EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT ("Agreement") is made and entered into as
of the 31st day of December, 1996, by and between Xxxx X. Xxxxxxx, an individual
resident of the State of Tennessee, Xxxx X. Xxxxx, an individual resident of the
State of Tennessee, Xxxxx XxXxxxx, an individual resident of the State of
Tennessee, Xxxxx X. Xxxxx, an individual resident of the State of Georgia and
Salem Capital Corporation, a Tennessee corporation (collectively, the
"Shareholders"), Xxxx X. Xxxxxxx, an individual resident of the State of Georgia
(the "Trustee"), and Intercept Holdings Inc., a Georgia corporation (the
"Corporation").
W I T N E S S E T H:
WHEREAS, in consideration of the Shareholders' services to the
Corporation and/or one or more of its affiliates, the Corporation has granted,
in the aggregate, options to purchase 271,250 shares of the common stock, no par
value per share (the "Stock"), of the Corporation and may in the future grant
other options (all such existing and hereafter granted options, collectively,
the "Options") to purchase additional shares of the Stock (collectively, the
"Option Shares") pursuant to the Corporation's 1996 Stock Option Plan and one or
more Stock Option Agreements executed pursuant thereto by and between the
Corporation and the Shareholders (collectively, the "Option Agreements"); and
WHEREAS, pursuant to the Option Agreements, each Shareholder agreed to
place upon exercise of the Options, all of the Option Shares (collectively with
all other securities of the Corporation which the Shareholders hereafter own or
acquire, the "Trust Shares") into a voting trust; and
WHEREAS, the Trustee is the Chief Executive Officer of the
Corporation; and
WHEREAS, the Shareholders deem it in the best interests of the
Shareholders and the Corporation to have the Trust Shares held and voted by the
Trustee in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Transfer of Shares to Trustee. (a) Each Shareholder hereby assigns
and transfers all of their Shares, as set forth at the end of this Agreement, to
the Trustee, which Trust Shares shall be held by the Trustee subject to the
terms and conditions of this Agreement. In addition, the Shareholders agree to
transfer and assign, and hereby transfer and assign to the Trustee all Trust
Shares, including but not limited to Stock, issued to them by the Corporation or
otherwise acquired by them during the term of this Agreement, and the
Shareholders agree that all such Trust Shares shall automatically be subject to
this Agreement.
(b) The share certificates of the Corporation respecting all of the Trust
Shares assigned and transferred by the Shareholders to the Trustee pursuant to
this Agreement shall be immediately endorsed in blank by each of the
shareholders of record thereof with such endorsement guaranteed by a national
bank or by a member broker of the New York or American Stock Exchange
("Medallion Guaranteed") and, as so endorsed, immediately delivered by the
Shareholders to the Trustee. In addition, each Shareholder shall execute and
deliver any other documents, powers, certificates or agreement required by the
Corporation, its transfer agent or the Trustee for the purpose of transferring
record ownership of any Trust Shares to the Trustee.
(b) Upon receipt of certificates representing the Trust Shares and all
other documents, powers or agreements required to transfer such certificates (i)
the Trustee shall surrender such certificates to the Corporation to be
transferred of record on the books of the Corporation to the Trustee, and (ii)
upon receipt by the Trustee of new certificates, as so transferred, the Trustee
shall deliver to the Shareholder one or more Voting Trust Certificates for the
Trust Shares represented by such stock certificate each in the form attached
hereto as Exhibit A.
