EXECUTION COPY
================================================================================
VOTING TRUST AGREEMENT
BY AND AMONG
TRANSWORLD HOLDINGS (UK) LIMITED
TRANSWORLD HEALTHCARE (UK) LIMITED
TRANSWORLD HEALTHCARE, INC.
TRIUMPH PARTNERS III, L.P.
AND
THE TRUSTEE
December 17, 1999
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "Agreement") made the 17th day of December
1999, by and among Transworld Holdings (UK) Limited, a company incorporated in
England and Wales with registered number 3370146, ("UK Parent"), Transworld
Healthcare (UK) Limited, a company incorporated in England and Wales with
registered number 3370146 ("TW UK"), Transworld Healthcare, Inc., a New York
corporation ("US Parent"), Triumph Partners III, L.P., a Delaware limited
partnership ("Triumph"), and Xxxxxxx Xxxxx (hereinafter sometimes referred to,
together with his successor in trust, as the "Trustee"). UK Parent and US Parent
are hereinafter referred to collectively as the "Initial Shareholders."
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Securities Purchase Agreement (the "Purchase
Agreement"), dated as of the date hereof, among UK Parent, TW UK, the Purchasers
and US Parent (solely for the purposes of certain Sections of the Purchase
Agreement).
W I T N E S S E T H
WHEREAS, as of the date hereof, TW UK, the Initial Shareholders, Triumph
and the other Purchasers have entered into the Purchase Agreement, which, as a
condition precedent to the investment by the Purchasers in the securities of UK
Parent and TW UK, requires the Initial Shareholders and the other parties to
this Agreement to enter into this Agreement for the benefit of the Purchasers as
beneficial holders of up to 22,600,000 warrants (the "Warrants") to acquire in
the aggregate up to 22,600,000 ordinary shares of 5p each of TW UK (the "Warrant
Shares");
WHEREAS, the Purchasers have on the date hereof agreed to subscribe for
the Warrants and Triumph, as the majority Investor, has been issued one special
share of 5p of TW UK (the "Special Share") for the purpose of exercising the
voting rights that would be exercisable by the Warrant Shares if all of the
Warrants were exercised prior to the vote being taken in the manner set forth in
the Memorandum and Articles of Association of TW UK (as in effect from time to
time, the "TW UK Charter");
WHEREAS, as of the date hereof, US Parent is the holder of 100 ordinary
shares of (pounds sterling)1 each of UK Parent, representing all of the issued
shares of UK Parent as of such date, and UK Parent is the holder of 48,000,000
ordinary shares of 5p each of TW UK respectively of all of the issued shares of
TW UK as of such date (collectively the "Issued Shares");
WHEREAS, it is the intention of the parties that for so long as the
Warrants are exercisable but have not been exercised, the Special Shareholder
(as defined in the TW UK Charter) is to be afforded the right to vote on an as
exercised basis on matters submitted to a vote of the holders of ordinary shares
of TW UK for all purposes on the basis of one vote per Warrant Share;
2
WHEREAS, the Purchasers have required as a condition of their investment
in UK Parent and TW UK that the voting rights attributable to the Special Share
and the Warrant Shares be coupled with and supplemented by the mechanisms
provided in this Agreement for exercising the voting rights attributable to the
Issued Shares, so as to give effect to the commercial understanding between the
Purchasers, on the one hand, and the Initial Shareholders, on the other hand,
with respect to the exercise of control over the business and policies of TW UK
and UK Parent and other matters of corporate governance as between majority and
minority shareholders;
WHEREAS, it has been agreed between the Purchasers and TW US that
Triumph on behalf of the Purchasers will be entitled to select one member of
each of the Boards of Directors of UK Parent and TW UK and the Initial
Shareholders will be entitled to select one member of each of the Boards of
Directors of UK Parent and TW UK, with the total number of members of each such
Board of Directors being fixed at five and the remaining members of such Boards
of Directors to be selected as provided in this Agreement, provided that the
size of such Boards of Directors is subject to increase upon the occurrence of a
Covenant Breach and Triumph on behalf of the Purchasers will be entitled to
select the additional director or directors as provided herein;
WHEREAS, pursuant to the Purchase Agreement, Triumph has been appointed
as the representative of the Purchasers for the purposes of exercising the
rights of the Purchasers under the Transaction Documents, including this
Agreement, and as such representative, Triumph is a party hereto;
WHEREAS, this Agreement, together with the Purchase Agreement and
various provisions of the Charter Documents of UK Parent and TW UK are designed
to protect the Purchasers from the risk of, among other things, UK Parent or TW
UK (i) entering into any transaction with or contributions to US Parent in the
form of dividends, fees, re-charges, loans, guarantees or any other benefit, in
any form, unless they have been previously agreed upon by the Purchasers and
(ii) being exposed to any liabilities of US Parent or claims of creditors of US
Parent of a security interest or other right to any assets of UK Parent or TW
UK;
WHEREAS, in consideration of the foregoing, the Initial Shareholders
desire to grant the voting power with respect to the Issued Shares legally and
beneficially owned by them as of this date, as well as any other ordinary shares
of UK Parent or TW UK hereafter legally and beneficially hereafter acquired or
held by them, to the Trustee in all matters on the terms and conditions set
forth herein; and
WHEREAS, the Trustee has consented to act under this Agreement for the
purposes hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good, valuable and sufficient consideration, the receipt
of which is hereby acknowledged, the parties hereto promise, covenant, undertake
and agree as follows:
1. Transfer of Shares to the Trustee. Immediately upon executing this
Agreement, each of the Initial Shareholders shall deposit with the Trustee one
or more certificates
3
representing the number of Issued Shares listed opposite its name on Schedule 1
hereto, and shall also deposit with the Trustee immediately upon receipt
certificates representing any other shares of any class or series of TW UK and
UK Parent having voting powers which they acquire, legally or beneficially,
during the term of this Agreement, including any such shares acquired through
the exercise of any rights, warrants, options, conversion rights, as dividends,
on a consolidation, reorganization, by way of bonus issue or otherwise (the
Issued Shares and such other shares collectively the "Shares"). All such share
certificates shall be accompanied by such instruments of transfer duly executed
and stamped by or on behalf of the Initial Shareholders depositing such
certificates and such other documents as may be required so as to enable the
Trustee to cause such shares to be transferred into the name of the Trustee.
