EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT is made as of October 30, 1997, by and between
(1) Xxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xx., X. Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxx,
Xxxxxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxx, and Xxxxxxx X. Xxxxxxxx
(collectively, the "Voting Trustees"); (2) the undersigned holders
(collectively, the "Stockholders") of all of the issued and outstanding 38,720
shares of voting Common Stock, par value $.03125 per share, of Xxxxx Xxxxx
Corp., a Maryland corporation (the "Stock"); and (3) Xxxxx Xxxxx Corp. (the
"Company").
WITNESSETH THAT:
WHEREAS, the Company has authorized 160,000 shares of the Stock, of which
38,720 shares were issued and outstanding and held subject to the voting trust
created by the Voting Trust Agreement made as of December 31, 1996 (the "1996
Agreement");
WHEREAS, the voting trust created by the 1996 Agreement has been
terminated, the Stock has been distributed to the former holders of the voting
trust receipts issued under the 1996 Agreement, and such holders are among the
Stockholders by virtue of such distribution; and
WHEREAS, the Stockholders wish to create and constitute a new voting trust
and to deposit their Stock with the Voting Trustees to be held subject to this
Agreement, in order to ensure the successful prosecution and development of the
Company's business by providing a consistent policy of management through
vesting in the Voting Trustees the power and authority conferred upon them
hereby;
NOW THEREFORE, in consideration of the premises and of the deposit of the
Stock by the Stockholders hereunder, the parties agree as follows:
1. Each Stockholder hereby directs that the shares of his Stock set
against his name be deposited with the Voting Trustees and registered on the
books of the Company in the name of the Voting Trustees, and acknowledges that
his Stock shall be held by the Voting Trustees hereunder, collectively, and not
individually, subject to this Agreement.
The Company consents to this Agreement and the voting trust created hereby
(the "Voting Trust"). The Company does not ordinarily issue certificates for
shares of Stock, and has caused all shares of Stock deposited hereunder to be
registered on its books in the names of the Voting Trustees collectively, and
not individually.
Any holder of shares of Stock may, with the consent of the Voting
Trustees, deposit his or her Stock hereunder and receive Voting Trust Receipts
with respect thereto, and become a Stockholder party to this Agreement subject
to all of the provisions hereof, by executing Schedule A of this Agreement. No
Stockholder party hereto may withdraw his or her Stock deposited under this
Agreement, unless (a) the Voting Trustees consent to such withdrawal, or (b)
such Stock is repurchased by the Company, or (c) the Voting Trust is terminated
as provided herein.
EXHIBIT 9.1 (CONTINUED)
2. Any Stockholder party hereto whose Stock is deposited hereunder may,
with the consent of the Voting Trustees and the consent required by Section
3(5), become a Voting Trustee party to this Agreement, subject to all of the
provisions hereof, by executing Schedule B of this Agreement.
A Voting Trustee may be removed, with or without cause, by the vote of a
majority of the other Voting Trustees, with the consent required by Section
3(5). If a Voting Trustee for any reason, including by the sale of his or her
Stock to the Company and the transfer, as provided herein, of all of his or her
Voting Trust Receipts to another person or persons, no longer holds any Stock or
any Voting Trust Receipts, he or she shall automatically cease being a Voting
Trustee.
3. Except as otherwise provided herein, all actions and decisions by the
Voting Trustees for all purposes, including voting the Stock deposited
hereunder, shall be by a vote of at least a majority of the Voting Trustees;
provided, that if there are fewer than three Voting Trustees, such vote must be
unanimous for the Voting Trustees to act; provided, further, that any action by
the Voting Trustees to approve (1) the sale, mortgage or pledge of all or
substantially all of the assets of the Company, or (2) a change in the capital
structure or the powers of the Company, or (3) a merger, consolidation,
reorganization, or dissolution of the Company, or (4) an amendment to, or the
termination of the Voting Trust under, this Agreement, or (5) the addition of a
Voting Trustee, or the removal of a Voting Trustee by the other Voting Trustees,
or (6) the renewal of the term of the Voting Trust, shall require the written
consent of the holders of outstanding Voting Trust Receipts representing at
least a majority of the shares of Stock subject to the Voting Trust. All votes
of the Voting Trustees shall be either (a) taken at a meeting of the Voting
Trustees called by any Voting Trustee with at least 24 hours notice to all other
Voting Trustees (or upon waiver of notice), or (b) recorded without a meeting on
one or more written proxies signed by each Voting Trustee showing his or her
vote on each matter.
