EXHIBIT 9.3
AMENDED AND RESTATED VOTING TRUST AGREEMENT
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THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT (this "Agreement") is
made on this 29th day of October, 1996, by and among ▇▇▇▇, ▇▇▇▇▇▇ & Associates,
Inc., a California corporation (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Hall") and ▇▇▇▇
▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"). ▇▇▇▇ is referred to herein as the "Voting Trustee."
WHEREAS, Hall currently owns 3,484,254 shares of common stock of the
Company (of which 960,000 shares are subject to and held in escrow as of the
date hereof pursuant to that certain Pledge Agreement dated January 30, 1996
among Hall, the Company and the parties named therein) ("Hall Shares") and
▇▇▇▇▇▇ currently owns 2,115,100 shares of common stock of the Company (of which
640,000 shares are subject to and held in escrow as of the date hereof pursuant
to that certain Pledge Agreement dated January 30, 1996 among ▇▇▇▇▇▇, the
Company and the parties named therein) ("▇▇▇▇▇▇ Shares"). Such pledge
agreements are collectively referred to herein as the "Pledge Agreements."
WHEREAS, in connection with the sale of the Company's Series A
Preferred Stock, the parties hereto entered into that certain Voting Trust
Agreement dated January 30, 1996 (the "Prior Voting Trust Agreement") whereby
Hall and ▇▇▇▇▇▇ each agreed, among other things, to place the Hall Shares and
▇▇▇▇▇▇ Shares, as well as all voting shares of the Company's capital stock that
Hall and ▇▇▇▇▇▇ subsequently acquire (whether by stock dividend, stock split,
recapitalization, merger, exercise of stock option or warrant, purchase or
otherwise) (all such current shares and subsequently acquired shares being
collectively referred to herein as the "Shares"), into the voting trust created
by the Prior Voting Trust Agreement for the purpose of granting the voting
trustees thereunder full power and authority to vote the Shares as specifically
set forth therein.
WHEREAS, the Company and ▇▇▇▇▇▇ entered into that certain Settlement
Agreement and General Release dated October 29, 1996 (the "Settlement
Agreement"), whereby ▇▇▇▇▇▇ agreed to amend the Prior Voting Agreement in order
to ▇▇▇▇▇ ▇▇▇▇ as Voting Trustee full power and authority to vote the ▇▇▇▇▇▇
Shares as specifically set forth herein.
WHEREAS, the parties hereto now desire to terminate the Prior Voting
Agreement and the voting trust established thereby, and amend and restate the
Prior Voting Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. VOTING TRUST
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1.1 Creation of Trust and Transfer of Shares.
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(a) There is hereby established a voting trust with respect
to all of the Shares, pursuant to which the Voting Trustee shall have full power
and authority to vote the Shares in accordance with the specific terms and
provisions of this Agreement. The Voting Trustee shall have full power and
authority to vote the Shares, pursuant to the terms of Section 2.2 hereof;
provided, however, that the Voting Trustee shall not have the right to vote the
▇▇▇▇▇▇ Shares (and all voting shares of the Company's capital stock ▇▇▇▇▇▇
subsequently acquires, whether by stock dividend, stock split, recapitalization,
merger, exercise of stock option or warrant, purchase or otherwise) in
connection with any approval that treats ▇▇▇▇▇▇ in a manner adversely and
differently than Hall in her position as a holder of Common Stock of the
Company, and provided further that, notwithstanding the terms of Section 3
hereof, ▇▇▇▇▇▇'▇ obligation to retain the ▇▇▇▇▇▇ Shares pursuant to this
Agreement shall terminate in the event (i) ▇▇▇▇▇▇ owns less than 500,000 shares
of the Common Stock of the Company or (ii) Hall is not an executive officer of
the Company. Hall and ▇▇▇▇▇▇ and each subsequent holder or transferee of the
Shares shall own and hold such Shares subject to the voting trust established
hereby.
