Voting Trust Agreement dated July 10, 2008 between Jerry Parish as trustee and Victor Garcia
Exhibit
9.3
Voting
Trust Agreement dated July 10, 2008 between Xxxxx Xxxxxx as trustee and Xxxxxx
Xxxxxx
AGREEMENT
made and entered into as of the 10TH day of July, 2008 among The Mint Leasing,
Inc., a corporation organized and existing under the laws of the state of Texas
(the “Company”), XXXXXX XXXXXX
(“Stockholder”)
the owner of capital stock (“Company Stock”) of the Company (“Stockholder”), and
Xxxxx X. Xxxxxx (“Voting Trustee”).
WHEREAS,
after completion of the business combination that converts the Company from
private to public ownership, the Company, the Trustee and the Shareholder desire
to maintain continuity of corporate decision making.
NOW
THEREFORE, in consideration of the premises and mutual undertakings of the
parties hereinafter set forth, a voting trust in respect of the Company Stock
owned by the Stockholder is hereby created and established, subject to the
following terms and conditions, to all and every one of which the parties hereto
expressly assent and agree:
1. Deposit of Company
Stock. After executing this Agreement Stockholder will
transfer and assign to the Trustee, as trustee, all of the shares of capital
stock of the Company owned by him, and Stockholder will from time to time
transfer and assign to the Trustee, as trustee, all additional shares of common
stock owned by him, and all securities convertible into, exchangeable for, or
representing a right to purchase capital stock, immediately following the
acquisition thereof and will, in each case, deposit hereunder, with the Trustee,
as trustee, the certificates for such shares all of which certificates, if not
registered in the name of the Trustee, as trustee, shall be duly endorsed in
blank or accompanied by proper instruments of assignment and transfer thereof
duly executed in blank and in either case properly stamped for registration of
transfer.
2. Issuance of Voting Trust
Certificate. Concurrently with the execution of this Agreement
and the deposit hereunder by Stockholder of all of the shares of Company Stock
now owned by them, the Trustee, as Trustee, will issue to Stockholder, and will
from time to time issue with respect to all shares of Company Stock and all
other securities of the Company hereafter deposited hereunder, a Voting Trust
Certificate or Voting Trust Certificates, in the form attached hereto as Exhibit
B, representing the number of shares of Company Stock or other securities of the
Company transferred and delivered to them (the “Trust Securities”), which
Certificate or Certificates will be registered in the name of Stockholder or in
such name as may be specified in writing by Stockholder.
3. Holding of Trust
Securities. The certificates for the Trust Securities
deposited with the Trustee, as Trustee, will, if not registered in the name of
the Trustee, as Trustee, be surrendered and cancelled and new certificates
therefor issued to the Trustee, as Trustee. In all certificates issued in the
name of the Trustee, as Trustee, it shall appear on the face thereof that they
are issued pursuant to this Agreement and, in the entry of such ownership in the
books of the Company, that fact shall also be noted. The Trust
Securities shall be held and applied by the Trustee, as Trustee, for the
purposes of and in accordance with this Agreement, and none of the Trust
Securities, or any interest therein, shall be sold or otherwise disposed of by
the Trustee, as Trustee, except as herein expressly provided or in accordance
with a final order of any court or administrative agency with jurisdiction
thereover.
4. Distributions on or Exchanges of
Trust Securities. (a) Until the termination of this
Agreement and the delivery of the certificates for the Trust Securities in
exchange for Voting Trust Certificates, the Trustee, as Trustee, shall, promptly
following the receipt of any dividends or other distributions (including,
without limitation, any rights to purchase or subscribe for securities) of any
kind paid or made upon such Trust Securities, pay and transfer the property so
distributed to, or as directed by, the registered holder or holders of the
Voting Trust Certificates in proportion to his or their respective interests in
the distribution; provided, however, that, in case the Trustee, as Trustee,
shall receive any dividend or distribution of Company Stock or of rights to
purchase or securities convertible into Company Stock, the Trustee, as Trustee,
shall hold such Company Stock, such convertible securities and such other rights
subject to this Agreement and shall immediately issue Voting Trust Certificates
in respect of such Company Stock, convertible securities and other rights to the
registered holder of each Voting Trust Certificate relating to such securities.
