EXHIBIT 10.1.19
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT, made and entered into at Solon, Ohio, as of
the 13th day of May, 2004 by and between SARATOGA LIGHTING HOLDINGS LLC, as
voting trustee (the "Voting Trustee") of the voting trust created by this
Agreement, and the individuals who have purchased common stock, $.001 par value
per share, of ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio corporation (the
"Company") pursuant to the Company's 2003 Equity Incentive Plan (the "Plan"),
whose names are listed on Exhibit "A" attached hereto (hereinafter sometimes
separately referred to as a "Shareholder" and collectively as the
"Shareholders").
W I T N E S S E T H:
WHEREAS, the Plan, and the awards to each of the Shareholders, provide
that all of the shares of common stock, $.001 par value per share, of the
Company purchased pursuant to the Plan, as set forth opposite the Shareholders'
names on Exhibit "A", and any other shares delivered to the Voting Trustee (the
"Shares"), be subject to the terms of this Voting Trust Agreement;
WHEREAS, the Shareholders desire to participate in the Plan and that all
of the Shares be made subject to the terms and conditions of this Agreement; and
WHEREAS, the Shareholders deem this Agreement to be in the best interest
of the Company and all of the Shareholders.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEPOSIT OF VOTING SHARES; ISSUANCE OF VOTING TRUST CERTIFICATES.
(a) The Shareholders acknowledge that, pursuant to the Plan the
certificate(s) evidencing all of the Shares owned by each such Shareholder (the
"Share Certificates") have been deposited with Voting Trustee, together with a
duly executed stock power, and that the Escrow Agent under the Plan (the "Escrow
Agent") shall accept in exchange therefor a Voting Trust Certificate or
Certificates representing the number of Shares purchased by such Shareholder
pursuant to the Plan.
(b) Upon receipt of the Share Certificates pursuant to subsection
(a) of this Section, the Voting Trustee shall cause to be issued and delivered
to the Escrow Agent, on behalf of each Shareholder, a Voting Trust Certificate
or Certificates, substantially in the form of Exhibit "B" with the blanks
therein appropriately completed, representing the number of Shares evidenced by
the Share Certificates deposited for the account of each Shareholder. Voting
Trust Certificates issued upon the transfer of, in exchange for, or in addition
to such Voting Trust Certificates, as provided in this Agreement, shall be
substantially in the form attached hereto as Exhibit "B" with such appropriate
variations, omissions, and insertions as may be required.
2. ISSUANCE OF VOTING SHARES TO THE VOTING TRUSTEE. The Voting Trustee
shall cause all Share Certificates deposited with it pursuant to Section 1 above
to be surrendered to and cancelled by the Company, and shall cause the Company
to issue and deliver to the Voting Trustee new share certificates representing
the Shares in the name of the Voting Trustee, as voting trustee, which shall
contain a legend stating that the Share Certificates are issued pursuant and
subject to the provisions of this Agreement. The Company's stock ledger and
journal shall indicate that such share certificates are subject to the
provisions of this Agreement. Except as herein provided, all share certificates
issued and delivered to the Voting Trustee pursuant to this Section 2 shall at
all times be and remain in the possession of the Voting Trustee or a depository
designated by the Voting Trustee. The Voting Trustee shall not transfer any
certificates representing Shares other than as provided in this Agreement.
3. RECORDS OF VOTING TRUST CERTIFICATES.
(a) Records. The Voting Trustee shall keep or cause to be kept
books of record of all Voting Trust Certificates issued pursuant to this
Agreement, and shall also fix and determine a place at which such books of
record shall be kept and at which Voting Trust Certificates may be transferred.
(b) Inspection of Records of Voting Trust Certificates. Any owner
of a Voting Trust Certificate shall have the right to inspect the books of
record of the Voting Trust Certificates to be maintained by the Voting Trustee
pursuant to subsection (a) of this Section at the place at which such records
are kept at any reasonable time.
4. TRANSFER OF VOTING TRUST CERTIFICATES.
(a) Transfer of Voting Trust Certificates. All transfers of Voting
Trust Certificates shall be recorded on the books of record kept by the Voting
Trustee. The Voting Trustee may treat the record holder of the respective Voting
Trust Certificates as the absolute owner thereof for all purposes whatsoever and
shall not be bound to recognize any equitable interest in or claim to any such
Voting Trust Certificate or the Shares represented thereby on the part of any
other party until transferred on such books of record. The Voting Trustee shall
not be required to make any transfer of a Voting Trust Certificate upon such
books of record except upon surrender of a Voting Trust Certificate to be
transferred, properly assigned in such form as shall be acceptable to the Voting
Trustee, accompanied by such evidence as the Voting Trustee may reasonably
require as to the authority of any person other than the record holder thereof
who may seek to effect any such transfer and as to the genuineness of the
appropriate signatures. Upon each such transfer, the Voting Trust Certificates
surrendered for transfer shall be cancelled and the Voting Trustee shall issue a
new Voting Trust Certificate to the transferee and the transferee shall, by
acceptance thereof, assent to the terms and conditions of this Agreement. Any
such transferee shall be required to execute a supplemental copy of this
Agreement.