(b) Hall and ▇▇▇▇▇▇ shall promptly following the execution
hereof redeliver to the Company the stock certificates representing the Shares
each currently holds as voting trustee under the Prior Voting Trust Agreement
and hereby authorizes the Company to issue, in the name of Hall as Voting
Trustee pursuant to this Agreement, new stock certificates for the same number
of Hall Shares and ▇▇▇▇▇▇ Shares. The Voting Trustee shall hold such stock
certificate for the uses and purposes specified herein and subject to the terms
and conditions hereof. To the extent any additional certificates for voting
securities of the Company are to be subsequently issued to Hall or ▇▇▇▇▇▇ with
respect to the Shares, including any Shares subject to or released from the
Pledge Agreements, such certificates shall be issued and delivered directly to
Hall as Voting Trustee to be held for the uses and purposes hereunder.
(c) Should either of Hall's or ▇▇▇▇▇▇'▇ interest in this
voting trust be transferred to one or more transferees, then the right, title
and interest of each such transferee in and to this voting trust shall be
subject to the terms and conditions of this Agreement; provided, however, that
if such transfer is to a third party and is in accordance with Sections 2, 3 or
4 of the Right of Refusal and Co-Sale Agreement and Investors' Rights Agreement
each dated as of on or about January 30, 1996 by and among the Company, ▇▇▇▇,
▇▇▇▇▇▇ and the Investors (as defined therein) such third party transferee shall
obtain ownership of such Shares free and clear of the obligations of this
Agreement. Other than as provided in this Agreement, each such transferee shall,
in connection with the transfer of such interest, automatically become a party
to this Agreement and be bound by all the terms and conditions of this
Agreement, without any requirement that such transferee execute or deliver a
duplicate of this Agreement. The stock certificate for all the Shares shall
continue to be held in the name of the Voting Trustee on the books and records
of the Company, and the Voting Trustee shall continue to have full power and
authority to vote such Shares during the remaining term of this Agreement
pursuant to the terms and conditions set forth herein.
1.2 Trust Certificates.
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(a) Hall and ▇▇▇▇▇▇ shall promptly following the execution
hereof deliver to the Voting Trustee the trust certificates evidencing the
ownership interest of each of Hall and ▇▇▇▇▇▇ in the applicable Shares held in
the voting trust established by the Prior Voting Trust Agreement and issued
pursuant thereto.
(b) The Voting Trustee shall, concurrently with the receipt
of the stock certificates for the Shares issued in her name as Voting Trustee in
accordance with the provisions of Section 1.1(b), issue and deliver a trust
certificate evidencing the ownership interest of each of Hall and ▇▇▇▇▇▇ in the
applicable Shares held in the voting trust established by this Agreement. Upon
the transfer of either Hall's or ▇▇▇▇▇▇'▇ interest in this voting trust to one
or more transferees, the trust certificate evidencing such interest in the
voting trust shall automatically become null and void and shall be immediately
cancelled, and Hall or ▇▇▇▇▇▇ shall promptly surrender the cancelled trust
certificate to the Voting Trustee. Upon receipt of such trust certificate, the
Voting Trustee shall issue a new and separate trust certificate to each
transferee to whom an interest in the voting trust is transferred which will
evidence the ownership interest of such transferee in the voting trust. The
issuance of a new trust certificate to a transferee shall be effected by the
Voting Trustee in compliance with an exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act").
(c) Each such trust certificate shall be executed by the
Voting Trustee and shall be substantially in the form of the certificate
attached hereto as Exhibit A (the "Trust Certificate").
(d) The Voting Trustee shall issue and deliver a new Trust
Certificate in replacement of any lost, stolen or destroyed Trust Certificate,
or in exchange for a mutilated Trust Certificate, upon receipt of (i)
satisfactory evidence of the loss, theft, destruction or mutilation of the Trust
Certificate and, (ii) in the case of loss, theft or destruction, an indemnity
agreement or security bond in form and substance satisfactory to the Voting
Trustee.
1.3 Dividends.
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(a) In the event that any dividend or distribution on the
Shares is paid in the form of voting securities of the Company, the stock
certificates for such voting securities shall be issued directly to the Voting
Trustee, and the Voting Trustee shall, immediately upon receipt of such stock
certificates, issue an additional Trust Certificate to each holder of an
outstanding Trust Certificate hereunder. The additional Trust Certificate shall
evidence the incremental increase in each holder's ownership interest in the
voting trust as augmented by the voting securities issued with respect to the
Shares.