4. The Voting Trustees shall issue Voting Trust Receipts in the form
attached hereto as Exhibit A for all shares of Stock deposited hereunder. Voting
Trust Receipts shall entitle the holders to receive the equivalent of all cash
dividends that may be paid to the Voting Trustees with respect to the deposited
Stock represented thereby. The Voting Trustees may provide for direct payment of
such cash dividends to the holders of Voting Trust Receipts by a dividend order
to the Company. In case of any stock dividend upon the deposited Stock, the
Voting Trustees shall hold the Stock so issued as such dividend as additional
Stock deposited hereunder by the Stockholder entitled thereto, and issue and
deliver to the appropriate record holders of the Voting Trust Receipts
additional Voting Trust Receipts representing such additional Stock.
If the capital stock of the Company shall be increased and the Voting
Trustees, as holders of the deposited Stock shall be entitled to subscribe for
additional shares, they shall notify the holders of record of the outstanding
Voting Trust Receipts, and provide appropriate forms for subscription or
assignment of corresponding rights in this Voting Trust, and fix a time for
payment to the Voting Trustees of the amount required to take up subscription
rights and enable them to purchase on behalf of the voting trust the new Stock
to which they may be entitled. Upon receipt of said sums, the Voting Trustees
shall subscribe for the new shares and hold them as part of the Stock deposited
under this Agreement and shall issue and deliver to the subscribing holders of
Voting Trust Receipts additional Voting Trust Receipts representing such
additional Stock so purchased. In case the holder of any Voting Trust Receipts
shall fail to furnish the money for subscription for such new Stock, the Voting
Trustees shall be under no obligation to subscribe, but they may sell such
rights, and shall account to the holders of the Voting Trust Receipts entitled
thereto for the proceeds of any rights sold, but they shall be under no duty to
sell such rights, and shall not be liable for failure to make such sale.
EXHIBIT 9.1 (CONTINUED)
5. Voting Trust Receipts shall be transferable with the consent in writing
of the Voting Trustees on surrender of the Voting Trust Receipt duly endorsed
for transfer, or accompanied by a transfer in writing signed by the record
holder thereof. The Voting Trustees shall record such transfers upon books kept
by them for that purpose. All Voting Trust Receipts shall be held subject to the
conditions and restrictions set forth below, the provisions of which shall at
all times apply equally both to an original holder and to each and every
subsequent holder thereof; and each holder of any Voting Trust Receipt, by
acceptance thereof, agrees with the Company and each other such holder to the
following conditions and restrictions:
(i) No transfer of any kind of the Voting Trust Receipts shall be
made at any time unless the Voting Trustees have consented thereto.
(ii) In the event of death of a holder of the Voting Trust Receipts or in the
event such a holder who is an employee of the Company or of a subsidiary of the
Company ceases for any reason to be such an employee, the Stock represented by
such Voting Trust Receipts may be purchased by the Company at book value, as
provided in the Company's Articles of Incorporation, as amended (the
"Articles").
If at any time a Stockholder shall be obligated to offer his shares of
Stock to the Company for purchase by the Company at book value, as provided in
Article SEVENTH of the Articles, and if the Company, whether or not such
Stockholder offers such Stock to the Company, indicates its intent to so
purchase such Stock and tenders payment therefor to such Stockholder, then, if
such Stock has been deposited under this Agreement, (a) the Company may treat
such Stock as having been purchased by the Company and may cause such Stock to
be registered on its books as authorized but unissued shares of Stock of the
Company, and (b) such Stockholder shall immediately deliver the Voting Trustee
Receipts representing such Stock to the Company, and if such Voting Trust
Receipts are not returned to the Company by such Stockholder within one day
after such tender of payment, they shall be null and void.
