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EXHIBIT 10.2
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "Agreement"), dated as of June 17, 1999,
by and between XXXXXXX XXXXXXXX and XXXXXXX XXXXXX (collectively, the
"Shareholders" and each, a "Shareholder") and L. XXXXXXX XXXXXXX and XXXX
XXXXXXXX (collectively, the "Voting Trustee").
WHEREAS, the Shareholders are the record and beneficial owners and
holders of the number of shares of issued and outstanding common stock (the
"Common Stock") of xxxxxxx.xxx, inc. (the "Corporation"), a Nevada corporation,
set forth on the signature pages to this Agreement (the "Shares"); and
WHEREAS, in order to promote their mutual interests, the interest of
the Corporation and the allocation of control therein, the Shareholders and the
Voting Trustee desire to enter into this Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the above and the mutual covenants
and promises hereinafter set forth, the parties hereto hereby agree as follows:
1. Transfer of Shares to the Voting Trustee. Each Shareholder
shall, promptly following the execution of this Agreement, transfer and deliver
to the Voting Trustee certificates representing the number of Shares now owned
or hereafter acquired by each Shareholder. All such stock certificates shall be
made out or endorsed in the name of the Voting Trustee, or accompanied by such
instruments of transfer as to enable the Voting Trustee to cause such
certificates to be transferred into its name. The certificates representing the
Shares transferred and delivered to the Voting Trustee pursuant to this
Agreement shall be surrendered by the Voting Trustee to the Corporation and
canceled, and a new certificate therefor shall be issued to and held by the
Voting Trustee in the name of "L. Xxxxxxx Xxxxxxx and Xxxx Xxxxxxxx, Voting
Trustee under the Voting Trust Agreement dated as of June 17, 1999." On receipt
by the Voting Trustee of the certificates representing the Shares and the
transfer of the same into the name of the Voting Trustee, the Voting Trustee
shall hold the same subject to the terms of this Agreement.
2. Voting Trust Certificates.
2.1 Issuance of Certificates to the Shareholders. Upon
the receipt by the Voting Trustee of the certificates representing the Shares
owned by the Shareholders, the Voting Trustee shall issue and deliver to the
Shareholders voting trust certificates (the "Voting Trust Certificates") in
substantially the form of Exhibit A attached hereto, representing the Shares
held by the Voting Trustee for the benefit of the Shareholders.
2.2 Lost Voting Trust Certificates. If any Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Voting Trustee, in its
discretion, may issue a duplicate of such certificate upon receipt of: (a)
evidence of such fact satisfactory to the Voting Trustee; (b) indemnity
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satisfactory to the Voting Trustee; (c) the existing certificate, if mutilated;
and (d) reasonable fees and expenses in connection with the issuance of a new
trust certificate.
3. Rights and Duties of the Voting Trustee.
3.1 Right to Vote the Shares. During the term of this
Agreement the Voting Trustee shall, in his sole and absolute discretion, in
respect of any and all of the Shares held by him hereunder, possess and be
entitled to exercise the right to vote thereon for every purpose, in person or
by his nominees or proxies, to waive the Shareholder's privilege in respect
thereof, and to consent to any lawful corporate act of the Corporation, as
though absolute owner of said Shares, it being expressly agreed that no voting
right shall pass to others by or under said Voting Trust Certificate, or by or
under this Agreement, or by or under any other agreement, express or implied.
All decisions and actions of the Voting Trustee hereunder shall require the
joint approval of L. Xxxxxxx Xxxxxxx and Xxxx Xxxxxxxx. Any reference herein to
the "Voting Trustee" (including any pronoun reference such as him, his or he
where the subject is the Voting Trustee) shall mean both L. Xxxxxxx Xxxxxxx and
Xxxx Xxxxxxxx.
3.2 Standard of Conduct. In voting the Shares held by him
hereunder either in person or by his nominees or proxies, the Voting Trustee
shall exercise reasonable judgment and shall take such part in, or take such
action with respect to, the management of the Corporation's affairs, as he may
deem necessary or advisable. In voting upon any matters that may come before
him at any shareholder's meeting, or by consent to action without a meeting,
the Voting Trustee shall exercise like judgment, but he shall not be held
liable for any mistake in judgment or for any action taken or not taken with
respect to which he acted in good faith and which does not amount to willful
misconduct on his part.
