Exhibit 1.1
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT (the "AGREEMENT") is made as of this 28th
day of February, 1999, by and among Sunderland Acquisition Corporation, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the majority
stockholder of the Company (the "STOCKHOLDER"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and his
successors in trust (the "Trustee").
WHEREAS, in order to secure continuity and stability of the Company's
policy and management, the Stockholder deems it advisable to deposit all of his
stock in the Company with the Trustee; and
WHEREAS, the Trustee has consented to act under this Agreement for the
purposes herein provided.
NOW, THEREFORE, it is agreed as follows:
1. AGREEMENT. Copies of this Agreement, and of every supplemental or
amendatory agreement, shall be filed in the Company's principal office in Las
Vegas, Nevada, and in the Cornpany's office in the State of Delaware. All such
copies shall be open to the inspection of the Company's stockholders daily
during business hours. All voting trust certificates issued as hereinafter
provided shall be issued, received, and held subject to all the terms of this
Agreement. Every person, firm, or corporation entitled to receive voting trust
certificates representing shares of capital stock, and their transferees and
assigns, upon accepting the voting trust certificates issued hereunder, shall be
bound by the provisions of this Agreement.
2. TRANSFER OF STOCK TO TRUSTEE. (a) The Stockholder shall deposit with
the Trustee a certificate or certificates for his Company stock as set forth
after his signature to this Agreement. No stock shall be deposited hereunder
except stock having general voting powers, as provided in the Certificate of
Incorporation. All such stock certificates shall be endorsed, or accompanied by
such instruments of transfer as to enable the Trustee to cause such certificates
to be transferred into the name of the Trustee, as hereinafter provided. On
receipt by the Trustee of the certificates for any such shares and their
transfer into the name of the Trustee, the Trustee shall hold them subject to
the terms of this Agreement, and shall thereupon issue and deliver to the
Stockholder a voting trust certificate or certificates for the shares so
deposited.
(b) All certificates for stock of the Company transferred and delivered
to the Trustee pursuant to this Agreement shall be surrendered by the Trustee to
the Company and canceled, and new certificates therefor shall be issued to and
held by the Trustee in the name of "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Voting Trustee."
3. VOTING TRUST CERTIFICATES. The voting trust certificates shall be in
the following form:
"NO.______________________ SHARES__________________________
SUNDERLAND ACQUISITION CORPORATION
A DELAWARE CORPORATION
VOTING TRUST CERTIFICATE FOR CAPITAL STOCK
THIS CERTIFIES THAT___________________________ OR REGISTERED ASSIGNS IS
ENTITLED TO ALL THE BENEFITS ARISING FROM THE DEPOSIT WITH THE TRUSTEE UNDER THE
VOTING TRUST AGREEMENT HEREINAFTER MENTIONED, OF CERTIFICATES FOR_______________
SHARES OF THE CAPITAL STOCK OF SUNDERLAND ACQUISITION CORPORATION, A DELAWARE
CORPORATION (THE "COMPANY"), AS PROVIDED IN SUCH TRUST AGREEMENT AND SUBJECT TO
THE TERMS THEREOF. THE REGISTERED HOLDER HEREOF, OR ASSIGNS, IS ENTITLED TO
RECEIVE PAYMENT EQUAL TO THE AMOUNT OF CASH DIVIDENDS, IF ANY, RECEIVED BY THE
TRUSTEE UPON THE NUMBER OF SHARES OF CAPITAL STOCK OF THE COMPANY IN RESPECT OF
WHICH THIS CERTIFICATE IS ISSUED. DIVIDENDS RECEIVED BY THE TRUSTEE IN THE
COMPANY'S COMMON OR OTHER STOCK HAVING GENERAL VOTING POWERS SHALL BE PAYABLE IN
VOTING TRUST CERTIFICATES, IN FORM SIMILAR HERETO. UNTIL THE TRUSTEE HAS
DELIVERED THE STOCK HELD UNDER SUCH TRUST AGREEMENT TO THE HOLDERS OF THE TRUST
CERTIFICATES, OR TO THE COMPANY, AS SPECIFIED IN SUCH TRUST AGREEMENT, THE
TRUSTEE SHALL POSSESS AND BE ENTITLED TO EXERCISE ALL RIGHTS AND POWERS OF AN
ABSOLUTE OWNER OF SUCH STOCK, INCLUDING THE RIGHT TO VOTE THEREON FOR EVERY
PURPOSE, AND TO EXECUTE CONSENTS IN RESPECT THEREOF FOR EVERY PURPOSE, IT BEING
EXPRESSLY STIPULATED THAT NO VOTING RIGHT PASSES TO THE OWNER HEREOF, OR HIS
ASSIGNS, UNDER THIS CERTIFICATE OR ANY AGREEMENT, EXPRESSED OR IMPLIED.