6. Title to the Stock deposited hereunder shall be vested in and held of
record in the names of the Voting Trustees, collectively and not individually.
Stock deposited shall be pooled and shall not be sold or disposed of during the
term of this Voting Trust, except that (a) the Voting Trustees may facilitate
the sale of Stock to the Company, as provided in the Articles, and (b) the
Voting Trustees may sell all, but not less than all, of the deposited Stock, at
a price approved in writing by all the holders of all outstanding Voting Trust
Receipts. In case of sale under clause (b), the proceeds (less any brokerage
fees, transfer taxes and other expenses of sale and any legal or other expenses
and liabilities incurred by the Voting Trustees) shall be divided, as soon as
conveniently practicable, among the holders of Voting Trust Receipts according
to their holdings.
7. The Voting Trust shall terminate on the date three years from the date
hereof, and may be renewed by the Voting Trustees, with the consent required by
Section 3(6), for an additional three year term. The Voting Trust may be
terminated at any time by the Voting Trustees, with the consent required by
Section 3(4). At the termination of this Voting Trust, the deposited Stock, if
not previously sold by the Voting Trustees under powers hereby vested in them,
shall be distributed among the holders of the outstanding Voting Trust Receipts
according to their respective interests by the Company recording on its books
the name of each holder as the stockholder of record of the number of shares of
Stock to which he or she is entitled.
EXHIBIT 9.1 (CONTINUED)
8. The Voting Trustees shall have power to prescribe the method of deposit
of shares of Stock, the issue of Voting Trust Receipts, the division of proceeds
of sale of the deposited Stock among the holders of the Voting Trust Receipts,
the redemption of the deposited Stock, if not sold, and all other matters
concerning the operation and management of this Voting Trust. They shall have
power to appoint and remove at their discretion depositories to hold any
certificates which the Company may issue for the deposited Stock, and agents to
act under them in administering the Voting Trust, and proxies to vote the
deposited Stock.
Any Voting Trustee may acquire, hold and sell for himself or in any
fiduciary capacity Voting Trust Receipts issued under the Agreement, and may be
an officer, director, and/or stockholder of the Company, and may vote as a
stockholder for his own election to office, and may accept employment from the
Company, and have any dealings with the Company as freely as if he or she were
not a Voting Trustee. No purchaser from the Voting Trustees shall be liable for
their disposal of the purchase money.
Any statement signed by the Voting Trustees concerning this Voting Trust
or any act done by them as Voting Trustees, shall be conclusive evidence that
the statement is true and the act is within their powers. Any certificate or
other document signed by at least three of the Voting Trustees (or two, if there
are only three Voting Trustees) and filed with the duplicate original of this
Agreement at the office of the Company, shall be sufficient evidence, for all
purposes, of the facts certified therein.
9. No Voting Trustee shall be liable for the acts or defaults of any other
Voting Trustee, or of any depository, agent or attorney employed by the Voting
Trustees, or for any error of judgment or mistake of law or fact, or for
anything except his or her own willful misconduct or gross negligence. The
Voting Trustees shall serve without remuneration. They shall be entitled to
indemnity out of the trust property against any loss or liability incurred in
the performance of their duties. The Company hereby indemnifies and holds
harmless each of the Voting Trustees for and against all claims, loss, expenses
(including legal fees and expenses), and liabilities of any kind arising out of
or in connection with sewing as a Voting Trustee hereunder and not adjudicated
as due to his or her own willful misconduct or gross negligence.
10. This Agreement may be amended from time to time by action of the
Voting Trustees, with the consent required Section 3(4), and such amendment
shall become binding upon all the holders of Voting Trust Receipts. This
Agreement and any amendment hereof may be executed in several counterparts,
which shall in each case be treated as a single instrument for all purposes. A
duplicate original of this Agreement and of each amendment shall be kept at the
office of the Company in Boston, Massachusetts, where it may be inspected by any
of the Stockholders during ordinary business hours.
11. This Agreement shall be governed by the internal laws of the State of
Maryland. This Agreement shall be binding upon the parties hereto, the holders
of the Voting Trust Receipts issued hereunder, their respective executors,
administrators, and successors and assigns, and the Voting Trustees and their
successors in office.
