EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT is made as of the opening of business on
December 31, 1996, by and between (1) Xxxxxx X. Xxxx, X. Xxxxxx Xxxxxxx, Xxxxx
X. Xxxxxx, Xxxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx, Xx. (the "Voting
Trustees"); (2) the undersigned holders (the "Stockholders") of all of the
outstanding 19,360 shares of voting Common Stock, $.0625 par value (the
"Stock"), of Xxxxx Xxxxx Corp., a Maryland corporation; and (3) Xxxxx Xxxxx
Corp. (the "Company").
WITNESSETH THAT
WHEREAS, the Company has authorized 80,000 shares of the Stock, of which
19,360 shares were prior to December 30, 1996 held in the voting trust created
by the Voting Trust Agreement made as of December 22, 1993 as heretofore amended
and extended (the "1993 Agreement");
WHEREAS, the voting trust created by the 1993 Agreement has been terminated
in accordance with its terms, the Stock has been distributed to the former
holders of the voting trust receipts issued under the 1993 Agreement, and such
holders have become Stockholders by virtue of such distribution; and
WHEREAS, the Stockholders wish to create and constitute a new voting trust
and to deposit the Stock with the Voting Trustees to be held hereunder subject
to all of the provisions of this Agreement, and the Stockholders desire that all
of the outstanding Stock be held by the Voting Trustees subject to the terms of
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, it is agreed as follows:
1. This Voting Trust Agreement (this "Agreement") shall become operative
and effective as of the opening of business on December 31, 1996. Each
Stockholder hereby acknowledges that, upon such effectiveness, he has directed
the shares of his Stock set against his name to be deposited with the Voting
Trustees and registered on the books of the Company in the name of the Voting
Trustees, and further acknowledges that his Stock shall be held by the Voting
Trustees hereunder subject to all of the terms and provisions of this Agreement.
This Agreement shall be binding both with respect to its benefits and
obligations upon the Stockholders and the holders of the Voting Trust Receipts
issued hereunder, and upon their respective executors, administrators and
assigns, and upon the Voting Trustees and their successors in office.
The Company hereby acknowledges notice of and consents to all of the terms
and provisions of this Agreement and the voting trust created hereby. The
Company does not ordinarily issue certificates for shares of its voting Common
Stock, and therefore has caused all shares of Stock deposited in this voting
trust to be registered on its books in the names of the Voting Trustees under
this Agreement.
One duplicate original of the Agreement 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.
29
EXHIBIT 9.1 (continued)
2. The Voting Trustees shall be five in number and until further changed as
hereinbelow provided shall be Xxxxxx X. Xxxx, X. Xxxxxx Xxxxxxx, Xxxxx X.
Xxxxxx, Xxxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx, Xx. In all respects and
for all purposes hereunder the Voting Trustees shall act by a majority if there
be three or more Voting Trustees; if there be less than three Voting Trustees
they shall act unanimously except as may be specifically otherwise provided
herein.
In the event of a vacancy caused by the death or resignation of one of the
Voting Trustees, the remaining Voting Trustees shall appoint a successor
Trustee. Whenever a vacancy in the Voting Trustees shall occur, until such
vacancy is filled by the remaining Voting Trustees, or while any Voting Trustee
is physically or mentally incapacitated by reason of disease or otherwise, the
other Voting Trustees shall have all the powers hereunder and the certificate of
the other Voting Trustees as to such vacancy, absence or incapacity shall be
conclusive, provided, however, that no vacancy shall remain unfilled for a
period longer than sixty days. Any succeeding Voting Trustee shall, by virtue of
his appointment, succeed to all the duties and powers of an original Voting
Trustee.
3. The Voting Trustees may terminate this voting trust at any time. Unless
so terminated the trust shall continue until December 31, 1997, and may at any
time and from time to time be extended for one or more additional periods in
accordance with applicable law. Any such extension shall be effective for such
additional period only as to those Stockholders who consent in writing and only
if the holders of a majority of the Stock outstanding at the time of consent
shall so consent. Any Stockholder not so consenting shall receive his Stock at
the time when the trust would have terminated but for such extension. Inasmuch
as the Company does not ordinarily issue certificates for shares of voting
Common Stock, the Voting Trustees shall cause the Company to record on its books
the name of the nonconsenting Stockholder as the stockholder of record of his
shares of Stock which are being withdrawn from the trust.
