EXHIBIT D
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT is made and entered into
as of the 30th day of December, 1999, by and between
XXXX XXXX X'XXXXXXX (the "Shareholder"), a shareholder of
NEXTHEALTH, INC., a Delaware corporation (the
"Corporation") and XXXXXXX X X'XXXXXXX, XX. (the "Voting
Trustee").
RECITALS
A. The Shareholder is entitled to receive 500,000 shares
of the Corporation's Common Stock (the "Subject Shares")
from the Voting Trustee in his individual capacity.
B. The Shareholder is agreeable to the Voting
Trustee serving as trustee of the voting trust created
by this Agreement, and the issuance of the Subject
Shares to the Voting Trustee in its capacity as
Trustee hereunder.
C. The Voting Trustee has consented to act as the
Voting Trustee of the voting trust created hereby, and to
be bound by the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, the Shareholder and the Voting
Trustee do hereby agree as follows:
1. Issuance of Shares to Trustee.
1.1 Delivery of Stock Certificates.
Certificates representing the Subject Shares shall be issued
to the Voting Trustee.
1.2 Stock Certificate Held Subject to
Agreement. Upon the issuance by the Corporation of a
stock certificate representing the Subject Shares
subject to the voting trust, the Voting Trustee shall
hold such stock certificate subject to the provisions
of this Agreement.
2. Voting Trust Certificates.
2.1 Form of Voting Trust Certificate. The
Voting Trustee shall issue and shall deliver to the
Shareholder a voting trust certificate for the Subject
Shares transferred to the Voting Trustee pursuant to
this Agreement. The voting trust certificate shall be in
the form of Exhibit A hereto. The Voting Trustee may
treat the registered holder of a voting trust
certificate as the owner of such voting trust certificate
for all purposes under this Agreement.
2.2 Transfer of Voting Trust
Certificates. A voting trust certificate shall be
transferable only on the books of the Voting Trustee, by
the registered holder thereof, either in person or by duly
authorized attorney-in-fact, upon surrender of such
voting trust certificate, properly endorsed, or
accompanied by such instrument of transfer as shall be
approved by the Voting Trustee. Notwithstanding the
foregoing, no transfer of the voting trust certificate
shall be permissible without the prior written consent of
the Voting Trustee, which consent may be granted or withheld
in the sole discretion of the Voting Trustee. Any purported
transfer of the voting trust certificate without the
requisite consent shall be null and void and of no force or
effect, and shall not vest any rights in the
purported transferee. The Voting Trustee shall not be
required to recognize any transfer of a voting trust
certificate not made in accordance with the provisions of
this Section 2.2.
2.3 Lost, Stolen or Destroyed Voting
Trust Certificates. If a voting trust certificate is lost,
stolen, mutilated, or destroyed, the Voting Trustee, in its
sole discretion, may issue a new voting trust certificate
upon the receipt by the Voting Trustee of an affidavit by
the holder of such voting trust certificate that such
voting trust certificate has been lost, stolen, mutilated,
or destroyed, which affidavit shall be satisfactory in
form and substance to the Voting Trustee, and upon
the receipt by the Voting Trustee of such indemnity as
the Voting Trustee, in his sole discretion, may require.
3. Voting Trustee.
3.1 Resignation, Death, or Incompetency of
Voting Trustee, Selection of Successor.
3.1.1 Resignation. The Voting Trustee
may resign at any time by giving written notice of such
resignation to the registered holders of the voting trust
certificates and the Corporation. Such resignation shall
become effective ten (10) business days after the giving of
such written notice. In the event of such resignation, the
successor to the Voting Trustee shall be promptly selected
in accordance with Section 3.1.4 hereof.
3.1.2 Death. In the event of the death
of a Voting Trustee, written notice of such death shall be
given to the registered holders of the voting trust
certificates and the Corporation, and the successor to
the deceased Voting Trustee shall be promptly selected
in accordance with Section 3.1.4 hereof.
3.1.3 Incompetency. In the event of
the entry of a decree by a court of competent
jurisdiction adjudicating a Voting Trustee incompetent
to manage Voting Trustee's person or estate, written
notice of such incompetency shall be given to the
registered holders of the voting trust certificates and
the Corporation, and the successor to the Voting Trustee
shall be promptly selected in accordance with Section
3.1.4 hereof.