Subject to stamping, each of UK Parent and TW UK (as appropriate) shall
immediately register the transfer of the Shares in the register of members. All
certificates for the Shares transferred and delivered to the Trustee pursuant
hereto shall be canceled and new certificates therefor shall promptly be issued
to and held by the Trustee in its own name in its capacity as Trustee hereunder
and shall bear a legend indicating that the Shares represented by such
certificate are subject to this Agreement. Upon receipt by the Trustee of the
certificates for any such Shares and the transfer of such Shares into the name
of the Trustee, the Trustee shall hold such Shares, and any dividends and other
distributions in respect thereof on trust for US Parent and UK Parent,
respectively, absolutely, subject to the terms of this Agreement and shall issue
and deliver to each Initial Shareholder voting trust certificates representing
its interest in such Shares deposited pursuant to this Agreement ("Voting Trust
Certificates"). Each Voting Trust Certificate to be issued and delivered by the
Trustee in respect of the Shares shall state the number of Shares which it
represents, shall identify the company in which such Shares represent an
interest in shall be signed by the Trustee and shall be in substantially the
same form as Exhibit A attached hereto and bear the restrictive legends set
forth thereon. The Trustee shall at all times keep, or cause to be kept,
complete and accurate records of all Shares or other securities deposited with
it hereunder, the identity, addresses and ownership of the depositing Initial
Shareholders, and all certificates of beneficial interest issued by the Trustee.
Such records shall be open to inspection by any depositing Initial Shareholder
or holder of Voting Trust Certificates at all reasonable times. If any Initial
Shareholder shall fail to transfer, or procure the transfer of, any Shares held
or acquired by it or any of its Affiliates in accordance with the provisions of
this Section 1 within 2 days of first becoming bound so to do, such Initial
Shareholder (for itself and (as the case may be) as trustee on behalf of its
Affiliates) shall be deemed to have irrevocably appointed hereunder the Trustee
as its true and lawful attorney for and in its name and on its behalf to do all
such things and execute as a deed or under hand (as the case may be) all such
documents as may be necessary to transfer the entire legal interest in any such
Shares to the Trustee in accordance with, and for the purposes of, this
Agreement. The Trustee shall be obliged and hereby undertakes to take such
action as may be necessary as true and lawful attorney for that shareholder and
for its Affiliates to effect any transfer of shares pursuant to this Section 1
and the power of attorney granted hereunder.
2. Dividends. If any dividend in respect of the Shares deposited with or
acquired by the Trustee hereunder is paid, in whole or in part, in shares of TW
UK or UK Parent having voting powers, the Trustee shall likewise hold on trust
for the registered holders of the Voting Trust Certificates, absolutely, subject
to the terms of this Agreement, the shares and the related
4
share certificates which are received by TW UK or UK Parent on account of such
dividend, and the holder of each outstanding Voting Trust Certificate
representing shares on which such dividend has been paid shall be entitled to
receive a further Voting Trust Certificate issued under this Agreement for the
number and class of shares received as such dividend with respect to the shares
represented by such outstanding Voting Trust Certificate. Holders entitled to
receive the Voting Trust Certificates issued in respect of the shares received
as such dividends shall be those registered as such on the books of the Trustee
at the close of business on the record date for such dividend.
The Trustee shall at all times direct TW UK and UK Parent, and they are
hereby directed, with respect to the Shares of which the Trustee is the
registered member to pay all cash dividends or other cash distributions whether
of income or capital paid in respect of or in relation to the Shares (other than
any dividends or distributions paid in shares of TW UK or of UK Parent having
voting powers) to the registered holders of the Voting Trust Certificates or
such other person(s) as they may direct. If the Trustee shall receive any such
cash dividends or distributions or other monies, it shall account to UK Parent
or US Parent, as the case may be, for such monies.
3. Transfer of Securities. No Initial Shareholder shall, directly or
indirectly, Transfer any Voting Trust Certificates except in circumstances where
an identical Transfer of Shares would be permitted by the Purchase Agreement,
subject to the condition precedent that the transferee shall have entered into
an enforceable written agreement satisfactory to the Board of Directors of TW UK
agreeing to be bound by all of the provisions of this Agreement to the same
extent as the transferring Initial Shareholder as if such Voting Trust
Certificates were still owned by the Initial Shareholders.
Subject to the preceding paragraph, the provisions of the Charter
Documents of UK Parent and TW UK shall apply to any transfer or purported
transfer of any Voting Trust Certificates as they shall to any transfer or
purported transfer of any Shares represented thereby. Any Transfer in violation
of such restrictions shall cause the transferring holder to lose its rights and
privileges with respect to (but shall continue to be bound by), as applicable,
(i) Articles 7, 8, 9, 10, 11 and 12 of the TW UK Charter, (ii) the corresponding
provisions of the Articles and Memorandum of Association of UK Parent, (iii)
Articles 10, 11, 12, 13 and 14 of the Purchase Agreement and (iv) all rights to
vote or direct the voting of Shares held by the Trustee hereunder pursuant to
Section 6 hereof. The Trustee shall not register such transfer or recognize the
intended transferee as the holder of the Voting Trust Certificate for any
purpose. To the extent permitted by law, Voting Trust Certificates shall not be
subject to attachment, garnishment, judicial order, levy, execution or similar
process, however instituted, for satisfaction of a judgment or otherwise.
Subject to the provisions of the foregoing paragraphs, the Voting Trust
Certificates shall be transferable on the books of the Trustee, at such office
as the Trustee may designate, by the registered owner thereof, either in person
or by attorney duly authorized, upon surrender thereof, according to the rules
established for that purpose by the Trustee, and the Trustee may treat the
registered holder as owner thereof for all purposes whatsoever, but it shall not
be required to deliver new Voting Trust Certificates hereunder without the
surrender of such existing Voting Trust Certificates.
5
If a Voting Trust Certificate is lost, stolen, mutilated or destroyed,
the Trustee, in its discretion, may issue a duplicate of such certificate upon
receipt of (a) evidence of such fact satisfactory to it; (b) indemnity
satisfactory to it, including, without limitation, an indemnity bond, sufficient
in the judgment of the Trustee, to protect the Trustee, or any agent, from any
loss which any of them may suffer if a Voting Trust Certificate is replaced; (c)
the existing certificate, if mutilated; and (d) its reasonable fees and expenses
in connection with the issuance of a new trust certificate.
4. Withdrawal of Shares from Voting Trust. Any registered holder of
Voting Trust Certificates hereunder may from time to time withdraw Shares
represented thereby from the voting trust arrangements created hereby only upon
the occurrence of any of the following circumstances:
(a) at any time after the fifteenth anniversary of the date
hereof, provided that all Obligations of UK Parent and TW UK arising from (i) an
exercise of Warrants for Warrant Shares, (ii) an exercise of a Purchasers'
Warrant Put or (iii) an exercise of a Purchasers' Warrant Shares Put, shall have
been duly and fully satisfied; or
(b) at any time after a Qualified Public Offering in connection
with and immediately prior to any bona fide sale of the Shares to be so
withdrawn which are represented by a Voting Trust Certificate to any Person who
is not an Affiliate of any of the Initial Shareholders, subject to such sale
being in compliance with all applicable provisions of the Charter Documents;
provided, however, that only the portion of the Shares represented by a Voting
Trust Certificate which are actually sold to such Person shall be so withdrawn.