(b) In the event that any dividend or distribution on the
Shares is paid in cash, such payment shall be made directly to the Voting
Trustee, and the Voting Trustee shall, immediately upon receipt of such cash
payment, deposit the funds in an interest bearing account maintained for the
benefit of the Trust Certificate holders. The interest of each Trust Certificate
holder in each cash dividend or distribution deposited into such account,
together with the investment return on such deposit, shall be in the same
proportion as the holder's pro rata ownership interest in this voting trust at
the time of the deposit. Upon the
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termination of this voting trust, the account will be distributed by the Voting
Trustee to the respective Trust Certificate holders who have an interest
therein. Moreover, in the event the Voting Trustee determines, upon advice of
counsel, that one or more cash dividends or distributions on the Shares may be
distributed currently to the holders of the Trust Certificates without violation
of applicable federal and state securities laws, the Voting Trustee shall effect
each current distribution in lieu of deposit in the interest bearing account.
2. TRUSTEE POWERS AND AUTHORITY
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2.1 Administration.
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(a) The Voting Trustee may adopt her own rules of procedure
for the administration of the voting trust created hereby. The Voting Trustee
may, at any time or from time to time, delegate the performance of any
administrative duty required of the Voting Trustee hereunder to one or more
appointed agents; provided, however, that in no event shall any responsibility
for voting the Shares or other substantive decisions be delegated.
(b) All reasonable expenses paid or incurred by the Voting
Trustee in the administration of the voting trust created hereby (including,
without limitation, all attorney, advisor and agent fees, all taxes or other
governmental charges incurred in connection with the issuance or transfer of any
Trust Certificates or the issuance of any stock certificates for one or more
Shares in exchange for such Trust Certificates, and the expenses of preparing
and issuing the Trust Certificates) shall be borne by the Company.
2.2 Voting of Shares. Except as otherwise specifically provided
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herein, the Voting Trustee shall, throughout the term of this Agreement, possess
and be entitled in its absolute discretion (without being subject to any review)
to exercise, whether in person or by proxy, all rights and powers to vote the
Shares for which the Voting Trustee acts as voting trustee and to consent to and
approve as a shareholder each and every act of the Company in the same manner
and to the same extent as if it were the absolute owner of such Shares in its
own right.
2.3 Liabilities and Expenses.
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(a) The Voting Trustee shall, with respect to the Shares,
assume no liability hereunder as shareholder of the Company, and her respective
interests in the Shares hereunder shall be solely that of a voting trustee under
the laws of the State of California. In voting the Shares subject to the voting
trust created hereby (whether in person or by proxy), the Voting Trustee shall
vote and act on all matters in the exercise of her sole discretion and shall
assume no responsibility or liability with respect to any action taken by her in
accordance herewith or taken in pursuance of her vote so cast. In addition, the
Voting Trustee shall not incur any responsibility, whether in her capacity as
Voting Trustee or otherwise, by reason of any error of fact or law, mistake in
judgment, or any other matter or thing done or suffered or omitted to be done in
accordance with this Agreement, except for the Voting Trustee's own gross
negligence or willful misconduct.
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(b) The duties and responsibilities of the Voting Trustee
shall be limited to those expressly set forth in this Agreement and any
amendment hereto executed by the Voting Trustee, and the Voting Trustee shall
not be obligated to recognize any other agreement whether or not she has
knowledge thereof.
(c) The Voting Trustee shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of the
stock certificates representing the Shares or any endorsement or lack of
endorsement thereon or for any description therein, nor shall the Voting Trustee
be responsible or liable in any manner for the identity, authority or capacity
of any person executing or delivering or purporting to execute or deliver any
such certificates or endorsements (the responsibility for all of which shall be
that of the Company).
2.4 Indemnification.
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(a) The Company shall indemnify and hold harmless the
Voting Trustee from any and all loss, cost or expense of any kind or character
whatsoever incurred in connection with this Agreement, except to the extent
attributable to the gross negligence or willful misconduct of the Voting
Trustee.
