[FORM OF
VOTING TRUST AGREEMENT]
VOTING TRUST AGREEMENT (hereinafter called this "Agreement"),
dated as of October __, 1996, between the several stockholders of AT&T Capital
Corporation, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), whose names are listed below and all other
stockholders of the Corporation who shall join in and become parties to this
agreement as hereinafter provided (each, a "Subscriber") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Trustee").
RECITALS
WHEREAS, the Subscribers are respectively owners of shares of the
common stock (the "Stock") of the Corporation in the amount set forth opposite
their respective signature hereto;
WHEREAS, the combined holdings of Stock of the Subscribers
constitute a minority of the issued and outstanding Stock of the Corporation;
WHEREAS, the Subscribers desire to pool their Stock for a limited
period of time so as to make more effective their participation in the
management of the Corporation and to facilitate certain transactions involving
the Corporation;
WHEREAS, with a view to the safe and competent management of the
Corporation and the expeditious and efficient involvement of the Corporation in
certain transactions, in each case in the interests of all the stockholders
thereof, the Subscribers are desirous of creating a trust (the "Trust") in the
manner following; and
WHEREAS, the Trustee has agreed to act as trustee of the shares
of Stock to be assigned and delivered hereunder.
It is hereby agreed as follows:
1. TRANSFER OF STOCK TO TRUSTEES.
Each of the Subscribers agrees that he or she will assign and
deliver to the Trustee any certificate held by the Subscriber representing
shares of Stock owned by him or her at any time or from time to time by
depositing with the Trustee such certificate or certificates immediately after
the issuance thereof, together with proper and sufficient instruments duly
endorsed for the transfer thereof to the Trustee and with all necessary stock
transfer stamps affixed, and shall do all things necessary for the transfer of
the Subscriber's respective shares of Stock to the Trustees on the books of the
Corporation.
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2. OTHER STOCKHOLDERS MAY JOIN.
Every stockholder in the Corporation may become a party to this
Agreement by assigning and delivering to the Trustee the certificate or
certificates representing all shares of Stock owned by such stockholder in the
manner provided in the preceding paragraph and expressly agreeing in writing to
be bound by all of the terms, conditions and obligations of this Agreement as if
such stockholder were an original party (other than the Trustee) hereto.
3. TRUSTEE TO HOLD SUBJECT TO AGREEMENT.
The Trustee shall hold the shares of Stock so transferred to him
for the common benefit of the Subscribers, under the terms and conditions
hereinafter set forth.
4. ISSUANCE OF STOCK CERTIFICATES TO TRUSTEE.
(a) The Trustee shall surrender to the proper officers of the
Corporation for cancellation all certificates of Stock which shall be assigned
and delivered to him as herein provided, and in their stead shall procure new
certificates to be issued to him as Trustee under this Agreement. Such
certificates shall state that they are subject to this Agreement, and such fact
shall be noted also in the stock ledger of the Corporation.
(b) If any of the Stock transferred to the Trustee hereunder
represents property pledged by a Subscriber to secure any obligations of such
Subscriber and if, as a condition to permitting the transfer of such Stock to
the Trustee hereunder the pledgee requires the Trustee to pledge and deposit
such Stock with such pledgee, then the Trustee shall so pledge and deposit with
such pledgee such Stock, and assign and transfer to such pledgee all of the
Trustee's right, title and interest in and to such Stock, to be held by such
pledgee in accordance with the original pledge by such Subscriber to the same
extent as if the Trustee were such Subscriber.
5. VOTING TRUST CERTIFICATES.
(a) Upon the deposit with the Trustee by a Subscriber of a
certificate or certificate representing shares of Stock in the manner
hereinbefore set forth, the Trustee shall issue to such Subscriber a voting
trust certificate for the same number of shares as is represented by the
certificate or certificates representing shares of Stock transferred by the
Subscriber to the Trustee (each a "Voting Trust Certificate"). Each such Voting
Trust Certificate shall state that it is issued under this Agreement, and shall
set forth the nature and amount of the beneficial interest thereunder of the
person to whom it is issued.
