EXHIBIT 10.30
XXXXXX VOTING TRUST AGREEMENT
This Agreement is made effective as of September 1, 2001, by and among
AmeriVision Communications, Inc., an Oklahoma corporation currently maintaining
a business address at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx
00000 (the "COMPANY"), Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx, individual residents
0000 X.X. 000xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "BENEFICIARIES"), and Xxxxx
Xxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx (the "TRUSTEES").
BACKGROUND INFORMATION
The Beneficiaries are married to each other as husband and wife. They
are currently the registered owners, as joint tenants with a right of
survivorship, of 16,742.89 shares of the Company's single class of authorized
capital stock (which stock, together with any class or series of capital stock
of the Company that is hereafter authorized for issuance, shall be referred to
herein as the "CAPITAL STOCK"). In addition, Xx. Xxxxxx is the registered owner
of 135,600 shares of Capital Stock, of which 50,000 shares are pledged in favor
of Hebron Communications Corporation ("HEBRON") as security for the repayment of
Company obligations owing to that entity; Xx. Xxxxxx is the registered owner of
2,000 shares of Capital Stock; the Xxxxxx'x minor son, Xxxxx X. Xxxxxx, is the
registered owner of 2,200 shares of Capital Stock; Xx. Xxxxxx and Xxxxx X.
Xxxxxx are the registered owners of 2,000 shares of Capital Stock; and the
Xxxxxx'x adult son, Xxxxx X. Xxxxxx, is the registered owner of an additional
2,666.53 shares of Capital Stock. The owners of the 161,209.42 shares of Capital
Stock so referenced are hereinafter sometimes referred to as the "XXXXXX GROUP",
and that number of shares represents 19.13% of the Company's 842,727 shares of
Capital Stock that are currently issued and outstanding.
In order to better assure stability and continuity in the management
and control of the Company's affairs during the period described below the
Beneficiaries deem it advisable to deposit with the Trustees 104,342.89 of the
shares of Capital Stock owned by them individually or jointly, including all of
the shares owned by the Beneficiaries jointly (16,742.89) and by Xx. Xxxxxx
individually (2,000), and the 85,600 shares owned by Xx. Xxxxxx in an
unencumbered condition. In addition, Xx. Xxxxxx deems it advisable to assign to
the Trustees his voting rights with respect to 14,814 of the 50,000 shares which
are owned by him but pledged to Hebron (the "HEBRON SHARES") and to direct the
escrow agent which has physical possession of the certificate representing the
Hebron Shares, at such time as the certificate would otherwise be returnable to
Xx. Xxxxxx, to cause the same to be deposited with the Company for cancellation
and reissuance, to the extent of the Hebron Shares, to the Trustees. The
119,157.89 shares of Capital Stock to be so deposited or whose voting rights are
to be so assigned, together with any additional shares of Capital Stock that are
hereafter subjected to the terms of this Agreement, are sometimes herein
referred to as the "SHARES". All such Shares are hereafter to be held subject to
the terms of this Agreement (in the case of the Shares whose voting rights are
being assigned, subject to the legal rights of Hebron), leaving registered in
the joint or individual names of members of the Xxxxxx Group 42,052 shares of
Capital Stock, constituting 4.99% of the Company's issued and outstanding shares
of Capital Stock (the "MAXIMUM OUTSIDE SHARE PERCENTAGE"). The Trustees are
willing to accept receipt of the Shares (either physically or by way the
assignment herein contained) and to hold the same pursuant to the terms of and
subject to the conditions imposed by this Agreement.
NOW, THEREFORE, for the mutual promises herein made, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
OPERATIVE PROVISIONS
1. INCORPORATION BY REFERENCE. The Company and each of the Beneficiaries
acknowledge each of the statements set forth above under the heading, Background
Information, as being accurate and complete, and therefor incorporate the same,
together with each of the definitions created therein, into the Operative
Provisions of this Agreement by specific reference thereto.
