EXHIBIT 9.2 TO FORM 8-K
VOTING TRUST AGREEMENT II
(Management of AutoCorp)
This Voting Trust Agreement II (Agreement) is made as of the 30th day
of December, 1998, by AutoCorp Equities, Inc. (the "Company"), a Nevada
corporation, and Xxxxxxx Xxxxxx, a resident of Collin County, Texas, as trustee
(the Trustee), to create a Voting Trust (the "Voting Trust") holding Shares of
Common Stock of the Company for the benefit of certain members of the Company's
management to be later named by the Company's Board of Directors (referred to
variously as the "Holders", the "Certificate Holders" or the "Voting Trust
Certificate Holders")
R E C I T A L S
A. The Company and various other parties have entered into a Master
Agreement of even date providing inter alia, for the
restructuring and refinancing of the Company.
B. The Master Agreement provides, among other things, that 350,000
Shares of Common Stock of the Company will be placed in a voting
trust for the benefit of the Management of the Company, and the
purpose of this Agreement is to implement that provision.
C. Certain terms used in this Agreement shall have the meanings
assigned to them in Article 7 of this Agreement, including,
without limitation, the terms Shares and Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the parties agree as follows:
ARTICLE 1
TRUSTEE
1.01 Number and Term of Trustees. There will be one (1) Trustee of this
Voting Trust. The initial Trustee is the individual named above. His successor,
as Trustee, will be appointed as provided in Paragraph 1.05. The Trustee will
serve for the entire term of this Voting Trust in the absence of his
resignation, removal, incapacity or death.
1.02 Death, etc. of Trustee. The Trustee is serving in a representative
capacity only. The powers, authority, rights, and duties of the Trustee shall
terminate on his death, incapacity, divorce, or bankruptcy, and no interest in
any of the property owned or held by the Voting Trust nor any of the powers,
authority, rights, or duties of the Trustee may be transferred by will, devise,
succession, incapacity, divorce, or bankruptcy, in any other manner, except as
provided in this Agreement. The heirs, administrators, executors, successors and
assigns for the Trustee shall, however, have the right and duty to convey any
property held by the Trustee to the successor Trustee. No creditor or creditors
of the Trustee shall have any interest in or rights whatsoever with respect to
any property owned or held by the Voting Trust.
1.03 Resignation. The Trustee may resign by giving notice of his
resignation to the Voting Trust Certificate Holders and the Company. When the
Trustee resigns, either the Holders or the Company may settle any account or
transaction with the resigning Trustee.
1.04 Removal. The Trustee may be removed for cause at any time by the
Company. The Trustee may also be removed at any time without cause by the mutual
agreement of AutoPrime, Inc.
and the Company.
1.05 Successor Trustees. Subject to Paragraph 1.01 above, in the event
of the resignation, removal, incapacity or death of the Trustee (or any
successor Trustee), a successor Trustee shall be designated by the Company.
ARTICLE 2
DEPOSIT AND TRANSFER OF SHARES;
ISSUANCE AND TRANSFER OF
VOTING TRUST CERTIFICATES
2.01 Deposit of Shares. On the execution of this Agreement, the Company
shall deposit with the Trustee a share certificate for 350,000 Shares of Common
Stock of the Company owned by it. Such share certificate shall be endorsed in
blank or to the Trustee and be accompanied by instruments of transfer that will
enable the Trustee to cause the share certificate to be transferred into the
name of the Trustee.
2.02 Transfer of Shares to Trustee. All share certificates delivered to
the Trustee shall be surrendered by the Trustee to the Company and canceled. New
share certificate(s) shall be issued in the name of the Trustee. The new share
certificate(s) shall state that they are issued pursuant to this Agreement. That
fact shall also be noted in the Companys stock transfer records as part of the
entry of the Trustees ownership of the Shares. The Trustee shall hold all share
certificates for stock of the Company subject to the terms of this Agreement.
Such share certificates shall be and remain in the possession of the Trustee.
2.03 Additional Shares. Any Shares of Common Stock of the Company which
are received by the Trustee during the term of this Agreement, whether received
pursuant to Paragraph 2.01, Paragraph 4.02, Paragraph 4.05, or otherwise, shall
become part of the assets of the Voting Trust and shall be subject to all the
terms and conditions of this Agreement.
