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EXHIBIT 10.9
VOTING TRUST AGREEMENT
THIS
AMENDED AND RESTATED VOTING TRUST AGREEMENT, made and entered into
at
Solon, Ohio, as of the 27th day of July,
2005 by and between SARATOGA LIGHTING
HOLDINGS LLC, as voting trustee (the
"Voting Trustee") of the voting trust
created by this Agreement, and the
individuals who have purchased common stock,
$.001 par value per share, of ADVANCED
LIGHTING TECHNOLOGIES, INC., an Ohio
corporation (the "Company") pursuant to the
Company's 2005 Equity Incentive Plan
(the "Plan"), whose names are listed on
Exhibit "A" attached hereto (hereinafter
sometimes separately referred to as a
"Shareholder" and collectively as the
"Shareholders").
W I T N E S S E T H :
WHEREAS,
the Plan, and the awards to each of the Shareholders, provide
that all of the shares of common stock,
$.001 par value per share, of the
Company purchased pursuant to the Plan, as
set forth opposite the Shareholders'
names on Exhibit "A", and any other shares
delivered to the Voting Trustee (the
"Shares"), be subject to the terms of this
Voting Trust Agreement;
WHEREAS,
the Shareholders desire to participate in the Plan and that all
of the Shares be made subject to the terms
and conditions of this Agreement; and
WHEREAS,
the Shareholders deem this Agreement to be in the best interest
of the Company and all of the
Shareholders.
NOW,
THEREFORE, the parties hereto agree as follows:
1. DEPOSIT
OF VOTING SHARES; ISSUANCE OF VOTING TRUST CERTIFICATES.
(a) The Shareholders acknowledge that, pursuant to the Plan the
certificate(s) evidencing all of the Shares
owned by each such Shareholder (the
"Share Certificates") have been deposited
with Voting Trustee, together with a
duly executed stock power, and that the
Escrow Agent under the Plan (the "Escrow
Agent") shall accept in exchange therefor a
Voting Trust Certificate or
Certificates representing the number of
Shares purchased by such Shareholder
pursuant to the Plan.
(b) Upon receipt of the Share Certificates pursuant to
subsection
(a) of this Section, the Voting Trustee
shall cause to be issued and delivered
to the Escrow Agent, on behalf of each
Shareholder, a Voting Trust Certificate
or Certificates, substantially in the form
of Exhibit "B" with the blanks
therein appropriately completed,
representing the number of Shares evidenced by
the Share Certificates deposited for the
account of each Shareholder. Voting
Trust Certificates issued upon the transfer
of, in exchange for, or in addition
to such Voting Trust Certificates, as
provided in this Agreement, shall be
substantially in the form attached hereto
as Exhibit "B" with such appropriate
variations, omissions, and insertions as
may be required.
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2.
ISSUANCE OF VOTING SHARES TO THE VOTING TRUSTEE. The Voting
Trustee
shall cause all Share Certificates
deposited with it pursuant to Section 1 above
to be surrendered to and cancelled by the
Company, and shall cause the Company
to issue and deliver to the Voting Trustee
new share certificates representing
the Shares in the name of the Voting
Trustee, as voting trustee, which shall
contain a legend stating that the Share
Certificates are issued pursuant and
subject to the provisions of this
Agreement. The Company's stock ledger and
journal shall indicate that such share
certificates are subject to the
provisions of this Agreement. Except as
herein provided, all share certificates
issued and delivered to the Voting Trustee
pursuant to this Section 2 shall at
all times be and remain in the possession
of the Voting Trustee or a depository
designated by the Voting Trustee. The
Voting Trustee shall not transfer any
certificates representing Shares other than
as provided in this Agreement.
3. RECORDS
OF VOTING TRUST CERTIFICATES.
(a) Records. The Voting Trustee shall keep or cause to be kept
books
of record of all Voting Trust Certificates
issued pursuant to this Agreement,
and shall also fix and determine a place at
which such books of record shall be
kept and at which Voting Trust Certificates
may be transferred.
(b) Inspection of Records of Voting Trust Certificates. Any owner
of
a Voting Trust Certificate shall have the
right to inspect the books of record
of the Voting Trust Certificates to be
maintained by the Voting Trustee pursuant
to subsection (a) of this Section at the
place at which such records are kept at
any reasonable time.
4.
TRANSFER OF VOTING TRUST CERTIFICATES.
(a) Transfer of Voting Trust Certificates. All transfers of
Voting
Trust Certificates shall be recorded on the
books of record kept by the Voting
Trustee. The Voting Trustee may treat the
record holder of the respective Voting
Trust Certificates as the absolute owner
thereof for all purposes whatsoever and
shall not be bound to recognize any
equitable interest in or claim to any such
Voting Trust Certificate or the Shares
represented thereby on the part of any
other party until transferred on such books
of record. The Voting Trustee shall
not be required to make any transfer of a
Voting Trust Certificate upon such
books of record except upon surrender of a
Voting Trust Certificate to be
transferred, properly assigned in such form
as shall be acceptable to the Voting
Trustee, accompanied by such evidence as
the Voting Trustee may reasonably
require as to the authority of any person
other than the record holder thereof
who may seek to effect any such transfer
and as to the genuineness of the
appropriate signatures. Upon each such
transfer, the Voting Trust Certificates
surrendered for transfer shall be cancelled
and the Voting Trustee shall issue a
new Voting Trust Certificate to the
transferee and the transferee shall, by
acceptance thereof, assent to the terms and
conditions of this Agreement. Any
such transferee shall be required to
execute a supplemental copy of this
Agreement.