3.1.4 Selection of Successor Voting
Trustee. If a Voting Trustee shall for any reason cease
to qualify or cease to act as a Voting Trustee under
this Agreement, a successor shall be determined by a
majority vote of the Board of Directors of the Corporation.
3.2 Notice of Selection of Successor
Voting Trustee. Upon the selection of a successor
Voting Trustee in accordance with section 3.1.4 hereof,
written notice of such selection of such successor Voting
Trustee shall be given to the registered holders of the voting trust
certificates. Any successor Voting Trustee selected in accordance with
section 3.1.4 shall execute a counterpart copy of this
Agreement, as amended, pursuant to which such successor
Voting Trustee agrees to be bound by the terms and
provisions of this Agreement, as amended.
3.3 Registration of Stock Certificates.
Upon the selection of a successor Voting Trustee, the
Subject Shares subject to the voting trust shall be
transferred to the successor Voting Trustee, and a new
stock certificate representing the Subject Shares subject
to the voting trust shall be registered in the name of the
successor Voting Trustee in the manner set forth in Section 1,
and such new stock certificate shall be held by the successor
Voting Trustee subject to the provisions of this Agreement.
3.4 Compensation of Voting Trustee. The
Voting Trustee shall serve without compensation.
4. Authority of Voting Trustee.
4.1 Voting Rights and Powers. The Voting
Trustee shall exercise his voting rights and powers under
this Agreement by voting all of such Shareholder in the
discretion of the Voting Trustee on all matters on which
holders of the Corporation's common stock may vote.
4.2 Exculpation. The Voting Trustee shall
not be liable to the holders of voting trust certificates
or to the Corporation for honest mistakes of judgment, or
for action or inaction taken in good faith and reasonably
believed to be in the best interests of the Corporation,
provided that such mistake, action, or inaction does not
constitute recklessness, fraud, or willful or wanton
misconduct.
5. Termination.
5.1 Term. The voting trust shall commence
on the date of execution of this Agreement and shall
continue in effect unless otherwise terminated pursuant to
Section 5.2.
5.2 Events of Termination. The voting trust
shall terminate upon the earliest occurrence of the
following dates:
5.2.1 Mutual Agreement. The mutual
agreement of the Shareholder (or, in the event of the death
or incompetency of the Shareholder, her personal
representative, conservator or trustee) and the Voting
Trustee.
5.2.2 Applicable Law. In the event
that applicable laws limit the term of voting trust
agreement, this Agreement shall terminate on the latest
possible date allowed under such applicable laws.
5.3 Termination Procedure.
5.3.1 No Further Rights Under
Agreement. Upon the termination of the voting trust pursuant
to Section 5.1 or 5.2 hereof, the holders of the voting
trust certificates shall have no further rights under this
Agreement except to receive stock certificates for the
Subject Shares represented by such voting trust
certificates, and cash, stock, securities, and other
property distributable under the provisions of this
Agreement, and except for any rights, claims, or causes of
action which may have accrued prior to such termination.
5.3.2 Stock Certificates. Upon
the termination of the voting trust pursuant to Section 5.1
or 5.2 hereof, the Voting Trustee shall deliver to
the registered holders of the voting trust certificates,
within twenty (20) business days after the surrender to
the Voting Trustee of such voting trust certificate
properly endorsed, a stock certificate for the number of
the Subject Shares represented by such voting trust
certificate. Such stock certificate shall be registered in
the name of the registered holder of such voting
trust certificate.
6. Dividends and other Distributions.
6.1 Cash, Nonvoting Stock, and Other Property.
In the event Corporation distributes with respect to the
Subject Shares any cash, stock (except for the stock
described in Section 6.2), securities (except for the
securities described in Section 6.2), or other property, the
Voting Trustee, upon receipt of such cash, stock,
securities, or other property shall distribute the same as
soon as practicable to the registered holders of the
voting trust certificates on the date of such distribution
by the Corporation. Such distribution shall be made to the
registered holders of voting trust certificates ratably in
accordance with the number of the Subject Shares
represented by their respective voting trust certificates on
the date of such distribution by the Corporation. In lieu
of receiving such cash, stock, securities, or other
property distributed by the Corporation with respect to the
Subject Shares and disbursing the same to the registered
holders of voting trust certificates, the Voting Trustee
may instruct the Corporation in writing to distribute
such cash, stock, securities, or other property to the
registered holders of the voting certificates ratably in
accordance with the number of the Subject Shares
represented by their respective voting trust certificates
on the date of such distribution by Corporation.
