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EXHIBIT 10.4
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (this "Agreement") made and entered into
as of the _______ day of May, 1997, by and between XXXXXXX X. XXXXX ("Xxxxx")
and STAFF LEASING, INC., a Florida corporation ("Staff Leasing"), as trustee
(Staff Leasing, in its capacity as trustee, is hereinafter referred to as the
"Trustee").
WHEREAS, Xxxxx is the owner of 100 shares of common stock, $.01 par
value (the "Shares"), of Staff Acquisition, Inc., a Delaware corporation
("Staff Acquisition"), which constitute all of the issued and outstanding
capital stock of Staff Acquisition; and
WHEREAS, Staff Acquisition is the sole general partner of Staff
Capital, L.P., a Delaware limited partnership (the "Partnership"), and of each
of the operating limited partnerships ("OLPs"), all of which are Delaware
limited partnerships, which operate the business of the Partnership; and
WHEREAS, the Partnership is the sole limited partner of each of the
OLPs; and
WHEREAS, Staff Leasing was formed for the purpose of effecting a
reorganization (the "Reorganization"), pursuant to which all of the holders of
limited partnership interests in the Partnership will exchange their
partnership interests for common stock, $.01 par value, of Staff Leasing
("Staff Leasing Common Stock"), warrants to purchase Staff Leasing Common Stock
and/or cash, as of the case may be, and Staff Leasing will become the sole
limited partner of the Partnership and the OLPs; and
WHEREAS, immediately following the Reorganization, Staff Leasing
intends to consummate an initial public offering (the "Initial Public
Offering") of Staff Leasing Common Stock; and
WHEREAS, to facilitate the Initial Public Offering, as part of the
Reorganization, Xxxxx has agreed to place the Shares in a voting trust for the
benefit of Staff Leasing on the terms set forth in this Agreement, and to grant
to Staff Leasing the option to purchase the Shares pursuant to the terms of the
Option to Purchase Agreement of even date herewith (the "Option Agreement")
between Xxxxx and Staff Leasing;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto do hereby agree as follows:
1. Transfer of Stock to Trustee. Xxxxx hereby assigns and
delivers to the Trustee all stock certificates held by him representing the
Shares, accompanied by a duly executed stock
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power, and agrees to do all things necessary for the transfer of the Shares to
the Trustee on the books of Staff Acquisition.
2. Representations and Warranties of Xxxxx. Xxxxx hereby
represents and warrants to the Trustee (i) that he owns the Shares free and
clear of any liens, charges or other encumbrances (other than those provided
herein or in the Option Agreement); (ii) that the Shares have been duly issued,
are fully paid and non-assessable, and constitute all of the issued and
outstanding shares of capital stock of Staff Acquisition; (iii) that he has the
unencumbered and unrestricted right to transfer the Shares to the Trust created
under this Agreement; (iv) that he has the legal capacity to enter into this
Agreement; and (v) that no consent or approval of any third party or of any
governmental or regulatory authority or of any securities exchange, which has
not been obtained, is necessary in connection with the execution and delivery
of this Agreement and the establishment of the Trust created hereby.
3. Trustee to Hold Subject to Agreement. The Trustee shall hold
the Shares, for the benefit of Xxxxx, under the terms and conditions
hereinafter set forth.
4. Issuance of Stock Certificates to Trustee. The Trustee shall
surrender to the proper officer of Staff Acquisition for cancellation all of
the stock certificates representing the Shares and shall procure new stock
certificates registered in the name of Staff Leasing, Inc., as Trustee under
this Agreement.
5. Voting Trust Certificate. The Trustee shall issue to Xxxxx a
Voting Trust Certificate for the Shares (the "Voting Trust Certificate") which
shall be substantially in the form attached hereto as Exhibit "A."
6. Restriction on transfer of Voting Trust Certificate. Xxxxx
agrees that during the term of this Agreement, he will not transfer, pledge,
hypothecate, give or otherwise alienate any interest in the Voting Trust
Certificate, except in accordance with the terms of the Option Agreement, or
agree to do any of the foregoing.
7. Trustee to Vote Shares. It shall be the duty of the Trustee,
and the Trustee shall have full power and authority, to represent the holder of
the Voting Trust Certificate and the Shares, and to vote the Shares as in its
sole judgment may be for the best interest of Staff Leasing. The Trustee shall
possess, and shall be entitled to exercise, all rights and powers that absolute
owners and holders of record of the Shares possess, including, without
limitation, (i) the right to vote the Shares at all meetings of the
stockholders of Staff Acquisition upon any and all matters which may be brought
before such meetings (including, without limitation the removal and election of
members of the Board of Directors of Staff Acquisition), as fully as any
stockholder might do if personally present and (ii) the right to consent to or
waive the requirement for any act by Staff Acquisition. Xxxxx acknowledges
that he and Staff Acquisition will benefit from the Trustee voting the Shares
as it may determine to be in the best interest of Staff Leasing and agrees that
the Trustee shall so vote the Shares.
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8. Trustee's Liability. The Trustee shall use its best judgment
in voting the Shares, but shall not be liable to Xxxxx or any third party for
any vote cast, or consent given, in good faith, and in the absence of gross
negligence.
9. Dividends. The Trustee shall collect and receive all
dividends that may accrue upon the Shares and shall pay such dividends to the
holder of the Voting Trust Certificate.
