VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement") is made this 18th day of
August, 1998 between those shareholders of ADM TRONICS UNLIMITED, INC., a
Delaware corporation (the "Company"), whose names are hereunto subscribed and
any other shareholders of the Company who shall join in and become parties to
this Agreement as hereinafter provided (each, a Shareholder and, collectively,
the "Shareholders") and ANDRE' DI MINO, having offices at 000-X Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the "Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement among
Electropharmacology, Inc., the Company and AA Northvale Medical Associates, Inc.
(the "Asset Purchase Agreement"), the Shareholders have acquired the shares of
common stock of the Company in the amounts set forth opposite their respective
names on Exhibit A attached hereto (the "Purchase Shares"); and
WHEREAS, with a view to safe and competent management of the Company in
the interests of all shareholders thereof, the Shareholders desire to create a
trust in the manner as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Transfer of Shares. Upon the execution hereof, the Shareholders
shall deliver to the Trustee the certificate or certificates, if issued,
representing the Purchase Shares. In addition, the Shareholders shall deliver to
the Trustee the certificate or certificates representing any shares of common
stock of the Company subsequently acquired upon exercise of Warrants issued
pursuant to the Asset Purchase Agreement. Such shares and the Purchase Shares
are hereinafter collectively referred to as the "Shares." All such certificates
shall be endorsed in blank or accompanied by proper stock transfer powers. The
Shares shall be held by the Trustee for the Term (as hereinafter defined)
subject to the terms hereof.
2. Delivery to the Company. A counterpart of this Agreement and of
every agreement supplemental hereto shall be filed at the Company's principal
office.
3. Other Shareholders May Join. Any shareholder of the Company may
become a party to this Agreement by executing a copy hereof and delivering the
certificates representing their respective Shares to the Trustee in a manner as
set forth in paragraph 1 hereof.
4. Voting Trust Certificates. Upon delivery to the Trustee of the
certificates representing the Shares, the Trustee shall cause the Shares to be
transferred on the books of the Company to the Trustee, as trustee, and will
deliver to each of the Shareholders a trust certificate for the number of Shares
delivered to the Trustee, substantially in the form of the certificate attached
hereto as Exhibit B (a "Voting Trust Certificate"). The Trustee shall keep a
record of the holders of the Voting Trust
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Certificates, including the names and addresses of the holders and the
number and class of Shares in respect of which the respective Voting Trust
Certificates are issued (the "Voting Trust Record"). A copy of the Voting Trust
Record shall be deposited by the Trustee with the Company at its principal
office.
5. Transfer of Voting Trust Certificates. The provisions of the Asset
Purchase Agreement relating to the transfer or other disposition of any or all
of the Shares (the "Restrictions") shall be deemed to apply to the Voting Trust
Certificates. Subject to the foregoing and the other provisions of this
Agreement, the Voting Trust Certificates may be transferred by endorsement by
the person to whom such Voting Trust Certificate was issued, or by such person's
attorney-in-fact, guardian or personal representative of such person's estate,
and delivery to the Trustee. A transfer shall not be evidence to or binding upon
the Trustee until the Voting Trust Certificate is surrendered to the Trustee and
the transfer is so entered upon the Voting Trust Record reflecting the names of
the parties by whom and to whom transferred, the numbers of the Voting Trust
Certificates, the number of Shares and the date transferred. No new Voting Trust
Certificate shall be issued until the former Voting Trust Certificate for the
Shares represented shall have been surrendered to and canceled by the Trustee.
In the event that any Voting Trust Certificate shall be claimed to be lost or
destroyed, a new Voting Trust Certificate may be issued upon such proof of loss
and delivery of such security as may be required by the Trustee acting
reasonably.
6. Disposition of Shares. Subject to the provisions of Section 5
hereof, in the event that a Shareholder (a "Disposing Shareholder") desires to
transfer or otherwise dispose of any or all of its Shares, the Disposing
Shareholder shall first deliver to the Voting Trustee notice thereof (a
"Disposition Notice") and the Disposing Shareholder's Voting Trust Certificate,
duly endorsed for transfer. If such Shares are not then the subject of a current
and effective registration statement under the Securities Act of 1933 (the
"Act"), the Disposing Shareholder shall also deliver to the Voting Trustee an
opinion of the Disposing Shareholder's counsel which opinion must be reasonably
acceptable to the Company's counsel, at the Disposing Shareholder's sole cost
and expense, to the effect that the disposition of the Shares will be exempt
from the registration requirements of the Act and such written representations
of the proposed recipient of such Shares as shall be reasonably be required by
the Company's counsel. The Voting Trustee shall then take such steps as are
reasonably required to issue the requisite number of Shares in accordance with
the instructions in the Designation Notice and issue a new Voting Trust
Certificate to the Disposing Shareholder with respect to any remaining Shares.
