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FORM OF VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (this "Agreement"), dated as of April __, 1999,
by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, THE MONOLITH LIMITED
PARTNERSHIP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (collectively, the
"Shareholders" and each, a "Shareholder"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Voting
Trustee").
WHEREAS, the Shareholders are the record and beneficial owners and
holders of the number of shares of issued and outstanding common stock (the
"Common Stock") of ▇▇▇▇▇▇▇.▇▇▇, inc. (the "Corporation"), a Nevada corporation,
set forth on the signature pages to this Agreement (the "Shares"); and
WHEREAS, in order to promote their mutual interests, the interest of
the Corporation and the allocation of control therein, the Shareholders and the
Voting Trustee desire to enter into this Agreement upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the above and the mutual covenants
and promises hereinafter set forth, the parties hereto hereby agree as follows:
1. Transfer of Shares to the Voting Trustee. Each Shareholder shall,
promptly following the execution of this Agreement, transfer and deliver to the
Voting Trustee certificates representing the number of Shares now owned by each
Shareholder. All such stock certificates shall be made out or endorsed in the
name of the Voting Trustee, or accompanied by such instruments of transfer as to
enable the Voting Trustee to cause such certificates to be transferred into his
name. All certificates representing the Shares transferred and delivered to the
Voting Trustee pursuant to this Agreement shall be surrendered by the Voting
Trustee to the Corporation and canceled, and new certificates therefor shall be
issued to and held by the Voting Trustee in the name of "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Voting Trustee under the Voting Trust Agreement dated as of April __, 1999." On
receipt by the Voting Trustee of certificates representing such Shares and the
transfer of the same into the name of the Voting Trustee, the Voting Trustee
shall hold the same subject to the terms of this Agreement.
2. Voting Trust Certificates.
2.1 Issuance of Certificates to the Shareholders. Upon the
receipt by the Voting Trustee of the certificates representing the Shares owned
by the Shareholders, the Voting Trustee shall issue and deliver to the
Shareholders voting trust certificates (each, a "Voting Trust Certificate" and
collectively, the "Voting Trust Certificates") in substantially the form of
Exhibit A attached hereto, representing the Shares held by the Voting Trustee
for the benefit of the Shareholders.
2.2 Lost Voting Trust Certificates. If any Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Voting Trustee, in his
discretion, may issue a duplicate of such certificate upon receipt of: (a)
evidence of such fact satisfactory to him; (b) indemnity
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satisfactory to him; (c) the existing certificate, if mutilated; and (d) his
reasonable fees and expenses in connection with the issuance of a new trust
certificate.
3. Rights and Duties of the Voting Trustee.
3.1 Right to Vote the Shares. During the term of this
Agreement the Voting Trustee shall, in his sole and absolute discretion, in
respect of any and all of the Shares held by him hereunder, possess and be
entitled to exercise the right to vote thereon for every purpose, in person or
by his nominees or proxies, to waive any Shareholder's privilege in respect
thereof, and to consent to any lawful corporate act of the Corporation, as
though absolute owner of said Shares, it being expressly agreed that no voting
right shall pass to others by or under said Voting Trust Certificates, or by or
under this Agreement, or by or under any other agreement, express or implied.
3.2 Standard of Conduct. In voting the Shares held by him
hereunder either in person or by his nominees or proxies, the Voting Trustee
shall exercise reasonable judgment and shall take such part in, or take such
action with respect to, the management of the Corporation's affairs, as he may
deem necessary or advisable. In voting upon any matters that may come before him
at any shareholder's meeting, or by consent to action without a meeting, the
Voting Trustee shall exercise like judgment, but he shall not be held liable for
any mistake in judgment or for any action taken or not taken with respect to
which he acted in good faith and which does not amount to willful misconduct on
his part.
3.3 Compensation and Reimbursement. The Voting Trustee shall
serve without compensation. The Voting Trustee shall have the right to incur and
pay such reasonable expenses and charges, and to employ and pay such agents,
attorneys, and counsel, as he may deem necessary and proper in connection with
or arising out of the discharge of his duties under this Agreement. Any such
expenses or charges incurred by the Voting Trustee shall be promptly reimbursed
by the Shareholders (pro rata based upon stock ownership) upon notice.