2.04 Transfer of Shares to Successor Trustees. Notwithstanding any
changes in the identity of the Trustee, the certificate(s) for Shares standing
in the name of the Trustee may be endorsed and transferred by any successor
Trustee with the same effect as if endorsed and transferred by the Trustee who
has ceased to act. The Trustee is authorized and empowered to cause any further
transfer of the Shares that may be necessary because of any change of persons
holding the office of Trustee.
2.05 No Mortgage or Sale of Assets of the Voting Trust. The Trustee has
no authority to sell or otherwise dispose of or mortgage, pledge or encumber in
any manner any of the Shares deposited pursuant to the provisions of this
Agreement, or any other Shares or voting securities received by the Trustee
during the term of this Agreement except for the benefit of AutoPrime,Inc.
2.06 Voting Trust Certificates. All right, title, and interest of the
Voting Trust Certificate Holders in and to the Voting Trust shall be divided
into Shares of Beneficial Interest. One share of Beneficial Interest shall
correspond to one share of Common Stock deposited pursuant to this Agreement.
Voting Trust Certificates shall evidence Shares of Beneficial Interest in the
Voting Trust. The Trustee shall issue and deliver to the Certificate Holders,
against receipt of the Shares deposited pursuant to Paragraph 2.01 above, one or
more Voting Trust Certificates in substantially the form of Exhibit A attached
to this Agreement evidencing the same number of Shares of Beneficial Interest as
the number of Shares the Certificate Holders has deposited. The aggregate number
of Shares of Beneficial Interest represented by all Voting Trust Certificates
shall at all times equal the aggregate number of all Shares deposited pursuant
to this Agreement.
Each Voting Trust Certificate shall contain a statement that the Shares
represented by the certificate are subject to the provisions of this Voting
Trust Agreement and shall contain a statement that a counterpart of Voting Trust
Agreement has been deposited with the Company at its registered office.
2.07 Fractional Trust Certificates. If an interest in this trust that
is owned by a Holder cannot be fully represented by whole Voting Trust
Certificates, the Trustee may issue fractional share Voting Trust Certificates,
scrip, or other evidence of ownership of the fractional part of one Voting Trust
Certificate that in his discretion properly indicates ownership of the
fractional interest. When such an issue is made, the fractional interest shall
not under any circumstances have any greater rights or lesser liabilities than
any other Voting Trust Certificate.
2.08 Transfer of Voting Trust Certificates. Voting Trust Certificates
shall be transferable only as provided in the Certificates and in this
Agreement, and on payment of any charges payable at the time of transfer. All
transfers shall be recorded in the Voting Trust Certificate Register provided
for in Paragraph 5.02. Any transfer made of any Voting Trust Certificate shall
vest in the transferee all rights of the transferor and shall subject the
transferee to the same limitations as those imposed on the transferor by the
terms of the Voting Trust Certificate and by this Agreement.
The Trustee shall deliver Voting Trust Certificates to the transferee
for the number of Shares represented by the Voting Trust Certificate so
transferred, subject, however, to AutoPrime's perfected security interest.
2.09 Proof of Ownership. The Trustee shall not be required to recognize
any transfer of a Voting Trust Certificate not made in accordance with the
provisions of this Agreement unless the persons claiming ownership have produced
indicia of title satisfactory to the Trustee, and shall have deposited with the
Trustee indemnity satisfactory to him.
2.10 Holder of Certificate as Owner. The Trustee may treat any Voting
Trust Certificate Holder as the absolute owner and holder of the Voting Trust
Certificates registered in his or her name and as having all of the rights and
interests represented by them for all purposes, and the Trustee shall not be
bound or affected by any notice to the contrary.
2.11 Replacement of Certificates. If a Voting Trust Certificate becomes
mutilated or is destroyed, stolen, or lost, the Trustee, in his discretion, may
issue a new Voting Trust Certificate of like tenor and denomination in exchange
and substitution for and on cancellation of the mutilated Voting Trust
Certificate, or in substitution for the Certificate so destroyed, stolen, or
lost. The applicant for a substituted Voting Trust Certificate shall furnish to
the Trustee evidence of the destruction, theft, or loss of the Certificate
satisfactory to him in his discretion. The applicant shall also furnish
indemnity satisfactory to the Trustee and to his agents.
