Form 13-2

Any number of owners of a domestic entity may enter into a written voting trust agreement unless oth­erwise provided by the Texas Business Organizations Code or by the governing documents. See Tex. Bus. Orgs. Code § 6.251(a). Ownership or membership interests subject to a voting trust agreement must be transferred to the named trustee for purposes of the agreement. Tex. Bus. Orgs. Code § 6.251(b). A copy of a voting trust agreement must be deposited at the entity’s principal executive office or registered office and may be examined by an owner or holder of a beneficial interest in the voting trust. Tex. Bus. Orgs. Code § 6.251(c).

Voting Trust Agreement

This Voting Trust Agreement (“Agreement”) made as of [date] between the several owners of [name of corporation], a Texas corporation (“Corporation”), whose names are sub­scribed below and all other owners of the Corporation who become parties to this Agreement as provided below, all of whom are hereinafter collectively called the “Owners,” and [name of trustee] [include if applicable: and [name[s] of additional trustee[s]]], who [is/are] hereinafter [include if applicable: collectively] called the “Trustee[s].”

The Owners are owners of ownership interests in the Corporation (“Ownership Inter­ests”), as set forth opposite their respective signatures below. With a view to the safe and competent management of the Corporation in the interests of all the owners thereof, the Own­ers desire to create a trust (“Trust”) as set forth in this Agreement.

Therefore, in consideration of the premises and the mutual promises contained in this Agreement, the Owners agree as follows:

1.Transfer of Ownership Interest to Trustee[s]. Each of the Owners hereby assigns and delivers to the Trustee[s] his, her, or its Ownership Interests [include if applicable: and all certificates representing those Ownership Interests, with corresponding instruments of trans­fer,] and agrees to do all things necessary for the transfer of Ownership Interests to the Trustee[s] on the books of Corporation.

2.Other Owners May Join. Every owner or holder of Ownership Interests may become a party to this Agreement by executing this Agreement and assigning and delivering [include if applicable: the certificate[s] representing] ownership interests in the Corporation to the Trustee[s].

3.Trustee[s] to Hold Subject to Agreement. The Trustee[s] will hold the Owner­ship Interests transferred to [him/her/them] under and subject to this Agreement.

4.Issuance of Certificates to Trustee[s]. The Trustee[s] will surrender to the [proper managerial official] of the Corporation, for cancellation, all [include if applicable: cer­tificates representing] Ownership Interests that have been assigned and delivered to the Trustee[s] and, in their stead, obtain [include if applicable: new certificates representing] the Ownership Interests issued to them as Trustee[s] under this Agreement.

5.Voting Trust Certificates. The Trustee[s] will issue to each of the Owners a Vot­ing Trust Certificate for the Ownership Interests [include if applicable: represented by the cer­tificates] transferred by that Owner to the Trustee[s]. Each Voting Trust Certificate will set forth the nature and proportional amount of the beneficial interest of the Owner to whom it is issued and will be assignable in the manner of certificates of ownership on books to be kept by the Trustee[s]. The Trustee[s] will keep a list of the Ownership Interests transferred to [him/her/them] and will also keep a record of all Voting Trust Certificates issued or transferred on [his/her/their] books. These records will contain the names and addresses of the holders of the Voting Trust Certificates and the Ownership Interests represented by each Voting Trust Cer­tificate. The list and records will be open at all reasonable times to the inspection of any holder of any Voting Trust Certificate and any authorized representative of that holder; and on any transfer in the books of the Trustee[s] of any Voting Trust Certificate, the transferee will succeed to all the rights of the transferor under this Agreement.

Each Voting Trust Certificate will be substantially in the form of Exhibit A to this Agreement.

Each Voting Trust Certificate will be substantially in the following form:

[Trustee’s/Trustees’] Certificate

This is to certify that the undersigned Trustee[s] [has/have] received [a certificate/cer­tificates] issued in the name of [name], representing the ownership interests of [name of cor­poration], a Texas corporation (the “Corporation”), and that these ownership interests are held subject to all the terms and conditions of the Voting Trust Agreement, dated [date], between [name[s]], as Trustee[s], and certain owners of the Corporation (the “Agreement”). During the term of the Agreement, the Trustee[s], or [his/her/their] successors, will possess and be enti­tled to exercise the vote and otherwise represent all of such ownership interests in the Corpo­ration for all purposes, as provided in the Agreement, it being agreed that no voting right will pass to the holder of this certificate by virtue of the ownership of this certificate.

On the termination of the voting trust in the Agreement, this certificate will be surren­dered to the Trustee[s] by the certificate’s holder on delivery to the holder of a certificate rep­resenting ownership interests in the Corporation.

The undersigned Trustee[s] [has/have] executed this certificate as of [date].

   
[Name of trustee]

   
[Name of trustee]

6.Restriction on Transfer of Voting Trust Certificate. Each of the Owners agrees that during the term of this Agreement, the Voting Trust Certificates will not be sold or trans­ferred. The Voting Trust Certificates will be regarded as Ownership Interests within the mean­ing of any provision of the governing documents of the Corporation that imposes conditions and restrictions on the sale or transfer of Ownership Interests.

7.Trustee[s] to Vote Ownership Interests. The Trustee[s] will have full power and authority, and the obligation, to represent the holders of the Voting Trust Certificates and to vote and give consent for the Ownership Interests transferred to the Trustee[s], as in the judg­ment of Trustee[s] [include if applicable: (or a majority of them)] may be for the best interest of the Owners, at all meetings or in connection with actions taken by consent of the Owners of the Corporation, in the election of persons authorized to manage the affairs of the Corpora­tion, and on any matters in question that may be brought before such meetings or may be taken by consent, as fully as any Owner might do if personally present.