2. ESTABLISHMENT AND TERM OF TRUST. The Beneficiaries hereby declare and
establish this Trust for the mutual benefit of themselves and the Company for
that period of time commencing as of the date of this Agreement and terminating
on the earliest of (a) the termination of that certain Consulting Agreement, of
even date herewith, by and between the Company and Xxxxx X. Xxxxxx; (b) the sale
by the Beneficiaries of all Shares in accordance with the requirements of
Section 11 below; (c) the occurrence of an event triggering the termination
requirement of Section 15 below; or (d) August 31, 2011 (the "Term"). During its
Term, this Trust shall be irrevocable except as otherwise provided herein.
3. TRANSFER OF SHARES INTO TRUST/ISSUANCE OF VOTING TRUST CERTIFICATE. The
Beneficiaries hereby transfer to the Trustees and the Trustees hereby accept, to
be held in trust pursuant to the terms of this Agreement, one or more
certificates, each being endorsed or accompanied by separate instruments of
assignment and transfer, so as to enable the Trustees to cause there to be
transferred into the Trustees' registered ownership, as hereinafter provided,
all of Beneficiaries' legal right, title and interest in and to Shares other
than the Hebron Shares, and Xx. Xxxxxx hereby assigns to the Trustees his right,
title and interest in and to the Hebron Shares so as to enable the Trustees to
vote the Hebron Shares and to have the right, when the Hebron Shares would
otherwise be returnable to Xx. Xxxxxx, to receive the same into their registered
ownership, also as hereinafter provided; but each of the Beneficiaries hereby
reserves to him or herself the equitable title and all beneficial rights and
interests therein, as such title, right and interest may appear. During the Term
of this Agreement, the Beneficiaries and each of Mr. and Xxx. Xxxxxx,
individually, shall have a continuing duty to transfer additional shares of
Capital Stock to the Trust if at any time during the Term hereof the legal or
beneficial ownership of Capital Stock by the Xxxxxx Group, or any of its
members, not then made the subject of this Agreement, exceeds the Maximum
Outside Share Percentage, such that, following each such additional transfer,
the combined ownership of shares of Capital Stock by all members of the Xxxxxx
Group shall not exceed the Maximum Outside Share Percentage.
4. TRUST ADMINISTRATION. The Trustees shall cause each certificate evidencing
the Beneficiaries' ownership of Shares, when deposited pursuant to this
Agreement, to be canceled by the Company and reissued so as to identify on the
Company's stockholder records the "Trustees of the Xxxxxx Voting Trust
Agreement, dated September 1, 2001", as being the registered owner of such
Shares, provided that if any such deposited certificate evidences a greater
number of shares of Capital Stock than are required hereby to be deposited with
and held by the Trustees, appropriate action shall be taken by the Trustees, the
Beneficiaries and the Company to cause only the Shares required to be deposited
with the Trustees to be evidenced by a certificate issued to the Trustees.
The Trustees shall hold all Shares received subject to the terms of
this Agreement, and shall, following each receipt, promptly issue and deliver to
the registered owner(s) of each certificate tendered for the purpose of
effecting a Share transfer to the Trustees a voting trust certificate, in the
form of EXHIBIT A hereto, evidencing such owner(s)' beneficial ownership of the
Shares so transferred. The Trustees shall maintain accurate Trust records
identifying by name and address each person to whom a particular voting trust
certificate shall be issued (a "REGISTERED HOLDER", which term, as applicable,
shall be deemed to include Xx. Xxxxxx during that period prior to delivery of
the Hebron Shares to the Trustees), which person shall be treated by the
Trustees as the sole owner of such voting trust certificate. For clarity of
interpretation of the remaining provisions of this Agreement, even though Xx.
Xxxxxx shall not be issued a voting trust certificate with respect to the Hebron
Shares until such time as a certificate representing the same is presented to
the Trustees for cancellation and reissuance, he will, during such period, be
deemed to have the same equitable rights hereunder as to the Hebron Shares as
each holder of a voting trust certificate shall have with respect to the Shares
represented thereby. The Trustees may give any required notice (including change
of address) to a Registered Holder by sending such notice to the most recent
address provided by such Registered Holder and appearing in the records
maintained by the Trustees. Any notice provided by a Registered Holder to the
Trustees shall be sent to the following address until further notice:
x/x Xxxxxx X. Xxxx, Xxx.
