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EXHIBIT 9
VOTING TRUST AGREEMENT
THIS AGREEMENT, by and between , a
stockholder holding voting shares of common stock of EMPIRE BANC CORPORATION, a
Delaware corporation, having its principal offices at 1227 East Front Street,
Traverse City, Michigan (hereinafter referred to as "Corporation"), and any
other stockholders holding voting shares of common stock of said Corporation who
may hereafter become parties hereto through delivery of their stock to the
Voting Trustee and execution of this Agreement (all of whom herein are
collectively referred to as "Stockholder"), and JAMES E. DUTMERS, JR.
(hereinafter referred to as "Voting Trustee"):
WHEREAS, the undersigned did enter into a Voting Trust Agreement dated
June 1, 1990, which Voting Trust Agreement provided that said Trust should
continue in force until the 30th day of May, 1998, unless terminated earlier by
mutual agreement; and
WHEREAS, the undersigned deem it to be in their mutual best interests
to terminate said Trust Agreement as between them only by mutual agreement and
to enter into a separate and independent Voting Trust Agreement; and
WHEREAS, Stockholders are owners of common stock of Corporation and are
desirous of parting with their voting rights and privileges over said
Corporation shares to the maximum extent permitted by Michigan law as being in
the best interests of Stockholders; and
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WHEREAS, the Voting Trustee is willing to act as Voting Trustee in this
stock of Corporation in a manner which will advance the best interests of the
Stockholders and Corporation.
NOW, THEREFORE, the parties mutually agree as follows:
1. REVOCATION: The Voting Trust Agreement dated June 1, 1990, shall
be and is hereby revoked as to the signatories hereof only.
2. DEPOSIT: Simultaneously with the execution of this Agreement, the
Stockholders have deposited with the Voting Trustee certificates for
shares of Corporation stock properly assigned to the Voting
Trustee. Any additional Stockholders who become parties to this Agreement
through deposit of their stock and execution of this Agreement shall be bound by
all terms hereof.
3. VOTING TRUST CERTIFICATES: The Voting Trustee shall forthwith issue
to Stockholders a Voting Trust Certificate in substantially the form attached as
Exhibit "A" reflecting the relative rights of the parties, particularly of
Stockholders.
4. TRANSFERABILITY OF VOTING TRUST CERTIFICATE: Voting Trust
Certificates shall be transferable only as therein and herein provided and any
transfer so made shall vest in the transferee all the rights and interests of
the transferor under the Voting Trust Certificate transferred under this
Agreement and upon such transfer, the Voting Trustee will deliver or cause to be
delivered to the transferee a Voting Trust Certificate for the same number of
common shares of the Corporation as represented by
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the certificates so transferred. Until such transfer, the Voting Trustee and
Corporation may treat Stockholders as the owner thereof for all purposes.
5. TITLE: Title to all common shares of Corporation stock deposited
hereunder shall be vested in the Voting Trustee and shall give the Voting
Trustee in respect of such shares all rights of common Stockholders of any kind
and character including the right to vote for the Directors and also including
the right to vote such shares and to take part in or consent in writing or
otherwise to any corporate or Stockholders' action whether ordinary or
extraordinary including any amendment of the Articles of Incorporation and/or
the Bylaws of Corporation deemed by the Voting Trustee to be desirable, all upon
such terms and conditions and under such circumstances as it, in the Voting
Trustee's unrestricted discretion, may from time to time determine and to do or
perform any other act or thing which the common stockholders of Corporation are
now or may hereafter be entitled to do or perform including the receipt of
dividends on said shares; and it is expressly understood and agreed that the
holder of a Voting Trust Certificate shall not have any right either under said
Voting Stock Certificate or under this Agreement or under any agreement
expressed or implied or otherwise with respect to any shares held by the Voting
Trustee hereunder, to vote such shares or to take part in or consent to any
corporate or stockholder action, or to do or perform any other act or thing
which common stockholders of Corporation are now or may hereafter become
entitled to do or perform.
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6. RESTRICTIONS ON ENCUMBRANCE: The Voting Trustee shall not sell,
pledge, hypothecate, mortgage or place any lien or charge upon the shares of
Corporation subject hereto.