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2. Term of Voting Trust and Powers of Trust. The Voting Trust hereby
declared and created shall, subject to earlier termination as hereinafter
provided, continue for the full term of five (5) years from the first date on
which any Shares subject hereto are transferred to the Trustee pursuant to this
Agreement, and throughout such period the Trustee, as Trustee of an active
trust, shall have the exclusive and unlimited right to act in respect of and to
vote the Trust Shares held by him hereunder or to give written consent in lieu
of voting thereon as if he were the exclusive owner of such shares, in person or
by proxy at any and all meetings of the shareholders of the Corporation, for
whatsoever purpose called or held, and in any and all proceedings, whether at
meetings of the shareholders of the Corporation or otherwise, wherein the vote
or written consent of shareholders of the Corporation may be required or
authorized by law. Except as expressly limited in this Agreement, until the
expiration of the term of this Agreement, the Trustee shall, in his sole and
uncontrolled discretion, in respect of any and all of the Trust Shares held by
him hereunder, possess and be entitled to exercise the right to vote thereon for
every purpose, to execute any agreement, certificate or other document affecting
the Trust Shares and the Shareholder's rights therein (including but not limited
to a lock-up agreement), to waive Shareholder's any privilege in respect
thereof, and to consent to any lawful act of the Corporation, as though absolute
owner of the Shares, it being expressly agreed that no voting right shall pass
to others by or under the Voting Trust Certificates, or by or under this
Agreement, or by or under any other agreement, express or implied. The Trustee
may also be a shareholder or a registered holder of one or more Voting Trust
Certificates, and may serve as a director and compensated officer of the
Corporation and may vote for himself, as such. The Trustee, or his successor as
hereinafter provided, may directly or indirectly transact any lawful business
with the Corporation, notwithstanding his position as a Trustee. The Trustee is
hereby excused from the necessity of giving bond hereunder.
3. Transfer. (a) During the term of this Agreement, no Shareholder
shall sell, assign, transfer or otherwise convey or attempt to sell, assign,
transfer or convey all or any of the Trust Shares or any rights therein.
(b) Voting Trust Certificates issued by the Trustee hereunder may be
transferred on the books of the Trustee upon the surrender and cancellation of
such certificates duly endorsed by the registered holder thereof, with signature
Medallion Guaranteed. Except as provided in Section 6 of this Agreement,
delivery of such voting trust certificates, duly endorsed in blank, by the
registered holder thereof, as aforesaid, shall vest title thereto and all rights
thereunder in the transferees to the same extent and for all purposes as would
delivery under like circumstances of negotiable instruments payable to bearer;
provided, however, that the Trustee may treat the holders of record thereof, or
when presented duly endorsed, as aforesaid in blank, the bearers thereof, as the
owners thereof for all purposes whatsoever, and shall not be affected by any
notice to the contrary; provided further, that the Trustee shall not be required
to deliver any certificates hereunder without the surrender of Voting Trust
Certificates calling therefor. Title to the Voting Trust Certificates, when
duly endorsed and Medallion Guaranteed as aforesaid, shall, to the extent
permitted by law, be transferable with the same effect as in the case of
negotiable instruments.
Every transferee of any Voting Trust Certificate or certificates issued
hereunder shall by the acceptance of such Voting Trust Certificate or
certificates become a party hereto with like effect as though an original party
hereto, and shall be embraced within the meaning of the term "Shareholders"
whenever used herein.
(c) In connection with, and as a condition of, making or permitting
any transfer or delivery of share certificates or other securities or Voting
Trust Certificates under any provision of this Agreement, the Trustee may
require the payment of a sum sufficient to pay or reimburse him for any stamp
tax or other governmental charge in connection therewith. The transfer books
for Voting Trust Certificates may be closed by the Trustee, at any time prior to
the payment or distribution of dividends, or for any other purpose, or the
Trustee, in his discretion, in lieu of closing the transfer books, may fix a
date as the day as of which the registered holders of voting trust certificates
entitled to such payment or distribution or for such other purpose shall be
determined.