EXHIBIT 9.1 (CONTINUED)
IN WITNESS WHEREOF, the Voting Trustees, the Company and the Stockholders
have hereunto set their hands, all as of the day and year first shown above
written:
STOCKHOLDERS AND NUMBER OF SHARES
THE COMPANY VOTING TRUSTEES OF STOCK DEPOSITED
XXXXX XXXXX CORP.
By 3,093
----------------------- ---------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
its President
5,040
---------------------------
Xxxxxx X. Xxxxx, Xx.
9,280
---------------------------
X. Xxxxxx Xxxxxxx
9,280
---------------------------
Xxxxx X. Xxxxxx
5,840
---------------------------
Xxxxxxxx X. Xxxxxxx, Xx.
3,093
---------------------------
Xxxxxxx X. Xxxxx
3,094
---------------------------
Xxxxxxx X. Xxxxxxxx
EXHIBIT 9.1 (CONTINUED)
SCHEDULE A
The undersigned, _________________________________, is the owner of
____________shares of voting Common Stock, par value $.03125 per share, of Xxxxx
Xxxxx Corp., and hereby deposits with the Voting Trustees all such shares, which
shall be registered on the books of the Company in the name of the Voting
Trustees and shall be held by the Voting Trustees, and the undersigned has
received Voting Trust Receipts with respect to such shares. By executing this
Schedule A to the Voting Trust Agreement made as of October 30, 1997, the
undersigned, with the consent of the Voting Trustees, becomes a Stockholder
party to said Agreement, subject to all of the provisions thereof.
Dated:
----------------------
-------------------------------
Certified as Consented to by Stockholder
at least a majority of the
Voting Trustees:
---------------------------- ----------------------------
Voting Trustee Voting Trustee
-----------------------------
Voting Trustee
EXHIBIT 9.1 (CONTINUED)
SCHEDULE B
The undersigned, _________________________________, is the owner of
____________shares of voting Common Stock, par value $.03125 per share, of Xxxxx
Xxxxx Corp., which are deposited with the Voting Trustees and registered on the
books of the Company in the name of the Voting Trustees and held by the Voting
Trustees, and the undersigned has received Voting Trust Receipts with respect to
such shares. By executing this Schedule B to the Voting Trust Agreement made as
of October 30, 1997, the undersigned, with the consent of the Voting Trustees,
becomes a Voting Trustee party to said Agreement, subject to all of the
provisions thereof.
Dated:______________________
-------------------------------
Certified as Consented to by at least Stockholder
a majority of the Voting
Trustees and by the holders
of outstanding Voting Trust
Receipts representing at
least a majority of the
shares of Stock subject to
the Voting Trust Agreement.
---------------------------- ---------------------------------
Voting Trustee Voting Trustee
-----------------------------
Voting Trustee
EXHIBIT 9.1 (CONTINUED)
EXHIBIT A
XXXXX XXXXX CORP.
VOTING TRUST RECEIPT
FOR VOTING COMMON STOCK
NO.___________ __________ SHARES
This certifies that
will be entitled to receive from the Voting Trustees under a Voting Trust
Agreement made as of October 30, 1997, as heretofore and hereafter amended, and
lodged in the office of the Company at Boston, Massachusetts, or their
successors or assigns, a certificate or certificates issued by Xxxxx Xxxxx
Corp., a Maryland corporation, for
shares of its common stock, par value $.03125 per share, or, if the Company does
not then issue certificates for its shares of common stock, will be entitled to
have such shares registered in his or her name on the books of the Company; and
that pending the sale or distribution of the stock held by the Voting Trustees
under said Agreement, the registered holder hereof from time to time, as cash
dividends and distributions of assets are paid by the Company, will be entitled
to receive in respect of this Receipt the equivalent of said dividends or
distributions upon the number of shares represented by this Voting Trust
Receipt. This Receipt is issued under and subject to the provisions (including
but not limited to Section 5 which is set forth on the reverse side hereof) of
said Agreement as heretofore and hereafter amended to which the holder hereof by
accepting this Receipt assents and agrees to be bound. No voting right attaches
to this Receipt or passes to the holder thereof under any agreement expressed or
implied, and no stock certificate will be due or deliverable hereunder, except
according to the provisions of said Agreement. This Receipt is transferable on
the books of the Voting Trustees by the registered holder in person or by
attorney on surrender of this Receipt only with the written consent of the
Voting Trustees as certified to on the reverse side hereof and upon compliance
with the provisions of Section 5 of said Agreement. Until so transferred the
Voting Trustees may treat the registered holder as owner of this Receipt for all
purposes.