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(b) The Voting Trust Certificate shall be
substantially in the following form:
"Number VTC ... .... Shares
AT&T CAPITAL CORPORATION
(a Delaware corporation)
VOTING TRUST CERTIFICATE
This is to certify that ___________________ (the "Holder") has
deposited with the undersigned as Trustee under the Voting Trust Agreement,
dated as of October __, 1996 (the "Voting Trust Agreement"), between certain
holders of common stock (the "Stock") of AT&T Capital Corporation, a Delaware
corporation (the "Corporation") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Trustee"), a
certificate or certificates representing the number of shares of Stock set forth
above and that, until the termination of the Voting Trust Agreement, the Holder
or his or her assign is entitled to all the benefits and interests specified in
the Voting Trust Agreement arising from the deposit of such shares of Stock, all
as provided in, and subject to the terms of, the Voting Trust Agreement. Until
the termination of the Voting Trust Agreement, the Holder or his or her assign
is entitled (i) to receive payments equal to the amount of dividends, if any,
received by the Trustee upon the shares of Stock represented by this
certificate, less any taxes imposed thereon that the Trustee may be required to
pay thereon or to withhold therefrom under any present or future law and also
less a proportionate share of the expenses of the Trustee and (ii) to vote with
respect to action to be taken by the Trustee pursuant to the procedures set
forth in the Voting Trust Agreement. Until the Trustee shall have actually
delivered a certificate or certificates representing the shares of Stock held by
him to the Holder as specified in the Voting Trust Agreement, and subject to the
terms thereof, the Trustee or his successor in the trust shall, as provided in
the Voting Trust Agreement, possess and be entitled to exercise all rights and
powers of every nature of absolute owner and holder of record of the Stock,
including, without limitation, the right to vote for every purpose and to
consent to or waive any corporate act of the Corporation of any kind, it being
understood that no voting right shall pass to the Holder by virtue of the
ownership of this certificate or by or under any agreement express or implied,
but it being further understood that the Trustee shall be required to vote, or
otherwise take action with respect to, the shares of Stock deposited hereunder
in the manner set forth in the Voting Trust Agreement.
Upon the termination of the Voting Trust Agreement, this
certificate shall be surrendered to the Trustee by the Holder against delivery
to the Holder of a certificate or certificates representing a like number of
shares of Stock.
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In the event of the dissolution or total or partial liquidation
of the Corporation the money and other property received by the Trustee in
respect of the Stock represented by this certificate shall be paid or delivered
to the Holder of record hereof, but only upon surrender of this certificate in
the case of dissolution or the presentation of this certificate for the notation
thereon of the distribution in case of a partial liquidation.
To the extent set forth in the Voting Trust Agreement, and
subject to the same restrictions and limitations upon transfer by the Holder of
the shares of Stock deposited hereunder whether pursuant to the terms of any
agreement to which the Holder is subject or otherwise, this certificate and the
right, title and interest in and to the shares of Stock in respect of which this
certificate is issued, are transferable on the books of the Trustee by the
registered Holder hereof in person or by attorney duly authorized, according to
the rules established for that purpose by the Trustee and on surrender hereof
properly assigned; and until so transferred the Trustee may treat the registered
Holder hereof as the owner for all purposes whatsoever except that no delivery
of stock certificates hereunder shall be made without the surrender hereof.
As a condition of making or permitting any transfer or delivery
of stock certificates or Voting Trust Certificates, the Trustee may require the
payment of a sum sufficient to pay or reimburse him for any stamp tax or other
governmental charge in connection therewith and for a proportionate part of his
expenses as Trustee.
The Holder takes this certificate subject to all the terms and
conditions of the Voting Trust Agreement and by acceptance of this certificate
acknowledges and warrants that receipt of the same is for investment purposes
only and not with a view to distribution.
A duplicate original of the Voting Trust Agreement is filed with
the Trustee and with the Corporation.
IN WITNESS WHEREOF, the undersigned Trustee has
executed this certificate as of the ____ day of ___________________,____.