3.4 Conflicts of Interest. Nothing herein contained shall
disqualify the Voting Trustee or incapacitate him from serving as an officer,
director, employee, consultant or contractor of or to the Corporation or of any
Shareholder, or of any affiliate or associate of either, and in any such
capacity receiving compensation. The Voting Trustee may be a shareholder of the
Corporation and a registered holder of one or more Voting Trust Certificates.
The Voting Trustee may be financially interested in any matter or transaction to
which the Corporation, any Shareholder, or any affiliate or associate of either,
may be a party, and may contract with or be financially interested in any such
person as fully and freely as though the Voting Trustee were not the Voting
Trustee hereunder. Moreover, the Voting Trustee shall not incur any liability of
any nature whatsoever to the Shareholders in the event the Voting Trustee should
vote the Shares in a manner or with an effect advantageous to the Voting Trustee
regarding any relationship the Voting Trustee may have with the Corporation,
including that of creditor.
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4. Term of Agreement and Procedure for Termination.
4.1 Term. This Agreement shall continue in full force and
effect for a period of five years from and after the date first set forth above;
provided, however, that this Agreement shall sooner terminate upon the
occurrence of any of the following events:
(i) The death or other permanent inability of the
Voting Trustee to serve as Voting Trustee;
(ii) The termination of the Voting Trustee's
employment with the Corporation;
(iii) The dissolution, winding-up or total or partial
liquidation of the Corporation, whether voluntary or
involuntary;
(iv) The merger of the Corporation into or the
consolidation of the Corporation with another corporation, or
the transfer of all or substantially all of the assets of the
Corporation to another corporation;
(v) The sale of all the Shares hereunder by the
Shareholders to non-Shareholders; or
(vi) At any time, at the sole option and discretion
of the Voting Trustee.
Upon the occurrence of any of the above-described events, termination
of this Agreement shall not take effect until the cancellation of the then
outstanding Voting Trust Certificates and the transfer to the Shareholders of
certificates for the Shares represented thereby, in the manner provided below.
4.2 Procedure for Termination. In the event of termination of
this Agreement, the Voting Trustee shall mail written notice of such event to
the Shareholders at the addresses appearing on the transfer books of the Voting
Trustee. From the date specified in any such notice (which date shall be fixed
by the Voting Trustee), the Shareholders shall have no further rights under this
Agreement other than to receive, upon the surrender of such Voting Trust
Certificates, certificates for such Shares. Promptly thereafter, the Voting
Trustee shall cancel the Voting Trust Certificates and deliver to the
Shareholders certificates for the number of Shares represented thereby. In lieu
of delivering stock certificates to the Shareholders, or, if any Shareholder
shall fail to surrender to the Voting Trustee its Voting Trust Certificate, the
Voting Trustee may deposit with the Corporation stock certificates representing
the number of shares of Common Stock represented by the Voting Trust
Certificates then outstanding, with authority in writing to the Corporation to
deliver such stock certificates in exchange for Voting Trust Certificates
representing a like number of shares of the Common Stock of the Corporation.
Upon such deposit, all further liability of the Voting Trustee for the delivery
of such stock certificates
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and the delivery or payment of dividends upon surrender of the Voting Trust
Certificates shall cease, and the Voting Trustee shall not be required to take
any further action hereunder.
5. Notice. Any notice to or communication with the Shareholders
hereunder shall be deemed to be sufficiently given if addressed to the
Shareholders at their respective addresses set forth on the signature pages
hereto or such other addresses as the Shareholders shall from time to time
furnish in writing to the Voting Trustee and deposited in the United States
mail, with postage fully prepaid. Every notice so given shall be effective,
whether or not received, and the date of mailing shall be the date such notice
is deemed given. Any notice to the Voting Trustee hereunder may be made by
mailing the same to the Voting Trustee, with postage fully prepaid, c/o of the
Corporation, at One Arizona Center, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇, or at such other address as the Voting Trustee may from time to time
furnish in writing to the Shareholders.