7. DIVIDENDS: The holder of a Voting Trust Certificate shall be
entitled, until termination of this Trust, to receive from time to time payments
equal to dividends, if any, received by the Voting Trustee upon the number of
shares represented by such Voting Trust Certificate; or the Voting Trustee may
in his discretion, instead of receiving and distributing any dividend declared
on the shares subject hereto, authorize Corporation to make payment thereof
directly to the holders of the outstanding Voting Trust Certificates.
8. STOCK CERTIFICATES: In case the Voting Trustee shall receive any
additional share certificates of Corporation from parties to this Agreement or
certificates issued by way of dividends upon shares held by him under this
Agreement or otherwise, the Voting Trustee shall hold such shares likewise
subject to the terms of this Agreement and shall issue a Voting Trust
Certificate or certificates representing such share certificate to the parties
entitled thereto.
9. DURATION: This Voting Trust shall continue in force until the 30th
day of May, 2004, unless sooner terminated by mutual agreement. On transfer of
all or any part of the stock at
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the option of Stockholders, this Agreement may be terminated. On the foregoing
date or upon earlier termination of this Voting Trust, the shares of Corporation
held by the Voting Trustee hereunder shall be distributed to the holder of the
Voting Trust Certificate upon presentation and surrender thereof.
10. RULES OF PROCEDURE AND VOTING BY VOTING TRUSTEE: The Voting Trustee
may adopt his own rules and procedures.
In voting the shares deposited hereunder or in doing any act with
respect to the control or management of Corporation or its affairs or otherwise
acting hereunder, the Voting Trustee shall exercise his best judgment in the
interests of Stockholders, but the Voting Trustee assumes no responsibility in
respect thereto or of any action taken by him or taken in pursuance of his
consent thereto, or in pursuance of his vote so cast. The Voting Trustee may,
from time to time, and the Successor Voting Co-Trustees shall, in the event they
cannot agree, consult with PATRICIA JOHNSON DUTMERS and CORNELIUS A. JOHNSON
prior to voting the shares deposited hereunder. The Voting Trustee shall have
the full and unqualified right and power to vote and to execute consents with
respect to all shares of stock deposited or held hereunder, in person or by
proxy at any and all meetings of the shareholders of Corporation, for whatever
purpose called or held, and in any and all proceedings, whether at meetings of
shareholders or otherwise, wherein the vote or written consent of shareholders
may be required or authorized by law. This power of
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acting in person or by proxy, however, shall not be construed to enable the
Voting Trustee or his proxy to act otherwise as in this Agreement provided.
11. EXONERATION, COMPENSATION AND EXPENSES: The Voting Trustee, whether
as Stockholder, Trustee or otherwise, shall not be liable for any error of
judgment or mistake of law or other mistake or for any act or admission of any
agent or attorney, or for any misconstruction of this Agreement or for anything
save only his own malfeasance. The compensation and expenses of the Voting
Trustee shall be paid by Stockholders.
12. RESIGNATION OF TRUSTEE AND SUCCESSOR TRUSTEE: The Voting Trustee
may resign at any time by written notice to the Stockholders. In the event the
Voting Trustee should die, resign or otherwise refuse or fail to act as Trustee,
prior to the termination of this Voting Trust Agreement, GEORGE THOMAS DUTMERS
and CHARLES E. OFENLOCH shall take his place as Successor Voting Co-Trustees
hereunder with all of the title, rights, powers, duties and discretion herein
vested in the original Voting Trustee.
13. RESTRICTION ON STOCKHOLDERS' SALE OF STOCK: It is mutually agreed
by all of the Stockholders a part to this Voting Trust Agreement that during the
terms of this Voting Trust Agreement, they shall not sell any of their stock of
Corporation that has been deposited with the Voting Trustee without first
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offering it to the other Stockholders who are parties to this Voting Trust
Agreement at the then fair market value. The other Stockholders shall have,
individually or as a group, the right to purchase this stock from the selling
Stockholder. They shall have thirty (30) days within which to determine whether
they wish to buy said stock or not. Said thirty (30) days to run from the time
they are notified in writing by certified mail of the offer to sell. If no
Stockholders or Stockholder desires to purchase said stock, then the Selling
Stockholder shall have the right to sell the stock to anyone or to any person
that he so desires. This restriction on the sale of stock shall not affect the
right of the Stockholder to make gifts of this stock to members of his immediate
family or to children, grandchildren or great-grandchildren, but the same
restriction on sale shall pass with the gift to the person receiving the gift
and they shall be required to place their stock in the Voting Trust Agreement
and sign the Agreement along with the other Stockholders.