2.12 Securities Law Matters. The Voting Trust Certificates will be
issued without registration under the Securities Act of 1933, as amended (the
"1933 Act"), or the Texas Securities Act, in reliance on exemptions contained in
such statutes or in the rules and regulations promulgated by the Securities and
Exchange Commission under the 1933 Act.
There will not be any public market for the Voting Trust Certificates,
and the sale or transfer of Voting Trust Certificates will be subject to
significant restrictions on transferability.
Voting Trust Certificate Holders may not resell or transfer the Voting
Trust Certificates except in accordance with the provisions of the 1933 Act and
the Texas Securities Act. A Voting Trust Certificate Holder may be required to
bear the economic risk of holding such securities for an indefinite period of
time unless they are subsequently registered under applicable securities laws,
or an exemption from such registration is available. The Trustee does not intend
to cause any of such securities to be so registered or such an exemption to be
made available.
As a condition to sale or other transfer of Voting Trust Certificates,
the Trustee may, at his option, require:
(a) The proposed transferor or transferee to deliver to the Trustee
an opinion of counsel satisfactory to the Trustee, to the effect
that such registration or qualification is not required for such
proposed sale or other transfer; and/or
(b) The proposed transferee to deliver to the Trustee an investment
letter in substantially the form of Exhibit B attached hereto.
2.13 Legends. All Voting Trust Certificates, whether original issue or
issued upon transfer of a Voting Trust Certificate, will have the following
legend imprinted on them:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND SUCH LAWS. AS
A CONDITION TO SALE OR OTHER TRANSFER OF THIS SECURITY, THE COMPANY
MAY, AT ITS OPTION, REQUIRE THE PROPOSED TRANSFEROR HEREOF TO DELIVER
TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO
THE EFFECT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED FOR
SUCH PROPOSED SALE OR OTHER TRANSFER.
ARTICLE 3
ACTION BY TRUSTEE
3.01 Voting of Shares. While the Trustee holds Shares
deposited pursuant to the provisions of this Agreement, he shall,
subject to Paragraph 2.05, possess and shall be entitled to exercise in
person or by his nominee(s), agent(s), attorney(s)-in-fact, or proxies
all rights and powers of an absolute owner and to vote, assent, or
consent with respect to those rights and powers and to take part in and
consent to any corporate or shareholders actions, and to receive
dividends and distributions on the Shares. No other person shall have
any voting rights in respect to the Shares so long as this Agreement is
in effect and the Shares are registered in the name of the Trustee.
On any issue presented to shareholders of the Company, the
Trustee shall vote the Shares deposited pursuant to this Agreement, or
consent with respect to them, in his sole and absolute discretion.
3.02 Voting in Interest of Company. Subject to the
requirements of Paragraph 3.01 above, in doing any act not subject to
Paragraph 3.01 above regarding the control or management of the Company
or its affairs, as holder of stock deposited pursuant to this
Agreement, the Trustee shall exercise his best judgment in the interest
of the Company to the end that its affairs shall be properly managed,
but he shall assume no responsibility regarding management or any
action taken by management or taken by the Company in pursuance of his
consent to it as a shareholder or in pursuance of his vote so cast.
3.03 Action of Trustee. All action to be taken on any question
presented to the Trustee, except as otherwise expressly provided in
this Agreement, shall from time to time be determined by a signed
writing of the Trustee. The Trustee may provide for the authentication
of evidence of any action taken by him.
3.04 Meeting with Certificate Holders. On any issue presented
to the shareholders of the Company for vote, upon which the Trustee
desires the opinion of the Voting Trust Certificate Holders, the
Trustee may call a meeting for this purpose. At the meeting, the
Holders may determine the manner in which they desire the Trustee to
act, but the Trustee shall not be bound to act in the manner
designated. The Trustee shall not be called upon or expected to take
any action as a result of this meeting unless and until he has been
fully indemnified against all loss, damage, claim, or injury to which
he might be subjected, either by reason of his action or by reason of
his position as Trustee under this Agreement.
3.05 Trustees Relationship with Company. The Trustee, his
employees or agents, and any firm, corporation, trust, or association
of which he may be a trustee, stockholder, director, officer, member,
agent, or employee may contract with or be or become pecuniarily
interested, directly or indirectly, in any matter or transaction to
which the Company or AutoPrime, or any subsidiary or controlled or
affiliated corporation, may be a party or in which he may be concerned,
as fully and freely as thought the Trustee were not a Trustee pursuant
to this Agreement. The Trustee, his employees, or agents may act as
directors or officers of the Company or AutoPrime, or of any subsidiary
or controlled or affiliated corporation.