If the Shares being disposed of are the subject of a current and effective
registration statement under the Act or such Shares are being sold pursuant to
Rule 144 thereunder, not later than 5:00 p.m. (New Jersey time) on the business
day following the delivery of the Disposition Notice (and if required the
opinion of counsel with respect thereto) the Voting Trustee shall send the
certificate representing such Shares to the Company's Transfer Agent by means of
an overnight courier service, such as Federal Express, with instructions to
immediately reissue a certificate representing the Shares being sold and deliver
such certificate as directed by the Disposing Shareholder and, if less than all
the Shares of the Disposing Shareholder are being sold, reissue a Voting Trust
Certificate to the Disposing Shareholder. The Voting Trustee acknowledges that
time is of the essence with respect to such delivery of the Shares so that the
Disposing Shareholder can meet its delivery obligations with respect to the
delivery of the certificate representing such Shares. If the Shares are not
being disposed
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of pursuant to a current and effective registration statement under the Act or
pursuant to Rule 144, the Voting Trustee shall deliver such Shares and such new
Voting Trust Certificate as promptly as possible, and in no event later than the
close of business on the fifth business day following delivery of the
Disposition Notice (and the opinion of counsel with respect thereto) and the
Voting Trust Certificate to the Voting Trustee. Notwithstanding the foregoing,
the Disposition Notice shall not be deemed to have been duly delivered unless it
contains such information as shall be reasonably requested by the Company's
counsel, provided, however, that if the Voting Trustee does not object to the
Disposition Notice before 5:00 p.m. (New Jersey Time) on the business day
following the actual delivery to the Voting Trustee of the Disposition Notice,
the Disposition Notice shall be deemed to have been duly delivered. Except as
provided in the immediately preceding sentence, Delivery Notices and Voting
Trust Certificates shall be deemed to be delivered on the date actually received
at the address set forth in the preamble hereto (or such other address as may be
subsequently provided to the Shareholders) and addressed to the Voting Trustee
or, if such delivery is rejected, on the date such delivery is rejected.
7. Voting of Shares. Upon the execution hereof, the Trustee shall have
the duty and the sole and exclusive power and authority to vote the
Shareholders' Shares, in person or by proxy, as in the judgement of the Trustee
may be in the best interests of the Company, at all regular and special meetings
of the shareholders of the Company, upon any action by written consent of
shareholders, in the election of directors and upon any matter or question that
may be brought before the shareholders of the Company, as fully as any
Shareholder might do if personally present, including but not limited to the
right to vote the Shares to increase or decrease the authorized capital stock of
the Company or divide or subdivide the outstanding equity securities of the
Company.
8. Liability of Trustee. The Trustee shall use the Trustee's best
judgement in voting the Shares subject to this Agreement, but shall not be
liable for any act or omission, any vote or consent given, in good faith and in
the absence of gross negligence or wilful misconduct. The Trustee shall use its
best judgement in voting the Shares held by the Trustee, but the Trustee shall
assume no responsibility for the consequence of any vote cast, or consent given
by the Trustee, in good faith and in the absence of gross negligence or wilful
misconduct.
9. Power to Construe Agreement. The Trustee is hereby empowered to
construe this Agreement, and the Trustee's reasonable and good faith
construction of this Agreement shall be final, conclusive and binding upon all
holders of the Voting Trust Certificates and all other interested parties.
10. Successor Trustee. In the event of the incapacity of the Trustee to
act as such, the Board of Directors of the Company shall appoint a successor
trustee.
11. Term. Unless sooner terminated by the parties hereto, the term of
this Agreement and the voting trust contained herein (the "Term") shall be for a
period of ten (10) years from the date hereof (the "Term"). Notwithstanding the
foregoing the Term shall expire with respect to any of the Shares sold without
violating the Restrictions pursuant to a then effective and current Registration
Statement under the Act or Rule 144 thereunder. Upon expiration of the Term, the
Shares then held by the Trustee shall be assigned to the respective Shareholders
then entitled to such Shares upon
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surrender of the Shareholders' Voting Trust Certificates. Thereafter, the
Trustee shall be relieved and discharged from any further obligation hereunder.
12. Dividends and Distributions. In the event that any dividend or
distribution is declared by the Company, the portion of such dividend or
distribution payable to the holders of the Voting Trust Certificates shall be
paid to the Trustee for the benefit of the holders of the Voting Trust
Certificates. The Trustee shall divide all dividends and distributions among the
holders of the Voting Trust Certificate in proportion to the number of Shares
respectively represented by such Voting Trust Certificate to the number of
Shares represented by all Voting Trust Certificates. If any dividend or
distribution shall be paid in the form of securities of the Company, the Trustee
shall receive such securities and the holders of the Voting Trust Certificates
shall be entitled to the delivery of new or additional Voting Trust Certificates
representing such holder's proportional amount of the securities so received by
the Trustee.
13. Notice. All notices, demands, requests, or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, telegram, facsimile, or telex,
addressed as follows
If to Electropharmacology, Inc.:
Electropharmacology, Inc.
0000 XX 00xx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxx Facsimile: (000) 000-0000
If to Xxxxx, Day, Xxxxxx & Xxxxx:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxx, XX
Attn.: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile. (000) 000-0000
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If to the Voting Trustee
Andre' Di Mino
c/o ADM Tronics Unlimited, Inc.