IN WITNESS WHEREOF, the undersigned Voting Trustees hereunto subscribe
their names this day of , 19 , and certify that the issuance of this Voting
Trust Receipt has been duly authorized by the Voting Trustees.
--------------------------- --------------------------
VOTING TRUSTEE VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
EXHIBIT 9.1 (CONTINUED)
For Value Received, the undersigned,____________________________________________
hereby sells, assigns and transfers the interest represented by the within
Receipt and all right, title and interest of the undersigned in, or in respect
of, the stock represented thereby, under and subject to the terms of the
Agreement within mentioned, and do hereby irrevocably constitute and appoint
___________________________________________________
as my attorney-in-fact to make such transfer upon the books of the Voting
Trustees, with full power of substitution in the premises.
Dated: , 19
-----------------------------------
Witness:
(The signature to this assignment
must correspond exactly with the name
------------------ as written on the face of the
Receipt.)
We hereby certify that the Voting Trustees have consented to the sale,
assignment and transfer of the interest represented by the within Receipt.
Date: , 19
-----------------
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
EXHIBIT 9.1 (CONTINUED)
Section 5 of the Voting Trust Agreement made as of October 30, 1997, states as
follows:
5. Voting Trust Receipts shall be transferable with the consent in writing of
the Voting Trustees on surrender of the Voting Trust Receipt duly endorsed for
transfer, or accompanied by a transfer in writing signed by the record holder
thereof. The Voting Trustees shall record such transfers upon books kept by them
for that purpose. All Voting Trust Receipts shall be held subject to the
conditions and restrictions set forth below, the provisions of which shall at
all times apply equally both to an original holder and to each and every
subsequent holder thereof; and each holder of any Voting Trust Receipt, by
acceptance thereof, agrees with the Company and each other such holder to the
following conditions and restrictions:
(i) No transfer of any kind of the Voting Trust Receipts shall be
made at any time unless the Voting Trustees have consented thereto.
(ii) In the event of death of a holder of the Voting Trust Receipts
or in the event such a holder who is an employee of the Company or of a
subsidiary of the Company ceases for any reason to be such an employee,
the Stock represented by such Voting Trust Receipts may be purchased by
the Company at book value, as provided in the Company's Articles of
Incorporation, as amended (the "Articles").
If at any time a Stockholder shall be obligated to offer his shares of
Stock to the Company for purchase by the Company at book value, as provided in
Article SEVENTH of the Articles, and if the Company, whether or not such
Stockholder offers such Stock to the Company, indicates its intent to so
purchase such Stock and tenders payment therefor to such Stockholder, then, if
such Stock has been deposited under this Agreement, (a) the Company may treat
such Stock as having been purchased by the Company and may cause such Stock to
be registered on its books as authorized but unissued shares of Stock of the
Company, and (b) such Stockholder shall immediately deliver the Voting Trustee
Receipts representing such Stock to the Company, and if such Voting Trust
Receipts are not returned to the Company by such Stockholder within one day
after such tender of payment, they shall be null and void.
EXHIBIT 9.1 (CONTINUED)
XXXXX XXXXX CORP.