(b) Replacement of Voting Trust Certificates. In the event any
Voting Trust Certificate shall become mutilated, lost, or destroyed, the Voting
Trustee, under such conditions with respect to indemnity or otherwise as it, in
its discretion, may prescribe, may provide for the
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issuance of a new Voting Trust Certificate in lieu of such lost or destroyed
Voting Trust Certificate or in exchange for such mutilated Voting Trust
Certificate.
5. POWERS AND DUTIES OF VOTING TRUSTEE.
(a) Right to Vote. The Voting Trustee shall be entitled to
exercise all shareholder rights of the Shareholders in respect of the Shares,
including, but not limited to, the right to exercise the voting rights of such
Shares on each matter submitted to the Company's shareholders for their vote,
consent, waiver, release, or other action and the right to take part in any
corporate or shareholders' action of the Company, whether ordinary or
extraordinary, by proxy or otherwise. The right of the Voting Trustee to
exercise the voting rights of the Shares in accordance with the terms hereof
includes, but is not limited to, the exercise of voting rights relating to
fixing the number and the election of directors of the Company, the changing of
the Company's capital structure, the amendment of the Company's Articles of
Incorporation or Code of Regulations, the reclassification of the Shares, the
purchase of assets by the Company, and the merger, consolidation, liquidation or
dissolution of the Company. The owners of Voting Trust Certificates shall not
have any right under such Voting Trust Certificates or under this Agreement or
otherwise, to exercise the voting rights of such Shares or to take part in any
corporate or shareholders' action or to do or perform any act or thing that
shareholders of the Company are now or may hereafter become entitled to do or to
perform, for so long as the Shares owned by each such Shareholder are held by
the Voting Trustee, except to receive cash dividends and distributions when
declared and paid and to review the books and records of the Company during
normal business hours. Notwithstanding anything to the contrary, the Voting
Trustee shall not have the right to sell or otherwise transfer the Shares of any
Shareholder.
(b) Discretion of Voting Trustee. In exercising the voting rights
of the Shares, or in doing any act with respect to the control or management of
the Company or its affairs, or otherwise acting hereunder, the Voting Trustee
shall be free to exercise its full discretion. Notwithstanding anything to the
contrary, the Voting Trustee shall not have the right to sell or otherwise
transfer the Shares of any Shareholder.
(c) Acting as Director or Officer. The Voting Trustee, or any
representative of the Voting Trustee, may act as a director, an officer or an
employee of the Company and may vote for itself as such and may have an
ownership interest in the Company. The Voting Trustee, or any person with whom
or which it may be associated, or any entity of which it may be a member, or any
corporation of which it may be a shareholder, director, or officer, may contract
with the Company or otherwise have a financial interest in any matter or
transaction to which the Company may be a party or in which the Company may be
in any way concerned, as though it were not Voting Trustee, but otherwise
subject to law.
(d) Compensation. The Voting Trustee shall serve without
compensation. The Voting Trustee shall be reimbursed for all reasonable
expenses, disbursements and advances incurred or made by the Voting Trustee in
performance of its duties hereunder. The owners of the Voting Trust Certificates
agree to reimburse and indemnify the Voting Trustee for all reasonable claims,
expenses, and liabilities incurred by it in connection with the discharge of its
duties under this Agreement. Any such claims, expenses, or liabilities shall be
charged to the
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Voting Trust Certificate owners, pro rata, and may be deducted from dividends or
other distributions to them, or may be made a charge payable as a condition to
the delivery of Share Certificates following the surrender to the Voting Trustee
of the Voting Trust Certificates, and the Voting Trustee shall be entitled to a
lien therefor on the Shares, funds, or other property in its possession. The
Voting Trustee shall disclose in reasonable detail on an annual basis, all
reimbursements received for reasonable expenses, disbursements, advances
incurred or made by the Voting Trustee in performance of its duties hereunder.