3.3 Compensation and Reimbursement. The Voting Trustee
shall serve without compensation. The Voting Trustee shall have the right to
incur and pay such reasonable expenses and charges, and to employ and pay such
agents, attorneys, and counsel, as he may deem necessary and proper in
connection with or arising out of the discharge of his duties under this
Agreement. Any such expenses or charges incurred by the Voting Trustee shall be
promptly reimbursed by the Shareholders (pro rata based upon stock ownership)
upon notice.
3.4 Conflicts of Interest. Nothing herein contained shall
disqualify the Voting Trustee or incapacitate him from serving as an officer,
director, employee, consultant or contractor of or to the Corporation or of any
Shareholder, or of any affiliate or associate of either, and in any such
capacity receiving compensation. The Voting Trustee may be a shareholder of the
Corporation and a registered holder of one or more Voting Trust Certificates.
The Voting Trustee may be financially interested in any matter or transaction
to which the Corporation, the Shareholder, or any affiliate or associate of
either, may be a party, and may contract with or be financially interested in
any such person as fully and freely as though the Voting Trustee were not the
Voting Trustee hereunder. Moreover, the Voting Trustee shall not incur any
liability of any nature whatsoever to the Shareholders in the event the Voting
Trustee should vote the Shares in a manner or with an effect
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advantageous to the Voting Trustee regarding any relationship the Voting
Trustee may have with the Corporation, including that of creditor.
4. Term of Agreement and Procedure for Termination.
4.1 Term. This Agreement shall continue in full force
and effect for a period of five years from and after the date first set forth
above; provided, however, that this Agreement shall sooner terminate upon the
occurrence of any of the following events:
(i) The death or other permanent inability of
either L. Xxxxxxx Xxxxxxx or Xxxx Xxxxxxxx to serve as Voting
Trustee;
(ii) The termination of L. Xxxxxxx Xxxxxxx as a
member of the Corporation's Board of Directors or the
termination of Xxxx Xxxxxxxx'x employment with the
Corporation;
(iii) The dissolution, winding-up or total or
partial liquidation of the Corporation, whether voluntary or
involuntary;
(iv) The merger of the Corporation into or the
consolidation of the Corporation with another corporation, or
the transfer of all or substantially all of the assets of the
Corporation to another corporation;
(v) The sale of all the Shares hereunder by the
Shareholders to non-Shareholders; or
(vi) At any time, at the sole option and discretion
of the Voting Trustee.
Upon the occurrence of any of the above-described events, termination
of this Agreement shall not take effect until the cancellation of the then
outstanding Voting Trust Certificates and the transfer to the Shareholders of
the certificate for the Shares represented thereby, in the manner provided
below.
4.2 Procedure for Termination. In the event of
termination of this Agreement, the Voting Trustee shall mail written notice of
such event to the Shareholders at the addresses appearing on the transfer books
of the Voting Trustee. From the date specified in any such notice (which date
shall be fixed by the Voting Trustee), the Shareholders shall have no further
rights under this Agreement other than to receive, upon the surrender of such
Voting Trust Certificates, certificates for such Shares. Promptly thereafter,
the Voting Trustee shall cancel the Voting Trust Certificate and deliver to the
Shareholders certificates for the number of Shares represented thereby. In lieu
of delivering stock certificates to the Shareholders, or, if any Shareholder
shall fail to surrender to the Voting Trustee its Voting Trust Certificate, the
Voting Trustee may deposit with the Corporation stock certificates representing
the number of shares of Common Stock represented by the Voting
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Trust Certificates then outstanding, with authority in writing to the
Corporation to deliver such stock certificates in exchange for Voting Trust
Certificates representing a like number of shares of the Common Stock of the
Corporation. Upon such deposit, all further liability of the Voting 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
Voting Trustee shall not be required to take any further action hereunder.
5. Notice. Any notice to or communication with the Shareholders
hereunder shall be deemed to be sufficiently given if addressed to the
Shareholders at their respective addresses set forth on the signature pages
hereto or such other addresses as the Shareholders shall from time to time
furnish in writing to the Voting Trustee and deposited in the United States
mail, with postage fully prepaid. 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. Any notice to the Voting Trustee hereunder may be made by
mailing the same to the Voting Trustee, with postage fully prepaid, c/o of the
Corporation, at One Arizona Center, 000 X. Xxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx,
XX, 00000, or at such other address as the Voting Trustee may from time to time
furnish in writing to the Shareholders.