Xxxx Xxxx Xxxxxxx Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
5. VOTING RIGHTS OF TRUSTEES. From and after the date of this Agreement and
until the cancellation of a particular voting trust certificate and subsequent
delivery to a Registered Holder (or to any pledgee of the Shares to which such
certificate applies) of one or more stock certificates in exchange therefor, the
Trustees shall have the right, subject to the remaining provisions of this
section, to exercise, in person or by their nominee or proxy, all shareholder
voting rights and powers in respect of the Hebron Shares and all other Shares
whose certificates shall be deposited hereunder, and to take part in or consent
to any corporate or shareholder action of any kind or character. The right to
vote shall include the right to vote for the election of Company directors, and
in favor of or against any resolution or proposed action of any character,
which may be presented at any meeting or require the consent of Company
shareholders. In voting the Shares held hereunder, the Trustees shall exercise
their best judgment to select suitable directors of the Company, and shall
otherwise take action in respect of the Company's management or its affairs as
they may deem necessary or appropriate; but they shall not be held personally
responsible with respect to any action taken pursuant to any such vote cast or
action taken or omitted under this Agreement as long as the Trustees exercise
good faith in such matters and their actions or inactions do not constitute
willful misconduct. In making any decision with respect to the Trust, its assets
or administration, the Trustees shall act by majority rule. Any delegation of
the voting right herein granted to a nominee or proxy shall be permitted
hereunder only if such nominee or proxy is also then a trustee of this Trust.
Notwithstanding the foregoing, the Trustees shall cast a vote with
respect to any of the following proposals only as directed by the Registered
Holders of voting trust certificates which evidence the beneficial ownership of
at least two-thirds of the Shares then represented by all outstanding voting
trust certificates:
a. to dissolve or liquidate the Company, to merge it into, or
to consolidate it with another corporation or other legal entity;
b. to amend the Company's Articles of Incorporation;
c. to sell substantially all of the Company's assets;
d. a proposal, which, if carried, will have the effect of
reducing substantially the voting power, rights to dividends, or
rights to Company assets upon its dissolution or liquidation, of the
Shares underlying all then outstanding voting trust certificates; or
e. to sell, mortgage, or in any manner transfer, directly or
indirectly, to any third party, by means other than a directed sale,
assignment, gift or pledge made by a Registered Holder, any interest
in the Shares underlying then outstanding voting trust certificates.
6. DIVIDENDS. During the pendency of this Agreement, the Trustees shall be
required to make prompt distribution to each Registered Holder of a voting trust
certificate of any cash dividend or other cash distribution received by the
Trustees from the Company with respect to the Shares to which such voting trust
certificate applies. If any dividend or other distribution in respect of the
Shares deposited with the Trustees is paid, in whole or in part, in capital
stock of the Company having general voting powers, the Trustees shall likewise
hold, subject to the terms of this Agreement, each certificate received by them
on account of such dividend or distribution, and the Registered Holder of each
voting trust certificate representing Shares with respect to which such stock
dividend or distribution has been paid shall be entitled to receive a separate
voting trust certificate with respect to the number of shares and class of stock
received as such dividend or distribution; provided that if a voting trust
certificate issued with respect to Shares has been pledged and the Trustees have
actual notice of such pledge, then the pledgee of such voting trust certificate
shall be entitled to receive any new voting trust certificate issued with
respect to the number and class of Shares received by the Trustees as such stock
dividend or distribution.
A Registered Holder shall be entitled to receive a cash dividend or
distribution described above only if such Holder is registered as such in the
Trustees' shareholder records at the close of business on the record date
selected by the Company to determine those holders of its capital stock entitled
to receive such dividends or distributions, or, if the Trustees shall have fixed
their own date for the purpose of determining the Registered Holders of voting
trust certificates entitled to receive such cash distribution, as shall be their
right, then registered as such at the close of business on the date so fixed by
the Trustees. With respect to voting trust certificates that have been pledged
and for which the Trustees have received actual notice, the Trustees will be
obligated to provide additional voting trust certificates representing any stock
dividends or distributions to the pledgee only if the notice has been received
by the record date fixed by the Company or the date fixed by the
Trustees, as the case may be. If the Trustees fix a separate record date, the
same shall be no fewer than three and no more than 30 days preceding the date of
payment or other distribution by the Company.