6.2 Voting Stock or Securities Convertible into
Voting Stock. In the event the Corporation distributes
with respect to the Subject Shares any voting stock of the
Corporation or other securities of the Corporation that
are, or may become, convertible into Subject Shares of
voting stock of the Corporation, the Voting Trustee
shall receive and hold, subject to the terms of this
Agreement, all such voting stock and securities, and
shall issue and deliver voting trust certificates with
respect to such voting stock and securities to the
registered holders of voting trust certificates on the
date of such distribution by Corporation. Such issuance of
voting trust certificates shall be made to the holders
of voting trust certificates ratably in accordance with
the number of the Subject Shares represented by such voting
certificates on the date of such distribution by
Corporation.
7. Dissolution. In the event the
Corporation dissolves, or distributions are made in
complete or partial liquidation of the Corporation, the
Voting Trustee, upon receipt, shall distribute to the
registered holders of voting trust certificates cash,
securities, and other property distributed by Corporation
with respect to the Subject Shares subject to the voting
trust. Such distribution shall be made to the registered
holders of voting trust certificates ratably in accordance
with the number of the Subject Shares represented by their
respective voting trust certificates on the date of such
distribution by Corporation. In lieu of receiving cash,
securities, and other property distributed by Corporation
with respect to the Subject Shares, and distributing the
same to the registered holders of voting trust
certificates, the Voting Trustee may instruct
Corporation in writing to distribute such cash,
securities, or other property to the registered holders
of the voting trust certificates ratably in accordance
with the number of the Subject Shares represented by their
respective voting trust certificates on the date of such
distribution by the Corporation.
8. Compliance With Statutory Requirements.
The Shareholder and the Voting Trustee agree to perform
all acts necessary for the voting trust to be and
remain valid under applicable law, including, without
limitation, compliance with the law of the State in which
the Corporation is incorporated.
9. General Provisions.
9.1 Entire Agreement; Amendment. This Agreement
shall constitute the whole and entire agreement of the
parties hereto with respect to the matters set forth herein
and shall not be superseded by any future agreements among
the parties, except to the extent that any provision or
provisions of this Agreement is or are also expressly dealt
with or covered by any subsequent agreement or contract
among the parties and if any provision of this Agreement
is inconsistent with the provision of any
subsequent agreement or contract the provisions of the
subsequent agreement or contract shall govern. This
Agreement shall not be modified or amended in any respect
except by a written instrument executed by all of the
parties.
9.2 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of Delaware.
9.3 Captions. The captions to the Articles and
Sections in this Agreement are inserted for convenience only
and shall not affect the construction or interpretation
hereof.
9.4 Counterparts and Duplicate Originals. This
Agreement and all amendments hereto may be executed in
several counterparts and each counterpart shall constitute
a duplicate original of the same instrument.
9.5 Successors. Anything in this Agreement
to the contrary notwithstanding, any transferee, successor
or assign, whether voluntary, by operation of law or
otherwise, of the shares of the Corporation shall be
subject to and bound by the terms and conditions of this
Agreement as fully as though such person was signatory
hereto.
9.6 Further Assurances. Each party hereby
agrees that she or it will, whenever and as often as
it shall be reasonably required by any other party,
execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such further
instruments and documents as may be reasonably necessary
in order to complete the transactions and agreements
herein provided and to do any and all other acts
and to acknowledge, execute and deliver any and all
documents which may be reasonably requested in order to
reasonably carry out the intent and purposes of this
Agreement.
9.7 Severability. Any provision hereof
prohibited by or unlawful or unenforceable under any
applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other
provision of this Agreement. To the full extent,
however, that the provisions of such applicable law may be
waived, they are hereby waived to the end that this
Agreement be deemed to be a valid and binding agreement
enforceable in accordance with its terms.
9.8 Filing of Agreement. A copy of this
Agreement, as amended from time to time, shall be filed with
the Corporation at its registered office in the State of
Delaware for inspection by any prospective purchaser of
shares of the Corporation.