6. Additional Shares of Common Stock. This Agreement applies to
all shares of Common Stock now owned by the Shareholders. Each Shareholder
represents and warrants that the number of Shares set forth opposite his name
on the signature pages of this Agreement represent all the shares of Common
Stock owned by him on the date hereof. In the event that any additional Common
Stock of the Corporation is acquired by the Shareholders after the execution
hereof (the "Additional Shares"), then, in such case, upon receiving the
Additional Shares, the Shareholders shall promptly surrender same to the Voting
Trustee and the Voting Trustee shall hold such Additional Shares likewise
subject to the terms of this Agreement (in accordance with the provisions of
Sections 1 and 2 hereof).
7. Dividends, Distributions and Other Payments. Until the
termination of this Agreement, the Shareholders shall be entitled to receive
promptly from the Voting Trustee payments equal to the amount of dividends
(other than stock dividends, which shall be subject to Section 6 hereof), if
any, or other distributions, if any, collected by the Voting Trustee upon the
Shares standing in the name of such Shareholder, represented by the Voting
Trust Certificates held by him, subject, however, to the terms and conditions
of this Agreement.
8. Transfer of Shares. The Shares shall be freely transferable
by any Shareholder to any person other than an Affiliate (as defined below) of
such Shareholder, without the prior consent of the Voting Trustee and without
any restriction hereunder. Prior to a transfer permitted under this Section,
the Shareholder shall deliver to the Voting Trustee a Transfer Certificate, in
substantially the form attached hereto as Exhibit B, and, simultaneously
therewith, surrender to the Voting Trustee his Voting Trust Certificate.
Promptly thereafter, the Voting Trustee shall cancel the Voting Trust
Certificate and issue and deliver to the Shareholder a certificate representing
the Shares to be transferred and a new Voting Trust Certificate, in
substantially the form of Exhibit A attached hereto,
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representing the Shares that are to be retained by the Shareholder, if any.
Upon a transfer permitted by this Section, neither the Voting Trustee nor the
applicable Shareholder shall have any further rights or obligations under this
Agreement with respect to the transferred Shares and such Shares shall no
longer be subject to the terms and conditions of this Agreement. "Affiliate"
means any individual, partnership, corporation, trust, limited liability
company or other entity that directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
a Shareholder.
9. Effective Date. This Agreement shall become effective as of
the date first written above.
10. Miscellaneous.
10.1 Entire Agreement. This Agreement constitutes the
entire agreement and understanding of the parties with respect to the
transaction contemplated hereby, and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof. No
representation, promise, inducement or statement of intention has been made by
any of the parties hereto not embodied in this Agreement or in the documents
referred to herein, and no party shall be bound by, or liable for, any alleged
representation, promise, inducement or statements of intention not set forth or
referred to herein.
10.2 Binding Effect. All of the terms, representations,
warranties, covenants, and conditions herein shall be binding upon, and inure
to the benefit of, and be enforceable by, the parties hereto, and their
respective successors and assigns.
10.3 Waiver. This Agreement may not be amended, modified,
superseded or canceled, nor may any of the terms, representations, warranties,
covenants, or conditions hereof be waived, except by a written instrument
executed by the party against whom such amendment, modification, supersedure,
cancellation or waiver is charged. The failure of any party at this time or
times to require performance of any provisions hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by any part of any
condition, or of any breach of any term, covenant, or condition contained
herein, in any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such condition or breach or wavier of any
other condition or of any breach of any other term, covenant, or condition.
10.4 Construction. The captions and headings contained
herein are for convenient reference only, and shall not in any way affect the
meaning or interpretation of this Agreement.
10.5 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
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10.6 Severability. In the event that any provision
hereof is determined to be illegal or unenforceable, such determination shall
not affect the validity or enforceability of the remaining provisions hereof,
all of which shall remain in full force and effect.
10.7 Further Documents. The parties each hereby covenant
and agree that, from time to time, after the date hereof, at a reasonable
request of any party, and without further consideration, they will execute and
deliver such other documents and take such other action as may be reasonably
required to carry out in all respects the transactions contemplated and
intended by this Agreement.
10.8 Gender and Tense. As used in this Agreement, the
masculine, feminine and neuter gender, and the singular or plural number shall
each be deemed to include the other or others whether the context so indicates.