If any dividend or other distribution deposited with the Trustees in
respect of the Shares shall be in a form other than cash or Capital Stock having
general voting powers, then the Trustees shall promptly distribute the same
among the persons identified as Registered Holders of voting trust certificates
as of the close of business on the record date selected by the Trustees to
determine the holders of voting trust certificates entitled to receive such
distribution. Such distribution shall be made to such Registered Holders
ratably, giving effect to the number of Shares with respect to which each voting
trust certificate shall have been issued and to the total number of such Shares
represented by all outstanding voting trust certificates. If any voting trust
certificate shall have been pledged and, at the time of such distribution, the
Trustees have actual notice of such pledge, the distribution applicable to such
voting trust certificate shall be made to the pledgee only if notice of such
pledge shall have been received by the Trustees by the close of business on the
day fixed for taking a record to determine the holders of voting trust
certificates entitled to receive such distribution.
In lieu of receiving cash dividends or distributions made in respect
of Shares and paying the same to the Registered Holders of voting trust
certificates pursuant to the provisions of this Agreement, the Trustees may
instruct the Company to make such distributions directly to Registered Holders
of voting trust certificates or to their pledgees, as the case may be, and
following receipt of such instructions, the Company shall pay such dividends or
distributions directly to the designated Registered Holders and/or pledgees. The
Trustees may at any time revoke such instructions by notice to the Company
directing it to again make all dividend payments or other distributions with
respect to Shares to the Trustees, but prior to effecting such revocation the
Trustees shall have no liability with respect to the transfer of such dividends
or distributions.
7. SUBSCRIPTION RIGHTS. If the Company offers any of its securities for
subscription by the holders of Shares deposited hereunder, the Trustees shall,
promptly upon receipt of notice of such offer, mail a copy thereof to each
Registered Holder of a voting trust certificate and to each pledgee of a voting
trust certificate who has given actual notice to the Trustees of such pledge.
Upon receipt by the Trustees, at least five business days prior to the last day
fixed by the Company for subscription and payment, of a request from any such
Registered Holder of a voting trust certificate to subscribe on his behalf,
accompanied by the sum of money required to pay for such securities to which
such Holder is entitled and which he has elected to acquire, the Trustees shall
make such subscription and payment. If any certificate to be received by the
Trustees in response to such subscription will evidence shares of Capital Stock
with voting power, the Trustees shall direct that the same be delivered to them
and upon receipt shall issue to the Registered Holder a voting trust certificate
in respect thereof; provided that if the Trustees shall have previously received
actual notice as to the pledge of the voting trust certificate representing the
Shares with respect to which the subscription rights are being offered, each
voting trust certificate issued by them in respect of the Shares subscribed for
shall be delivered instead to the pledgee. If any such certificate to be
received by the Trustees in response to such subscription will evidence
ownership of any other class of securities, the Trustees shall instruct the
Company to register the certificate in the name of the Registered Holder and to
make delivery directly to him or her.
8. REORGANIZATION OF COMPANY. In case the Company is merged into or consolidated
with another entity, or all or substantially all of the assets of the Company
are transferred to another entity, then in connection with such transfer, the
term "Company" for all purposes of this Agreement shall be taken to include such
successor entity, and the Trustees shall receive and hold under this Agreement
any capital stock or other ownership interests of such successor received on
account of the ownership, as Trustees hereunder, of the 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 Trustees may, in their
discretion, substitute for such voting trust certificates new voting trust
certificates in appropriate form, and the terms "Shares" and "Capital Stock" as
used herein shall be taken to include any capital stock or other evidence of an
equity ownership interest which may be received by the Trustees in lieu of all
or any part of the Shares theretofore under their control.
9. DISSOLUTION OF COMPANY. In the event of the dissolution of the Company's
corporate existence or liquidation of all or any substantial portion of its
assets, whether voluntary or involuntary, the Trustees shall receive the moneys,
securities, rights or properties to which each owner of the Capital Stock
deposited hereunder is 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 Trustees; provided that if such voting
trust certificates have been pledged and the Trustees have actual written notice
of such pledge, the share applicable to that particular Registered Holder shall
be distributed instead to the pledgee.