4. Exchange of Shares. In case any reclassification of the shares of the
Corporation shall occur due to amendment of the Articles of Incorporation of the
Corporation, distribution, dividend, or otherwise the Trustee surrender the
Trust Shares as may be required under the terms pursuant to which such
reclassification is to be effected, and to receive and hold any and all shares
issued in exchange for such surrendered Trust Shares. Following any such action,
the Voting Trust Certificates issued and outstanding pursuant hereto shall be
deemed to represent a proportionate number of shares or other securities so
received in exchange by the Trustee. Upon any duly authorized agreement of
consolidation, merger or share exchange becoming effective as by law and herein
provided, then the Trustee may surrender the Trust Shares as may be required
thereby, and to receive and hold hereunder any and all shares or other
securities issued to him in exchange for such surrendered the Trust Shares or
otherwise. The Voting Trust Certificates shall thereupon be deemed to represent
a proportionate number of the shares or other securities so received by the
Trustee. In the event of the distribution of the assets of the Corporation upon
the dissolution thereof, the Trustee shall promptly distribute the amount
thereof received by him according to the interests of such registered Voting
Trust Certificate holders, upon the surrender of the Voting Trust Certificates
held by them respectively, duly endorsed in blank by each of the Shareholders
and Medallion Guaranteed. Upon the distribution of such assets by the Trustee,
as aforesaid, this Agreement shall terminate
and all liability of the Trustee for the delivery of share certificates
representing the Trust Shares held by the Trustee shall likewise terminate.
5. Dividends. During the term of this Agreement, the Shareholders shall
be entitled to all dividends and other distributions on or in regard to the
Trust Shares, and the Trustee shall promptly pay to the Shareholders the amount
of any such dividends and distributions received by the Trustee.
6. Restrictive Legend; Investment Intent. (a) Anything contained herein
to the contrary notwithstanding, the Shareholders covenant and agree that all
Voting Trust Certificates subject hereto shall be conspicuously imprinted with
and subject to the terms of the following legend:
This Voting Trust Certificate is subject to the terms, restrictions and
conditions of a Voting Trust Agreement on file with Intercept Holdings
Inc., dated as of December 31, 1996. The securities represented by this
Voting Trust Certificate have not been registered under the Securities Act
of 1933 (the "Act") or applicable state securities laws (the "State Acts"),
and shall not be sold, pledged, hypothecated, donated or otherwise
transferred (whether or not for consideration) by the holder except upon
the issuance to the Trustee of a favorable opinion of his counsel and
submission to the Trustee of such other evidence as may be satisfactory to
counsel to the Trustee, to the effect that any such transfer shall not be
in violation of the Act and the State Acts.
(b) Each of the Shareholders represents and warrants that the voting
trust certificates being acquired by such Shareholder pursuant hereto are being
acquired for investment for such Shareholder's own account and not with a view
to offer for sale or for sale in connection with the distribution or transfer
thereof. Each of the Shareholders further warrants and represents that such
Shareholder is neither participating in or has a direct or indirect
participation in the distribution or transfer of such voting trust certificates,
nor is participating in or has a participation in the direct or indirect
underwriting of any such distribution or transfer of the voting trust
certificates. Each of the Shareholders acknowledges and represents that he has
been advised by the Trustee that the Voting Trust Certificates are not
registered under the Securities Act of 1933, as amended ("1933 Act") and that
the Trustee is neither presently required to file nor does it presently intend
to voluntarily register under Section 12 of the Securities and Exchange Act of
1934 (the "1934 Act") and file periodic reports with the Securities Exchange
Commission (the "S.E.C.") pursuant to Section 13 or 15(d) of the 1934 Act. Each
of the Shareholders further warrants and represents that he has been advised by
the Trustee that the Trustee has not agreed with any of the Shareholders to
register any or all of the voting trust certificates for distribution in
accordance with the 1933 Act, and that Corporation has not agreed with any
Shareholder to comply with any exemption under the 1933 Act respecting the
resale or other transfer for consideration of the Voting Trust Certificates. The
Trustee has not agreed to supply any Shareholder with such information as shall
be required to enable any Shareholder to make routine sales of any or all of the
Voting Trust Certificates under the provisions of Rule 144 promulgated by the
S.E.C. under the 1933 Act respecting "restricted securities." Accordingly, each
of the Shareholders warrants and represents that he has been advised by the
Trustee that the Voting Trust Certificates that each of the Shareholders is
acquiring pursuant hereto must be held by each such Shareholder indefinitely
unless and until
subsequently registered under the 1933 Act and applicable state securities laws
or unless an exemption from such registration is available.
