.
Dividends or
Distributions Payable in Cash or Other Property. The Voting Trustee
shall, from time to time, pay or cause to be paid to Holder, his pro rata share
of any dividends or distributions payable in cash or property, other than voting
stock of the Corporation, collected by the Voting Trustee upon the Shares
deposited hereunder. For the purpose of making any such payment, or for any
other purpose, the Voting Trustee may, in his discretion, fix such date as they
may reasonably determine as a record date for the determination of persons
entitled to any payments or other benefits hereunder, or order their transfer
books closed for such period or periods of time as they shall deem
proper.
3.2.
Share Dividends or
Distributions. The Voting Trustee shall receive and hold, subject to the
terms of this Agreement, any voting stock of the Corporation issued in respect
of the Shares by reason of any recapitalization, share dividend, split,
combination or the like and shall issue and deliver Voting Trust Certificates
therefor to the Holder.
4. Matters Relating to Administration
of Voting Trust; Voting.
4.1.
Action by Voting
Trustee. The Voting Trustee shall possess and be entitled, subject to the
provisions hereof, in his discretion, to exercise all the rights and powers of
absolute owners of all Shares, including, but without limitation, the right to
receive dividends on Shares, and the right to vote, consent in writing or
otherwise act with respect to any corporate or shareholders' actions. Such
corporate or shareholders' actions include but are not limited to any increase
or reduction in the stated capital of the Corporation, any classification or
reclassification of any of the shares as now or hereafter authorized into
preferred or common stock or other classes of shares with or without par value,
any amendment to the Articles of Incorporation or Bylaws, any merger or
consolidation of the Corporation with other corporations, any sale of all or any
part of its assets, and the creation of any mortgage or security interest in or
lien on any property of the Corporation. It is expressly stipulated that no
voting right shall pass to others by or under the Voting Trust Certificates, or
by or under this Agreement, or by or under any other express or implied
agreement.
4.2.
Indemnification. The Holder
shall indemnify and hold the Voting Trustee harmless from and against any and
all liabilities, losses, costs, and expenses, including reasonable attorneys'
fees, in connection with or arising out of the administration of the voting
trust created by this Agreement or the exercise of any powers or the performance
of any duties by them as herein provided or contemplated, to the fullest extent
permitted under the law.
5.
Holder of Voting Trust Certificates
Bound.
All
Voting Trust Certificates issued under this Agreement shall be issued, received,
and held subject to all of the terms of this Agreement. Every registered Holder
of a Voting Trust Certificate, and every bearer of a Voting Trust Certificate
properly endorsed in blank or properly assigned, by the acceptance or holding
thereof shall be deemed conclusively for all purposes to have assented to this
Agreement and to all of its terms, conditions and provisions and shall be bound
by this Agreement with the same force and effect as if such Holder or bearer had
been originally a party to this Agreement.
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6.
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Dissolution of
Corporation.
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In the
event of the dissolution or total or partial liquidation of the Corporation,
whether voluntary or involuntary, the Voting Trustee shall receive the moneys,
securities, rights or property to which the Holder of Shares are entitled, and
shall distribute the same to the Holder.
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7.
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Reorganization of
Corporation.
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In case
the Corporation is merged into or consolidated with another corporation, or all
or substantially all of the assets of the Corporation are transferred to another
corporation, then in connection with such transfers the term “Corporation” for
all purposes of this Agreement shall be taken to include such successor
corporation, and the Voting Trustee shall receive and hold under this Agreement
any voting stock of such successor corporation received on account of the
ownership, as Voting Trustee hereunder, of Shares held hereunder prior to such
merger, consolidation or transfer. Voting Trust Certificates issued and
outstanding under this Agreement at the time of such merger, consolidation or
transfer may remain outstanding, or the Voting Trustee may, in their discretion,
substitute for such Voting Trust Certificates new voting trust certificates in
appropriate form, and the term “Shares” as used herein shall be taken to include
any shares which may be received by the Voting Trustee in lieu of all or any
part of the shares of the Corporation.
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8.
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Termination; Release of
Shares.
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This
Agreement shall have the same term as the Option and shall terminate only upon
the termination of the Option.
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9.
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Amendments.
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This
Agreement may be amended or terminated at any time by an instrument in writing
duly executed and acknowledged by the Holder and the Voting
Trustee.
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10.
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Miscellaneous.
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10.1. Benefits of this Agreement;
Survival. The terms of this Agreement shall be binding upon and inure to
the benefit of and shall be enforceable by the Holder, the Voting Trustee, and
their respective successors and assigns.
10.2. Notice. Any notice, request,
offer, acceptance or other communication permitted or required to be given
hereunder to the Holder or the Voting Trustee shall be sent by certified mail or
by courier service, return receipt requested, or hand-delivered to such person
at the address set forth below:
Holder:
0000
Xxxxxxxxxx Xxx, Xxxxxx, XX 00000;
Tel:
000-000-0000
Email:
xxxxxxx@xxxxxxx.xxx
Voting Trustee:
C915 Jia
Hao International Business Xxxxxx
000
Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx
Xxxxxxx,
Xxxxx 100097
Tel :
00-00-0000-0000
Email: xxxxxxxx00@000.xxx
or at
such other addresses as may be established by notice hereunder. Any notice so
given shall be deemed effective at the time of delivery indicated on the duly
completed postal service or courier receipt or when hand-delivered.
10.3. Severability. In case any
provision of this Agreement shall be held to be invalid or unenforceable in
whole or in part, neither the validity nor the enforceability of the remainder
of this Agreement shall be in any way affected.
10.4. Descriptive Headings; Gender.
The headings in this Agreement are for the convenience of reference only and
shall not limit or otherwise affect the provisions hereof. The use of the
masculine gender shall be deemed to include the feminine and neuter
gender.
10.5. Counterparts of this
Agreement. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
10.6. Governing Law. This Agreement
and the rights and obligations of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of New York.
The
respective parties have caused this Agreement to be executed as of the date
first above written.
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Voting
Trustee:
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Holder:
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