Any Shares withdrawn from the voting trust arrangements created pursuant
to this Agreement, when so withdrawn in compliance with this Section 4, shall be
free of any restrictions imposed by this Agreement, but shall remain subject to
any and all other restrictions imposed by the Charter Documents of TW UK and UK
Parent, as the case may be, the Transaction Documents or other agreements or by
law. Such withdrawal shall be effected only by a written amendment to this
Agreement in the form of Exhibit B hereto executed by the Trustee. Upon the
surrender by such holder to the Trustee of the Voting Trust Certificate or
Certificates designated in such amendment, the Trustee is authorized to deliver
or cause to be delivered to such holder a certificate or certificates for the
Shares so withdrawn, with any appropriate restrictive legends, accompanied by
such instruments of transfer duly executed by or on behalf of the Trustee and
such other documents of title as may be required so as to enable such holder to
cause such shares to be transferred into its, his or her own name, and a Voting
Trust Certificate in respect of the remaining shares, if any. Nothing in this
Section 4 or in any such amendment shall modify, amend, limit or terminate any
other restrictions contained in, or be construed as a consent to any transfer of
Shares subject to, this Agreement under the Charter Documents of TW UK and UK
Parent, the other Transaction Documents or any other agreement or instrument,
unless such amendment specifically refers to such other agreement or instrument
and satisfies all requirements for amendment or waiver thereof (including
execution and delivery by appropriate parties).
6
5. Rights, Powers and Duties of the Trustee; Obligations of Initial
Shareholders.
(a) Until the actual delivery to the holders of Voting Trust
Certificates of share certificates in exchange therefor, and until the surrender
of the Voting Trust Certificates representing such shares for cancellation, in
each case in accordance with the terms of this Agreement, title to all Shares
deposited hereunder shall be vested in the Trustee, and the Trustee shall have
the sole and exclusive right, acting as hereinafter provided, to exercise, in
person or by its nominees or proxies, all voting rights and powers of the
Initial Shareholders in respect of all Shares deposited with or acquired by the
Trustee hereunder, including the right to take part in or consent to any
shareholders action of any kind whatsoever, whether ordinary or extraordinary,
subject to the provisions hereinafter set forth; provided that the Trustee shall
only exercise such rights with respect to the Shares deposited or acquired
hereunder in accordance with the provisions of Section 6 hereof. Any exercise or
purported exercise by the Trustee of any rights or powers attaching to the
Shares shall be void ab initio unless the same is strictly in accordance with
Section 6 hereof.
The Trustee shall act only in accordance with the terms of this
Agreement and the Charter Documents of TW UK and UK Parent. A certificate signed
by the Trustee shall be conclusive evidence to all persons of any action taken
by the Trustee.
(b) The right to vote shall include, without limitation, the
right to vote for the election of directors and in favor of or against any
resolution or proposed action of any character whatsoever, which may be
presented at any meeting or require the consent of shareholders of TW UK or UK
Parent. It is expressly understood and agreed that except as otherwise expressly
provided in Section 6 hereof, the holders of Voting Trust Certificates shall not
have any right, either under said Voting Trust Certificates or under this
Agreement, or under any agreement express or implied, or otherwise, with respect
to any Shares held by the Trustee hereunder, to vote such Shares or to take part
in or consent to any corporate action, or to do or perform any other act or
thing which the holders of TW UK's or UK Parent's shares are now or may
hereafter become entitled to do or perform by virtue of their being
shareholders.
(c) The Trustee shall not incur any responsibility in its
capacity as trustee, or individually or otherwise, in voting the Shares held
hereunder or in any matter or act committed or omitted to be done under or in
connection with this Agreement, or for any vote or act committed or omitted to
be done by any predecessor or successor Trustee, except for such Trustee's
willful misconduct or fraud.
(d) The Trustee shall maintain, or cause to be maintained,
complete and accurate records of all the Shares deposited with it hereunder, the
identity, addresses and ownership of the depositing shareholders, and all Voting
Trust Certificates issued by the Trustee. Such records shall be open to
inspection by any depositing shareholder or other party to or beneficiary under
this Agreement on reasonable notice during business hours.
(e) The Trustee shall forward to the registered holders of the
Voting Trust Certificates all notices, resolutions and other documents delivered
by TW UK and UK Parent,
7
respectively, to the Trustee as the registered holder of the Shares. The
Trustee, at the request of US Parent, shall forward to UK Parent or TW UK, as
reasonably directed by US Parent, any requests for information provided to the
Trustee by US Parent and, subject to the requirements of Applicable Law, shall
take all such actions as the registered holders of the Trust Certificates may
reasonably require to obtain information on matters relating to the Companies or
the Shares.
(f) Subject to the requirements of Applicable Law, each of the
Initial Shareholders shall instruct the Trustee to vote their Shares (whether at
a general or extraordinary meeting of shareholders or by consent in lieu of a
meeting of shareholders) and where appropriate to give effect to such matters,
shall convene any necessary shareholders meeting for the purpose of passing
(and, unless pursuant to an amending resolution required for the purpose of
authorizing and giving effect to the Purchasers' Share Put against TW UK
pursuant to Article VIII of the Purchase Agreement, not revoking) such
resolutions as may be required by Applicable Law to approve or authorize any
purchase of Securities pursuant to Articles VII and VIII of the Purchase
Agreement, including without limitation, any special resolutions required under
Sections 165 and/or 171 of the Companies Xxx 0000 in connection with a purchase
by TW UK of its shares (whether out of distributable profits or out of the
proceeds of a new issue of shares).