(e) Immunities of the Voting Trustee. The Voting Trustee shall
incur no responsibility in its capacity as voting trustee, as a shareholder, or
otherwise, by reason of any error of judgment or mistake of law or other
mistake, for any act or omission of any agent or attorney, for any
misconstruction of this Agreement, or for any action of any sort taken or
omitted hereunder or believed by it to be in accordance with the provisions and
intent hereof or otherwise, except solely for its own individual willful
misconduct. In the discharge of its duties hereunder, the Voting Trustee shall
be fully protected in acting in reliance upon any instrument, document, or paper
believed by it to be genuine and to have been executed by the proper parties;
and, shall likewise be fully protected in issuing any Voting Trust Certificate
or in taking or refraining from taking any action hereunder in reliance upon any
certificate or certificates purporting to be duly signed, as to the existence or
non-existence of any fact or facts or the performance or non-performance of any
act or acts, and may accept as conclusive any statement made in any such
certificate. The Voting Trustee shall not be required to give bond or security
for the discharge of its duties under this Agreement. The Voting Trustee, may in
its discretion, consult with counsel to be selected by it and shall incur no
liability in respect of any action taken on the advice of any such counsel.
(f) Dividends. The record owner of each Voting Trust Certificate
shall be entitled to receive his pro rata share of any dividends paid or
distributed by the Company upon the Shares represented by the Voting Trust
Certificates and all other corporate distributions made by the Company in
respect of such Voting Shares; provided, however, that, if any such dividend or
distribution includes shares of capital stock of the Company with voting rights,
the certificates representing such shares of stock shall be deposited with the
Voting Trustee subject to the terms of this Agreement, and the owner of the
Voting Trust Certificate evidencing the Shares upon which such dividend or
distribution is made shall be entitled to receive new Voting Trust Certificates
representing such newly-deposited shares of capital stock with voting rights.
The record date fixed by the Company for the purpose of the payment
of any dividend or for the making of any other distribution shall be the record
date for the purpose of payment or distribution to the owners of Voting Trust
Certificates, and whenever any such record date shall be fixed, the owners of
record of Voting Trust Certificates at the date so fixed shall exclusively be
entitled to participate in the payment or distribution. Upon receipt by the
Voting Trustee of any dividend or other distribution in respect of any Shares
held by the Voting Trustee, the Voting Trustee shall promptly distribute the
funds or property so received by it to the owners of Voting Trust Certificates
to whom such funds or property should have been distributed by the Company if
the foregoing provisions hereof had been observed.
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Notwithstanding the foregoing provisions of this Section 5, if the
Company shall reclassify its Shares, reorganize, sell all or substantially all
of its assets with or without dissolution, consolidate with or merge into
another corporation, or if another corporation shall merge into the Company, the
shares of capital stock into which the Shares then on deposit hereunder shall be
reclassified and any shares of capital stock issued in exchange or substitution
for the Shares then on deposit hereunder shall, if they are non-voting shares,
be distributed in accordance with the provisions of this Agreement directly to
the record owners of outstanding Voting Trust Certificates, issued in respect of
such Shares; or, if they are voting shares, they shall become subject to the
terms and conditions of this Agreement as if such voting shares had been
originally deposited hereunder, and shall be deposited with the Voting Trustee,
and the owner of outstanding Voting Trust Certificates shall be entitled to
receive new Voting Trust Certificates representing such newly deposited shares
of capital stock with voting rights.
(g) Deductions for Distributions. There shall be deducted and
withheld from every distribution of every kind under this Agreement any taxes,
assessments, or other charges that may be required by law to be deducted or
withheld, as well as expenses and charges incurred pursuant to Section 5(d), to
the extent that the expenses and charges remain unpaid or unreimbursed.
6. RESIGNATION OF VOTING TRUSTEE.
(a) Resignation of Voting Trustee. The Voting Trustee may at any
time resign by delivering to the owners of the Voting Trust Certificates and
Pledged Shares, its resignation in writing, to take effect not less than ten
(10) days after delivery. Promptly following the effectiveness of such
resignation, the Voting Trustee shall transfer any property held by the Voting
Trustee to the successor Voting Trustee.
(b) Successor Voting Trustee. If, for any reason the Voting
Trustee ceases to be Voting Trustee, a successor Voting Trustee shall be
designated within 45 days of notice of the resignation of the Voting Trustee.
Saratoga Lighting Holdings LLC, its successors or assigns, may designate the
successor Voting Trustee. If Saratoga Lighting Holdings LLC, its successors or
assigns, fails to so designate a successor Voting Trustee within 60 days
following notice of the resignation of the Voting Trustee, any Shareholder may
petition any court of competent jurisdiction in the County of Cuyahoga, State of
Ohio for appointment of a successor Voting Trustee. Upon acceptance of
designation as successor Voting Trustee, the successor Voting Trustee shall have
all of the rights and duties of the Voting Trustee hereunder.