10. TRANSFER AND REPLACEMENT OF VOTING TRUST CERTIFICATES. Each voting trust
certificate shall be transferable by its Registered Holder, either in person or
by an authorized attorney-in-fact, at the principal office of the Trustees or at
such other location as the Trustees may designate by an instrument in writing
signed by one or more of them and sent by mail to each Registered Holder, upon
surrender thereof and subject to the reasonable rules established for that
purpose by the Trustees as well as any restrictions imposed by any pledge of
such certificate; but the Trustees shall not be required to deliver any stock
certificate held by them hereunder without the surrender of such voting trust
certificate and unless the Trustees have received an opinion of recognized legal
counsel satisfactory to the Trustees that registration of the underlying
securities or of the voting trust certificate is not required under applicable
securities laws in order to effectuate the transfer. Upon issuance of a
replacement voting trust certificate the Trustees shall enter in its applicable
records the name of the transferee as the absolute owner of such certificate.
If a voting trust certificate is lost, stolen, mutilated or destroyed,
the Trustees, in their discretion, may issue a duplicate of such certificate
upon receipt of: (a) evidence of such fact satisfactory to them; (b) indemnity
satisfactory to them; (c) the existing certificate, if mutilated; and (d) their
reasonable expenses, if any, incurred in connection with the issuance of a new
trust certificate. If the voting trust certificate is the subject of a pledge of
which the Trustees have actual notice, a duplicate of such certificate shall be
provided to the pledgee. The Trustees 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 shall have produced
indicia of title satisfactory to the Trustees, and shall in addition deposit
with the Trustees indemnity satisfactory to them.
11. DESIRED SALE OF SHARES BY REGISTERED HOLDER. Upon notification by a
Registered Holder of a desire to cause the Trustees to effect a sale of some or
all of the Shares with respect to which a voting trust certificate applicable to
such Holder has been issued and is then outstanding (the "DESIGNATED SHARES"),
which notification contains a covenant that such sale will not be made to any
person having a familial, business or professional relationship with the Holder
and is accompanied by an opinion of counsel, in form and substance reasonably
acceptable to the Trustees, which describes the manner in which such sale is to
be effected and opines favorably with respect to such sale's compliance with
applicable federal and state securities law (the "OPINION"), the Trustees shall
promptly take all reasonable actions to effect a sale of the Designated Shares,
free of trust, in the manner directed by the Opinion, and upon receipt of any
proceeds therefrom shall distribute the same, less any expenses incurred by the
Trustees in connection with such transaction, to the Registered Holder, but only
upon the Trustees' prior receipt of the Holder's applicable voting trust
certificate, properly endorsed or accompanied by separate instruments of
assignment and transfer. If such sale is completed with respect to fewer than
all Shares to which the returned certificate applies, a new voting trust
certificate shall be issued in favor of the Registered Holder reflecting
beneficial ownership of the Shares not so sold.
12. TERMINATION PROCEDURE. Upon termination of this Agreement as hereinabove
provided, the Trustees shall, on such date as they may choose during the period
commencing 20 days before and ending 20 days after such termination date,
furnish notice of such termination to each Registered Holder of a voting trust
certificate, at the address appearing in the Trustees' records, and, if the
Trustees have actual written notice of a pledge of the voting trust certificate,
then also to the pledgee of the voting trust certificate, at the address
available to the Trustees. After the date specified in any such notice (which
date shall be fixed by the Trustees), the voting trust certificates shall cease
to have any effect, and any Registered Holder of a voting trust certificate
shall thereafter have no further rights under this Agreement other than to
receive certificates for shares of Capital Stock or other property distributable
under the terms hereof and upon the surrender of such voting trust certificate.
Within 30 days after the termination of this Agreement, the Trustees
shall take all action necessary to cause to be delivered to each Registered
Holder of a voting trust certificate or, if the certificate is pledged and the
Trustees have actual notice of such pledge, then to the pledgee, one or more
certificates for the number of shares of Capital Stock represented by such
voting trust certificate, but only upon its surrender, properly endorsed or
accompanied by separate instruments of assignment and transfer, at the office of
the Trustees. At any time subsequent to 30 days after the termination of this
Agreement, the Trustees may deposit with the Company stock certificates
representing the number of shares of Capital Stock represented by the voting
trust certificates then outstanding and in their possession, and authorize the
Company to cancel the same, to issue new stock certificates, in the names and
denominations reflected by the outstanding voting trust certificates so
deposited, and to deliver such new certificates to the new registered owners.