6. Additional Shares of Common Stock. This Agreement applies to all
shares of Common Stock now owned by the Shareholders. Each Shareholder
represents and warrants that the number of Shares set forth opposite his name on
the signatures pages of this Agreement represent all the shares of Common Stock
owned by him on the date hereof. In the event that any additional Common Stock
of the Corporation is acquired by the Shareholders after the execution hereof
(the "Additional Shares"), then, in such case, upon receiving the Additional
Shares, the Shareholder shall promptly surrender same to the Voting Trustee and
the Voting Trustee shall hold such Additional Shares likewise subject to the
terms of this Agreement (in accordance with the provisions of Sections 1 and 2
hereof).
7. Dividends, Distributions and Other Payments. Until the termination
of this Agreement, each Shareholder shall be entitled to receive promptly from
the Voting Trustee payments equal to the amount of dividends (other than stock
dividends, which shall be subject to Section 6 hereof), if any, or other
distributions, if any, collected by the Voting Trustee upon the Shares standing
in the name of such Shareholder, represented by the Voting Trust Certificates
held by him, subject, however, to the terms and conditions of this Agreement.
8. Transfer of Shares. The Shares shall be freely transferable by any
Shareholder to any person other than an Affiliate (as defined below) of such
Shareholder, without the prior consent of the Voting Trustee and without any
restriction hereunder. Prior to a transfer permitted under this Section, the
Shareholder shall deliver to the Voting Trustee a Transfer Certificate, in
substantially the form attached hereto as Exhibit B, and, simultaneously
therewith, surrender to the Voting Trustee his Voting Trust Certificate.
Promptly thereafter, the Voting Trustee shall cancel the Voting Trust
Certificate and issue and deliver to the Shareholder a certificate representing
the Shares to be transferred and a new Voting Trust Certificate, in
substantially the form of Exhibit A attached hereto, representing the Shares
that are to be retained by the Shareholder, if any. Upon a transfer permitted by
this Section, neither the Voting Trustee nor the applicable Shareholder shall
have any further rights or obligations under this Agreement with respect to the
transferred Shares and such Shares shall no longer be subject to the terms and
conditions of this Agreement. "Affiliate" means any individual, partnership,
corporation, trust,
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limited liability company or other entity that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, a Shareholder.
9. Effective Date. This Agreement shall become effective upon the
closing of the Corporation's initial public offering ("IPO"). In the event the
Corporation does not close its IPO on or before December 31, 1999, this
Agreement shall not become effective at any time thereafter unless re-executed
by the Voting Trustee and the Shareholders.
10. Miscellaneous.
10.1 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the transaction
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No representation, promise,
inducement or statement of intention has been made by any of the parties hereto
not embodied in this Agreement or in the documents referred to herein, and no
party shall be bound by, or liable for, any alleged representation, promise,
inducement or statements of intention not set forth or referred to herein.
10.2 Binding Effect. All of the terms, representations,
warranties, covenants, and conditions herein shall be binding upon, and inure to
the benefit of, and be enforceable by, the parties hereto, and their respective
successors and assigns.
10.3 Waiver. This Agreement may not be amended, modified,
superseded or canceled, nor may any of the terms, representations, warranties,
covenants, or conditions hereof be waived, except by a written instrument
executed by the party against whom such amendment, modification, supersedure,
cancellation or waiver is charged. The failure of any party at this time or
times to require performance of any provisions hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by any part of any
condition, or of any breach of any term, covenant, or condition contained
herein, in any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such condition or breach or wavier of any
other condition or of any breach of any other term, covenant, or condition.
10.4 Construction. The captions and headings contained herein
are for convenient reference only, and shall not in any way affect the meaning
or interpretation of this Agreement.
10.5 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
10.6 Severability. In the event that any provision hereof is
determined to be illegal or unenforceable, such determination shall not affect
the validity or enforceability of the remaining provisions hereof, all of which
shall remain in full force and effect.
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10.7 Further Documents. The parties each hereby covenant and
agree that, from time to time, after the date hereof, at a reasonable request of
any party, and without further consideration, they will execute and deliver such
other documents and take such other action as may be reasonably required to
carry out in all respects the transactions contemplated and intended by this
Agreement.