7. TERMINATION.
(a) Duration. Except as otherwise provided in Sections 7(b), this
Agreement shall terminate on the earliest of: (i) January 20, 2014; (ii) the
date upon which all of the Shares are acquired by the Company and/or any
shareholders of the Company that are not a party to this Agreement, or (iii) the
occurrence of a Major Event, as defined in the Plan.
(b) Termination By Voting Trustee. This Agreement may, at any
time, be terminated by the Voting Trustee. Written notice of such termination
shall be given by the
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Voting Trustee to all of the owners of the outstanding Voting Trust Certificates
pursuant to the provisions of Section 8 of this Agreement. Such notice shall
specify the time and manner of delivery of certificates representing Shares
following the surrender and cancellation of the respective Voting Trust
Certificates as described in Section 7(c) below.
(c) Obligations of Voting Trustee Upon Termination or Transfer.
Upon the termination of this Agreement, the owners of the Voting Trust
Certificates shall surrender their respective Voting Trust Certificates to the
Voting Trustee or, upon the Voting Trustee's death or disability, the Secretary
of the Company who shall deliver to the Company the certificates representing
Shares, and the Secretary of the Company shall then issue or cause to be issued
certificates representing the Shares to the appropriate respective owners of the
Voting Trust Certificates. If, at the expiration of four months after
termination of this Agreement, any Voting Trust Certificate shall not have been
surrendered to the Voting Trustee it may, in its discretion, and if acceptable
to the Secretary of the Company, deliver the certificates representing such
Shares to the Secretary of the Company to be held by the Company for the owners
of any such Voting Trust Certificates to be delivered to such owners upon
surrender of their respective Voting Trust Certificates, whereupon all
responsibilities of the Voting Trustee with respect thereto shall cease.
Notwithstanding the termination of this Agreement, the Voting Trustee shall
thereafter have the power to take or cause to be taken such further and other
action as it may deem necessary or desirable to conclude promptly the duties
imposed upon it in this Agreement; provided however, that after the termination
of this Agreement, it shall have no authority to exercise any voting rights of
the Shares.
8. NOTICE.
(a) Notice to Owners of Voting Trust Certificates and Pledged
Shares. All notices to be given to owners of Voting Trust Certificates may be
given by personally delivering or mailing the same to such record owners at the
last addresses furnished in writing by such owners to the Voting Trustee, and
any notice when so delivered or mailed shall be considered as served on the
respective owners of Voting Trust Certificates.
(b) Notice to Voting Trustee. Any notice required or permitted to
be given hereunder to the Voting Trustee shall be given by personally delivering
or mailing the same to Saratoga Lighting Holdings LLC, c/o Xxxxx Xxxxx,
Secretary, Advanced Lighting Technologies, Inc., 00000 Xxxxxx Xxxx, Xxxxx, XX
00000, or such other address as shall be furnished in writing by the Voting
Trustee to the owners of Voting Trust Certificates.
9. PAYMENT OF TAXES. If at any time any tax is payable by the Voting
Trustee in respect of the ownership of the Voting Shares held by it or in
respect of any dividends, distributions, or other rights in respect of the
Shares, the tax may be paid out of any assets of the Voting Trust created by
this Agreement or any dividends or distributions received by the Voting Trustee;
provided, however, that the Voting Trustee shall be fully reimbursed by the
Shareholders, on a pro rata basis based upon Share ownership, for any such
payments by the Voting Trustee not satisfied out of the assets of the Voting
Trust or dividends or distributions received by the Voting Trustee.
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10. AMENDMENT. If, at any time, the Voting Trustee shall deem it
desirable to amend this Agreement in any respect, it shall give notice of such
proposed amendment to the owners of the outstanding Voting Trust Certificates.
Such amendment shall become effective upon the written consent of the owners of
a majority in interest of the outstanding Voting Trust Certificates based on the
number of Shares represented by such Voting Trust Certificates or at a meeting
of Shareholders. If the Voting Trustee deems it desirable to have a meeting to
approve any proposed amendment, the Voting Trustee shall give notice, which
shall be in writing and be given at least fifteen (15) days prior to the
proposed meeting, shall state that the purpose of the meeting is to consider the
amendment of this Agreement and shall be accompanied by a copy of the proposed
amendment. If at such meeting the proposed amendment or any modification thereof
shall be approved by the owners of a majority in interest of the outstanding
Voting Trust Certificates based on the number of Shares represented by such
Voting Trust Certificates, a certificate to that effect shall be made and
verified by a Secretary elected at such meeting and filed with the Voting
Trustee. Upon such written consent or approval and the filing of such written
consents or said certificate with the books of record kept by the Voting
Trustee, the proposed amendment or modification thereof shall become a part of
this Agreement with like force and effect as if originally incorporated herein.