The Trustees shall continue to hold those stock certificates evidencing the
Trust's ownership with respect to which no tender of the related voting trust
certificate(s) has been made until the Trustees determine there to be no
substantive reason for such retention, and, at such time, they may deposit such
certificate(s) with the Company for cancellation, reissuance and delivery to the
new registered owners; and upon the final such deposit all further liability of
the Trustees for the delivery of stock
certificates and the delivery or payment of dividends upon surrender of the
voting trust certificates shall cease, and the Trustees shall not be required to
take any further action hereunder.
13. MEETINGS OF REGISTERED HOLDERS. The Trustees may, in their discretion,
notice and call a meeting of all Registered Holders to obtain an understanding
therefrom as to their preference, if any, as to the vote to be cast on any
particular proposal due to be considered at a shareholders' meeting or by way of
a solicited consent action. Except as provided in Section 5 above, the Trustees
shall not be bound to vote any Shares in accordance with any preference
expressed by any Registered Holder. Any such meeting, if called, shall be held
at a mutually convenient time and place or, whenever possible, by telephone
conference.
14. TRUSTEES AND TRUSTEE SUCCESSION. During the pendency of this Agreement, the
Trust shall be administered by three Trustees, one of whom shall at all times be
an elected member of the Company's board of directors and selected by the
Beneficiaries, or the survivor of them. That requirement has been initially met
by the appointment of Xxxxx Xxxxx to serve in such capacity. The remaining two
Trustees shall also be selected by the Beneficiaries or the survivor as between
them, but in making such selections they shall be limited to individuals who are
at least 30 years of age and have no familial, business or professional
relationship to either Beneficiary. The Beneficiaries herein affirm that they
have met such requirements by selecting Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx as
initial Trustees. No Trustee shall be required to apply for or obtain the
issuance of a fiduciary bond as a condition of service or to ensure the faithful
performance of his or her obligations hereunder. Any Trustee shall have the
right to resign from office by notifying the Company and all then Registered
Holders of such intention at least 30 days in advance of its effectiveness. Each
Trustee may also be removed by the Beneficiaries, or the survivor of them,
without cause. Upon any such resignation or removal, the Beneficiaries, or the
survivor of them, shall select and seat a successor as promptly as practicable,
pending which the remaining Trustees shall have the authority to administer the
Trust by themselves. Each successor Trustee shall enjoy all the rights, powers,
interests and immunities of the Trustee to whose position he or she succeeds;
shall succeed to the legal title of the Shares; and shall not be liable or
responsible for any acts or defaults of any predecessor Trustee in any way, nor
for any loss or expense from or association with any action taken or neglected
to be taken by any predecessor Trustee.
15. TRUSTEES COMPENSATION, EXPENSES AND IMMUNITIES. The Trustees may receive a
fee for their services hereunder, as determined and paid by the Beneficiaries
and for which the Company shall have no responsibility. The Trustees are
authorized to incur reasonable expenses and charges which they deem necessary
for the proper administration of this Trust, including fees for the services of
legal and accounting professionals, and for which the Company shall have
responsibility. Neither the Beneficiaries nor any Registered Holder shall have
liability for such expenses and charges unless the Trustees determine that the
Company does not have available funds sufficient to meet the same as they come
due. In that latter event, the Beneficiaries and each additional Registered
Holder shall be personally liable to satisfy such obligations, in proportion to
their relative ownership interests, and within five business days following
receipt of notification from the Trustees of the amounts needed and of their
determination as to the Company's inability to make payment; but in such event,
and notwithstanding anything herein to the contrary, this Trust shall
automatically terminate in accordance with the procedure set forth in Section 12
above, and the date of such Trustees'
notification shall serve as the termination date for purposes of Section 12
above. The Trustees may seek the advice and opinion of legal counsel, which
counsel may also be counsel to the Company, and any action taken in good faith
in accordance with such advice and opinion shall be conclusive upon the parties
to this Agreement, and the Trustees shall not be liable to the parties to this
Agreement on account of such action.
16. INSPECTION OF AGREEMENT. The Company may receive and retain a copy of this
Agreement, which shall be available to inspection by either a shareholder or
Registered Holder, upon reasonable notice, at the Company's principal office and
during its normal business hours.