Any Company Stock or convertible securities or other rights so received by the
Trustee, as Trustee, shall be Trust Securities hereunder.
(b) Upon
any increase, reduction or reclassification of the securities of the Company, or
upon any merger, consolidation, reorganization or dissolution of the Company,
the Trustee, as Trustee, are authorized to make such surrender of the Trust
Securities as may be proper or expedient and either to hold any security or
other property issued in exchange for such surrendered Trust Securities or to
distribute such securities or property if such securities or property would have
been distributed if the receipt of such securities or property were governed by
paragraph (a) of this Section 4. Unless the then outstanding Voting
Trust Certificates are exchanged for new Voting Trust Certificates, the then
outstanding Voting Trust Certificates shall, without any further action, be
deemed to be adjusted as may be appropriate to reflect such increase, reduction,
reclassification, merger, consolidation, reorganization or dissolution referred
to in the first sentence of this paragraph (b).
(c) If
any Trust Securities are or become convertible into or exercisable for Company
Stock, the beneficial owner of such Trust Securities shall have the right to
direct the Trustee, as Trustee, by written notice, upon surrender of the related
Voting Trust Certificate and payment of any consideration required to be paid to
the Company upon exercise or conversion, to convert or exercise such Trust
Securities. Any securities received upon such exercise or conversion
shall be Trust Securities hereunder, and Voting Trust Certificates evidencing
such Trust Securities shall immediately be issued by the Trustee, as Trustee, to
the registered holder of the related Voting Trust Certificate that represented
such convertible or exercisable Trust Securities.
5. Voting of Trust
Securities. The Trustee, as Trustee, shall vote, in person or
by proxy, all Trust Securities of each class entitled to vote, on all matters
submitted to the Company's shareholders, and shall exercise all rights that are
personal to the beneficial owner or owners of the Company Stock, in each case in
accordance with the procedures set forth in Section 5(b) (other than the right
to convert or exercise Trust Securities provided in Section 4(c) of this
Agreement, which right shall be exercised by the beneficial owner thereof as
provided therein).
6. Release of Trust Securities;
Termination of this Agreement. This Agreement shall continue
in effect until the earlier of December 31, 2009. Upon the
termination of this Agreement or upon the surrender of Voting Trust Certificates
in exchange for Trust Securities represented thereby, or upon any taxable
transfer of Trust Securities, the recipient of the Trust Securities shall
furnish to the Trustee, as Trustee, prior to delivery of the Trust Securities,
funds sufficient to pay any taxes that may be payable upon the transfer of the
Trust Securities represented by such Voting Trust Certificates.
Upon
delivery by the Trustee, as Trustee, of all Trust Securities or other property
then held hereunder in exchange for outstanding Voting Trust Certificates, as
provided in this Section 6, this Agreement shall terminate and all further
obligations or duties of the Trustee, as Trustee, under this Agreement or any
provision thereof shall cease.
7. Interest of
Trustee. The Trustee, as Trustee, assumes no liability as a
shareholder of the Company solely by acting as Trustee under the terms of this
Agreement, his interest hereunder being that of Trustee only. The
Trustee, as Trustee, will vote the Trust Securities on all matters in accordance
with the provisions of this Agreement, but he shall have no implied obligations,
and assume no responsibility in respect of any action taken by him or taken as a
result of his vote so cast, and the Trustee, as Trustee, shall incur no
responsibility as Trustee or otherwise by reason of any error in law, mistake of
judgment, or of anything done or suffered or omitted to be done under this
Agreement, except for their own individual gross negligence or willful
misconduct. The Trustee, as Trustee, shall be entitled to rely and to
act upon the advice of legal counsel. The Trustee, as Trustee, assume
no responsibility with respect to the validity or genuineness of any of the
stock certificates to be deposited hereunder, or any notice, request,
assignment, power of attorney, acknowledgment or other paper or document, and
the Trustee, as Trustee, shall be entitled to assume that any such stock
certificates or other papers or documents are genuine and valid and what they
purport to be, and are signed by the proper parties, and the endorsements and
assignments thereof are genuine and legal.