3.06 Compensation of Trustee. The Trustee shall serve without
compensation, except as may be agreed, from time to time, by the
Company and the Trustee.
3.07 Expenses. The Trustee is expressly authorized to incur
and pay those reasonable charges and expenses that he may deem
necessary and proper for the administration of this Agreement. The
Voting Trust Certificate Holders shall reimburse and indemnify the
Trustee for all claims, expenses, and liabilities incurred by him in
connection with the discharge of his duties under this Agreement. Any
such claims, expenses, or liabilities shall be charged to the Voting
Trust Certificate Holders, pro rata, and may be deducted from dividends
or other distributions to them, pursuant to Paragraph 4.04, or may be
made a charge payable following termination of the Voting Trust as a
condition to the delivery of Shares in exchange for Voting Trust
Certificates, pursuant to Paragraph 6.03, and the Trustee shall be
entitled to a lien for this charge on the share certificates, Shares,
funds, or other property in his possession.
3.08 Trustees Liability. The Trustee shall be free from
liability in acting upon any paper, document, or signature believed by
him to be genuine and to have been signed by the proper party. The
Trustee shall not be liable for any error of judgment, nor for any act
done or omitted, nor for any mistake of fact or law, nor for anything
that he may do or refrain from doing in good faith, nor generally shall
the Trustee have any accountability pursuant to this Agreement, except
that the Trustee shall be liable for his own intentional misconduct or
gross negligence. The Trustee may be advised by legal counsel, and any
action under this Agreement taken or suffered in good faith by him in
accordance with the opinion of counsel shall be conclusive on the
parties to this Agreement, and the Trustee shall be fully protected and
be subject to no liability in respect to any action taken or suffered
under this Agreement.
ARTICLE 4
DIVIDEND, DISTRIBUTION AND SUBSCRIPTION RIGHTS
OF CERTIFICATE HOLDERS
4.01 Cash Dividends. The Holders shall be entitled to receive
from time to time payments equal to the amount of cash dividends, if
any, collected or received by the Trustee on the Shares in regard to
which Voting Trust Certificates were issued, less the deductions
provided for in Paragraph 4.05. These payments shall be made to the
Holders as soon as practicable after the receipt of the dividends.
Instead of receiving cash dividends and paying them to the Holders, the
Trustee may instruct the Company in writing to pay the dividends
directly to the Holders. When these instructions are given to the
Company, all liability of the Trustee with regard to the dividends
shall cease, until the instructions are revoked. The Trustee may at any
time revoke the instructions and by written notice to the Company
direct it to make dividend payments to the Trustee.
4.02 Share Distributions. If the Trustee receives as a
dividend or other distribution on any Shares or other voting securities
held by him under this Agreement, any additional Shares or other voting
securities, the Trustee shall hold them subject to this Agreement for
the benefit of the Holders, and the Shares or other voting securities
shall become subject to all of the terms and conditions of this
Agreement to the same extent as if they were originally deposited under
it. The Trustee may, in his discretion, issue Voting Trust Certificates
in respect of these Shares or other voting securities to the Holders.
4.03 Other Distributions. If at any time during the term of
this Agreement the Trustee shall receive or collect any moneys
(including payment of cash dividends) through a distribution by the
Company to its shareholders or shall receive any property (other than
nonvoting securities) through a distribution by the Company to its
security holders, the Trustee shall distribute same to the Holders.
The Trustee may withhold from the distribution the deductions provided
for in Paragraph 4.04. Any voting securities received by the Trustee
through any such distribution shall be retained by the Trustee as part
of the assets of the Voting Trust, pursuant to Paragraphs 2.01 and
4.02 above.
4.04 Deductions for Distributions. There shall be deducted and
withheld from every distribution of every kind under this Agreement any
taxes, assessments, or other charges that may be required by law to be
deducted or withheld, as well as expenses and charges incurred pursuant
to Paragraph 3.07, to the extent that the expenses and charges remain
unpaid or unreimbursed.