9.9 Notices. All notices, requests, demands and
other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be
given, or within ten (10) business days after mailing if
mailed to the party to whom notice is to be given,
by first-class mail, registered or certified, postage
prepaid, and properly addressed to the party at his or
her address set forth on the signature page of this
Agreement, or any other address that any party shall
designate by written notice to the others.
9.10 Benefit. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
heirs, personal representative, successors and assigns.
9.11 Time of Essence. Time is of the essence in this
Agreement.
9.12 Gender and Number. Whenever used in this
Agreement, the singular shall include the plural and the
plural shall include the singular, the male shall include
the female gender and a trust, partnership, firm,
company or corporation, all as the context and meaning of
this Agreement may require.
IN WITNESS WHEREOF, the parties and year first above
written hereto have signed this Agreement on the day and
year first above written.
"Shareholder"
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Xxxx Xxxx X'Xxxxxxx
"Voting Trustee"
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Xxxxxxx X. X'Xxxxxxx, Xx.
EXHIBIT A
NEXTHEALTH, INC.
VOTING TRUST CERTIFICATE
No. _______
This certifies that ________________, or
registered assigns, is entitled to all the benefits arising
from the deposit of __ shares of the common stock, of
NextHealth, Inc., a Delaware corporation (the
"Corporation"), with the undersigned Voting Trustee
pursuant to a voting trust agreement (the "Voting Trust
Agreement") dated as of December __, 1999, by and among
the Voting Trustee and Xxxx Xxxx X'Xxxxxxx, a copy of
which Voting Trust Agreement is on file in the
registered office of Corporation in Delaware.
The Voting Trust Agreement shall be
effective until terminated, as provided in the Voting Trust
Agreement. Upon the termination of the Voting Trust
Agreement, the registered holder of this Voting Trust
Certificate, upon surrender to the Voting Trustee of this
Voting Trust Certificate properly endorsed, shall receive a
stock certificate for the number of shares of common stock
of Corporation represented by this Voting Trust
Certificate.
During the term of the Voting Trust Agreement,
the Voting Trustee shall possess and shall be entitled to
exercise all voting rights with respect to the shares of
common stock of Corporation represented by this Voting
Trust Certificate. This Voting Trust Certificate is
issued, received, and held under, and the rights of the
holder are subject to, the terms and provision of the Voting
Trust Agreement.
This Voting Trust Certificate is transferable on
the books of the Voting Trustee by the registered holder,
either in person or by a duly authorized attorney, upon
surrender of this Voting Trust Certificate properly
endorsed. Until this Voting Trust Certificate is
transferred on the books of the Voting Trustee, the
Voting Trustee may consider the registered holder as the
absolute owner of this Voting Trust Certificate. SEE THE
REVERSE SIDE HEREOF FOR LEGENDS CONCERNING RESTRICTIONSON
TRANSFER OF THIS VOTING TRUST CERTIFICATE AND THE COMMON
STOCK REPRESENTED BY THIS VOTING TRUST CERTIFICATE.
Witness the signature of the undersigned Voting Trustee
this __ day of ____________, _____.
____________________________________
Voting Trustee
[The reserve side of the Voting Trust Certificate will contain the following]
For value received, ____________________ hereby
sells, assigns, and transfers unto ________________________
this Voting Trust Certificate, and all rights and
benefits represented by this Voting Trust Certificate,
and appoints _______________ attorney for transfer this
Voting Trust Certificate on the books of the Voting Trustee
with full power of substitution.
Date: ________________ _________________________________
In the presence of:
___________________________
THIS VOTING TRUST CERTIFICATE MAY ONLY BE TRANSFERRED
IN ACCORDANCE WITH THE TERMS OF THE VOTING TRUST
AGREEMENT, WHICH CONTAINS RESTRICTIONS ON THE TRANSFER
OF THIS VOTING TRUST CERTIFICATE. SUCH RESTRICTIONS
INCLUDE, WITHOUT LIMITATION, THE REQUIREMENT THAT THE PRIOR
WRITTEN CONSENT OF THE VOTING TRUSTEE BE OBTAINED TO ANY
TRANSFER OF THIS VOTING TRUST CERTIFICATE.