8. Certain Action by the
Trustee. (a) The Trustee, as Trustee, is hereby
authorized and directed, notwithstanding any provisions of this Agreement, to
comply with the terms or conditions of any order of a court or any
administrative agency having jurisdiction binding upon them with respect to the
Trust Securities. Stockholder and the Company shall promptly deliver
to the Trustee, as Trustee, a copy of any such order.
2
(b) The
Trustee shall be removed as a trustee upon (i) such Trustee's death, incapacity,
or resignation, or (ii) such Trustee ceasing to be a shareholder of the Company
or one of its affiliates.
9. Transfer of Voting Trust
Certificates. (a) The Voting Trust Certificates may
be transferred, assigned or pledged only (i) with the written consent of the
Trustee, (ii) upon the death or incapacity of the Stockholder or by operation of
law; provided that in the case of clause (ii) hereof it shall be a condition to
the transfer of the Voting Trust Certificates by the Trustee, as Trustee, that
each transferee (including, in the event of a Depositor's death or incapacity,
his legal representative) shall have executed a voting trust agreement (which as
to such transferee will become effective as of the date of its execution) (a
“Supplemental Voting Trust Agreement”) substantially in the form hereof and
satisfactory to the Trustee and the Company. It is understood that
(A) such transferees shall have no right to direct the voting of the Trust
Securities or to exercise any other rights as shareholders of the Company which,
pursuant to this Agreement, are to be exercised only by the Trustee (other than
the right to convert or exercise Trust Securities provided in Section 4(c) of
this Agreement), (B) such Supplemental Voting Trust Agreement will empower the
Trustee to direct the voting of the Trust Securities and exercise such other
rights as shareholders of the Company (other than the rights to convert,
exercise or request registration of, Trust Securities, referred to in clause (A)
of this paragraph (b)) in the manner contemplated by this Agreement, and (C)
such Supplemental Voting Trust Agreement will permit the transferee (or the
legal representative of the transferee) to transfer shares of Company Stock or
other Trust Securities held pursuant to such voting trust to the same extent and
in the same manner in which Stockholder are permitted to transfer such shares
and securities under this Agreement.
(b) The
Voting Trust Certificates shall be transferable only on the books of the
Trustee, as Trustee, upon surrender of such Voting Trust Certificates (duly
endorsed in blank or accompanied by a proper instrument of assignment and
transfer duly executed in blank) in person or by the duly authorized attorney of
a registered holder. Upon the surrender of any Voting Trust Certificates for
transfer, the Trustee, as Trustee, shall cancel such Voting Trust Certificates
and issue to the transferee (which may be the same person as the transferor) new
Voting Trust Certificates in the same form and representing the same total
amount of Trust Securities as the Voting Trust Certificates presented for
cancellation.
(c) The
Trustee, as Trustee, will not register the Voting Trust Certificates under the
1933 Act, in reliance upon the representations and agreements of the holder or
holders, acknowledged hereby, that the Voting Trust Certificates are held
subject to all applicable provisions of the 1933 Act. Without limiting the
foregoing, each holder of a Voting Trust Certificate governed by this Agreement
agrees that he will not offer, sell, assign, pledge or otherwise transfer or
dispose of said Voting Trust Certificates or any part thereof in a manner which
would violate the 1933 Act. The Trustee, as Trustee, will not issue
additional Voting Trust Certificates to any person which has not expressly
agreed to comply with these provisions to the extent such compliance is required
in the opinion of counsel to the Trustee, as Trustee.
10. Replacement of Voting Trust
Certificates. In case any Voting Trust Certificate shall
become mutilated or be destroyed, lost or stolen, the holder shall immediately
notify the Trustee, as Trustee, who, subject to the following sentence, shall
issue and deliver to the holder a new Voting Trust Certificate of like tenor and
denomination in exchange for and upon cancellation of the Voting Trust
Certificate so mutilated, or in substitution for the Voting Trust Certificate so
destroyed, lost or stolen. The holder shall furnish proof reasonably
satisfactory to the Trustee, as Trustee, of such destruction, loss or theft,
and, upon request, shall furnish indemnity reasonably satisfactory to the
Trustee, as Trustee, and shall comply with such other reasonable requirements as
the Trustee, as Trustee, may prescribe.