000-X Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Except as otherwise set forth herein, each notice, demand, request or
communication that is mailed, delivered or transmitted in the manner described
above shall be deemed sufficiently given, served, sent and received for all
purposes at such time as it is delivered to the addressee, with the return
receipt, the delivery receipt, the affidavit of messenger, or (with respect to a
telecopy or telex) the answerback or confirmation of receipt being deemed
conclusive evidence of such delivery, or at such time as delivery is refused by
the addressee upon presentation.
14. Counterparts. This Agreement may be executed in counterparts and
all executed counterparts shall be deemed an original, bind upon all parties.
15. Facsimile Signatures. Facsimile signatures on counterparts of this
Agreement are hereby authorized and shall be acknowledged as if such facsimile
signatures were an original execution, and this agreement shall be deemed as
executed when an executed facsimile hereof is transmitted by a party to any
other party.
16. Governing Law. This agreement shall be construed and interpreted in
accordance with and shall be governed by the laws of the State of Delaware
without regard to principals of conflict of law and irrespective of the fact
that one or more parties hereto is now or may hereafter be a resident of a
different state, jurisdiction or country.
17. Venue/Jurisdiction. Each of the parties hereto hereby consents to
the exclusive jurisdiction and venue in the state and federal courts in the
State of New Jersey with respect to any matter relating to this Agreement and
the performance of the parties' obligations hereunder and each of the parties
hereto hereby further consents to the personal jurisdiction of such courts. Any
action suit or proceeding brought by or on behalf of any of the parties hereto
relating to such matters shall be commenced, pursued, defended and resolved only
in such courts and any appropriate appellate court having jurisdiction to hear
an appeal from any judgment entered in such courts. The parties hereby agree
that service of process may be made in any manner permitted by the rules of such
courts and the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Shareholders have set their hands and seals and
set opposite their signatures the number of Shares held by them respectively,
and the Trustee has executed this Agreement on the day and date first above
written.
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ELECTROPHARMACOLOGY, INC
By: /s/ Xxxx Xxx
--------------------------------
XXXXX, DAY, XXXXXX & XXXXX
By: Xxxxx Xxxxxxxxx
--------------------------------
ANDRE' DI MINO
/s/
--------------------------------
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EXHIBIT A
================================================================================
Shareholder Name Number of Shares
--------------------------------------------------------------------------------
ELECTROPHARMACOLOGY, INC.,. 1,400,000
--------------------------------------------------------------------------------
XXXXX, DAY, XXXXXX & XXXXX 1,525,000
================================================================================
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EXHIBIT B
VOTING TRUST CERTIFICATE
THIS SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
DISPOSED OF (A) UNLESS REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL
FOR ADM TRONICS UNLIMITED, INC., AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE AND (B) SUCH DISPOSITION IS IN ACCORDANCE WITH THE PROVISIONS OF THE
VOTING TRUST AGREEMENT DESCRIBED BELOW.
This is to certify that the undersigned Trustee has received a
certificate or certificates issued in the name___________________________ of
evidencing the ownership of ________________ shares of common stock of ADM
TRONICS UNLIMITED, INC. a Delaware corporation, and that the shares are held
subject to all of the terms and conditions of that certain Voting Trust
Agreement dated August ______, 1998 by and between ADM Tronics Unlimited, Inc.
and certain shareholders thereof (the "Voting Trust Agreement"). During the Term
of the Voting Trust Agreement as that term is defined therein, the Trustee or
the Trustee's successors or assigns as provided in the Voting Trust Agreement,
shall possess and shall be entitled to exercise the right to vote and otherwise
represent all of the shares for all purposes, it being agreed that no voting
right shall pass to the holder hereof by virtue of the ownership of this Voting
Trust Certificate.
This Voting Trust Certificate is assignable with the right of issuance
of a new Voting Trust Certificate of like tenor only upon the surrender to the
undersigned or its successors of this Voting Trust Certificate properly
endorsed. Upon termination of the Voting Trust Agreement, this Voting Trust
Certificate shall be surrendered to the Trustee by the holder upon delivery to
such holder of a stock certificate representing a like number of shares.
IS IN WITNESS WHEREOF, the undersigned Trustee has executed this Voting
Trust Certificate this _________ day of August 1998.
/s/Xxxxx Xx Xxxx
------------------
Andre' Di Mino
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For value received, the undersigned hereby sells, assigns and transfers
to________________ , whose address is___________________________________________
the within Voting Trust Certificate and all the property rights and interests
represented thereby or arising therefrom, subject to all the terms, provisions
and conditions of the Voting Trust Agreement referenced in the Voting Trust
Certificate, and hereby authorizes the Trustee named in the Voting Trust
Certificate, or its successor, to transfer the Voting Trust Certificate on its
books and records and to issue in lieu thereof a new Voting Trust Certificate(s)
to the transferee(s) in accordance therewith and with the Voting Trust
Agreement.
Witness the hand and seal of the undersigned the ______ day of _______,
________.
Witnesses:
/s/
-------------------------
Print Name:
/s/
-------------------------
Print Name:
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