17. MISCELLANEOUS:
17.1 NOTICES. All notices, consents, approvals, joinders, waivers and
other communications required or permitted under this Agreement (each a
"COMMUNICATION") shall be in writing and shall be personally delivered or sent
by facsimile machine (with a confirmation copy sent by one of the other methods
authorized in this Section), commercial courier or United States Postal Service
overnight delivery service, or, deposited with the United States Postal Service
and mailed by first class, registered or certified mail, postage prepaid, if to
either party in care of the address set forth in preamble hereto, or to such
other address as any shall have provided notice to the others in the manner
herein permitted. Each such Communication shall be deemed given upon the earlier
to occur of (i) actual receipt by the party to whom such Communication is
directed; (ii) if sent by facsimile machine, on the day (other than a Saturday,
Sunday or legal holiday in the jurisdiction to which such Communication is
directed) such Communication is sent if sent (as evidenced by the facsimile
confirmed receipt) prior to 5:00 p.m. Central Time and, if sent after 5:00 p.m.
Central Time, on the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such Communication is directed) after which such
Communication is sent (subject in each case to the above-referenced confirmation
copy being timely furnished); (iii) on the first business day (other than a
Saturday, Sunday or legal holiday in the jurisdiction to which such
Communication is directed) following the day the same is deposited with the
commercial carrier if sent by commercial overnight delivery service; or (iv) the
fifth day (other than a Saturday, Sunday or legal holiday in the jurisdiction to
which such Communication is directed) following deposit thereof with the United
States Postal Service as aforesaid. Each party, by notice duly given in
accordance therewith may specify a different address for the giving of any
Communication hereunder.
17.2 GOVERNING LAW/VENUE. This Agreement shall be construed and
enforced in accordance with the laws of the State of Oklahoma. The exclusive
venue for any resolving any dispute arising from this Agreement shall be the
state or federal courts sitting in Oklahoma County, Oklahoma.
17.3 ASSIGNMENT. The rights and responsibilities under this Agreement
may not be assigned by any party without the express written consent of all
other parties.
17.4 WAIVER OR MODIFICATION. This Agreement constitutes the entire
agreement of the parties, and may be modified, amended or waived only by written
instrument executed by all parties.
17.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, by means of multiple signature pages each containing less than all
required signatures, and by means of facsimile signatures, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
17.6 ENFORCEMENT. This Agreement may be specifically enforced without
the necessity of posting bond or other financial undertaking, the prevailing
party to receive an award of reasonable attorney fees in addition to such other
relief as the court deems proper.
17.7 GRANTOR TRUST STATUS. Until the death of the surviving
Beneficiary, it is the intent of the Beneficiaries that this Trust shall be
deemed a "Grantor Trust" of the Beneficiaries pursuant to Sections 671-677 of
the Internal Revenue Code of 1986, as amended, such that its separate entity
status shall be disregarded for all federal and state income tax reporting and
payment purposes, all items of income (including tax-exempt income), capital
gain, loss, capital loss, deductions, credits and the like generated within the
Trust shall be reported and claimed by the Beneficiaries, as applicable, on
their individual tax returns, and any taxes due as a result of such reporting
shall be paid by the Beneficiaries as if the Trust were not in existence.
Neither the Company nor the Trustees shall take any affirmative action to deny
to the Beneficiaries the right to claim such status.
IN WITNESS WHEREOF, the parties have hereunto set their hands
intending to be bound hereby for the uses and purposes herein set forth.
AmeriVision Communications, Inc. /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
By: /s/ XXXXXXX X. XXXXX /s/ XXXXXX X. XXXXXX
-------------------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Chairman Xxxxxx X. Xxxxxx
Trustees:
/s/ XXXXX X. XXXXX
------------------------------------ Address: 11880 Younger Court
Xxxxx X. Xxxxx -----------------------------
Xxxx, XX 00000
-----------------------------
/s/ XXXXXXX XXXXX Address: 0000 Xxxxxxx Xx.
------------------------------------ -----------------------------
Xxxxxxx Xxxxx Xxxxxx, XX 00000
-----------------------------
/s/ XXXXX XXXXXXXX
----------------------------------- Address: 0000 Xxxxx Xx.