11. Amendments. This
Agreement may be amended only by an agreement (i) executed by the Trustee, as
Trustee, and each of the other parties hereto or (ii) receipt by the Trustee of
written consents signed within one week of such receipt by the holders of Voting
Certificates representing a majority of the voting power of the Voting
Securities.
12. Counterparts. This
Agreement may be executed in several counterparts, each of which so executed
shall be deemed to be an original, and all of such counterparts shall together
constitute but one and the same instrument.
3
13. Inspection. Until
the termination of this Agreement, one original copy of each counterpart hereof
and amendment hereto shall be filed with the Company at its principal office and
such documents shall be open to the inspection of any shareholder of the Company
or his attorney during business hours.
14. Further
Assurances. Each party to this Agreement shall give urther
assurance and perform such acts which will or may become necessary or
appropriate to effectuate and carry out the purposes or provisions of this
Agreement.
15. Acceptance of
Trust. The Trustee, as Trustee, accept the trust created
hereby subject to all the terms and conditions herein contained and agree that
they will exercise the powers and perform the duties of Voting Trustee as herein
set forth according to the provisions of this Agreement; provided, however, that
the Trustee, as Trustee, may resign and discharge themselves from the trust
created hereby in the manner herein provided.
16. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and jurisdiction for any legal
action in connection with or arising out of this agreement shall be in the
District Courts of Xxxxxx County, Texas.
17. Reliance by Trustee, as
Trustee. The Trustee, as Trustee, shall be entitled to rely
upon advice of counsel satisfactory to them that any action they are directed to
take under this Agreement is not in violation of (a) any order of any court or
agency with jurisdiction thereover, (b) the Federal securities laws, or (c) any
state “blue-sky” law.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
|
THE
MINT LEASING, INC.
|
/s/ Xxxxx X.
Xxxxxx
|
|
Xxxxx
X. Xxxxxx, Trustee
|
|
|
/s/ Xxxxx X.
Xxxxxx
|
/s/ Xxxxxx
Xxxxxx
|
|
Xxxxx
X. Xxxxxx, President
|
Shareholder
|
4
Exhibit
A
Trustee's
Certificate
The Mint
Leasing, Inc.
|
Number
001
|
Shares 35,
325,000
|
This
certifies that there has been deposited with the Trustee whose name is signed to
this certificate, 500 shares of the
common capital stock of the Company under and by virtue of an Agreement entered
into between the Stockholder of the Company, and the undersigned Trustee, dated
July 10, 2008 and that upon termination of the agreement on December 31, 2009,
will be entitled to receive a certificate for shares of the common capital stock
of the Company and, in the meantime, to receive payments equal to the dividends,
if any, collected by the undersigned Trustee, or his successor, upon a like
number of shares standing upon the books of the Company, in the name of Trustee
or his successor.
Until the
actual delivery of such stock certificates, the Trustee or his successor, shall
possess and shall be entitles to exercise all rights of every nature, including
the right to vote with respect to any and all such stock, it being expressly
stipulated that no voting right passes by this certificate, or by any agreement,
expressed or implied.
This
certificate and the interest represented by it is transferable only on the books
of the undersigned Trustee, upon its presentation and surrender, and the holder
accepts the same subject to all the terms and conditions of the Agreement
between the Trustee and the Stockholder of the Company, and becomes a party to
the Agreement, and is entitled to its benefits.
This
certificate shall be surrendered to the Trustee by the holder, at the
termination of the Agreement, upon the delivery to such holder of a like amount
of stock of the Company.
In
witness, the undersigned Trustee have executed this certificate as of this
10th day
of July 2008.
/s/
Xxxxx Xxxxxx
Xxxxx X.
Xxxxxx, Trustee
The
trustee's certificates shall be transferable only on the books of the Trustee,
by the holder in person, or by attorney, upon surrender properly assigned and
indorsed. Upon such assignment surrender, a new Trustee's certificate
shall be issued to the transferee by the Trustee, and the person accepting shall
be bound by the terms of the Agreement, as fully to all intents and purposes, as
if he or she signed the same.
5