It is also mutually agreed by the Stockholders as parties to this
Voting Trust Agreement that during the term of this Voting Trust Agreement they
shall not pledge for any loan purposes any of the stock deposited with the
Voting Trustee.
14. MISCELLANEOUS: This Agreement shall be construed and governed by
the laws of the State of Michigan.
This Agreement may be executed simultaneously in two or more
counterparts; each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
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This Agreement shall be effective upon execution of all parties hereto,
which date shall be indicated by the Voting Trustee next to his signature on
this Agreement.
IN WITNESS WHEREOF, the Voting Trustee and Stockholders have signed
this Agreement the day and year first above written.
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Signed in the Presence of: STOCKHOLDERS:
/s/ Susan E. Richardson /s/ John Wayne Collins
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SUSAN E. RICHARDSON JOHN WAYNE COLLINS
/s/ Susan E. Richardson /s/ Katherine J. Collins
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SUSAN E. RICHARDSON KATHERINE JANE COLLINS
/s/ Susan E. Richardson /s/ Katherine J. Collins
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SUSAN E. RICHARDSON KATHERINE J. COLLINS, As
Custodian For Matthew James
Collins
/s/ Susan E. Richardson /s/ Katherine J. Collins
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SUSAN E. RICHARDSON KATHERINE J. COLLINS, As
Custodian For John Scott
Collins
/s/ Patricia M. Dutmers /s/ Chad Thomas Dutmers
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PATRICIA M. DUTMERS CHAD THOMAS DUTMERS
/s/ Shelly M. Stanton /s/ Macaire M. Dutmers
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SHELLY M. STANTON MACAIRE M. DUTMERS
/s/ Shelly M. Staton /s/ James E. Dutmers, Jr.
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SHELLY M. STATON JAMES E. DUTMERS, JR.
/s/ Eilen N. Knol /s/ George Thomas Dutmers
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EILEN N. KNOL GEORGE THOMAS DUTMERS
/s/ Eileen N. Krol /s/ Monica Dutmers
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EILEEN N. KROL MONICA DUTMERS, As
Custodian For Molly Kathleen Dutmers
/s/ Shelly M. Staton /s/ Patricia M. Dutmers
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SHELLY M. STATON PATRICIA M. DUTMERS
/s/ Shelly M. Staton /s/ James E. Dutmers
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SHELLY M. STATON JAMES E. DUTMERS, JR., As
Custodian For Chad Thomas
Dutmers
/s/ Shelly M. Staton /s/ James E. Dutmers
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SHELLY M. STATON JAMES E. DUTMERS, JR., As
Custodian For Timothy James
Dutmers
/s/ Shelly M. Stanton /s/ Timothy J. Dutmers
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SHELLY M. STANTON TIMOTHY J. DUTMERS
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Signed in the Presence of: STOCKHOLDERS:
/s/ Shelly M. Stanton /s/ Susan E. Dutmers
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SHELLY M. STANTON SUSAN E. DUTMERS, a/k/a
Susan Elizabeth Dutmers
/s/ Robert J. Boisjoli /s/ Cornelia Johnson Boisjoli
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ROBERT J. BOISJOLI CORNELIA JOHNSON BOISJOLI
/s/ Christopher E. Hasbrook /s/ Nina Johnson Hanselmann
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CHRISTOPHER E. HASBROOK NINA JOHNSON HANSELMANN
/s/ Christopher E. Hasbrook /s/ Frederick C. Hanselmann
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CHRISTOPHER E. HASBROOK FREDERICK C. HANSELMANN
/s/ Christopher E. Hasbrook /s/ Cornelius A. Johnson
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CHRISTOPHER E. HASBROOK CORNELIUS A. JOHNSON
/s/ Susan E. Richardson /s/ Gail C. Johnson
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SUSAN E. RICHARDSON GAIL C. JOHNSON
/s/ Susan E. Richardson /s/ George A. Johnson
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SUSAN E. RICHARDSON GEORGE A. JOHNSON
/s/ Susan E. Richardson /s/ George Johnson
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SUSAN E. RICHARDSON GEORGE JOHNSON, As
Custodian For Andrew
Johnson