THIS CERTIFICATE IS ISSUED, RECEIVED, AND HELD UNDER, AND THE RIGHTS OF
THE OWNER HEREOF ARE SUBJECT TO, THE TERMS OF A VOTING TRUST AGREEMENT DATED
FEBRUARY 28, 1999, BY AND BETWEEN THE COMPANY, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AND ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, AND HIS SUCCESSORS IN TRUST. (COPIES OF THE VOTING TRUST AGREEMENT,
AND OF EVERY AGREEMENT AMENDING OR SUPPLEMENTING IT, ARE ON FILE IN THE
COMPANY'S PRINCIPAL OFFICE IN LAS VEGAS, NEVADA, AND IN THE COMPANY'S OFFICE IN
THE STATE OF DELAWARE, AND SHALL BE OPEN TO THE INSPECTION OF THE COMPANY'S
STOCKHOLDERS DAILY DURING BUSINESS HOURS.) THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE HEREOF, ASSENTS AND IS BOUND TO ALL THE PROVISIONS OF THE VOTING
TRUST AGREEMENT AS IF HE HAD SIGNED IT IN PERSON.
IN THE EVENT OF THE DISSOLUTION OR TOTAL OR PARTIAL LIQUIDATION OF THE
COMPANY, THE MONEYS, SECURITIES, OR PROPERTY RECEIVED BY THE TRUSTEE IN RESPECT
OF THE STOCK DEPOSITED UNDER SUCH TRUST AGREEMENT SHALL BE DISTRIBUTED AMONG THE
REGISTERED HOLDERS OF TRUST CERTIFICATES IN PROPORTION TO THEIR INTERESTS AS
SHOWN BY THE BOOKS OF THE TRUSTEE.
IN THE EVENT THAT THE TRUSTEE RECEIVES ANY DIVIDEND OR DISTRIBUTION
OTHER THAN IN COMPANY STOCK HAVING GENERAL VOTING POWERS, THE TRUSTEE SHALL
DISTRIBUTE THE SAME TO THE REGISTERED HOLDERS OF VOTING TRUST CERTIFICATES, ON
THE DATE OF SUCH DISTRIBUTION, OR TO THE REGISTERED CERTIFICATE HOLDERS AT THE
CLOSE OF BUSINESS ON THE DATE FIXED BY THE TRUSTEE FOR TAKING A RECORD TO
DETERMINE THE CERTIFICATE HOLDERS ENTITLED TO SUCH DISTRIBUTION, PURSUANT TO THE
PROVISIONS OF PARAGRAPH 7 OF THE TRUST AGREEMENT. SUCH DISTRIBUTION SHALL BE
MADE TO THE CERTIFICATE HOLDERS RATABLY IN ACCORDANCE WITH THE NUMBER OF SHARES
REPRESENTED BY THEIR RESPECTIVE VOTING TRUST CERTIFICATES.
STOCK CERTIFICATES FOR THE NUMBER OF SHARES OF CAPITAL STOCK THEN
REPRESENTED BY THIS CERTIFICATE, OR THE NET PROCEEDS IN CASH OR PROPERTY OF SUCH
SHARES, SHALL BE DUE AND DELIVERABLE
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HEREUNDER UPON THE TERMINATION OF SUCH TRUST AGREEMENT AS PROVIDED THEREIN.