________________________________
Trustee
(c) The Voting Trust Certificates shall be assignable, to the
extent set forth herein and subject to the restrictions and limitations on
transfer referred to below, and until so transferred the Trustee may treat the
registered holder of the Voting Trust Certificate as the owner thereof for all
purposes whatsoever. Upon any such permitted transfer, and surrender of
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the transferred Voting Trust Certificate to the Trustee, together with proper
and sufficient instruments duly endorsed for the transfer thereof to the
transferee and with all necessary stock transfer stamps affixed, the Trustee
shall deliver or cause to be delivered to the transferee a Voting Trust
Certificate or Certificate representing the same number of shares of Stock as
set forth in the Voting Trust Certificate so transferred and surrendered. The
Trustee shall keep a list of the shares of Stock transferred to him, and shall
also keep a record of all Voting Trust Certificates issued or transferred on his
books, which records shall contain the names and addresses of the holders of the
Voting Trust Certificates and the number of shares of Stock represented by each
such certificate. Such list and record shall be open at all reasonable times to
inspection by any Subscriber or by the Corporation. Every assignee or transferee
of a Voting Trust Certificate issued hereunder shall succeed to all the rights
hereunder of the transferor and, by acceptance of such Voting Trust Certificate,
become a party hereto with like effect as though an original Subscriber hereof.
6. RESTRICTIONS ON TRANSFER OF VOTING TRUST
CERTIFICATE.
Each of the Subscribers hereby agrees that during the term of
this Agreement, his or her Voting Trust Certificates will not be sold or
transferred except in accordance with the terms and conditions of this Agreement
and subject to the same restrictions and limitations upon transfer by any
Subscriber of the shares of Stock so deposited with the Trustee whether pursuant
to the terms of any agreement to which a Subscriber is subject, so long as such
agreement remains in effect, or otherwise. The Voting Trust Certificates shall
be regarded as stock of the Corporation, within the meaning of any provision of
the By-laws of the Corporation imposing conditions and restrictions upon the
sale of stock of the Corporation.
7. RIGHTS OF THE TRUSTEE.
Until the Trustee shall have actually delivered a certificate or
certificates representing the shares of Stock held by him to the Subscriber as
specified herein, and subject to the terms hereof, the Trustee or his successor
in the trust shall possess and be entitled to exercise all rights and powers of
every nature of absolute owner and holder of record of the Stock, including,
without limitation, the right to vote as described below, and the right, upon
the instructions of Subscribers representing a majority of the shares of Stock
subject to this Trust to sell or transfer all, but not less than all, of such
shares, subject to the same restrictions and limitations upon transfer to which
any Subscriber of the shares deposited with the Trustee hereunder is subject,
whether pursuant to the terms of any agreement to which a Subscriber is subject,
so long as such agreement remains in effect, or otherwise. It is expressly
acknowledged and agreed that the Trustee's rights hereunder
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expressly include, without limitation, the right to sell or transfer such shares
of Stock in connection with a sale of the Corporation.
8. TRUSTEE TO VOTE STOCK.
It shall be the duty of the Trustee, and he shall have full power
and authority, and he is hereby fully empowered and authorized, to represent the
holders of the Voting Trust Certificates and the Stock transferred to the
Trustee as aforesaid, and to vote upon the Stock, as directed by the vote of the
holders of Voting Trust Certificates representing a majority of the Stock
subject to this Trust voting with respect thereto in accordance with reasonable
procedures as may be established from time to time by the Trustee, at all
meetings of the stockholders of the Corporation, in the election of Directors
and upon any and all matters in question, which may be brought before such
meetings, as fully as any stockholder might do if personally present. It is
expressly acknowledged and agreed that the Trustee's right to vote shall
expressly include, without limitation, the right to vote on such fundamental
matters as a proposal of merger or consolidation, or a sale of all or
substantially all of the assets of the Corporation. The Trustee may vote stock
of the Corporation in person or by such person as he may select as his proxy.
9. TRUSTEE'S LIABILITY.
The Trustee shall use his best judgment in voting upon the Stock
transferred to him, but shall not be liable for any vote cast, or consent or
waiver given by him, in good faith, and in the absence of gross negligence or
wilful misconduct.
10. DIVIDENDS AND OTHER DISTRIBUTIONS.
(a) Except as provided in the next succeeding sentence, the
Trustee shall collect and receive all dividends that may accrue upon the shares
of Stock subject to this Trust, and, subject to deduction as provided below,
shall divide the same among the holders of the Voting Trust Certificates in
proportion to the number of shares respectively represented by their Voting
Trust Certificates. Notwithstanding the foregoing, the Trustee and the
Corporation may provide that the Corporation shall pay directly to the holders
of the Voting Trust Certificates any or all dividends that may accrue upon
shares of Stock subject to the Trust in proportion to the number of shares
respectively represented by their Voting Trust Certificates and subject to
deduction as provided below for the benefit of the Trustee.