Xxxxx Xxxxxxxx -----------------------------
Xxxxxx, XX 00000
-----------------------------
Exhibits:
Exhibit A - Voting Trust Certificate form
EXHIBIT A
No._________ ________ Shares
AMERIVISION COMMUNICATIONS, INC.
VOTING TRUST CERTIFICATE FORM
FOR CAPITAL STOCK
This voting trust certificate certifies that ____________________
(together with any permitted assignee, the "HOLDER") is entitled to all the
benefits arising from the deposit with the Trustees under that certain Voting
Trust Agreement, dated as of September 1, 2001, by and among AmeriVision
Communications, Inc. (the "Company"), Xxxxx X. and Xxxxxx Xxxxxx, and such
Trustees (the "AGREEMENT"), OF CERTIFICATE #s _____________, as issued by
Company and evidencing the Holder's registered ownership of_________ shares of
Company's common capital stock, $.01 par value, as more particularly provided in
such Agreement and subject to the terms thereof The Holder is entitled to
receive payment equal to the amount of any cash dividend or other cash
distribution received by the Trustees upon the number of shares of capital stock
of the Company in respect of which this certificate is issued. Dividends or
other distributions received by the Trustees in the form of Company securities
having general voting powers shall be payable in the form of additional voting
trust certificates. Until the Trustees shall have delivered the capital stock
held under the Agreement to the Holder or to Company, and except as otherwise
specified in the Agreement, the Trustees shall possess and shall be entitled to
exercise all rights and powers of an absolute owner of such capital stock,
including the sole right to vote thereon and to execute consents in respect
thereof for every purpose.
This certificate is issued, received and held under, and the rights of
the Holder are subject to, the terms of the Agreement, and of every agreement
amending or supplementing the same, a copy of which is on file in the principal
office of the Company, and shall be open to the inspection of any Company
shareholder during normal business hours. By acceptance hereof, the Holder
ratifies, adopts, assents to and is bound by all of the provisions of the
Agreement, the content of which shall control in the event of any conflict with
this instrument.
In the event of the dissolution or total or partial liquidation of the
Company the funds, securities or other properties received by the Trustees in
respect of the capital stock deposited under the Agreement shall be distributed
among the Registered Holders of voting trust certificates (or to the party to
whom any such trust certificate shall have been pledged, to the extent the
Trustees have actual notice of such pledge as of the date of distribution) in
proportion to their interests as reflected in the records of the Trustees.
In the event that any dividend or distribution other than in cash or
voting securities of the Company is received by the Trustees, the Trustees shall
promptly distribute the same to the Holder and other Registered Holders of
voting trust certificates, or, as applicable, to the party to whom such trust
certificates have been pledged. Such distribution shall be made with respect to
such holders ratably in accordance with the number of shares represented by
their respective voting trust certificates.
Stock certificates for the number of shares of the Company's capital
stock then represented by this certificate, or the net proceeds, in cash or
property, derived from the permitted disposition of such shares, shall be due
and deliverable hereunder upon the termination of the Agreement as provided
therein.
This certificate is transferable on the books of the Trustees at their
office in Oklahoma City, Oklahoma (or elsewhere as designated by them), by the
Holder, either in person or by attorney-in-fact and agent, and any pledge of
this certificate may be noted on the books of the Trustees, all in accordance
with the rules established for that purpose by the Trustees, on surrender of
this certificate properly endorsed and subject to the restrictions on transfer
applicable to the shares of common stock in respect of which this certificate is
issued.
This certificate shall not be valid for any purpose until duly signed
by the Trustees.
As used in this certificate, "Trustees" shall refer both to current and
successor Trustees appointed and acting under the Agreement.
IN WITNESS WHEREOF, the Trustees have signed this voting trust
certificate on _____________ 200_.
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ASSIGNMENT
For value received, ______________________________ hereby assigns the
certificate to which this declaration is appended, together with the beneficial
ownership of the shares and all other rights and interests represented thereby,
to ____________________ , and appoints ________________ as his attorney-in-fact
and agent to transfer this certificate on the records of the Trustees identified
therein, with full power of substitution.
Dated: _______________,200_
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In the presence of:
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