4.05 Subscription Rights. If the Trustee shall receive notice
of an offer by the Company of additional securities for subscription,
the Trustee shall promptly mail a copy of the notice to the Holders. On
receipt by the Trustee, at least three (3) days prior to the last date
fixed by the Company for subscription, of a request from a Holder to be
subscribed in its behalf, accompanied by the sum of money required to
be paid for the securities, the Trustee shall make the subscription and
payment on behalf of such Holder.
On receiving from the Company the certificate for the
securities subscribed for, if the securities are voting securities, the
Trustee shall issue to the subscribing Holder a Voting Trust
Certificate in respect of those securities, and, if they are nonvoting
securities, the Trustee shall deliver the certificate to the
subscribing Holder.
4.06 Record Date for Distributions. The Trustee may, if he
deems it advisable, fix a date not exceeding ten (10) days preceding
any date for the payment or distribution of dividends, or for the
distribution of assets or rights, as a record date for the
determination of the Voting Trust Certificate Holders entitled to
receive the payment or distribution, and the Voting Trust Certificate
Holders of record on that date shall be exclusively entitled to
participate in the payment or distribution. If the Trustee fails to fix
a record date, the date three (3) days prior to the date of payment or
distribution of dividends or the distribution of assets or rights shall
constitute the record date for the determination of the Voting Trust
Certificate Holders entitled to receive the payment or distribution.
ARTICLE 5
BOOKS AND RECORDS
5.01 Record of Shares. It shall be the duty of the Trustee to
maintain a record of all share certificates of the Company that are
transferred to the Trustee, indicating the name in which the stock was
held, the date of issuance of the stock, the class of the stock, the
number of Shares, and the number of the certificates representing those
Shares. The Trustee shall also maintain a record of the date on which
he received any share certificates and the date on which they were
delivered to the Company for transfer to the Trustee, and shall obtain
a receipt for any certificates so delivered. The Trustee shall receive
and hold the new share certificates issued by the Company in the name
of the Trustee and shall maintain a record indicating the date of
issuance of the certificates, the date of receipt of the certificates,
and the place in which he is holding the certificates.
5.02 Record of Voting Trust Certificates. The Trustee shall
maintain a record showing the names and addresses of the Holders. The
record shall show the number of Certificates held by each person. The
record shall show the dates on which the Voting Trust Certificates were
issued, canceled, transferred, or replaced. The record shall be known
as the Voting Trust Certificate Register and shall be open to
inspection by any of the parties to this Agreement or their successors
at any reasonable time. The first Voting Trust Certificate Holder to
appear in such Register shall be the Certificate Holders who are
signatories to this Agreement. The record shall show any subsequent
transfer, assignment, pledge, attachment, execution, and any other
matter affecting the title to the Voting Trust Certificates that comes
to the attention of the Trustee. Any documents purporting to affect the
title of the Voting Trust Certificates shall also be kept in the Voting
Trust Certificate Register, together with a sample copy of the Voting
Trust Certificate.
5.03 Books of Account. The Trustee or his agent shall maintain
books of account that shall be in the form prescribed from time to time
by the Trustee. In addition to other matters that the Trustee may
insert in the record, the record shall show all sums of money received
by the Trustee, all disbursements made by the Trustee, and all
obligations incurred by the Trustee that are unpaid. Information
concerning these accounts shall be posted at least monthly.
5.04 Other Records. The Trustee shall maintain such other
books and records and shall perform the duties required of him to be
performed elsewhere in this Agreement.
5.05 Inspection of Records. The parties to this Agreement
shall deposit a counterpart of this Agreement with the Company at its
registered office, and the Agreement shall be subject to the same right
of examination by a shareholder of the Company, in person or by agent
or attorney, as are the books and records of the Company.
ARTICLE 6
TERM OF TRUST
6.01 Irrevocability of Trust. The trust created by this
Agreement is expressly declared to be irrevocable, except as otherwise
provided in this Agreement.
6.02 Termination. This Agreement shall terminate upon the
earlier to happen of the following events;
(a) The conversion of 3,500,000 Shares of Series A
Non-Cumulative Convertible Preferred Stock of the
Company;
(b) The mutual agreement evidenced in writing of (i) the
Holders of all Voting Trust Certificates, (ii) the
Company, and (iii) AutoPrime, Inc. or their
successor(s) in interest;
(c) December 30, 2013, subject to extension as provided in
Nevada Revised Statues, Section 78.365(2).