6. Voting by the Trustee.
(a) The Trustee shall, subject to the provisions of this
Agreement, have the sole and exclusive right and power to, and shall be obliged
and hereby undertakes to, vote all of the Shares held under the voting trust
arrangements created hereby, whether at a general or extraordinary meeting of
shareholders or by consent in lieu of a meeting of shareholders and where
appropriate to give effect to such matters, shall convene all necessary
shareholder meetings, with such voting being strictly in accordance with this
Section 6(a) as follows:
(i) With respect to the election of members of the Board of
Directors of TW UK, the Trustee shall vote the Shares so as to
elect, and to continue in office until their resignation or
removal, the persons designated in the manner set forth in
Section 6(c) below (including without limitation, votes required
to increase the size of the Board of Directors of TW UK and to
elect Additional Investor Directors following the occurrence of
a Covenant Breach, the registered holders of the Voting Trust
Certificates if applicable), unless an "Extraordinary Event" or
"Put Breach" (each as defined below) shall have occurred and be
continuing, in which case clauses (v) or (vi) of this Section
6(a), as the case may be, shall apply. With respect to the
election of members of the Board of Directors of UK Parent, the
Trustee shall vote the Shares so as to elect, and to continue in
office until their resignation or removal, the same directors as
serve on the Board of Directors of TW UK from time to time
(including Additional Investor Directors following the
occurrence of a Covenant Breach);
(ii) With respect to any proposal to amend the Charter Documents
or approve actions contemplated by Article 20 of the TW UK
Charter, the Trustee shall vote the Shares as follows:
8
(A) subject to clause (C) below, if the proposed
amendment has been proposed and approved and
recommended by the Board of Directors of UK Parent or
TW UK, as applicable, as evidenced by a Board
Resolution, then strictly in accordance with the
instructions of the registered holders of the Voting
Trust Certificates;
(B) subject to clause (C) below, if the proposed
amendment has not been proposed, approved or
recommended by the Board of Directors of UK Parent or
TW UK, as applicable, then against the approval
thereof;
(C) notwithstanding clauses (A) and (B) above, if an
"Extraordinary Event" or "Put Breach" (each as defined
below) shall have occurred and be continuing, then in
accordance with clauses (v) or (vi) of this Section
6(a), as the case may be; and
(D) notwithstanding clauses (A) and (B) above, if a
Covenant Breach shall have occurred and be continuing,
then to increase the size of the Boards of Directors of
UK Parent and TW UK as provided in Section 6(c) below
to allow for the appointment of Additional Investor
Directors.
The Trustee shall be required to accept as evidence of the
instructions of the US Parent pursuant to clause (A) above a
letter or notice duly signed by an authorized representative of
US Parent, a copy of which the Trustee shall deliver to Triumph.
The Trustee shall be required to accept as evidence of the
instructions of the Board of Directors of TW UK or UK Parent (as
the case may be) a copy (duly certified by the Secretary of TW
UK or UK Parent or other duly authorized person as being a true
copy of the original) of a board resolution of TW UK or UK
Parent (as the case may be). The Trustee shall not be allowed or
bound to call for further evidence nor to verify the accuracy of
the contents of such letter, notice or certified copy nor be
responsible for any losses, liabilities, costs, damages,
actions, demand or expenses or for any breach of any of the
provisions of this Agreement that may be occasioned by
accepting, acting or relying on such letter, notice or certified
copy;
(iii) With respect to any proposal relating to the creation,
allotment or issue of any additional Capital Shares or other
securities of TW UK, or the grant of any right to require the
allotment or issue of such Capital Shares or securities (an
"Equity Issuance"), including in connection with a Flotation (as
defined in the TW UK Charter), but excluding any allotment or
issuance of options to be granted to employees of TW UK or its
subsidiaries as provided in Section 9.2(c) of the Purchase
Agreement at an exercise price that is equal to or greater than
the Warrant Exercise Price (as defined in the Warrant
Instrument) of the Warrants as in effect at the time, up to the
maximum number of options set forth therein, and the issue of
shares upon the exercise of such options, the Trustee shall vote
the Shares as follows:
9
(A) subject to clause (C) below, if the proposed Equity
Issuance is at a subscription price below the Warrant
Exercise Price (as defined in the Warrant Instrument)
of the Warrants as in effect at the time immediately
prior to such Equity Issuance and no "Extraordinary
Event" or "Put Breach" has occurred and is continuing,
then strictly in accordance with the instructions of
the registered holders of the Voting Trust
Certificates;
(B) subject to clause (C) below, if the proposed Equity
Issuance is at a subscription price equal to or in
excess of the Warrant Exercise Price (as defined in the
Warrant Instrument) of the Warrants as in effect at the
time immediately prior to such Equity Issuance and no
"Extraordinary Event" or "Put Breach" has occurred and
is continuing, then strictly in accordance with the
instructions of the Board of Directors of TW UK; and
(C) notwithstanding clauses (A) and (B) above, if an
"Extraordinary Event" or "Put Breach" shall have
occurred and be continuing, then in accordance with
clauses (v) or (vi) of this Section 6(a), as the case
may be.
The Trustee shall be required to accept as evidence of the
instructions of the registered holders of the Voting Trust
Certificates US Parent pursuant to clause (A) above a letter or
notice duly signed by an authorized representative of the
registered holders of the Voting Trust Certificates, a copy of
which the Trustee shall deliver to Triumph. The Trustee shall be
required to accept as evidence of the instructions of the Board
of Directors of TW UK a copy (duly certified by the secretary of
TW UK or other authorized person as being a true copy of the
original) of a Board Resolution. The Trustee shall not be
allowed or bound to call for further evidence nor to verify the
accuracy of the contents of such letter, notice or certified
copy nor be responsible for any losses, liabilities, costs,
damages, actions, demand or expenses or for any breach of any of
the provisions of this Agreement that may be occasioned by
accepting, acting or relying on such letter, notice or certified
copy;
(iv) With respect to all other matters, the Trustee shall vote
the Shares strictly in accordance with the instructions of the
Board of Directors of TW UK, unless an Extraordinary Event or
Put Breach shall have occurred and be continuing, in which case
clauses (v) or (vi), as the case may be, shall apply. The
Trustee shall be required to accept as evidence of the
instructions of the Board of Directors of TW UK a copy (duly
certified by the secretary of TW UK or other authorized person
as being a true copy of the original) of a Board Resolution. The
Trustee shall not be allowed or bound to call for further
evidence nor to verify the accuracy of the contents of such
certified copy nor be responsible for any losses, liabilities,
costs, damages, actions, demand or expenses or for any breach of
any of the provisions of this Agreement that may be occasioned
by accepting, acting or relying on such certified copy;
10
(v) If an Extraordinary Event shall have occurred and be
continuing, with respect to all matters, including, without
limitation, the matters described in clauses (i), (ii) and (iii)
of this Section 6(a), the Trustee shall vote the Shares strictly
in accordance with the instructions of a majority of those
members of the Board of Directors of TW UK who, at the time of
the Extraordinary Event, are neither employees of US Parent, UK
Parent, TW UK or any of their Subsidiaries, nor Affiliates of US
Parent or Hyperion Capital (the "Designated Directors"). The
occurrence of an Extraordinary Event shall be determined by a
majority of the Designated Directors. The Trustee shall be
required to accept as evidence of the determination and
instructions of the Designated Directors a copy (duly certified
by the secretary of TW UK, any Designated Director or other
authorized person as being a true copy of the original) of a
resolution of the Designated Directors duly signed, or
purporting to be signed, by a majority of the Designated
Directors, a copy of which the Trustee shall deliver to US
Parent promptly. The Trustee shall not be allowed or bound to
call for further evidence nor to verify the accuracy of the
contents of such certified copy nor be responsible for any
losses, liabilities, costs, damages, actions, demand or expenses
or for any breach of any of the provisions of this Agreement
that may be occasioned by accepting, acting or relying on such
certified copy.