THE VOTING TRUST AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT
UNTIL FEBRUARY 8, 2000, UNLESS TERMINATED PRIOR THERETO, AS PROVIDED IN THE
AGREEMENT.
THIS CERTIFICATE IS TRANSFERABLE ON THE BOOKS OF THE TRUSTEE AT HIS
OFFICE IN LAS VEGAS, NEVADA (OR ELSEWHERE AS DESIGNATED BY THE TRUSTEE), BY THE
HOLDER HEREOF, EITHER IN PERSON OR BY ATTORNEY DULY AUTHORIZED, IN ACCORDANCE
WITH THE RULES ESTABLISHED FOR THAT PURPOSE BY THE TRUSTEE AND ON SURRENDER OF
THIS CERTIFICATE PROPERLY ENDORSED. TITLE TO THIS CERTIFICATE WHEN DULY ENDORSED
SHALL, TO THE EXTENT PERMITTED BY LAW, BE TRANSFERABLE WITH THE SAME EFFECT AS
IN THE CASE OF A NEGOTIABLE INSTRUMENT. EACH HOLDER HEREOF AGREES THAT DELIVERY
OF THIS CERTIFICATE, DULY ENDORSED BY ANY HOLDER HEREOF, SHALL VEST TITLE HERETO
AND ALL RIGHTS HEREUNDER IN THE TRANSFEREE; PROVIDED, HOWEVER, THAT THE TRUSTEE
MAY TREAT THE REGISTERED HOLDER HEREOF, OR WHEN PRESENTED DULY ENDORSED IN BLANK
THE BEARER HEREOF, AS THE ABSOLUTE OWNER HEREOF, AND OF ALL RIGHTS AND INTERESTS
REPRESENTED HEREBY, FOR ALL PURPOSES. THE TRUSTEE SHALL NOT BE BOUND OR AFFECTED
BY ANY NOTICE TO THE CONTRARY, OR BY ANY NOTICE OF ANY TRUST, WHETHER EXPRESS OR
IMPLIED, OR CONSTRUCTIVE, OR OF ANY CHARGE OR EQUITY RESPECTING THE TITLE OR
OWNERSHIP OF THIS CERTIFICATE, OR THE SHARES OF STOCK REPRESENTED HEREBY;
PROVIDED, HOWEVER, THAT NO DELIVERY OF STOCK CERTIFICATES HEREUNDER, OR THE
PROCEEDS THEREOF, SHALL BE MADE WITHOUT SURRENDER HEREOF PROPERLY ENDORSED.
THIS CERTIFICATE SHALL NOT BE VALID FOR ANY PURPOSE UNTIL DULY SIGNED
BY THE TRUSTEE.
THE WORD "TRUSTEE" AS USED IN THIS CERTIFICATE MEANS THE TRUSTEE OR THE
SUCCESSOR TRUSTEE ACTING UNDER SUCH VOTING TRUST AGREEMENT.
IN WITNESS WHEREOF THE TRUSTEE HAS SIGNED THIS CERTIFICATE ON 19__.
-----------------------------------
TRUSTEE
(FORM OF ASSIGNMENT):
FOR VALUE RECEIVED ____________________________________ HEREBY ASSIGNS
THE WITHIN CERTIFICATE, AND ALL RIGHTS AND INTERESTS REPRESENTED THEREBY, TO
AND APPOINTS ________________________________________ ATTORNEY TO TRANSFER THIS
CERTIFICATE ON THE BOOKS OF THE TRUSTEE MENTIONED THEREIN, WITH FULL POWER
OF SUBSTITUTION.