6.03 Distribution of Share Certificates After Termination. Within
thirty (30) days after the termination of this Agreement, the Trustee shall
distribute to the Voting Trust Certificate Holders, subject to Paragraphs 3.07
and 4.04 above, share certificates representing the number of Shares in respect
of which the Voting Trust Certificates were issued, in exchange for the
surrender of the Voting Trust Certificates properly endorsed and on payment by
the persons entitled to receive the share certificates of a sum sufficient to
cover (a) any governmental charge on the transfer or delivery of the share
certificates, and (b) any items described in Paragraphs 3.07 and 4.04 to the
extent they remain unpaid or unreimbursed, subject, however, to the liens
benefitting AutoPrime.
6.04 Final Accounting. Within sixty (60) days after termination of this
Agreement, the Trustee shall render a final accounting to the Voting Trust
Certificate Holders and to the Company and shall distribute any funds or other
assets held by him to the parties entitled to them.
ARTICLE 7
CERTAIN DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings assigned to them below, unless the context otherwise requires:
Company shall mean AutoCorp Equities, Inc., a Nevada corporation, and
any other entity which may become a successor to AutoCorp Equities, Inc. or the
business and assets of AutoCorp Equities, Inc. through conversion, sale of
assets, merger, consolidation, plan of share exchange, reorganization, or
otherwise.
Beneficial Interest shall mean the right, title, and interest of the
Holders in and to the Voting Trust and shall be divided into Shares and
evidenced as provided in Paragraph 2.04.
Holder shall mean a Voting Trust Certificate Holder.
Shares and shares shall mean, unless the context otherwise requires,
(a) the Shares of Common Stock of AutoCorp Equities, Inc. being deposited by the
Certificate Holders pursuant to this Agreement in connection with the execution
and delivery of this Agreement; (b) any additional Shares of Common Stock or
other voting securities of the Company subsequently deposited by the Certificate
Holders pursuant to Paragraph 2.01 of this Agreement; and (c) any Shares of
Common Stock or other voting securities of the Company which are received by the
Trustee as a dividend or other distribution (including a liquidating
distribution), or otherwise.
Voting Trust Certificate Holder, Certificate Holder, or Holder shall
mean a holder of a Voting Trust Certificate. The initial Voting Trust
Certificate Holders shall be the Certificate Holders who are signatories to this
Agreement. When there is more than one Voting Trust Certificate Holder, action
by such Holders may be authorized by them in the manner provided in Paragraph
4.07.
ARTICLE 8
MISCELLANEOUS
8.01 Place of Performance. This Agreement is made, executed, and
entered into at Dallas, Dallas County, Texas, and it is mutually agreed that the
performance of all parts of this contract shall be made at Dallas, Dallas
County, Texas, and any dispute arising hereunder must be resolved in the United
States District Court for the Northern District of Texas, Dallas Division, or a
Civil District Court, in and for Dallas County, Texas.
8.02 Governing Law. This Agreement is intended by the parties to be
governed and construed in accordance with the laws of the State of Texas, except
that all matters considered to be internal corporate matters of the Company,
including requirements of the formation and operation of voting trusts for
Nevada corporations shall be governed by Nevada law.
8.03 Construction by Trustee. The Trustee is authorized and empowered
to construe this Agreement. His reasonable construction made in good faith shall
be conclusive and binding on all parties to this Agreement and on any Voting
Trust Certificate Holders.
8.04 Notices to Parties. If given to a party to this Agreement, any
notice, demand, waiver, or consent required or permitted under this Agreement or
a Voting Trust Certificate shall be in writing and shall be given by personal
delivery, courier, overnight service, facsimile transmission, prepaid telegram
or prepaid registered or certified mail, with return receipt requested,
addressed to the pertinent address set forth on the signature page hereof.
The date of any such notice and of service thereof shall be deemed to
be the day of its receipt by the party to whom it is addressed. Any party hereto
may at any time and from time to time change its address for the receipt of
notice pursuant to this Agreement by giving notice to the other parties hereto
in the manner set forth herein for the giving of notice.
8.05 Notice to Holders. Any notice to be given to a Voting Trust
Certificate Holder other than the Certificate Holders shall be sufficiently
given if mailed, postage prepaid, to him or her at the address of the Voting
Trust Certificate Holder appearing in the Voting Trust Certificate Register to
be maintained by the Trustee. Every notice so given shall be effective whether
or not received, and such notice shall for all purposes be deemed to have been
given on the date of its mailing.