(b) In the event of the dissolution or total or partial
liquidation of the Corporation, the Trustee shall collect and receive all money
and other property in respect of the shares of Stock subject to this Trust, and,
subject to deduction as
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provided below, shall divide the same among the holders of the Voting Trust
Certificates in proportion to the number of shares respectively represented by
their Voting Trust Certificates, but only upon surrender of such holders' Voting
Trust Certificates in the case of dissolution or the presentation of their
Voting Trust Certificates for the notation thereon of the distribution in case
of a partial liquidation.
(c) In the event of the merger or consolidation of the
Corporation, or a sale of the Corporation or of all or substantially all of its
assets, the Trustee may, in his sole discretion, elect to receive the moneys,
securities, rights or properties to which the holder of the shares of Stock
subject to this Trust is entitled, and, subject to deduction as provided below,
to divide the same among the holders of the Voting Trust Certificates in
proportion to the number of shares respectively represented by their Voting
Trust Certificates, but only upon surrender of such holders' Voting Trust
Certificates in the case of the merger or consolidation of the Corporation or
the sale of the Corporation, or the presentation of their Voting Trust
Certificates for the notation thereon of the distribution in case of a sale of
all or substantially all of the assets of the Corporation.
(d) Notwithstanding anything to the contrary contained herein,
the Trustee may deduct from any payment or distribution to any Subscribers
hereunder, or all of them, the amount of (i) any taxes imposed thereon that the
Trustee may be required to pay thereon or to withhold therefrom under any
present or future law, (ii) a sum sufficient to pay or reimburse him for any
stamp tax or other governmental charge in connection therewith any transfer or
delivery of any stock certificate or Voting Trust Certificate and (iii) a
proportionate share of the expenses of the Trustee.
11. TRUSTEE'S INDEMNITY.
The Trustee shall be entitled to be indemnified fully out of the
dividends coming to his hands against all costs, charges, expenses and other
liabilities properly incurred by him in the exercise of any power conferred upon
him by these presents; and the Subscribers, and each of them, hereby covenant
with the Trustee that in the event of the monies and securities in his hands
being insufficient for that purpose, the Subscribers, and each of them, will in
proportion to the amount of their respective shares and interests hold harmless
and keep indemnified the Trustee of and from all loss or damage which he may
sustain or be put to by reason of anything he may lawfully do in the execution
of this Trust.
12. APPOINTMENT OF SUBSTITUTE OR SUCCESSOR TRUSTEE.
In the event of the Trustee's dying or resigning or refusing or
becoming unable to act, the Trustee may designate, by written instrument duly
acknowledged, a substitute or successor
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Trustee, or if the Trustee cannot, or does not within 10 days of an event
described above, so designate a substitute or successor Trustee, then the
holders of the Voting Trust Certificates by the vote of the holders of Voting
Trust Certificates representing a majority of the Stock deposited hereunder
voting with respect thereto, shall appoint a substitute or successor Trustee,
and any person so designate or appointed shall thereupon be vested with all the
duties, powers and authority of a Trustee hereunder as if originally named
herein. Prior to the commencement of his duties, the Trustee and, so long as
such subscription agreement remain in effect, each Trustee subsequently
designated or appointed shall sign an agreement with the Corporation
substantially similar to the subscription agreements pursuant to which the
original Subscribers purchased their original shares of Stock and shall thus
signify his or her consent to be bound thereby and his or her agreement to
perform the terms thereof. All of the terms, provisions and conditions of such
subscription agreements shall apply to all Trustees hereof and hereunder with
the same force and effect as if such Trustees had originally signed such
agreements.
13. COMPENSATION.
The Trustee shall serve without compensation. The Trustee shall
have the right to incur and pay such reasonable expenses and charges and to
employ such counsel as he may deem necessary or desirable in the performance of
his duties hereunder. Any such expenses or charges incurred or paid may be
charged pro rata to the holders of the Voting Trust Certificates.