DATED:________________________________________
_______________________(S E A L)
IN PRESENCE OF
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_______________________________________________
_______________________________________________
NOTE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION, ENLARGEMENT, OR ANY CHANGE WHATEVER. ALL ENDORSEMENTS, IN THE
DISCRETION OF THE TRUSTEE, SHALL BE GUARANTEED BY A BANK OR TRUST COMPANY
SATISFACTORY TO THE TRUSTEE."
4. SUBSTITUTE CERTIFICATES TO STOCKHOLDER. Upon delivery to the Trustee
for surrender by the Stockholder of the original voting trust certificate, or
any additional or substitute certificates which may have been issued to the
Stockholder pursuant to Sections 7, 8, or 9 hereof, along with a written
statement by the Stockholder setting forth the number of shares of the Company's
stock which the Stockholder desires to convey to one or more persons or entities
pursuant to Section 5 hereof, the Trustee shall issue and deliver to the
Stockholder, in his name, for endorsement by him to such persons or entities,
substitute voting trust certificates representing those shares of the Company's
stock to be conveyed and those shares to be retained by the Stockholder, if any.
5. CONVEYANCE OF CERTIFICATES; RELEASE FROM VOTING TRUST. (a) Voting
trust certificates shall be conveyable at the Trustee's office in Las Vegas,
Nevada (and at such other place and by such other method of delivery as the
Trustee may designate by an instrument signed by him and sent by mail to the
registered holders of voting trust certificates), on the books of the Trustee,
by the Stockholder or other registered owner thereof, either in person or by
attorney thereto duly authorized, upon surrender thereof, according to the rules
established for that purpose by the Trustee. The Trustee may treat the
registered holder as owner thereof for all purposes, but he shall not be
required to deliver stock certificates hereunder without the surrender of such
voting trust certificates. Upon delivery to the Trustee of a voting trust
certificate or certificates, duly endorsed by the Stockholder to any person or
entity other than an affiliate of the Stockholder, the underlying shares of
stock in the Company represented by such voting trust certificates shall, in all
respects, be released from the voting trust created hereby. In the event of such
conveyance by the Stockholder, the Trustee shall cancel the voting trust
certificate(s) so endorsed and delivered, and shall, within thirty (30) days,
deliver to the transferee(s), a certificate or certificates for the number of
shares conveyed at the Trustee's office or at such other place and by such
method, including, without limitation, delivery via United States mail or
express delivery service, as the Trustee, in his discretion, may elect. In the
event of a conveyance by the Stockholder of voting trust certificate(s)
representing all of the shares of the Company held by him, this Agreement shall
terminate as provided in Section 6. For the purposes of this Agreement, the term
"affiliate" shall have the meaning ascribed to it in Rule 405, under the
Securities Act of 1933, as amended.
(b) LOST OR STOLEN CERTIFICATES. If a voting trust certificate is lost,
stolen, mutilated, or destroyed, the Trustee, in his discretion, may issue a
duplicate of such certificate upon receipt of. (1) evidence of such fact
satisfactory to him; (2) indemnity satisfactory to him; (3) the existing
certificate, if mutilated; and (4) his reasonable fees and expenses in
connection with the issuance of
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a new trust certificate. The Trustee shall not be required to recognize any
transfer of a voting trust certificate not made in accordance with the
provisions hereof, unless the person claiming such ownership has produced
indicia of title satisfactory to the Trustee, and has in addition deposited with
the Trustee indemnity satisfactory to him.
6. TERMINATION. (a) This Agreement shall terminate on the earlier of:
(i) delivery to the Trustee of a voting trust certificate or certificates,
representing all of the stock of the Company held by the Stockholder, duly
endorsed by him to any person(s) or entity(ies) other than affiliates of the
Stockholder, or (ii) expiration of the term hereof, as provided in Section 13.
After termination of this Agreement, the voting trust certificates shall cease
to have any effect, and their holders shall have no further rights under this
Agreement other than to receive certificates for shares of the Company's stock
or other property distributable under the terms hereof and upon the surrender of
such voting trust certificates.