4. The Voting Trustees shall issue Voting Trust Receipts in the form
attached hereto as Exhibit A for all shares deposited, which 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. 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 shares, the Voting Trustees shall issue and deliver to the record
holders of the Voting Trust Receipts additional Voting Trust Receipts for a
corresponding number of shares in this voting trust. If the capital stock of the
Company shall be increased and the Voting Trustees as holders of the deposited
shares shall be entitled to subscribe for additional shares, they shall notify
the holders of record of the Voting Trust Receipts outstanding, and shall
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 trust the new Stock to which they may be entitled, and upon
receipt of said sums, the Voting Trustees shall subscribe for the new shares and
hold them as part of the deposited Stock under this Agreement and shall issue
and deliver to the subscribing holders of Voting Trust Receipts, additional
Voting Trust Receipts representing a corresponding number of the additional
shares of the 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.
5. 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 Voting Trust Receipts then outstanding,
according to their respective interests. Such distribution shall be
30
EXHIBIT 9.1 (continued)
accomplished by causing the Company to record on its books the name of each
holder as the stockholder of record of the number of shares of Stock to which he
is entitled.
6. Voting Trust Receipts shall be transferable with the consent in writing
of the Voting Trustees, who shall record such transfers upon books kept by them
for that purpose, on surrender of the Voting Trust Receipt duly endorsed for
transfer, or accompanied by a transfer in writing signed by the record holder
thereof. All Voting Trust Receipts shall at all times 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 in
consideration of such agreement by each other 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 they have first been offered to the Company for purchase
by it at book value.
(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,
such Voting Trust Receipts shall be offered to the Company for purchase by
it at book value.
(iii) Book value shall mean the book value of the deposited shares of
the Stock represented by such Voting Trust Receipts as of the last
financial statements of the Company audited by the Company's independent
public accountants. In the event there shall be any disagreement as to the
book value, the determination of the Company's independent public
accountants shall be final.
7. Title to the Stock deposited hereunder shall be vested in the Voting
Trustees. Stock deposited shall be pooled and shall not be sold or disposed of
during the term of this voting trust, except that the Voting Trustees may sell
all, but not less than all, of the shares deposited, at a price approved in
writing by all the holders of Voting Trust Receipts. In case of sale, 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 in
the performance of their duties hereunder) shall be divided, as soon as
conveniently practicable, among the holders of Voting Trust Receipts according
to their holdings.
8. Whenever the Company shall become the owner of any Voting Trust Receipt,
the Voting Trustees at the request of the Company shall deliver to the Company
the deposited shares of Stock represented by such Voting Trust Receipt against
surrender of such Voting Trust Receipt accompanied by all requisite stock
transfer tax stamps. Thereafter, such shares of Stock shall be held in the
treasury of the Company subject to being disposed of only in such manner as the
Board of Directors of the Company shall determine. Any shares of Stock (or any
other shares of voting Common Stock, $.0625 par value, of the Company) acquired
by any person from the Company may be deposited with the Voting Trustees to be
held in this voting trust and subject to the terms of this Agreement, as it may
from time to time be amended. The Voting Trustees shall issue to such depositor
an appropriate Voting Trust Receipt for the shares so deposited, and thereafter
the depositor shall for all purposes of the Agreement be deemed to be a holder
of a Voting Trust Receipt and a Stockholder hereunder and the shares so
deposited shall be deemed to be Stock held hereunder.