If the registered holders of the Voting Trust
Certificates dispute the determination of a majority of the
Designated Directors that an Extraordinary Event has occurred,
it shall have the right to take such action as it may determine,
including seeking injunctive relief, instituting an action for
damages or an appropriate judicial declaration. Pending
resolution of any dispute or legal proceeding initiated by the
registered holders of the Voting Trust Certificates, the Trustee
shall be required to act in accordance with the instructions of
the Designated Directors except in the case that an injunction
to the contrary is issued by a court of competent jurisdiction.
The Designated Directors shall respond promptly to any request
by the registered holders of the Voting Trust Certificates for a
statement of the grounds upon which they based their
determination that an Extraordinary Event has occurred and shall
afford the registered holders of the Voting Trust Certificates
an opportunity to address the Designated Directors and
illustrate any objections or other matters relevant to such
determination.
(vi) If a Put Breach shall have occurred and be continuing, with
respect to any matters relating to, or required by the Purchase
Agreement or the Charter Documents of UK Parent or TW UK to be
acted upon in connection with a Liquidity Event, a Qualifying
Liquidity Event, a Qualifying Offer, an Exit Offer, an Asset
Disposition, a Disposition or any of the matters set forth in
Articles 8.1 through 8.4 of the TW UK Charter, or in connection
with the exercise of the "Drag-Along Rights" provided in Article
XII of the Purchase Agreement, the Trustee (A) shall vote, sell
and transfer the Shares strictly in accordance with the
instructions of Triumph without any requirement as to action by
the Board of Directors of UK Parent or TW UK and (B) shall
execute and deliver as the registered holder of the
11
Shares such agreements, documents or instruments as may be
reasonably required by Triumph to carry out the same
consistently with the Purchase Agreement and the TW UK Charter.
The Trustee shall be required to accept as evidence of the
occurrence of a Put Breach and of the instructions of Triumph a
letter or notice duly signed by an authorized representative of
Triumph stating that a Put Breach has occurred and setting forth
any other actions to which such instructions shall apply. The
Trustee shall not be allowed or bound to call for further
evidence nor to verify the accuracy of the contents of such
letter or notice nor be responsible for any losses, liabilities,
costs, damages, actions, demand or expenses or for any breach of
any of the provisions of this Agreement that may be occasioned
by accepting, acting or relying on such letter or notice.
If US Parent disputes the determination of Triumph that
a Put Breach has occurred, it shall have the right to take such
action as it may determine, including seeking injunctive relief,
instituting an action for damages or an appropriate judicial
declaration. Pending resolution of any dispute or legal
proceeding initiated by US Parent, the Trustee shall be required
to act in accordance with the instructions of Triumph except in
the case that an injunction to the contrary is issued by a court
of competent jurisdiction. Triumph shall respond promptly to any
request by US Parent for a statement of the grounds upon which
Triumph based its determination that a Put Breach has occurred
and shall afford US Parent an opportunity to address Triumph and
illustrate any obligations or other matters relevant to such
determination.
(vii) If any resolutions are required to be passed by the
shareholders to approve or authorize any purchase of Securities
pursuant to Articles VI, VII or VIII of the Purchase Agreement,
including, without limitation, any special resolutions required
under Sections 164, 165 and/or 171 of the Companies Xxx 0000
(whether out of distributable profits or out of the proceeds of
any new issuance of shares or otherwise), then, subject to the
requirements of Applicable Laws, the Trustee shall vote the
Shares strictly in accordance with the instructions of Triumph.
The Trustee shall be required to accept as evidence of the
instructions of Triumph a letter or notice duly signed by an
authorized representative of Triumph stating that a resolution
is required and setting forth any other actions to which such
instructions shall apply. The Trustee shall not be allowed or
bound to call for further evidence nor to verify the accuracy of
the contents of such letter or notice nor be responsible for any
losses, liabilities, costs, damages, actions, demand or expenses
or for any breach of any of the provisions of this Agreement
that may be occasioned by accepting, acting or relying on such
letter or notice.
(b) The following terms shall have the following meaning for
purposes of this Section 6:
"Transworld Change of Control" means any of the following: (i) any
person or group of connected persons which does not at the date hereof have
control (as defined in the Credit
12
Agreements) of UK Parent, US Parent or any holding company of UK Parent acquires
such control, (ii) a transfer or series of Transfers (including, without
limitation, the distribution, by dividend or otherwise), whether related or
unrelated, by Hyperion Capital of Capital Shares of US Parent such that after
giving effect thereto Hyperion Capital would no longer own beneficially and of
record 50.1% or more of all Voting Securities of US Parent, or (iii) any
transfer by US Parent of any Capital Shares of UK Parent or by UK Parent of any
Capital Shares of TW UK in violation of the Purchase Agreement of the Charter
Documents of UK Parent or TW UK. Notwithstanding the foregoing, no Transworld
Change of Control shall be deemed to have occurred by virtue of (i) the purchase
by one or more underwriters of Capital Shares of TW UK pursuant to a firm
commitment underwriting in connection with a public offering of such Capital
Shares or (ii) following a Qualified Public Offering, the purchase by any Person
of Capital Shares of TW UK in a transaction which allows such Shares to be
withdrawn from the voting trust arrangements created hereby pursuant to Section
4 hereof.
"Extraordinary Event" means any of the following:
(i) The filing by any Person other than Triumph or any
Purchaser, whether at law or in equity, of any suit or complaint
(or, in the case of derivative or other actions, on behalf of
the Initial Shareholders or their successors or assigns by any
representative, trustee, agent, court, or administrative agency,
receiver or administrator preliminary proceedings seeking
permission or authority for the filing of any suit or complaint)
with any court of competent jurisdiction, or the commencement of
any other legal proceeding or administrative process seeking in
any manner whatsoever to (i) have the creation of the voting
trust pursuant to this Agreement or the transfer to such voting
trust of the Shares declared void or invalid or rescinded, (ii)
challenge the validity, enforceability or effectiveness of this
Agreement or the voting trust created hereby, or (iii) direct
the Trustee to vote or refrain from voting or to transfer or
refrain from transferring the Shares held in the voting trust in
any manner inconsistent in any respect with this Section 6,
including injunctive or similar equitable relief seeking to
prevent the taking of any action that requires the approval of
the shareholders of UK Parent or TW UK pending resolution of any
legal challenge involving the voting trust created by this
Agreement, the TW UK Charter or the rights of the Purchasers
under the Purchase Agreement or any agreement or instrument
contemplated thereby;
(ii) A "Transworld Change of Control," unless the event or
occurrence giving rise thereto is (A) approved by the Board of
Directors of TW UK, as evidenced by a Board Resolution and (B)
does not constitute and would not become (with the passage of
time, the giving of notice or otherwise) a default or event of
default under the Credit Agreements; or
(iii) Any insolvency or bankruptcy or similar case or proceeding
involving US Parent, any reorganization, receivership,
liquidation, dissolution or winding up of US Parent, whether
voluntary or involuntary, or any assignment for the benefit of
creditors or any other marshaling of assets and liabilities of
US Parent.