(b) Within 30 days after the termination of this Agreement, the Trustee
shall deliver, to the registered holders of all voting trust certificates, if
any, certificates for the number of shares of the Company's capital stock
represented thereby, upon the surrender thereof properly endorsed voting trust
certificates, such delivery to be made in each case at the Trustee's office or
at such other place and by such method, including, without limitation, delivery
via United States mail or express delivery service, as the Trustee, in his
discretion, may elect.
(c) At any time subsequent to 30 days after the termination of this
Agreement, the Trustee may deposit with the Company stock certificates
representing the number of shares of capital stock represented by the voting
trust certificates then outstanding, if any, with authority in writing to the
Company to deliver such stock certificates in exchange for voting trust
certificates representing a like number of shares of the capital stock of the
Company. Upon such deposit all further liability of the Trustee for the delivery
of such stock certificates and the delivery or payment of dividends upon
surrender of the voting trust certificates shall cease, and the Trustee shall
not be required to take any further action hereunder.
7. DIVIDENDS. (a) Prior to the termination of this Agreement, the
holder of each voting trust certificate shall be entitled to receive payments
equal to the cash dividends, if any, received by the Trustee upon a like number
and class of shares of the Company's capital stock as is called for by each such
voting trust certificate. If any dividend in respect of the stock deposited with
the Trustee is paid, in whole or in part, in the Company's stock having general
voting powers, the Trustee shall likewise hold, subject to the terms of this
Agreement, the certificates for stock which are received by him on account of
such dividend. The holder of each voting trust certificate representing stock on
which such stock dividend has been paid shall be entitled to receive a voting
trust certificate issued under this Agreement for the number of shares and class
of stock received as such dividend with respect to the shares represented by
such voting trust certificate. Holders entitled to receive the dividends
described above shall be those registered as such on the Trustee's transfer
books at the close of business on the day fixed by the Company for the taking of
a record to determine those holders of its stock entitled to receive such
dividends, or if the Trustee has fixed a date, as hereinafter
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in this paragraph provided, for the purpose of determining the holders of voting
trust certificates entitled to receive such payment or distribution, then
registered as such at the close of business on the date so fixed by the Trustee.
(b) If any dividend in respect of the stock deposited with the Trustee
is paid other than in capital stock having general voting powers, then the
Trustee shall distribute the same among the holders of voting trust certificates
registered as such at the close of business on the day fixed by the Trustee for
taking a record to determine the holders of voting trust certificates entitled
to receive such distribution. Such distribution shall be made to such holders of
voting trust certificates ratably, in accordance with the number of shares
represented by their respective voting trust certificates.
(c) The Trustee may temporarily close its transfer books for a period
not exceeding 20 days preceding the date fixed for the payment or distribution
of dividends or the distribution of assets or rights, or at any other time in
the Trustee's discretion. In lieu of providing for the closing of the books
against the transfer of voting trust certificates, the Trustee may fix a date
not exceeding 20 days preceding any date fixed by the Company for the payment or
distribution of dividends, or for the distribution of assets or rights, as a
record date for the determination of the holders of voting trust certificates
entitled to receive such payment or distribution. The holders of voting trust
certificates of record at the close of business on such date shall exclusively
be entitled to participate in such payments or distribution.
(d) In lieu of receiving cash dividends upon the capital stock of the
Company and paying the same to the holders of voting trust certificates pursuant
to the provisions of this Agreement, the Trustee may instruct the Company in
writing to pay such dividends to the holders of the voting trust certificates.
Upon receipt of such written instructions, the Company shall pay such dividends
directly to the holders of the voting trust certificates. Upon such instructions
being given by the Trustee to the Company, and until revoked by the Trustee, all
liability of the Trustee with respect to such dividends shall cease. The Trustee
may at any time revoke such instructions and by written notice to the Company
direct it to make dividend payments to the Trustee.