(b) The Company shall undertake, assume full responsibility
for, and pay all costs and expenses of any suit, action, litigation or
proceeding of any character, including any proceeding before any governmental
agency, with respect to the Shares or this Agreement. Should the Voting Trustee
be made a party thereto, the Company shall pay all costs and expenses
(including, without limitation, attorney fees) to which the Voting Trustee may
be subject by reason thereof, unless the Voting Trustee is held liable
thereunder for acts of gross negligence or willful misconduct. The Voting
Trustee may, at her own expense, consult with counsel of their choice in
connection with any such suit, action, litigation or proceeding, and the opinion
of such counsel shall provide full and complete authorization and protection to
the Voting Trustee with respect to any action taken or omitted or suffered by
the Voting Trustee hereunder in good faith reliance upon such opinion.
2.5 Resignation or Removal. Upon the death or incapacity of the
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Voting Trustee, this Voting Trust shall terminate, pursuant to the terms of
Section 3 hereof and the Shares shall be distributed to the owners thereof
pursuant to the terms hereof.
3. TERMINATION OF VOTING TRUST
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(a) Unless otherwise extended by written agreement of the
parties hereto, this Agreement and the voting trust established hereby shall
terminate, without any action or notice by the Voting Trustee, upon the earlier
to occur of (i) January 29, 2006, (ii) the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Securities Act of 1933, as amended, in connection with a firm commitment
underwritten offering of its securities to the general public, (iii) the closing
of the Company's sale of all or substantially all of its assets or the
acquisition of the Company by another entity by means of merger or consolidation
resulting in the exchange of the outstanding shares of the
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Company's capital stock for securities or consideration issued, or caused to be
issued, by the acquiring entity or its subsidiary (other than any transaction
effected primarily to change the state in which the Company is incorporated or
to create a holding company structure).
(b) Upon termination of this Agreement, the Voting Trustee
shall, in exchange for and upon surrender for cancellation of each Trust
Certificate evidencing an ownership interest in this voting trust, deliver to
the holder a stock certificate for that percentage of Shares at the time held in
this voting trust which is the same as the percentage of this voting trust owned
at such time by such holder, as evidenced by the Trust Certificate surrendered
by such holder. Such exchange of Shares for Trust Certificates shall be effected
by the Voting Trustee in compliance with an exemption from the registration
requirements of the Securities Act. The Trust Certificate shall either be duly
endorsed in blank by the record holder or accompanied by proper instrument of
assignment and transfer duly executed in blank by such record holder. The Voting
Trustee may require the record holder of such Trust Certificate to surrender the
same (or may cancel such certificate) in connection with such exchange.
(c) In the event one or more Trust Certificates held by a
transferee are to be cancelled pursuant to this Agreement, the Voting Trustee
shall promptly inform the record holders of such cancellation and shall direct
such holders to tender their Trust Certificates to the Voting Trustee in
exchange for a stock certificate for the number of Shares to which each such
holder is entitled in accordance with paragraph (b) above, but in no event shall
such tender be necessary for the cancellation of such Trust Certificates to be
effective.
(d) Upon termination of this Agreement as herein provided
and delivery by the Voting Trustee of any Shares then held hereunder in exchange
for or upon cancellation of all outstanding Trust Certificates as provided
herein, all further obligation duties of the Voting Trustee under this Agreement
shall terminate and cease to be in effect.
4. TRANSFER RESTRICTIONS
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4.1 Limited Transferability. Each Trust Certificate issued
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pursuant to this Agreement shall be subject to the following restriction on
transferability:
NEITHER THE HOLDERS HEREOF NOR ANY TRANSFEREES SHALL SELL, ASSIGN OR
TRANSFER ANY TRUST CERTIFICATE, UNLESS THE SALE, ASSIGNMENT OR
TRANSFER OF THE UNDERLYING SHARES IS PERMITTED UNDER APPLICABLE
FEDERAL AND STATE SECURITIES LAWS, INCLUDING WITHOUT LIMITATION ALL
EXEMPTIONS FROM REGISTRATION PROVIDED UNDER THE SECURITIES ACT. THE
TRANSFEREE SHALL AUTOMATICALLY BECOME SUBJECT TO THE VOTING TRUST
CREATED HEREBY AND SHALL, IMMEDIATELY UPON THE TRANSFER OF THE TRUST
CERTIFICATE, EXECUTE A COPY OF THIS AGREEMENT AS A TRANSFEREE. IN
ADDITION, EACH TRUST CERTIFICATE IS SUBJECT TO ALL OF THE TRANSFER
RESTRICTIONS SET FORTH
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IN THAT CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT OF EVEN
DATE HEREWITH AMONG THE COMPANY, ▇▇▇▇, ▇▇▇▇▇▇ AND CERTAIN OTHER
PARTIES.