/s/ Susan E. Richardson /s/ George A. Johnson
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SUSAN E. RICHARDSON GEORGE A. JOHNSON, As
Custodian For Brett Culver
Johnson
/s/ Susan E. Richardson /s/ George A. Johnson
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SUSAN E. RICHARDSON GEORGE A. JOHNSON, As
Custodian For Kimberly
Johnson
/s/ Susan E. Richardson /s/ George A. Johnson
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SUSAN E. RICHARDSON GEORGE A. JOHNSON, As
Trustee of Patricia J. McTigue
And John P. McTigue Childress
Educational Trust
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Signed in the Presence of: STOCKHOLDERS:
/s/ Christopher E. Hasbrook /s/ Sara Johnson Ofenloch
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CHRISTOPHER E. HASBROOK SARA JOHNSON OFENLOCH, As
Custodian For David
Ofenloch
/s/ Christopher E. Hasbrook /s/ Sara Johnson Ofenloch
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CHRISTOPHER E. HASBROOK SARA JOHNSON OFENLOCH
/s/ Christopher E. Hasbrook /s/ Margaret Johnson Leahy
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CHRISTOPHER E. HASBROOK MARGARET JOHNSON LEAHY
/s/ Christopher E. Hasbrook /s/ Timothy J. Leahy
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CHRISTOPHER E. HASBROOK TIMOTHY J. LEAHY
/s/ Christopher E. Hasbrook /s/ Charles E. Ofenloch
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CHRISTOPHER E. HASBROOK CHARLES E. OFENLOCH, As
Custodian For David Patrick
Ofenloch
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Signed in the Presence of: STOCKHOLDERS:
/s/ Christopher E. Hasbrook /s/ Margaret Johnson Leahy
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CHRISTOPHER E. HASBROOK MARGARET JOHNSON LEAHY, As
Custodian For Katherine
Leahy
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Signed in the Presence of: STOCKHOLDERS:
/s/ Christopher E. Hasbrook /s/ Margaret Johnson Leahy
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CHRISTOPHER E. HASBROOK MARGARET JOHNSON LEAHY, As
Custodian for Michael Leahy
/s/ Christopher E. Hasbrook /s/ Margaret Johnson Leahy
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CHRISTOPHER E. HASBROOK MARGARET JOHNSON LEAHY, As
Custodian for Timothy Leahy, Jr
/s/ Christopher E. Hasbrook /s/ Margaret Johnson Leahy
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CHRISTOPHER E. HASBROOK MARGARET JOHNSON LEAHY, As
Custodian for Heather Ann Leahy
/s/ Christopher E. Hasbrook /s/ Charles E. Ofenloch
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CHRISTOPHER E. HASBROOK CHARLES E. OFENLOCH
/s/ George Thomas Dutmers /s/ Patricia Johnson Mctigue
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GEORGE THOMAS DUTMERS PATRICIA JOHNSON McTIGUE
/s/ George Thomas Dutmers /s/ Patricia Johnson Mctigue
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GEORGE THOMAS DUTMERS PATRICIA JOHNSON McTIGUE, As
Custodian for Brian McTigue
/s/ George Thomas Dutmers /s/ Patricia Johnson Mctigue
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GEORGE THOMAS DUTMERS PATRICIA JOHNSON McTIGUE, As
Custodian for Mary Ann McTigue
/s/ Susan M. Otting /s/ Sarah E. Johnson Malchow
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SUSAN M. OTTING SARAH E. JOHNSON MALCHOW
/s/ Shelly M. Stanton /s/ Elizabeth A. Ofenloch
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SHELLY M. STANTON ELIZABETH A. OFENLOCH
/s/ Shelly M. Stanton /s/ John Charles Ofenloch
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SHELLY M. STANTON JOHN CHARLES OFENLOCH
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Signed in the Presence of: STOCKHOLDERS:
VOTING TRUSTEE:
/s/ Susan E. Richardson /s/ James E. Dutmers, Jr.
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SUSAN E. RICHARDSON JAMES E. DUTMERS, JR.
Dated: Nov. 10, 1997
SUCCESSOR CO-VOTING TRUSTEES:
/s/ Helen C. Stiles /S/ George Thomas Dutmers
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HELEN C. STILES GEORGE THOMAS DUTMERS
/s/ Christopher E. Hasbrook /s/ Charles E. Ofenloch
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CHRISTOPHER E. HASBROOK CHARLES E. OFENLOCH
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