8. SUBSCRIPTION RIGHTS. If any stock or other securities of the Company
are offered for subscription to the holders of its capital stock deposited
hereunder, the Trustee, promptly upon receipt of notice of such offer, shall
mail a copy thereof to each holder of the voting trust certificates. Upon
receipt by the Trustee, at least five days prior to the last day fixed by the
Company for subscription and payment, of a request from any such registered
holder of voting trust certificates to subscribe in his behalf, accompanied with
the sum of money required to pay for such stock or securities (not in excess of
the amount subject to subscription in respect of the shares represented by the
voting trust certificate held by such certificate holder), the Trustee shall
make such subscription and payment. Upon receiving from the Company the
certificates for shares or securities so subscribed for, the Trustee shall issue
to such holder a voting trust certificate in respect thereof if the shares or
securities received have general voting powers. If, however, the shares or
securities do not have general voting powers, the Trustee shall mail or deliver
such securities to the certificate holder in whose behalf the subscription was
made, or may instruct the Company to make delivery
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directly to the certificate holder entitled thereto.
9. DISSOLUTION OF THE COMPANY. In the event of the dissolution or total
or partial liquidation of the Company, whether voluntary or involuntary, the
Trustee shall receive the moneys, securities, rights, or property to which the
holders of the Company's capital stock deposited hereunder are entitled, and
shall distribute the same among the registered holders of voting trust
certificates in proportion to their interests, as shown by the books of the
Trustee. Alternatively, the Trustee may in his discretion deposit such moneys,
securities, fights, or property with any Federally insured bank or trust company
doing business in Las Vegas, Nevada, with authority and instructions to
distribute the same as above provided, and upon such deposit all further
obligations or liabilities of the Trustee in respect of such moneys, securities,
fights, or property so deposited shall cease.
10. REORGANIZATION OF THE COMPANY. If the Company is merged into or
consolidated with another corporation, or all or substantially all of its assets
are transferred to another corporation, then in connection with such transfer
the term "Company" for all purposes of this Agreement shall be deemed to include
such successor corporation, and the Trustee shall receive and hold under this
Agreement any stock of such successor corporation received on account of the
ownership, as Trustee hereunder, of the stock held hereunder prior to such
merger, consolidation, and transfer. Voting trust certificates issued and
outstanding under this Agreement at the time of such merger, consolidation, or
transfer may remain outstanding, or the Trustee may, in his discretion,
substitute for such voting trust certificates new voting trust certificates in
appropriate form, and the terms "stock" and "capital stock" as used herein shall
be taken to include any stock which may be received by the Trustee in lieu of
all or any part of the Company's capital stock.
11. RIGHTS OF TRUSTEE. (a) During the term of this Agreement, the
Trustee shall have the right, subject to the provisions of this paragraph
hereinafter set forth, to exercise, in person or by his nominees or proxies, all
stockholders' voting rights and powers in respect of all stock deposited
hereunder, and to take part in or consent to any corporate or stockholders'
action of any kind whatsoever. The right to vote shall include the right to vote
for the election of directors, and in favor of or against any resolution or
proposed action of any character whatsoever, which may be presented at any
meeting or require the consent of the Company's stockholders. Without limiting
such general right, mortgaging, creating a security interest in, and pledging of
all or any part of the Company's property, the lease or sale of all or any part
of its property, for cash, securities, or other property, and the dissolution of
the Company, or its consolidation, merger, reorganization, or recapitalization.
(b) The Trustee shall vote the stock held by him either in person or by
his nominees or proxies, in direct proportion to the manner in which the voted
shares of stock of the Company not held by the Trustee are voted (e.g., if the
shares held by the Trustee number 60, and the shares held and voted by all other
shareholders of the Company number 40, and 10 of those 40 shares are voted in
favor of a particular question presented to the stockholders, and 30 of those 40
shares are voted against, the Trustee shall vote 15 of the shares held by him in
favor, and 45 against). The Trustee, however, shall not be personally liable for
any action taken pursuant to his vote or any act committed or omitted to be done
under this Agreement, provided that such commission or omission does not
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amount to willful misconduct on his part and that he at all times exercise good
faith in such matters.