7. Share Issuances. In the event that the Trustee shall receive any
additional securities (as defined by the 0000 Xxx) of the Corporation, including
by way of example, and not of limitation, by way of dividend upon shares held by
it under this Agreement, the Trustee shall hold such share certificates likewise
subject to the terms of this Agreement, and shall issue Voting Trust
Certificates representing such share certificates to the respective registered
holder of the then outstanding Voting Trust Certificate entitled to such
issuance.
8. Termination. Notwithstanding anything to the contrary provided for
herein, this Agreement shall terminate upon the earlier of the expiration of the
term herein provided, or the closing of an underwritten initial public offering
of the Corporation's Stock. Upon the termination of this Agreement as above
specified, the Trustee, his guardian or personal representative, as the case may
be, in exchange for, and upon surrender of, any Voting Trust Certificate then
outstanding, duly endorsed in blank by the registered holder thereof with
signature Medallion Guaranteed shall, in accordance with the terms hereof, and
out of the Shares held by him hereunder, deliver certificates of shares of the
Corporation to the registered holders of Voting Trust Certificates and thereupon
all liability of the Trustee for the delivery of said share certificates shall
cease and terminate. Upon termination the Trustee may call upon and require the
registered holders of Voting Trust Certificates to surrender them in exchange
for certificates of shares of the number of Trust Shares to which they are
entitled hereunder.
9. Expenses. The Trustee shall not be entitled to any compensation for his
services as Trustee, but the Corporation shall reimburse him for all expenses
and disbursements reasonably incurred by him in the performance of his duties
hereunder.
10. Liability and Indemnification. The Shareholders and the Corporation,
jointly and severally, shall indemnify, defend and hold harmless the Trustee
from, against and in respect of all liabilities, damages, losses, costs and
expenses (including, but not limited to, attorneys' fees) incurred by him as a
result of any act or omission in connection with his serving as Trustee,
provided such act or omission does not constitute willful misconduct or gross
negligence.
11. Successor Trustee. In the event the Trustee resigns as Trustee, or
ceases to be the Chief Executive Officer of the Corporation, or dies or is
legally adjudicated incompetent during the term of this Agreement, the Board of
Directors of the Corporation shall select a successor Trustee, who shall have
all of the powers and duties of the Trustee hereunder. The authority, powers,
duties, obligations and limitations of the original Trustee shall devolve upon
such successors with the same effect as if such successors had been named as
original Trustee. The successor of any person acting as Trustee shall, by
written agreement, undertake the performance of the Trustee's privileges and
duties under this Agreement in accordance with its terms. Whenever the sense of
this Agreement so requires, the term Trustee shall mean the original Trustee or
any successor Trustee.
12. Standard of Care. In voting the Trust Shares represented by the share
certificate or certificates issued to the Trustee as hereinbefore provided, the
Trustee shall exercise his best judgment to the end that the business and
affairs of the Corporation shall be
properly managed, but, except for his own willful misconduct, the Trustee shall
not assume any responsibility or liability in respect of such management, or in
respect of any action taken by the Trustee, or taken in pursuance of his consent
thereto, or in pursuance of his vote so cast, and the Trustee shall not incur
any responsibility or liability, as Shareholder, officer or director of the
Corporation, Trustee or otherwise, by reason of any error of fact or law or of
any matter or thing done or omitted to be done. Other than as set forth in the
preceding sentence, Trustee shall have no duty with respect to any of the Trust
Shares other than the duty to use reasonable care in the safe custody of the
Trust Shares in his possession. Without limiting the generality of the
foregoing, Trustee shall be under no obligation to take any steps necessary to
preserve the value of any of the Trust Shares or to preserve rights in the Trust
Shares against any other parties, but may do so at its option, and all expenses
incurred in connection therewith shall be for the sole account of the
Shareholders and shall be repaid to the Trustee immediately upon demand.
13. Notices. All notices to the registered holders of Voting Trust
Certificates shall be given by mail addressed to the registered holders of such
Voting Trust Certificates at the addresses furnished by such registered holders
to the Trustee, and any notice whatsoever when so mailed by the Trustee shall be
taken and considered as though personally served on all parties hereto including
the registered holders of said Voting Trust Certificates, and upon all parties
becoming bound hereby, and such mailing shall be the only notice required to be
given under any provision of this Agreement.