10.8 Gender and Tense. As used in this Agreement, the
masculine, feminine and neuter gender, and the singular or plural number shall
each be deemed to include the other or others whether the context so indicates.
10.9 Time. Time is of the essence in this Agreement.
10.10 Parties in Interest. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement, nor shall any provision give any third person any right
of subrogation or action over or against any party to this Agreement.
10.11 Amendment. This Agreement may only be amended with the
written agreement of all the Shareholders and the Voting Trustee.
10.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
VOTING TRUSTEE:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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One Arizona Center
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SHAREHOLDERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Number of Shares:
▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Number of Shares:
THE MONOLITH LIMITED PARTNERSHIP
By: WGM CORPORATION, its General
Partner
By: -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Number of Shares:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Number of Shares:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Number of Shares:
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EXHIBIT A
VOTING TRUST CERTIFICATE FOR
SHARES OF COMMON STOCK OF
▇▇▇▇▇▇▇.▇▇▇, inc.
This certifies that _________________________ is the registered
beneficial owner (the "Beneficiary") of __________ shares of the common stock,
par value $_____ per share (the "Shares"), of ▇▇▇▇▇▇▇.▇▇▇, inc., a Nevada
corporation (the "Corporation"), and that such shares have been transferred to
and are held and owned of record by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇(the "Voting Trustee"), as
Voting Trustee pursuant to the Voting Trust Agreement dated as of April __, 1999
(the "Agreement") between the Voting Trustee and the shareholders of the
Corporation named therein.
Under the terms of the Agreement, the Voting Trustee possesses the
right to vote the above-mentioned shares of common stock as the absolute legal
owner thereof and the holder of this Voting Trust Certificate possesses no
voting rights in such shares.
Subject to compliance with applicable federal and state securities
laws, rules and regulations, and the Agreement, the Shares represented by this
Voting Trust Certificate may be transferred by the Beneficiary. Prior to a
permitted transfer of Shares, the Beneficiary shall deliver to the Voting
Trustee a Transfer Certificate, in substantially the form attached as Exhibit B
to the Agreement, and, simultaneously therewith, surrender to the Voting Trustee
his Voting Trust Certificate. Promptly thereafter, the Voting Trustee shall
cancel the Voting Trust Certificate and issue and deliver to the Beneficiary a
certificate representing the Shares to be transferred and a new Voting Trust
Certificate representing the Shares that are to be retained by the Beneficiary,
if any.
DATED this _____ day of April, 1999.
____________________________, as
Voting Trustee under the Agreement
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EXHIBIT B
TRANSFER CERTIFICATE FOR
SHARES OF COMMON STOCK OF
▇▇▇▇▇▇▇.▇▇▇, inc.
This certifies that _______________________, the registered beneficial
owner (the "Beneficiary") of __________ shares of the common stock, par value
$.001 per share (the "Shares"), of ▇▇▇▇▇▇▇.▇▇▇, inc., a Nevada corporation (the
"Corporation"), is transferring _______ Shares that are subject to the Voting
Trust Agreement dated as of April __, 1999 (the "Agreement") between ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (the "Voting Trustee") and the shareholders of the Corporation named
therein.
The Beneficiary has attached herewith his Voting Trust Certificate
representing ____ Shares of the Corporation beneficially owned by him.
The Beneficiary hereby directs the Voting Trustee to cancel the
Beneficiary's Voting Trust Certificate and issue and deliver to the Beneficiary
a certificate representing _____ Shares to be transferred. [The Voting Trustee
shall thereafter issue and deliver to the Beneficiary a new Voting Trust
Certificate representing the remaining ____ Shares held by the Voting Trustee
for the benefit of Beneficiary.] Upon the consummation of the transfer
contemplated hereby, neither the Voting Trustee nor the Beneficiary shall have
any further rights or obligations under the Agreement with respect to the
transferred Shares and such Shares shall no longer be subject to the terms,
representations, warranties, conditions and covenants of the Agreement. [The
Shares retained by the Beneficiary and represented by the new Voting Trust
Certificate shall continue to be subject to the terms, representations,
warranties, conditions and covenants of the Agreement.]
DATED this ___ day of _________, ____.
BENEFICIARY:
____________________________
Name: ______________________