10.9 Time. Time is of the essence in this Agreement.
10.10 Parties in Interest. Nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties to it and
their respective successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
person any right of subrogation or action over or against any party to this
Agreement.
10.11 Amendment. This Agreement may only be amended with
the written agreement of the Shareholder and the Voting Trustee.
10.12 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Nevada.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
VOTING TRUSTEE:
L. XXXXXXX XXXXXXX
/s/ L. XXXXXXX XXXXXXX
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XXXX XXXXXXXX
/s/ XXXX XXXXXXXX
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SHAREHOLDERS:
XXXXXXX XXXXXXXX
/s/ XXXXXXX XXXXXXXX
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Shares: 1,321,083
Address: -----------------
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XXXXXXX XXXXXX
/s/ XXXXXXX XXXXXX
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Shares: 297,621
Address: -----------------
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EXHIBIT A
VOTING TRUST CERTIFICATE FOR
SHARES OF COMMON STOCK OF
xxxxxxx.xxx, inc.
This certifies that ________________ is the registered beneficial
owner (the "Beneficiary") of _________ shares of the common stock, par value
$.001 per share (the "Shares"), of xxxxxxx.xxx, inc., a Nevada corporation (the
"Corporation"), and that such shares have been transferred to and are held and
owned of record by L. Xxxxxxx Xxxxxxx and Xxxx Xxxxxxxx (collectively, the
"Voting Trustee"), as Voting Trustee pursuant to the Voting Trust Agreement
dated as of June 17, 1999 (the "Agreement") between the Voting Trustee and the
Shareholders of the Corporation named therein.
Under the terms of the Agreement, the Voting Trustee possesses the
right to vote the above-mentioned shares of common stock as the absolute legal
owner thereof and the holder of this Voting Trust Certificate possesses no
voting rights in such shares.
Subject to compliance with applicable federal and state securities
laws, rules and regulations, and the Agreement, the Shares represented by this
Voting Trust Certificate may be transferred by the Beneficiary. Prior to a
permitted transfer of Shares, the Beneficiary shall deliver to the Voting
Trustee a Transfer Certificate, in substantially the form attached as Exhibit B
to the Agreement, and, simultaneously therewith, surrender to the Voting
Trustee his Voting Trust Certificate. Promptly thereafter, the Voting Trustee
shall cancel the Voting Trust Certificate and issue and deliver to the
Beneficiary a certificate representing the Shares to be transferred and a new
Voting Trust Certificate representing the Shares that are to be retained by the
Beneficiary, if any.
DATED this 17th day of June, 1999.
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L. Xxxxxxx Xxxxxxx
Voting Trustee
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Xxxx Xxxxxxxx
Voting Trustee
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EXHIBIT B
TRANSFER CERTIFICATE FOR
SHARES OF COMMON STOCK OF
xxxxxxx.xxx, inc.
This certifies that _______________________, the registered beneficial
owner (the "Beneficiary") of __________ shares of the common stock, par value
$.001 per share (the "Shares"), of xxxxxxx.xxx, inc., a Nevada corporation (the
"Corporation"), is transferring _______ Shares that are subject to the Voting
Trust Agreement dated as of June 17, 1999 (the "Agreement") between L. Xxxxxxx
Xxxxxxx and Xxxx Xxxxxxxx (collectively, the "Voting Trustee") and the
Shareholders of the Corporation named therein.
The Beneficiary has attached herewith his Voting Trust Certificate
representing ____ Shares of the Corporation beneficially owned by him.
The Beneficiary hereby directs the Voting Trustee to cancel the
Beneficiary's Voting Trust Certificate and issue and deliver to the Beneficiary
a certificate representing _____ Shares to be transferred. [The Voting Trustee
shall thereafter issue and deliver to the Beneficiary a new Voting Trust
Certificate representing the remaining ____ Shares held by the Voting Trustee
for the benefit of Beneficiary.] Upon the consummation of the transfer
contemplated hereby, neither the Voting Trustee nor the Beneficiary shall have
any further rights or obligations under the Agreement with respect to the
transferred Shares and such Shares shall no longer be subject to the terms,
representations, warranties, conditions and covenants of the Agreement. [The
Shares retained by the Beneficiary and represented by the new Voting Trust
Certificate shall continue to be subject to the terms, representations,
warranties, conditions and covenants of the Agreement.]
DATED this ___ day of _________, ____.
BENEFICIARY:
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Name:
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