4.2 Legend. Each Trust Certificate issued pursuant to this
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Agreement and each stock certificate representing the Shares held in this voting
trust shall have printed thereon such legends as may be required by federal or
California Securities laws.
5. MISCELLANEOUS
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5.1 Modifications and Amendments. This Agreement and the Right
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of First Refusal and Co-Sale Agreement and Investors' Rights Agreement,
constitute the entire agreement of the parties with respect to the subject
matter hereof and this Agreement may not be modified, amended or terminated
(other than in accordance with its terms) except by a written agreement
specifically referring to this Agreement signed by the parties hereto.
5.2 Waivers. No waiver of any breach or default hereunder shall
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be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
5.3 Successors and Assigns. This Agreement shall be binding
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upon and inure to the benefit of each party hereto and its permitted successors
and assigns, whether or not such successors and assigns shall formally become a
party to this Agreement and agree in writing to join herein and be bound by the
terms and provisions hereof. Otherwise, this agreement shall not create any
rights for the benefit of any third party.
5.4 Titles and Subtitles. The paragraph headings contained
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herein are for the purposes of convenience only and are not intended to define
or limit the contents of said paragraphs.
5.5 Cooperation. Each party hereto shall cooperate, shall take
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such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.
5.6 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which taken together shall be deemed one original.
5.7 Governing Law. The Agreement and all amendments thereof
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shall be governed by and construed in accordance with the law of the State of
California applicable to contracts made and to be performed therein.
5.8 Specific Performance. Without limiting the rights of each
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party hereto to pursue all other legal and equitable rights available to such
party for any other party's failure to perform its obligations under this
Agreement, each such party acknowledges and agrees that the remedy at law for
any failure to perform obligations hereunder would be inadequate and
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all such parties shall be entitled to specific performance, injunctive relief or
other equitable remedies in the event of any such failure.
5.9 Notices. Any notices to be given pursuant to this Agreement
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shall be in writing. Notices shall be deemed given upon personal delivery or
upon deposit with the U.S. Post Office, by registered or certified mail, postage
prepaid, and addressed to each party at the address set forth below its
signature line on this Agreement (or on any counterpart hereof executed by such
party) or to such changed address as any party may notify the others pursuant
hereto, except that a notice of change of address shall not be deemed given
until received.
5.10 California Qualification Provisions. THE ISSUANCE OF THE
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SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH
THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE ISSUANCE OF SUCH
SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF
THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE
ISSUANCE IS SO EXEMPT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
▇▇▇▇, ▇▇▇▇▇▇ & ASSOCIATES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CONSENT OF SPOUSE
I acknowledge that I have read the foregoing Amended and Restated
Voting Trust Agreement and that I know its contents. I am aware that by its
provisions my spouse agrees to grant a security interest in shares of the
Company held of record by my spouse, including my community interest in such
shares. I hereby agree that those shares and my interest in them, if any, are
subject to the provisions of the Amended and Restated Voting Trust Agreement and
that I will take no action at any time to hinder operation of, or violate, the
Amended and Restated Voting Trust Agreement.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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(Signature)
CONSENT OF SPOUSE
I acknowledge that I have read the foregoing Amended and Restated
Voting Trust Agreement and that I know its contents. I am aware that by its
provisions my spouse agrees to grant a security interest in shares of the
Company held of record by my spouse, including my community interest in such
shares. I hereby agree that those shares and my interest in them, if any, are
subject to the provisions of the Amended and Restated Voting Trust Agreement and
that I will take no action at any time to hinder operation of, or violate, the
Amended and Restated Voting Trust Agreement.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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(Signature)
EXHIBIT A
TRUST CERTIFICATE
SPECIMEN
No. _____________________
______________________, as the voting trustee (the "Voting Trustee")
of ________ shares of the common stock (the "Shares") of ▇▇▇▇, ▇▇▇▇▇▇ &
Associates, Inc. a California corporation (the "Company"), pursuant to the
Amended and Restated Voting Trust Agreement dated as of October 29, 1996 (the
"Agreement"), hereby acknowledges the undersigned's ownership interest in
____________ (___%) of the voting trust created by such Agreement. The Voting
Trustee shall hold the stock certificate(s) for the Shares as record owner for
the uses and purposes specified in the Agreement and subject to the terms and
conditions thereof. The stock certificate representing _________ of the Shares
are being held in escrow pursuant to that certain Pledge Agreement dated January
30, 1996 among _______, the Company and the other parties named therein (the
"Pledge Agreement").