12. TRUSTEES. (a) The Trustee (and any successor Trustee) may at any
time resign by mailing to the registered holders of voting trust certificates a
written resignation, to take effect ten days thereafter or upon its prior
acceptance. Upon the death of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or upon his resignation as
Trustee, a federal or state chartered banking institution designated by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ shall become Trustee for the remainder of the term of this Agreement.
Upon the dissolution or resignation of such federal or state chartered banking
institution, another replacement Trustee under this Agreement shall be
designated by the registered holders of voting trust certificates issued and
outstanding under this Agreement representing a majority of the number of shares
of stock standing in the name of the Trustee hereunder.
(b) The rights, powers, and privileges of the Trustee named hereunder
shall be possessed by the successor Trustee(s), with the same effect as though
such successors had originally been parties to this Agreement. The word
"Trustee," as used in this Agreement, means the Trustee or any successor
Trustees acting hereunder.
13. TERM. This Agreement shall continue in effect for the minimum
holding period provided for under Rule 144(b)(1), under the Securities Act of
1933, as amended (i.e., for one year after the date and year first written
above).
14. COMPENSATION AND REIMBURSEMENT OF TRUSTEE. The Trustee shall serve
without compensation. The Trustee shall have the right to incur and pay such
reasonable expenses and charges, to employ and pay such agents, attorneys, and
counsel as he may deem necessary and proper to effectuate this Agreement. All
such expenses or charges incurred by and due to the Trustee may be deducted from
the dividends or other moneys or property received by him on the stock deposited
hereunder. Nothing herein contained shall disqualify the Trustee or any
successor Trustee, or incapacitate him or them from serving the Company or any
of its subsidiaries as officer or director, or in any other capacity, and in any
such capacity receiving compensation.
15. NOTICE. (a) Unless otherwise specifically provided herein, any
notice to or communication with the holders of the voting trust certificates
hereunder shall be deemed to be sufficiently given or made if enclosed in
postpaid envelopes (regular not registered mail) addressed to such holders at
their respective addresses appearing on the Trustee's transfer books, and
deposited in any post office or post office box. The addresses of the holders of
voting trust certificates, as shown on the Trustee's transfer books, shall in
all cases be deemed to be the addresses of voting trust certificate holders for
all purposes under this Agreement, without regard to what other or different
addresses the Trustee may have for any voting trust certificate holder on any
other books or records of the Trustee. 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 for all purposes.
(b) Any notice to the Company hereunder shall be sufficient if enclosed
in a postpaid envelope and sent by registered mail to the Company addressed as
follows: Sunderland Acquisition
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Corporation, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or to such other
address as the Company may designate by notice in writing to the Trustee.
(c) Any notice to the Trustee hereunder may be enclosed in a postpaid
envelope and sent by registered mail to the Trustee, addressed to him at such
addresses as he may from time to time furnish in writing to the Company, and if
no such address has been so furnished by the Trustee, then to him in care of the
Company.
(d) All distributions of cash, securities, or other property hereunder
by the Trustee to the holders of voting trust certificates may be made, in the
Trustee's discretion, by mail (regular or registered mail, as the Trustee may
deem advisable), in the same manner as hereinabove provided for the giving of
notices to the holders of voting trust certificates.
16. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements
between the parties relating to its subject matter. There are no other
understandings or agreements between them concerning the subject matter.
17. NON-WAIVER. No delay or failure by a party to exercise any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
18. HEADINGS. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
19. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware, without regard to its principles of conflict
of laws.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
21. BINDING EFFECT. The provisions of this Agreement shall be binding
upon and inure to the benefit of each of the parties and their respective legal
representatives, successors and assigns.
In witness whereof the Company and the Trustee have executed this
Agreement, and the Stockholder has signed this Agreement and has stated the
number of shares of capital stock of the Company deposited by him.
[SIGNATURES ON NEXT PAGE]
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Sunderland Acquisition Corporation
By:
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Its:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
Number of Shares:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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