14. CONTINUANCE AND TERMINATION OF TRUST.
Unless the Trustee exercises his right, which is hereby expressly
granted to him, to terminate the Trust beforehand, the Trust hereby created
shall be continued until the date that this 21 years from the date of this
Agreement, and shall then terminate. Upon termination of the Trust, the Trustee
shall, upon the surrender of the Voting Trust Certificates by the respective
holders thereof assign and transfer to them the number of shares of Stock
thereby represented or may deposit with the Corporation the certificate or
certificates representing the Stock held by the Trustee, together with proper
and sufficient instruments duly endorsed for the transfer thereof and with all
necessary stock transfer stamps affixed, with instructions to distribute the
same to the registered holders of the Voting Trust Certificates in the manner
above provided, and the Trustee shall thereupon be relieved and discharged from
all further obligation and liability hereunder.
15. NOTICE.
Any notice to be given to the holders of Voting Trust
Certificates hereunder shall be sufficiently given if mailed to
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the registered holders of Voting Trust Certificates at the addresses furnished
respectively by such holders to the Trustee.
16. LOST TRUST CERTIFICATES.
In case any Voting Trust Certificate issued under this Agreement
shall become mutilated, destroyed, stolen or lost, the Trustee, in his sole
discretion, may authorize the issuance of a new Voting Trust Certificate and
thereupon issue a new Voting Trust Certificate in substitution therefor for a
like number of shares. The applicant for such substituted Voting Trust
Certificate shall furnish to the Trustee evidence to his satisfaction of the
mutilation, destruction, theft or loss of such Voting Trust Certificate,
together with such indemnity to the Trustee as he may require in his sole
discretion.
17. TRUSTEE AND THE CORPORATION.
Nothing herein contained shall disqualify the Trustee hereunder
from voting for himself to serve or from serving the Corporation or any of its
affiliates as an officer or director or in any other capacity or from voting for
himself to receive or receiving compensation for such services. The Trustee
shall not be disqualified from his office by dealing or contracting with the
Corporation nor shall any transaction or contract of the Corporation be void or
voidable by reason of the fact that the Trustee or any corporation, partnership,
association or other organization of which the Trustee is a director or officer,
or has a financial interest, is in any way interested in such transaction or
contract, nor shall the Trustee be liable to account to the Corporation or to
any stockholder thereof for any profits realized by, from or through any such
transaction or contract by reason of the fact that the Trustee or any
corporation, partnership, association or other organization of which the Trustee
is a director or officer, or has a financial interest, was in any way interested
in such transaction or contract.
18. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding on
and accrue to the benefit of the parties hereto and their respective executors,
administrators, legal representatives, heirs, assigns and successors.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts together constitute one
and the same Agreement, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(c) Severability. In the event that any one or more
of the provisions, paragraphs, words, clauses, phrases or
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sentences contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision, paragraph, word,
clause, phrase or sentence in every other respect and of the remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be
in any way impaired, it being intended that all rights, powers and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
(d) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of terms contained herein.
(e) Deposit of Agreement. One fully conformed copy of this
Agreement shall be deposited by the Trustee at the Corporation's registered
office in the Sate of Delaware, and shall be subject to the same examination by
a stockholder of the Corporation as are the books and records of the
Corporation, and shall be subject to examination by any holder of a Voting Trust
Certificate, in person or by attorney or other agent, during normal business
hours. A fully conformed copy of this Agreement shall also retained by the
Trustee at his office, and shall be subject to examination by any holder of a
Voting Trust Certificate, in person or by attorney or other agent, during normal
business hours.
19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed therein.
20. ACCEPTANCE OF TRUST BY TRUSTEE.
The Trustee hereby accepts the above Trust subject to all of the
terms, conditions and reservations herein contained, and agrees that he will
exercise his powers and perform his duties as Trustee as herein set forth;
provided, that nothing herein contained shall be construed to prevent the
Trustee from resigning and discharging himself from the Trust.
IN WITNESS WHEREOF, the Subscribers have hereunto set their hands
and seals and set opposite their respective signatures the number of shares held
by them respectively, and the Trustee, in token of his acceptance hereby
created, have hereunto set his hand and seal.
[SEAL]
________________________
Trustee
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[SEAL]
_______________________
[Subscriber]