14. Captions. The captions set forth herein are for convenience and
reference only and are not intended to modify, limit, describe or affect in any
way the contents, scope or intent of this Agreement.
15. Definitions. All terms used herein which are defined in this Agreement
shall have the meaning set forth in this Agreement, unless the context clearly
indicates otherwise.
16. Gender and Plural. Whenever the sense of this Agreement so requires,
the masculine and/or feminine gender shall be substituted for or deemed to
include the neuter and the plural the singular, and vice versa.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
18. Actions and Proceedings. The Trustee, the Corporation and each
Shareholder irrevocably consent to the exclusive jurisdiction and venue of the
courts of any county in the State of Georgia and the United States District
Court for any District of Georgia in any action or judicial proceeding brought
to enforce, construe or interpret this Agreement. The Trustee, the Corporation
and each Shareholder agree that any forum other than the State of Georgia is an
inconvenient forum and that a suit (or non-compulsory counterclaim) brought by
the Trustee, the Corporation and/or any Shareholder against the Trustee or the
Corporation in a court of any state other than the State of Georgia should be
forthwith dismissed or transferred to a court located in the State of Georgia.
19. Miscellaneous. (a) This Agreement shall be deemed to have been made in
the State of Georgia and shall be governed by and construed in all respects in
accordance with the laws of the State of Georgia (excluding conflict of law
principles).
(b) Each and all of the terms and provisions of this Agreement shall
be and are hereby made binding upon and inure to the benefit of the
Shareholders, their heirs, legatees, personal representatives, guardians and
permitted assigns.
(c) The Trustee shall have not duty to hold meetings of holders of
Voting Trust Certificates, but he shall be entitled to do so if he wishes. At
least one (1) day's prior written notice of every meeting of holders of Voting
Trust Certificates shall be given and such notice shall state the place, day and
hour and the purpose, if any, of such meeting, but any holder of voting trust
certificates may waive such notice in writing, either before or after the
holding of the meeting. No notice of any adjourned meeting need be given. Every
such meeting shall be held in the State of Georgia at a place designated by the
Trustee, unless the holders of Voting Trust Certificates representing two-thirds
of the stock held by the Trustee consent in writing to the holding thereof at
another place. The failure to hold meetings, shall not in any manner or degree
impair or reduce the authority of Trustee hereunder.
(d) The holder of any Voting Trust Certificate shall immediately
notify the Trustee of any mutilation, loss or destruction thereof, and the
Trustee may, in his discretion, cause one or more new certificates representing
the same number of Trust Shares in the aggregate, to be issued to such holder
upon the surrender of the mutilated certificates, or in case of loss or
destruction, upon satisfactory proof of such loss or destruction, and the
deposit of indemnity by way of bond or otherwise, in such form and amount and
with such surety or sureties as the Trustee may require to indemnify him against
loss or liability by reason of the issuance of such new certificates, but the
Trustee may, in his discretion, refuse to issue such new certificates, save upon
the order of a court having jurisdiction in such matters.
(e) This Agreement shall be filed with the Trustee, and a duplicate
hereof (together with updated lists of Trust Shares covered hereby) shall be
filed in the principal office of the Corporation.
(f) No amendment, modification, or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto. Any of the terms or conditions
of this Agreement may be waived in writing at any time by the party that is
entitled to the benefits thereof. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other provision
hereof (whether or not similar).
(g) In any provision or part of this Agreement shall for any reason be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement and shall be construed as if such invalid, illegal or unenforceable
provision or part thereof had never been contained herein, but only to the
extent of its invalidity, illegality, or unenforceability.
(h) Each of the parties acknowledges that money damages would not be a
sufficient remedy for any breach of this Agreement and that irreparable harm
would result if
this Agreement were not specifically enforced. Therefore, the rights and
obligations of the parties under this Agreement shall be enforceable by a decree
of specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection
therewith. A party's right to specific performance shall be in addition to all
other legal or equitable remedies available to such party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 31st day of December, 1996.