9. The decision of the Voting Trustees for the time being shall be
sufficient and controlling with respect to the voting of the deposited Stock
upon all questions on which stockholders of the Company are entitled to vote,
and in all matters pertaining to the administration of this voting trust, except
in cases
31
EXHIBIT 9.1 (continued)
expressly governed by other provisions of the Agreement. The Stock shall not,
however, be voted by the Voting Trustees in favor of the sale, mortgage or
pledge of all or substantially all of the assets of the Company or for any
change in the capital structure or the powers of the Company or in connection
with a merger, consolidation, reorganization, or dissolution, except with the
written consent of the holders of Voting Trust Receipts representing at least a
majority of the Stock subject at the time to the Agreement.
10. The Voting Trustees shall have power to prescribe the method of deposit
of shares, 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 details incidental
to 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 trust, and proxies to vote the deposited Stock.
11. 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 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. 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 shareholder of the Company,
and may vote as a shareholder 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 were not a Voting Trustee. No purchaser from the Voting Trustees shall be
liable for their disposal of the purchase money and any statement signed by them
concerning this 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.
12. This Agreement may be amended from time to time by the Voting Trustees
with the consent in writing of the holders of the Voting Trust Receipts
representing at least a majority of the Stock subject at the time to the
Agreement, and a duplicate original of such amendment shall thereupon be filed
with the duplicate original of the Agreement at the office of the Company. Any
such amendment so adopted shall become binding upon all the depositors and
holders of Voting Trust Receipts. Any Certificate signed by the Voting Trustees,
or a majority them, and filed as aforesaid, shall be exclusive evidence, for all
purposes, of the facts certified herein.
13. This Agreement and any amendment hereof may be executed in several
counterparts which shall however in each case be treated as a single instrument
for all purposes.
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:
32
EXHIBIT 9.1 (continued)
THE COMPANY VOTING TRUSTEES
XXXXX XXXXX CORP.
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxx
----------------------------- -----------------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxx
its President
/s/ X. Xxxxxx Xxxxxxx
-----------------------------
X. Xxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx, Xx.
-----------------------------
Xxxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx, Xx.
33
EXHIBIT 9.1 (continued)
STOCKHOLDERS
Number of Shares of Stock Covered
by Voting Trust Receipt
-----------------------
/s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx 4,640
/s/ X. Xxxxxx Xxxxxxx
-----------------------------
X. Xxxxxx Xxxxxxx 4,640
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx 4,640
/s/ Xxxxxxxx X. Xxxxxxx, Xx.
-----------------------------
Xxxxxxxx X. Xxxxxxx, Xx. 2,920
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx, Xx. 2,520
34
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
dated December 31, 1996 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 $.0625 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 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 6 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 and upon the written consent of the Voting
Trustees in the spaces provided on the reverse side hereof and upon compliance
with the provisions of Section 6 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, a majority of the Voting Trustees hereunto subscribe
their names this________ day of______________ , 19___
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
35
EXHIBIT 9.1 (continued)
For Value Received,_____________________________________ hereby sell,
assign and transfer 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____________________________________ attorney 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 consent to the sale, assignment and transfer of the interest
represented by the within Receipt.
Dated:_________________, 19___
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
------------------------------
VOTING TRUSTEE
Section 6 of the Voting Trust Agreement dated December 31, 1996 states as
follows:
"6. Voting Trust Receipts shall be transferable with the consent in writing
of the Voting Trustees, who shall record such transfers upon books kept by them
for that purpose, on surrender of the Voting Trust Receipt duly endorsed for
transfer, or accompanied by a transfer in writing signed by the record holder
thereof. All Voting Trust Receipts shall at all times 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, in
consideration of such agreement by each other holder, to the following
conditions and restrictions:
36
EXHIBIT 9.1 (continued)
(i) No transfer of any kind of the Voting Trust Receipts shall be made
at any time unless they have first been offered to the Company for purchase
by it at book value.
(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,
such Voting Trust Receipts shall be offered to the Company for purchase by
it at book value.
(iii) Book value shall mean the book value of the deposited shares of
the Stock represented by such Voting Trust Receipts as of the last
financial statements of the Company audited by the Company's independent
public accountants. In the event there shall be any disagreement as to the
book value, the determination of the Company's independent public
accountants shall be final."
37