The Voting Trustee hereby acknowledges that the undersigned shall be
entitled upon the expiration of the Agreement to receive, in accordance with the
terms of the Agreement, a stock certificate for that percentage of the shares of
common stock at the time held in the voting trust which is the same as the
percentage of this voting trust owned at such time by the undersigned, as
evidenced by this certificate, subject to the terms and conditions of the Pledge
Agreement. While such Agreement remains in effect, any dividends or
distributions payable in cash, property or voting securities of the Company as
may be collected by the Voting Trustee upon the Shares shall be held by the
Voting Trustee for the benefit of the undersigned in accordance with the terms
of the Agreement.
This Trust Certificate is transferable only on the books of such
Voting Trustee or its successor, and only in accordance with the terms of the
Agreement, by the registered holder either in person or by its duly authorized
agent, and the undersigned, by accepting this Trust Certificate, manifests its
consent that such Voting Trustee or its successor may treat the undersigned as
the true owner of this Trust Certificate for all purposes, except the delivery
of one or more stock certificates for the Shares, which delivery shall only be
made upon surrender of this Trust Certificate.
THE SECURITIES REPRESENTED BY THIS TRUST CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF (A) A REGISTRATION STATEMENT IN EFFECT
UNDER THE ACT WITH RESPECT TO THE SECURITIES, (B) COMPLIANCE WITH RULE
144 UNDER THE ACT OR (C) AN
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OPINION OF COUNSEL SATISFACTORY TO THE VOTING TRUSTEE AND THE COMPANY
THAT SUCH REGISTRATION UNDER THE ACT IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS TRUST CERTIFICATE ARE SUBJECT TO
THE TERMS AND CONDITIONS OF A CERTAIN INVESTORS' RIGHTS AGREEMENT,
PLEDGE AGREEMENT, ESCROW AGREEMENT, RIGHT OF FIRST REFUSAL AND CO-SALE
AGREEMENT DATED AS OF JANUARY 30, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ &
ASSOCIATES, INC. AND CERTAIN OF ITS SECURITYHOLDERS. SUCH AGREEMENTS
PROVIDE, AMONG OTHER MATTERS, FOR CERTAIN RESTRICTIONS ON OR AFFECTING
THE SALE, PLEDGE OR OTHER TRANSFER OF SUCH TRUST CERTIFICATE. A COPY
OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY.
IN WITNESS WHEREOF, _____________, as Voting Trustee, has executed
this Trust Certificate this ____ day of ____________, 19__.
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TRUST CERTIFICATE HOLDER ACCEPTANCE
The undersigned does hereby, by accepting this Trust Certificate
evidencing its ownership interest in _________ (___%) of the voting trust
created pursuant to the Agreement covering ________ shares of common stock of
▇▇▇▇, ▇▇▇▇▇▇ & Associates, Inc., of which _______ shares are being held in
escrow pursuant to the Pledge Agreement, ratify and approve the terms and
provisions of such Agreement as if an original party thereto and is hereby
bound, with respect to the undersigned's interest in such voting trust, by all
the terms and provisions thereof.
By:
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