11. MISCELLANEOUS.
(a) Acceptance by Voting Trustee. The Voting Trustee accepts the
trust hereunder and agrees to perform the same upon the terms and conditions
hereof.
(b) Parties to Agreement. This Agreement shall be binding upon and
shall operate for the benefit of the Shareholders and the Voting Trustee and
their respective heirs, estates, personal representatives, successors and
permitted assigns, and shall be binding upon any transferee of Shares or Voting
Trust Certificates from a Shareholder. The name of any transferee of Shares or
Voting Trust Certificates from a Shareholder shall be added or be deemed to be
added to the attached Exhibit "A" and such persons shall be considered
Shareholders for purposes of this Agreement.
(c) Entire Agreement. This Agreement contains the entire
understanding among the parties and supersedes any prior understanding and
agreements between them respecting the within subject matter hereof. There are
no representations, agreements, arrangements, or understandings, oral or
written, between or among the parties hereto relating to the subject matter of
this Agreement which are not fully expressed herein.
(d) Survival. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, administrators successors, and assigns of
the parties hereto.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument. The
execution by any one party of any counterpart shall be sufficient execution by
that party, whether or not the same counterpart has been executed by any other
party.
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(f) Fractional Shares. Whenever necessary, the Voting Trustee may
issue Voting Trust Certificates for fractional Shares.
(g) Gender; Number. Whenever the context of this Agreement
requires, the masculine gender includes the neuter or feminine, and the singular
number includes the plural.
(h) Governing Law. The validity of this Agreement or any part
hereof, and the interpretation and enforcement of all provisions hereof, shall
be governed by and construed and enforced in accordance with the laws of the
State of Ohio.
(i) Invalidity. The invalidity of any term or provisions of this
Agreement shall not affect the validity of the remainder of this Agreement and
this Agreement shall be enforced to the greatest extent permitted by law.
(j) Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed the attached
counterpart signature pages of this Agreement as of the day and year first above
written.
(Agreement and Signature Lines Continue on Following Pages)
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
VOTING TRUSTEE:
SARATOGA LIGHTING HOLDINGS LLC
By: Saratoga Management Company LLC, as
Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Date: May 13, 2004
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
SHAREHOLDER:
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
XXXXX X. XXXXXXX
Date: May 3, 2004
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
SHAREHOLDER:
/s/ Xxxx Xxxxxxxx
----------------------------------------
XXXX XXXXXXXX
Date: , 2004
-------------
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
SHAREHOLDER:
/s/ Xxxxx Xxxxxxxxxxxx
----------------------------------------
XXXXX XXXXXXXXXXXX
Date: March 11, 2004
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
SHAREHOLDER:
/s/ Xxxxx Xxxxxxxxxx
----------------------------------------
XXXXX XXXXXXXXXX
Date: March 11, 2004
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This page constitutes a counterpart signature page to the Voting Trust
Agreement made and entered into by and among Saratoga Lighting Holdings, LLC,
Voting Trustee, and certain Shareholders of the Company as of the date first
above written. The undersigned parties hereby agree to be bound by the terms
thereof.
SHAREHOLDER:
/s/ Xxxxx Xxxxxxx
----------------------------------------
XXXXX XXXXXXX
Date: March 10, 2004
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EXHIBIT A
SHAREHOLDERS NUMBER OF SHARES
------------ ----------------
Xxxxx X. Xxxxxxx 38.55
Xxxx Xxxxxxxx 27.53
Xxxxx Xxxxxxxxxxxx 16.52
Xxxxx Xxxxxxxxxx 11.01
Xxxxx Xxxxxxx 5.51
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EXHIBIT B
VOTING TRUST CERTIFICATE
ADVANCED LIGHTING TECHNOLOGIES, INC.
No. _________________ _________Shares of
Common Stock
SARATOGA LIGHTING HOLDINGS LLC, the Voting Trustee under that certain
Voting Trust Agreement dated ________________ ____, 2004 (the "Agreement"),
having received certain shares of common stock of Advanced Lighting
Technologies, Inc., an Ohio corporation (the "Company") pursuant to the
Agreement, hereby certifies that _________________________ will be entitled to
receive a certificate for ________ fully paid shares of common stock, par value
$.001 per share, of the Company, on the expiration or termination of the
Agreement.
IN WITNESS WHEREOF, the Trustee has executed this Certificate ____________
this day of ________________, 2004.
SARATOGA LIGHTING HOLDINGS LLC
By: _____________________
Title: __________________
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