8.[Trustee’s/Trustees’] Liability. The Trustee[s] will use [his/her/their] best judg­ment in voting the Ownership Interests transferred to [him/her/them] but will not be liable for any vote cast or consent given by [him/her/them] in good faith and in the absence of gross negligence or willful misconduct.

9.Distributions. The Trustee[s] will collect and receive all distributions that accrue on the Ownership Interests subject to this Trust and, subject to deduction as provided in the following section 10, will divide and distribute cash distributions among the holders of the Voting Trust Certificates in proportion to the Ownership Interests represented by their Voting Trust Certificates. If the distribution consists of additional Ownership Interests, the Trustee[s] will retain those Ownership Interests, which will be deemed to have been deposited hereun­der, for the benefit of the Owners under, and subject to, this Agreement.

10.[Trustee’s/Trustees’] Compensation and Indemnity. The Trustee[s] agree[s] to serve hereunder [without compensation/for compensation consisting of [describe compensa­tion]]. The Trustee[s] will be entitled to be indemnified fully out of the distributions coming into [his/her/their] hands against all costs, expenses, and other liabilities properly incurred by [him/her/them] in the exercise of any power or authority conferred on [him/her/them] by this Agreement. The Owners, and each of them, hereby covenant with the Trustee[s] that if the moneys and securities in [his/her/their] hands are insufficient for that purpose, the Owners, and each of them, will, in proportion to the amount of their respective Ownership Interests held by the Trustee[s], hold harmless and indemnify the Trustee[s] from and against all costs, expenses, and other liabilities that [he/she/they] may be responsible for by reason of anything they may lawfully do in the execution of this Trust.

11.Appointment of Trustee[s] to Fill Vacancies. In the event of the death, resigna­tion, refusal to act, or inability to act by any Trustee, the surviving or other Trustee or Trustees will appoint a person or persons to fill the vacancy or vacancies, and any person so appointed will thereupon be vested with all the power, authority, rights, and obligations of a Trustee hereunder as if originally named herein.

12.Continuance and Termination of Trust. The Trust created by this Agreement will continue until 11:59 p.m. central time on [date], when it will terminate; provided, how­ever, that it will terminate sooner on the consummation of a registered public offering of Ownership Interests for the account of the Corporation under the Securities Act of 1933, as amended, and the rules and regulations thereunder. On termination of the Trust, the Trustee[s] will, on the surrender of the Voting Trust Certificates by the respective holders thereof, assign and transfer to them the Ownership Interests represented by their certificates.

13.Voting Trust Agreement. This Agreement is a voting trust agreement under sec­tion 6.251 of the Texas Business Organizations Code. Accordingly, a copy of this Agreement will be deposited with the Corporation at its principal executive office or registered office.

14.Binding Effect of Agreement. Nothing in this Agreement, express or implied, is intended to confer on any party, other than the parties hereto and their respective permitted assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, and no person who is not a party to this Agreement may rely on the terms except as otherwise set out. This Agreement (a) constitutes the entire agreement between the parties relating to the subject matter hereof and (b) supersedes all previous understandings and agreements between the parties relating to the subject matter hereof, both oral and written. The terms and condi­tions of this Agreement will be binding on and inure to the benefit of the respective successors and permitted assigns of the parties hereto.

15.Assignment. No party to this Agreement may assign its rights or delegate its obligations hereunder without the prior written consent of each party. Any such attempted assignment will be void ab initio. Subject to the preceding sentences, this Agreement will be binding on and inure to the benefit of the parties and their respective successors and assigns.

16.Amendment of Agreement. This Agreement may be amended or modified only by written instrument duly executed by each of the parties hereto.

17.Applicable Law. This Agreement is made pursuant to, will be construed under, will be enforced in accordance with, and will be conclusively deemed for all purposes to have been executed and delivered under the laws of the state of Texas without reference to conflict of laws.

18.Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which will constitute one instrument.

19.Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected thereby, and in lieu of the illegal, invalid, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be legal, valid, and enforceable.

20.Notices. All notices, communications, and deliveries made under this Agree­ment will be made in writing signed by or on behalf of the delivering party, will specify the section of the Agreement under which it is given or made, and will be delivered personally, by facsimile transmission, by registered or certified mail (return receipt requested), or by any courier service, with postage or other fees prepaid, as follows:

If to [name]:
[Address]
[Fax no.]
Attention: [name]

Any such notice, communication, or delivery may also be made to any other address or person designated in writing by the receiving party. Such addresses may be changed from time to time by written notice to the other party. Any notice, communication, or delivery will be deemed given or made (a) on the date of delivery if delivered in person or by courier service, (b) on transmission by facsimile if receipt is confirmed by telephone, or (c) on the fifth busi­ness day after it is mailed by registered or certified mail.

21.Waiver. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and executed by all of the parties hereto. Any waiver by any party hereto of a breach or failure to perform will not constitute a waiver of any subsequent breach or failure.

22.Further Assurances. The parties agree to take further actions and execute and deliver other documents, certificates, agreements, and other instruments as may be reasonably necessary or desirable to implement transactions contemplated by this Agreement.

23.Section Headings. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

24.Gender and Number of Words. When the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the number of all words includes the singular and the plural.

The Owners and the Trustee[s] have executed this Agreement on [date].

   
[Name of trustee]