VOTING TRUST RECEIPT
FOR VOTING COMMON STOCK
NO.___________ __________ SHARES
This certifies that
will be entitled to receive from the Voting Trustees under a Voting Trust
Agreement made as of October 30, 1997, as heretofore and hereafter amended, and
lodged in the office of the Company at Boston, Massachusetts, or their
successors or assigns, a certificate or certificates issued by Xxxxx Xxxxx
Corp., a Maryland corporation, for
shares of its common stock, par value $.03125 per share, or, if the Company does
not then issue certificates for its shares of common stock, will be entitled to
have such shares registered in his or her name on the books of the Company; and
that pending the sale or distribution of the stock held by the Voting Trustees
under said Agreement, the registered holder hereof from time to time, as cash
dividends and distributions of assets are paid by the Company, will be entitled
to receive in respect of this Receipt the equivalent of said dividends or
distributions upon the number of shares represented by this Voting Trust
Receipt. This Receipt is issued under and subject to the provisions (including
but not limited to Section 5 which is set forth on the reverse side hereof) of
said Agreement as heretofore and hereafter amended to which the holder hereof by
accepting this Receipt assents and agrees to be bound. No voting right attaches
to this Receipt or passes to the holder thereof under any agreement expressed or
implied, and no stock certificate will be due or deliverable hereunder, except
according to the provisions of said Agreement. This Receipt is transferable on
the books of the Voting Trustees by the registered holder in person or by
attorney on surrender of this Receipt only with the written consent of the
Voting Trustees as certified to on the reverse side hereof and upon compliance
with the provisions of Section 5 of said Agreement. Until so transferred the
Voting Trustees may treat the registered holder as owner of this Receipt for all
purposes.
IN WITNESS WHEREOF, the undersigned Voting Trustees hereunto subscribe
their names this day of , 19 , and certify that the issuance of this Voting
Trust Receipt has been duly authorized by the Voting Trustees.
--------------------- --------------------------
VOTING TRUSTEE VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
EXHIBIT 9.1 (CONTINUED)
For Value Received, the undersigned,___________________________________________
hereby sells, assigns and transfers the interest represented by the within
Receipt and all right, title and interest of the undersigned in, or in respect
of, the stock represented thereby, under and subject to the terms of the
Agreement within mentioned, and do hereby irrevocably constitute and appoint
___________________________________________________
as my attorney-in-fact to make such transfer upon the books of the Voting
Trustees, with full power of substitution in the premises.
Dated: , 19
-----------------------------
Witness:
(The signature to this assignment must
correspond exactly with the name as
written on the face of the Receipt.)
We hereby certify that the Voting Trustees have consented to the sale,
assignment and transfer of the interest represented by the within Receipt.
Date: , 19
-----------------
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
EXHIBIT 9.1 (CONTINUED)
Section 5 of the Voting Trust Agreement made as of October 30, 1997, states as
follows:
5. Voting Trust Receipts shall be transferable with the consent in writing of
the Voting Trustees on surrender of the Voting Trust Receipt duly endorsed for
transfer, or accompanied by a transfer in writing signed by the record holder
thereof. The Voting Trustees shall record such transfers upon books kept by them
for that purpose. All Voting Trust Receipts shall be held subject to the
conditions and restrictions set forth below, the provisions of which shall at
all times apply equally both to an original holder and to each and every
subsequent holder thereof; and each holder of any Voting Trust Receipt, by
acceptance thereof, agrees with the Company and each other such holder to the
following conditions and restrictions:
(i) No transfer of any kind of the Voting Trust Receipts shall be
made at any time unless the Voting Trustees have consented thereto.
(ii) In the event of death of a holder of the Voting Trust Receipts
or in the event such a holder who is an employee of the Company or of a
subsidiary of the Company ceases for any reason to be such an employee,
the Stock represented by such Voting Trust Receipts may be purchased by
the Company at book value, as provided in the Company's Articles of
Incorporation, as amended (the "Articles").
If at any time a Stockholder shall be obligated to offer his shares of
Stock to the Company for purchase by the Company at book value, as provided in
Article SEVENTH of the Articles, and if the Company, whether or not such
Stockholder offers such Stock to the Company, indicates its intent to so
purchase such Stock and tenders payment therefor to such Stockholder, then, if
such Stock has been deposited under this Agreement, (a) the Company may treat
such Stock as having been purchased by the Company and may cause such Stock to
be registered on its books as authorized but unissued shares of Stock of the
Company, and (b) such Stockholder shall immediately deliver the Voting Trustee
Receipts representing such Stock to the Company, and if such Voting Trust
Receipts are not returned to the Company by such Stockholder within one day
after such tender of payment, they shall be null and void.