13
"Put Breach" means, with respect to any of (i) a Purchasers' Put, (ii) a
Purchasers' Warrant Put or (iii) a Purchasers' Share Put (each a "Put"), the
failure of UK Parent and/or TW UK to fulfill their respective Obligations in all
material respects in the manner and at the time provided in the Purchase
Agreement provided that a failure by UK Parent so to fulfill its obligations
shall not be deemed to be a Put Breach unless TW UK shall also have failed to
fulfill its obligations on the corresponding Put.
(c) Subject to the last paragraph of this Section 6(c), US
Parent, UK Parent and Triumph (in their capacities as shareholders of UK Parent
and TW UK, respectively) hereby undertake to each other that they will use all
reasonable endeavors to procure (subject to the requirements of Applicable Law),
that the Boards of Directors of each of UK Parent and TW UK shall consist of the
following:
(i) The chief executive officer of TW UK (the "Management
Director"), provided that the initial Management Director shall
be Xxxxxxx Xxxxxx;
(ii) One person designated by Triumph (the "Investor Director"),
provided, that the initial Investor Director shall be Xxxxxxxxx
X. Xxxxxxx XX;
(iii) One person designated by the registered holders of the
Voting Trust Certificates (the "Parent Director"), provided,
that the initial Parent Director shall be X. Xxxxxxx;
(iv) Up to two additional persons who are neither partners,
directors, agents, Affiliates, officers or employees of any of
US Parent, Triumph or their Affiliates, nor officers or
employees of UK Parent or TW UK or any of its Subsidiaries (the
"Independent Directors"), who will be nominated with the
affirmative vote of a majority of the directors then in office
following the nomination procedure set forth below, provided,
that one of the initial Independent Directors shall be H. J.
Xxxx Xxxxxxxx.
If at any time, (i) any of Triumph or the registered holders of the
Voting Trust Certificates shall notify the Trustee and the other parties hereto
of its desire to remove, with or without cause (as defined below), any director
of TW UK or UK Parent previously designated by it pursuant to this Section 6(c),
(ii) the Management Director ceases to be employed as the chief executive
officer of TW UK, or (iii) the directors (other than the director who is
proposed to be removed) then in office unanimously agree to request the removal
of an Independent Director, then the Trustee agrees to vote all of the Shares so
as to remove such director. If at any time, any of the Investor Director or the
Parent Director ceases to serve on the Board of Directors of TW UK or UK Parent
(whether by reason of death, resignation, removal or otherwise), the party who
designated such director shall be entitled to designate a successor director to
fill the vacancy created thereby on the terms and subject to the conditions of
this Section 6(c) and the Trustee shall vote all of the Shares so as to elect
any such director. If at any time an Independent Director ceases to serve on the
Board of Directors of TW UK or UK Parent (whether by reason
14
of death, resignation, removal or otherwise), a successor director shall be
designated and elected on the terms and subject to the conditions provided in
this Section 6(c).
US Parent, UK Parent and Triumph (in their capacity as shareholders of
UK Parent and TW UK, respectively) hereby undertake to each other that they will
use all reasonable endeavors to procure (subject to the requirements of
Applicable Law) that the directors nominated by them to the Board of Directors
of UK Parent and TW UK exercise their respective powers under the Articles and
Memorandum of Association of UK Parent and the TW UK Charter to give effect to
the provisions of this Section 6(c).
Whenever a Covenant Breach occurs, Triumph will be entitled to nominate
one additional director to be appointed to the Board of Directors of each of UK
Parent and TW UK (an "Additional Investor Director") and thereafter on each six
month anniversary of the occurrence of such Covenant Breach, so long as such
Covenant Breach continues, Triumph will be entitled to nominate one Additional
Investor Director to be appointed to the Board of Directors of each of UK Parent
and TW UK. Each appointment of an Additional Investor Director shall take place
at an extraordinary meeting of shareholders called for such purpose by the Board
of Directors or requisitioned by the Trustee at the request of Triumph. The
Trustee, US Parent, UK Parent and TW UK hereby undertake to take all such action
and exercise all their powers (including voting powers) to procure the
appointment of all such Additional Directors as may be nominated by Triumph
pursuant to this Section 6(c). If and when the original Covenant Breach and all
other Covenant Breaches that may have arisen while such original Covenant Breach
was continuing have been eliminated or waived in writing by Triumph and are no
longer continuing, the right of Triumph to nominate Additional Investor
Directors shall lapse and all Additional Investor Directors shall resign or, in
the absence of such resignation, be removed, subject to the rights set forth in
this paragraph revesting in the event of each and every Covenant Breach. The
provisions of this Section 6(c) applicable to the Investor Director shall apply
equally to all Additional Investor Directors.
7. Compensation and Reimbursement of the Trustee. The Trustee shall have
the right to incur and pay such reasonable expenses and charges and, provided it
shall have acted reasonably in its selection of any such person, to employ and
pay such agents, attorneys and counsel as it may deem necessary and proper in
the performance of its obligations and exercise of its powers under this
Agreement. Any such expenses or charges incurred by and due to the Trustee shall
be reimbursed by TW UK. Nothing herein contained shall disqualify the Trustee or
any successor Trustee, from serving TW UK, UK Parent or any of their respective
Subsidiaries in any other capacity, holding any class of securities in TW UK or
UK Parent, becoming a creditor of TW UK or UK Parent or otherwise dealing with
it in good faith, or taking any other action in connection with any matter in
which such Trustee has any direct or indirect interest. Notwithstanding the
foregoing, the Trustee shall be entitled to be fully indemnified by TW UK
against all costs, charges, expenses, loss, liability and damage properly
incurred by the Trustee in the administration of this trust or in the proper
exercise of any power conferred upon the Trustee by this Agreement. Nothing
contained in this Agreement shall, in any case where the Trustee or, as the case
may be, any attorney, agent, delegate or other person appointed by the Trustee
under this Agreement, has been guilty of fraud or wilful default in the
performance of any of its duties
15
hereunder exempt the Trustee or, as the case may be, such attorney, agent,
delegate or other person appointed by the Trustee under this Agreement from, or
indemnify it, him or her against any liability for breach of contract or any
liability which by virtue of any rule of law would otherwise attach to it, him
or her in respect of any such fraud or default of which it, he or she may be
guilty in relation to its, his or her duties under this Agreement.