8.06 Notice and Reports from Company. Each Holder shall have the right
to:
(a) Receive from the Company, in the same manner and at the
same time as if the Holder were a shareholder, copies
of such reports, financial statements, notices, proxy
statements, and other documents as the Company shall
distribute to its shareholders.
(b) Receive from the Company notice of each annual and
special meeting of shareholders, in the same manner and
at the same time as if the Holder were a shareholder.
8.07 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which, taken
together, shall constitute one and the same instrument.
8.08 Amendment of Agreement. This Agreement may be amended by the
agreement in writing of the Company and the Trustee, together with approval by
the Voting Trust Certificate Holders obtained in accordance with the provisions
of Paragraphs 4.07, 4.08 and this Paragraph 8.09. If the Trustee deems it
advisable, he shall call a special meeting of Voting Trust Certificate Holders
for the purpose of obtaining the approval of the Holders. The notice of the
meeting shall contain a copy of the proposed amendment.
8.09 Advice of Counsel. Each of the parties agrees and represents that
he or she has been represented by his or her own counsel with regard to the
execution of this Agreement or, if acting without counsel, that he or she has
had adequate opportunity and has been encouraged to take the advice of his or
her own counsel prior to the execution of this Agreement.
8.10 Duplicate of this Agreement. A duplicate of this Agreement shall
be filed in the registered office of the Company in the State of Nevada. Such
duplicate shall at all times during the term of this Agreement be open to
inspection by any stockholder or his attorney.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be duly executed on their behalf as of the day and year first
above written.
ADDRESSES:
THE COMPANY
AutoCorp Equities, Inc. AUTOCORP EQUITIES, INC.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000 By:/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
President and
Chief Executive Officer
THE TRUSTEE
Xxxxxxx Xxxxxx, Trustee
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000 /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx, Trustee
THE VOTING TRUST
CERTIFICATE HOLDERS
APPROVED:
AUTOPRIME, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
EXHIBIT A
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT AND SUCH LAWS. AS A CONDITION TO SALE OR OTHER TRANSFER
OF THIS SECURITY, THE COMPANY MAY, AT ITS OPTION, REQUIRE THE PROPOSED
TRANSFEROR HEREOF TO DELIVER TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED FOR SUCH PROPOSED SALE OR OTHER TRANSFER.
AUTOCORP EQUITIES, INC.
VOTING TRUST CERTIFICATE
ISSUED UNDER VOTING TRUST Agreement II
(Management of AutoCorp)
Certificate Number ______
This Voting Trust Certificate (Certificate) evidences that
_________________ (referred to in this Certificate as the Certificate Holder) is
the owner and holder of _______ Shares of Beneficial Interest in Voting Trust II
(the Voting Trust) created pursuant to that certain Voting Trust Agreement II
(Voting Trust Agreement II) dated as of December 30, 1998, by and among certain
Certificate Holders, AutoCorp Equities, Inc. (the Company), and Xxxxxxx Xxxxxx,
as Trustee (the Trustee).
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in Voting Trust
Agreement II.
This Certificate is issued by the Trustee to the Certificate Holder on
the following terms and conditions:
1. Rights of Certificate Holder. The Certificate Holder hereby accepts
and ratifies all of the terms, conditions, and covenants of the Voting Trust
Agreement. A counterpart of this Agreement is on file at the registered office
of the Company in the State of Nevada and is incorporated by reference in this
Certificate as though set forth in full herein.
This Certificate evidences ownership of only a Beneficial Interest in
the Voting Trust. Pursuant to Voting Trust Agreement II, the Trustee is the
owner and holder of the legal title of all Shares of Common Stock of the Company
deposited pursuant to the Agreement. The Certificate Holder has rights with
respect to the Shares of stock of the Company deposited pursuant to Voting Trust
Agreement II only as provided in the Agreement.
2. Voting Rights. The undersigned Trustee during the term of this
Voting Trust Agreement is the legal owner of the Shares of stock of the Company
deposited pursuant to this Voting Trust Agreement for all purposes relating to
Voting Trust Agreement and in all matters of the Company for which the Shares
may be voted. No voting rights of Shares deposited pursuant to this Voting Trust
Agreement are granted to the Certificate Holder by this Certificate. Only the
rights as a Holder of a Beneficial Interest in Voting Trust provided to the
Certificate Holder in this Voting Trust Agreement are represented by this
Certificate.