(b) Replacement of Voting Trust Certificates. In the event any
Voting Trust Certificate shall become
mutilated, lost, or destroyed, the Voting
Trustee, under such conditions with respect
to indemnity or otherwise as it, in
its discretion, may prescribe, may provide
for the
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issuance of a new Voting Trust Certificate
in lieu of such lost or destroyed
Voting Trust Certificate or in exchange for
such mutilated Voting Trust
Certificate.
5. POWERS
AND DUTIES OF VOTING TRUSTEE.
(a) Right to Vote. The Voting Trustee shall be entitled to
exercise
all shareholder rights of the Shareholders
in respect of the Shares, including,
but not limited to, the right to exercise
the voting rights of such Shares on
each matter submitted to the Company's
shareholders for their vote, consent,
waiver, release, or other action and the
right to take part in any corporate or
shareholders' action of the Company,
whether ordinary or extraordinary, by proxy
or otherwise. The right of the Voting
Trustee to exercise the voting rights of
the Shares in accordance with the terms
hereof includes, but is not limited to,
the exercise of voting rights relating to
fixing the number and the election of
directors of the Company, the changing of
the Company's capital structure, the
amendment of the Company's Articles of
Incorporation or Code of Regulations, the
reclassification of the Shares, the
purchase of assets by the Company, and the
merger, consolidation, liquidation or
dissolution of the Company. The owners of
Voting Trust Certificates shall not have
any right under such Voting Trust
Certificates or under this Agreement or
otherwise, to exercise the voting rights
of such Shares or to take part in any
corporate or shareholders' action or to do
or perform any act or thing that
shareholders of the Company are now or may
hereafter become entitled to do or to
perform, for so long as the Shares owned
by each such Shareholder are held by the
Voting Trustee, except to receive cash
dividends and distributions when declared
and paid and to review the books and
records of the Company during normal
business hours. Notwithstanding anything to
the contrary, the Voting Trustee shall not
have the right to sell or otherwise
transfer the Shares of any Shareholder.
(b) Discretion of Voting Trustee. In exercising the voting rights
of
the Shares, or in doing any act with
respect to the control or management of the
Company or its affairs, or otherwise acting
hereunder, the Voting Trustee shall
be free to exercise its full discretion.
Notwithstanding anything to the
contrary, the Voting Trustee shall not have
the right to sell or otherwise
transfer the Shares of any Shareholder.
(c) Acting as Director or Officer. The Voting Trustee, or any
representative of the Voting Trustee, may
act as a director, an officer or an
employee of the Company and may vote for
itself as such and may have an
ownership interest in the Company. The
Voting Trustee, or any person with whom
or which it may be associated, or any
entity of which it may be a member, or any
corporation of which it may be a
shareholder, director, or officer, may contract
with the Company or otherwise have a
financial interest in any matter or
transaction to which the Company may be a
party or in which the Company may be
in any way concerned, as though it were not
Voting Trustee, but otherwise
subject to law.
(d) Compensation. The Voting Trustee shall serve without
compensation. The Voting Trustee shall be
reimbursed for all reasonable
expenses, disbursements and advances
incurred or made by the Voting Trustee in
performance of its duties hereunder. The
owners of the Voting Trust Certificates
agree to reimburse and indemnify the Voting
Trustee for all reasonable claims,
expenses, and liabilities incurred by it in
connection with the discharge of its
duties under this Agreement. Any such
claims, expenses, or liabilities shall be
charged to the
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Voting Trust Certificate owners, pro rata,
and may be deducted from dividends or
other distributions to them, or may be made
a charge payable as a condition to
the delivery of Share Certificates
following the surrender to the Voting Trustee
of the Voting Trust Certificates, and the
Voting Trustee shall be entitled to a
lien therefor on the Shares, funds, or
other property in its possession. The
Voting Trustee shall disclose in reasonable
detail on an annual basis, all
reimbursements received for reasonable
expenses, disbursements, advances
incurred or made by the Voting Trustee in
performance of its duties hereunder.
(e) Immunities of the Voting Trustee. The Voting Trustee shall
incur
no responsibility in its capacity as voting
trustee, as a shareholder, or
otherwise, by reason of any error of
judgment or mistake of law or other
mistake, for any act or omission of any
agent or attorney, for any
misconstruction of this Agreement, or for
any action of any sort taken or
omitted hereunder or believed by it to be
in accordance with the provisions and
intent hereof or otherwise, except solely
for its own individual willful
misconduct. In the discharge of its duties
hereunder, the Voting Trustee shall
be fully protected in acting in reliance
upon any