8. Additional and Successor Trustee. The power of appointing new and
additional trustees shall be vested in the Board of Directors of TW UK, subject
to the consent of US Parent and Triumph, which consent shall not be unreasonably
withheld or delayed to the appointment of any professional trust company. The
Trustee may retire at any time upon giving at least 30 days' written notice to
each of the registered holders of the Voting Trust Certificates and the Board of
Directors of TW UK without giving any reason provided that the retirement of the
Trustee (if it is the sole trustee) will not be effective until another trustee
is appointed as successor trustee. The Trustee shall be required, upon receipt
of written notice from the Board of Directors of TW UK, to retire with immediate
effect or within the time specified in such notice. If a sole Trustee gives or
is given notice of retirement, the Board of Directors of TW UK will use all
reasonable endeavors to procure that another trustee is appointed as Trustee.
The rights, powers and privileges of the successor Trustee named hereunder shall
be possessed by the successor Trustee with the same effect as though such
successor had originally been a party to this Agreement.
The Trustee shall affix its signatures to this Agreement and each
successor Trustee appointed pursuant to this Section 8 shall accept appointment
or election hereunder by affixing its signature to this Agreement at the time it
becomes a Trustee hereunder. By affixing its signature to this Agreement, the
Trustee and each successor Trustee agree to be bound by the terms hereof.
9. Sale and Transfer of Shares. Except as otherwise provided in this
Agreement, the Trustee shall not sell, hypothecate, pledge, assign or otherwise
transfer or deal in any way with the Shares held in the voting trust pursuant to
this Agreement.
10. Rights of Company with Respect to Shares Hereafter Acquired. With
respect to any shares of either TW UK or UK Parent acquired by any of the
Initial Shareholders and their Affiliates subsequent to the date hereof which,
pursuant to the provisions of Section 1, were required to have been properly
transferred into the voting trust (unless such shares shall have been
subsequently withdrawn pursuant to Section 4), the Trustee shall be entitled and
obliged (and hereby undertakes) to exercise the power of attorney granted under
Section 1 hereof to transfer such shares into the voting trust and the Board of
Directors of TW UK or UK Parent, as the case may be, and the Trustee shall have
the right to consider such shares to be properly transferred into the voting
trust and governed by the terms of this Agreement for any and all purposes,
including, without limitation, the right to refuse to enter the Initial
Shareholders or their Affiliates (or any subsequent transfer by them or such
shares, other than into the voting trust) in the register of members of TW UK or
UK Parent, recognize any purported exercise of voting rights by the Initial
Shareholders with respect to such shares or to consider any such shares to be
issued or outstanding for purposes of any shareholder vote or for purposes of
determining a quorum for such vote. This Section 10 shall apply regardless of
the identity of the
16
holder of such shares and whether or not the certificates evidencing ownership
of such shares were ever actually surrendered for deposit into the voting trust,
as contemplated hereby.
11. Amendment and Termination. This Agreement may be amended or
terminated only by a deed executed by the Trustee and with the prior consent of
the Board of Directors of TW UK, evidenced by a Board Resolution, US Parent and
Triumph. Notwithstanding the foregoing, the voting trust automatically shall
terminate (a) following the withdrawal, in a single transaction or a series of
transactions, of all of the Shares held in the voting trust in accordance with
the provisions of Section 4 hereof or (b) as soon as both of the following
conditions are satisfied: (i) a Qualified Public Offering has occurred and (ii)
UK Parent ceases to have beneficial ownership of 29.9% or more of the ordinary
share capital of TW UK.
12. Termination Procedure. Upon the termination of the voting trust at
any time, in accordance with Section 11 of this Agreement, the Trustee shall
mail written notice of such termination to the registered owners of the
outstanding Voting Trust Certificates, at the addresses appearing on the
transfer books of the Trustee. From the date specified in any such notice (which
date shall be fixed by the Trustee) the Voting Trust Certificates shall cease to
have any effect, and the holders of such Voting Trust Certificates shall have no
further rights under this voting trust other than to receive certificates for
Shares or other property distributable under the terms hereof upon the surrender
of such Voting Trust Certificates.
Forthwith following the termination of this voting trust, the Trustee
shall deliver to the registered holders of all Voting Trust Certificates
outstanding as of the date of such termination, share certificates for the
number of Shares of such class or classes of TW UK's Shares represented thereby
as to which they shall be entitled upon the surrender for cancellation of such
Voting Trust Certificates, accompanied by properly endorsed and executed
instruments of transfer, as appropriate, at the place designated by the Trustee,
and after payment, if the Trustee so requires, by the persons entitled to
receive such share certificates, of a sum sufficient to cover any stamp tax or
governmental charge in respect of the transfer or delivery of such share
certificates. Such certificates shall bear such legend referring to the
restrictions on transfer of such Shares as may be required by this Agreement, by
law or otherwise. Thereupon, all liability of the Trustee for delivery of such
certificates, instruments of transfer or Shares shall terminate, and the Voting
Trust Certificates representing the beneficial interest in the Shares so
delivered by the Trustee shall be null and void.
If upon such termination, one or more registered holders of outstanding
Voting Trust Certificates shall fail to surrender such Voting Trust
Certificates, or the Trustee for any reason shall be unable to comply with the
provisions of the preceding paragraph, the Trustee may, at any time subsequent
to 30 days after the termination of this Agreement, deposit with TW UK or UK
Parent ordinary share certificates representing the number of Shares represented
by such Voting Trust Certificates, together with duly executed instruments of
transfer and written instructions authorizing TW UK or UK Parent to deliver such
Share certificates in exchange for Voting Trust Certificates representing a like
interest in the Shares of TW UK or UK Parent, as the case may be; and upon such
deposit, all further liability of the Trustee for the delivery of such shares,
Share certificates and instruments of transfer and the delivery or payment of
dividends upon
17
surrender of the Voting Trust Certificates shall cease, and the Trustee shall
not be required to take any further action hereunder.