10. Continuance and Termination of Trust. This Agreement and the
Trust hereby created shall remain in effect (and shall not be terminated) until
such time as the Option Agreement shall be terminated in accordance with its
terms.
11. Option Agreement. This Agreement is entered into in
accordance with and pursuant to the requirements of the Option Agreement, and
the provisions of this Voting Trust Agreement shall be construed consistently
with the provisions of the Option Agreement. In the event of a conflict in the
provisions hereof and the provisions of the Option Agreement, the provisions of
the Option Agreement shall prevail.
12. Applicable Law. This Agreement is intended to constitute a
voting trust agreement within the meaning of Section 218 of the Delaware
General Corporation Law, and the rights and obligations of the parties
hereunder shall be governed in accordance with the laws of the State of
Delaware.
13. Filing of Agreement with Staff Acquisition. A copy of this
Agreement and the Option Agreement shall be filed in the registered office of
Staff Acquisition in the State of Delaware and shall be open to the inspection
of any stockholder of Staff Acquisition. Any amendment to this Agreement or
the Option Agreement shall also be filed in such office.
14. Miscellaneous Provisions.
(a) All of the covenants and agreements contained in this
Agreement shall be binding upon, and shall inure to the benefit of, the
respective parties and their successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be.
(b) This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws of
the state of Delaware.
(c) This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one in the same instrument.
(d) If any provision of this Agreement shall be declared
void or unenforceable by any court or administrative board of competent
jurisdiction, such provision shall be deemed
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to have been severed and the remainder of this Agreement shall continue in all
respects to be valid and enforceable.
(e) Notices given under this Agreement shall be deemed
delivered upon the actual receipt of such notice at the addresses set forth
below:
(i) If to Xxxxx:
Xxxxxxx X. Xxxxx
c/o Staff Leasing, Inc.
600 000 Xxxx. Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: President
(ii) If to Staff Leasing:
Staff Leasing, Inc.
600 000 Xxxx. Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: President
IN WITNESS WHEREOF, the parties hereto have executed this Voting Trust
Agreement as of the date first set forth above.
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XXXXXXX X. XXXXX
(Signatures Continued on Next Page)
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STAFF LEASING, INC., as Trustee
By:
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Title:
[SEAL]
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Attest:
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EXHIBIT "A"
TO VOTING TRUST AGREEMENT
THIS VOTING TRUST CERTIFICATE AND THE SHARES OF COMMON STOCK OF STAFF
ACQUISITION, INC. REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER,
AND TO AN OPTION TO PURCHASE ON THE PART OF STAFF LEASING, INC., ON THE TERMS
SET FORTH IN THE OPTION TO PURCHASE AGREEMENT DATED AS OF _________________,
1997 (THE "OPTION AGREEMENT"), BY AND BETWEEN XXXXXXX X. XXXXX AND STAFF
LEASING, INC.
VOTING TRUST CERTIFICATE
STAFF ACQUISITION, INC.
No. 1 100 Shares of Common Stock, $.01 Par Value
This is to certify that the undersigned, Staff Leasing, Inc., as
Trustee, has received a stock certificate or certificates in the name of
Xxxxxxx X. Xxxxx, evidencing the ownership of 100 shares (the "Shares") of
common stock, $.01 par value, of Staff Acquisition, Inc., a Delaware
corporation ("Staff Acquistion"), and that the Shares are held subject to the
terms and conditions of the Voting Trust Agreement dated as of May _______,
1997 (the "Voting Trust Agreement"), by and between Xxxxxxx X. Xxxxx (herein
called the "Holder") and the Trustee, a copy of which has been filed at the
registered office of Staff Acquisition located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx (c/o The Corporation Trust Company).
Upon termination of the Voting Trust Agreement, the Holder shall be
entitled to receive a stock certificate or certificates for the Shares. Until
the actual delivery of such stock certificate or certificates to the Holder (or
his designee), the Trustee shall possess, and shall be entitled to exercise,
all rights and powers that absolute owners and holders of record of the Shares
possess, including, without limitation, the right to vote for every purpose and
to consent to or waive the requirement for any act by Staff Acquisition; it
being expressly stipulated that no voting right, or right to give consents or
waivers in respect of the Shares, passes to the Holder, or his successors or
assigns, by or under this Voting Trust Certificate or by or under any
agreement, express or implied.
Until the termination of the Voting Trust Agreement, the Holder is
entitled to receive payments equal to the amount of dividends, if any, received
by the Trustee upon the Shares, less any taxes imposed thereon which the
Trustee may be required to pay thereon or to withhold therefrom under any
present or future law.
In the event of the dissolution or total or partial liquidation of
Staff Acquisition, money and other property received by the Trustee in respect
of the Shares shall be paid or delivered to the Holder, but only upon surrender
of this Voting Trust Certificate in the case of dissolution
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or the presentation of this Voting Trust Certificate for the notation thereon
of the distribution in the case of a partial liquidation.
This Voting Trust Certificate and the right, title and interest in and
to the Shares represented hereby are subject to restrictions on transfer, and
the Shares are subject to an option to purchase on the part of Staff Leasing,
on the terms set forth in the Option Agreement.
IN WITNESS WHEREOF, the Trustee has signed this Voting Trust
Certificate this ______ day of May, 1997.
STAFF LEASING, INC., AS TRUSTEE
By:
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Title:
[SEAL]
Attest:
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Title:
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