SHAREHOLDERS:
State of Tennessee /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
County of Davidson
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The foregoing instrument was
acknowledged before me this 14th day of
December, 1996, by Xxxx X. Xxxxxxx.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
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Title of Officer
My commission expires: 5/23/98
-----------------
State of Tennessee /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Xxxx X. Xxxxx
County of Davidson
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The foregoing instrument was
acknowledged before me this 14th day of
December, 1996, by Xxxx X. Xxxxx.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
---------------------------------------
Title of Officer
My commission expires: 5/23/98
-----------------
State of Tennessee /s/ Xxxxx XxXxxxx
------------------------------ --------------------------------
Xxxxx XxXxxxx
County of Davidson
-----------------------------
The foregoing instrument was
acknowledged before me this 14th day of
December, 1996, by Xxxxx XxXxxxx.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
---------------------------------------
Title of Officer
My commission expires: 5/23/98
-----------------
/s/ Xxxxx X. Xxxxx
--------------------------------
State of Georgia Xxxxx X. Xxxxx
------------------------------
County of Gwinnett
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The foregoing instrument was
acknowledged before me this 20th day of
December, 1996, by Xxxxx X. Xxxxx.
Witness my hand and official seal.
/s/ Xxxxxx Xxxxxx
---------------------------------------
Title of Officer
My commission expires: 10/24/99
-----------------
State of Tennessee SALEM CAPITAL CORPORATION
------------------------------
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Title: President
--------------------------
County of Davidson
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The foregoing instrument was
acknowledged before me this 14th day of
December, 1996, by ________________,
a duly authorized officer of Salem Capital
Corporation.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
---------------------------------------
Title of Officer
My commission expires: 5/23/98
----------------
TRUSTEE:
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
CORPORATION:
INTERCEPT HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Title: President
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EXHIBIT A
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INTERCEPT HOLDINGS INC.
NO PAR VALUE COMMON STOCK
VOTING TRUST CERTIFICATE
No. ____ ________ Shares
Xxxx X. Xxxxxxx, voting trustee (the "Trustee") of __________
shares of the common stock of Intercept Holdings Inc., a Georgia corporation
(the "Corporation"), under that certain Voting Trust Agreement dated as of
December 31, 1996 (the "Agreement"), having received the above-stated number of
shares of such stock (the "Trust Shares") from _______________ (the
"Shareholder") pursuant to the Agreement, hereby certifies that the Shareholder
shall be entitled to receive a stock certificate for _________ fully paid shares
of stock of the Corporation at the time provided in and pursuant to the terms
and conditions of the Agreement. Until the Agreement terminates, the Shareholder
shall be entitled to receive payments equal to any dividends and other
distributions on or in regard to the Trust Shares that may be paid or
distributed to the Trustee. All other rights as a shareholder associated with
the Trust Shares reside in the Trustee.
This Certificate is transferable only upon the presentation and
surrender hereof to the Trustee in accordance with the Agreement. Each
transferee of this Certificate takes the same subject to all the terms and
conditions of the Agreement.
IN WITNESS WHEREOF, the Trustee has executed this certificate,
effective as of the _____ day of _____________, 199____.
--------------------------------
Xxxx X. Xxxxxxx, Trustee
THIS VOTING TRUST CERTIFICATE IS SUBJECT TO THE TERMS, RESTRICTIONS AND
CONDITIONS OF A VOTING TRUST AGREEMENT ON FILE WITH INTERCEPT HOLDINGS INC.,
DATED DECEMBER 31, 1996. THE SECURITIES REPRESENTED BY THIS VOTING TRUST
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT
FOR CONSIDERATION) BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE TRUSTEE OF A
FAVORABLE OPINION OF HIS COUNSEL AND SUBMISSION TO THE TRUSTEE OF SUCH OTHER
EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL TO THE TRUSTEE, TO THE EFFECT THAT
ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT AND THE STATE ACTS.