13. Notices, Etc. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing and
shall be delivered by courier, or mailed by a nationally recognized overnight
courier, postage prepaid, addressed, (a) if to TW UK, at its address set forth
on the signature page attached hereto, to the attention of the chief executive
officer, or at such other address, or to the attention of such other officer, as
TW UK shall have furnished to the other parties hereto in writing, or (b) if to
the Trustee, at the address specified on the signature pages attached hereto or
such other address as the Trustee shall have furnished to the other parties
hereto in writing, (c) if to any of the Initial Shareholders, at the address
specified on Schedule 1 attached hereto, or at such other address as the Initial
Shareholder shall have furnished to the other parties hereto in writing, and (d)
if to Triumph, to Triumph Partners III, L.P., 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxxxxx X. Xxxxxxx XX - fax: (617)
000-0000, tel: (000) 000-0000, with a copy to: Xxxxxxx, Procter & Xxxx XXX,
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxx Xxxxxxxx, P.C. - fax:
(000) 000-0000, tel: (000) 000-0000, or at such other address as Triumph shall
have furnished to the other parties hereto in writing. This Agreement and any
and all other agreements or documents delivered in connection herewith or
therewith embody the entire agreement and understanding between TW UK, the
Trustee and the Initial Shareholders and supersede all prior agreements and
understandings relating to the subject matter hereof.
14. Headings. The descriptive headings of the articles and sections of
this Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
15. Construction. This Agreement and the documents to be entered into
pursuant to it, except as expressly referred to herein, shall be governed by,
and constructed in accordance with, the laws of England and the parties
irrevocably agree that the courts of England are to have exclusive jurisdiction
to settle any disputes which may arise out of or in connection with this
Agreement and such documents. This Agreement shall take effect as a deed, and is
binding upon and inures to the benefit of the parties hereto and their
successors and assigns. If any provision in this Agreement or of any Voting
Trust Certificate shall be held to be illegal, invalid or unenforceable, in
whole or in part, under any enactment or rule of law, such provision or part
shall to that extent be deemed not to form part of this Agreement or of any
Voting Trust Certificate but the legality, validity and enforceability of the
remainder hereof or thereof shall not be affected. If there is a conflict
between the provisions of (i) this Agreement and the Charter of TW UK or (ii)
this Agreement and the Purchase Agreement during the continuance of this
Agreement, the Charter of TW UK or the Purchase Agreement (as the case may be),
it is the intention of the parties (other than the Trustee) in their capacity as
beneficial shareholders of TW UK and UK Parent (as the case may be) that the
provisions of this Agreement shall prevail over the Charter of TW UK and the
Purchase Agreement during such period and accordingly the parties (other than
the Trustee) shall exercise or direct the Trustee to exercise all voting and
other rights and powers available to them so as to give effect to the provisions
of this Agreement and shall further if necessary procure any required amendment
to the Charter Documents.
18
16. Damages Not Adequate Remedy. Each of the parties to this Agreement
hereby acknowledges and agrees with each other that damages would not be an
adequate remedy for the breach of any provision of this Agreement and,
accordingly, each shall be entitled (to the extent entitled to institute
proceedings in relation to the breach) to the remedies of injunction, specific
performance and other equitable remedy for any such threatened or actual breach.
17. No Assignment. Accept as expressly otherwise provided herein, none
of the parties may assign any of its rights or obligations under this Agreement,
in whole or in part, without the approval of each of the others.
18. No Waiver. No waiver by a party of a failure or failures of any of
the other parties to perform any provision of this Agreement shall operate or be
construed as a waiver in respect of any other or further failure whether of a
like or different character.
19. No Partnership or Agency. Nothing in this Agreement (or any of the
arrangements contemplated hereby) shall be deemed to constitute a partnership
between any of the parties to this Agreement, nor constitute any party as agent
of any other party for any purpose.
20. Rights of Enforcement
20.1 Nothing in this Voting Trust shall entitle any Purchaser other than
Triumph to exercise any right under this Voting Trust directly against any party
or otherwise. Triumph has been irrevocably and unconditionally authorized by the
Purchasers to exercise in their name and on their behalf, or to refrain from
exercising, all rights and discretions which they may have under, and agree to
such amendments or variations as it may deem appropriate of, this Agreement in
its absolute discretion. The terms of this Agreement shall apply accordingly.
20.2 The operation of The Contracts (Rights of Third Parties) Act of
1999 is hereby excluded in relation to this Agreement and no Person other than
parties to this Agreement shall have the right to enforce any rights or benefits
that may expressly or impliedly be granted to such party under the terms of this
Agreement.
20.3 The holders of the Voting Trust Certificates representing a
majority of the Shares in UK Parent then held by the Trustee shall be entitled
to, and shall be deemed to have been irrevocably and unconditionally authorized
by all holders of Voting Trust Certificates to, exercise in their name and on
their behalf, or to refrain from exercising, all rights and discretions which
they may have under, and agree to such amendments or variations as it may deem
appropriate of, this Agreement in its absolute discretion. The terms of this
Agreement shall apply accordingly.
21. Term. Subject to Section 4 hereof, the term of this Agreement shall
be the period of 20 years from the date hereof.
22. Appointment of Process Agents. US Parent irrevocably appoints UK
Parent as its agent for the service of process in England in relation to any
matter arising out of this Agreement, service upon whom shall be deemed
completed whether or not forwarded to or
19
received by US Parent. US Parent shall inform the other parties hereto, in
writing, of any change in the address of its process agent within 28 days. If
such process agent ceases to have an address in England, US Parent irrevocably
agrees to appoint a new process agent with an address in England and to deliver
to the other parties hereto within 14 days a copy of written acceptance of
appointment by its new process agent. Nothing contained in this Agreement shall
affect the right to serve process in any other manner permitted by law or the
right to bring proceedings in any other jurisdiction for the purposes of the
enforcement or execution of any judgment or other settlement in any other
courts.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute but one and the same instruments.
[END OF TEXT]
20
VOTING TRUST AGREEMENT
COMPANY SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as a deed
as of the date first above written.
Signed as a DEED by
TRANSWORLD HEALTHCARE UK LIMITED
Acting by its duly authorized
attorney:
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
VOTING TRUST AGREEMENT
UK PARENT SIGNATURE PAGE
Signed as a DEED by
TRANSWORLD HOLDINGS UK LIMITED
Acting by its duly authorized
attorney:
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
VOTING TRUST AGREEMENT
TRUSTEE' SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as a deed
as of the date first above written.
XXXXXXX XXXXX
Address:
----------------------------
----------------------------
Telephone:
--------------------------
In the presence of:
Name:
Address:
Occupation:
VOTING TRUST AGREEMENT
TRIUMPH SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as a deed
as of the date first above written.
Signed as a deed for and on behalf of
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P.,
its general partner
By: Triumph III Advisors, Inc.,
its general partner
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx XX
Title: President
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
VOTING TRUST AGREEMENT
US PARENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Signed as a DEED by
TRANSWORLD HEALTHCARE, INC.
Acting by its duly authorized
attorney:
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