3. Dividends and Distributions. The Certificate Holder is entitled to
receive, subject to the limitations in this Voting Trust Agreement, all cash
dividends or other distributions of non-voting securities of the Company
received by the undersigned Trustee. In the event of share dividends, the
Trustee shall receive and hold them pursuant to the terms of Voting Trust
Agreement I and may, in his discretion, issue to the Certificate Holder
additional Voting Trust Certificates representing the share dividends.
4. Termination. The Voting Trust shall terminate upon the earlier to
happen of the following events;
(a) The conversion of all then-outstanding Shares of Series
A Non-Cumulative Convertible Preferred Stock of the
Company;
(b) The mutual agreement evidenced in writing of (i) the
Holders of all Voting Trust Certificates, (ii) the
Company and (iii) AutoPrime, Inc. or its successor(s)
in interest;
(c) December 30, 2012, subject to extension as provided in
Nevada Revised Statutes, Section 78.365(2).
5. Distribution of Share Certificates After Termination. Subject to the
terms and provisions of Voting Trust Agreement II, within thirty (30) days after
the termination of Voting Trust Agreement II, the Trustee shall distribute to
the Certificate Holder, subject to Paragraphs 3.07 and 4.04 of Voting Trust
Agreement II, certificates for Shares representing the number of Shares in
respect of which this Certificate was issued, in exchange for the surrender of
this Certificate properly endorsed and on payment by the Certificate Holder of a
sum sufficient to cover (a) any governmental charge on the transfer or delivery
of the share certificates, and (b) the pro rata share attributable to this
Certificate of any items described in Paragraphs 3.07 and 4.04 of Voting Trust
Agreement II to the extent they remain unpaid or unreimbursed.
6. Transfer of Certificates. Subject to the terms of Voting Trust
Agreement II and the lien rights of AutoPrime, Inc., this Certificate is
transferable in the same manner as any other security. Any transfer shall be on
the books of the Trustee or his agent and shall be made only on the surrender of
this Certificate by the Certificate Holder or his or her attorney endorsed in
blank or to the transferee. The Trustee may treat the registered Certificate
Holder or, at the election of the Trustee in his sole and absolute discretion,
when presented duly endorsed in blank, the bearer of this Certificate as its
absolute owner and as the owner of all rights and interests in the Voting Trust
represented by this Certificate for all purposes whatsoever. The Trustee shall
not be bound or affected by any notice to the contrary.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Voting
Trust Certificate as of the ______ day of ___________________, 199__.
TRUSTEE
------------------------------------
Xxxxxxx Xxxxxx, Trustee
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and
transfers to ___________________ this Voting Trust Certificate and the
Beneficial Interest in the Voting Trust represented by this Voting Trust
Certificate. The undersigned irrevocably appoints _________________ his or her
attorney with full power of substitution to transfer this Certificate on the
books of the Trustee.
Dated: ______________, 19____. ________________________________________
(Please sign exactly as name appears on
Certificate)
________________________________________
(Typed or Printed Name)
Taxpayer ID No.______________________
SIGNATURE GUARANTEED
________________________________________
(Name of Bank, trust company or broker)
By: ___________________________________
Name:___________________________________
Its: ___________________________________
Address: _______________________________
________________________________________
EXHIBIT B
FORM OF INVESTMENT LETTER
To: Xxxxxxx Xxxxxx, Trustee
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
In connection with the transfer to the undersigned of Shares of
Beneficial Interest in the Voting Trust established by that certain Voting Trust
Agreement II dated December 30, 1998, by and among certain Certificate Holders,
AutoCorp Equities, Inc., and Xxxxxxx Xxxxxx (the Trustee), the undersigned
hereby represents that he/she/it is acquiring such Shares of Beneficial Interest
(as evidenced by one or more certain Voting Trust Certificate(s) issued pursuant
to Voting Trust Agreement II) for his/her/its own account for investment and not
with a view to or for sale in connection with any distribution of said Shares.
Capitalized terms used herein, which are not defined herein, shall have
the same meanings when used herein as they do when used in Voting Trust
Agreement II.
Dated:______________________ ____________________________________
By:_________________________________
(Signature)
____________________________________
(Printed or Typed Name)
