AMENDED AND RESTATED
VOTING TRUST AGREEMENT
AMENDED AND RESTATED VOTING TRUST AGREEMENT made at Langhorne,
Pennsylvania, as of October 16, 2000, among ICT Group Inc., a Pennsylvania
corporation (hereinafter called the "Company") and Xxxx X. Xxxxxxx ("JBrennan")
and Xxxxxx X. Xxxxxxx ("DBrennan") and any other Shareholders of the Company who
now or hereafter become parties hereto (hereinafter called the "Shareholders"),
with JBrennan and DBrennan in such persons' capacity as voting trustees
hereunder, together with any successor trustees (hereinafter being collectively
called the "Trustees").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Shareholders and the Company are parties to a
Shareholders' Agreement which has been amended and restated as of even date
herewith (the "Shareholders' Agreement"); and
WHEREAS, JBrennan and DBrennan, as Trustees and as the only
Shareholders who as of the date hereof are beneficial owners hereunder, and the
Company, as the sole parties hereto, believe it is desirable to amend and
restate the Voting Trust Agreement dated February 2, 1996 in the manner set
forth herein; and
WHEREAS the Trustees have consented to continue to act under this
Agreement as so amended and restated for the purposes herein provided,
NOW THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements contained in this Agreement, the parties hereto,
intending to be legally bound, hereby amend and restate this Voting Trust
Agreement as follows:
1. Voting Trust Agreement. Copies of this Agreement, and of every
agreement supplemental hereto or amendatory hereof, shall be kept on file in the
principal office of the Company and shall be open to the inspection of any
stockholder of the Company, daily during business hours. All voting trust
certificates issued as hereinafter provided shall be issued, received, and held
subject to all the terms of this Agreement. Every person, firm, corporation or
other entity entitled to receive voting trust certificates representing shares
of the Company's voting stock, and their transferees and assigns, upon accepting
the voting trust certificates issued hereunder, shall be bound by the provisions
of this Agreement.
2. Transfer of Shares to Trustees.
(a) The Trustees shall hold shares of the Company transferred
to them as Trustees hereunder and shall be vested, as Trustees of an active
trust, with the right to vote and act and to exercise other rights pertaining to
such shares, as and to the extent, and upon the terms and conditions and for the
period set forth in this Agreement. Additional voting shares of the Company or
shares of voting stock of another corporation may be transferred to the Trustees
from time to time in accordance with the provisions of the Shareholders'
Agreement or otherwise,
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and the Trustees shall accept and hold any such shares so transferred in
accordance with the provisions hereof. No shares shall be deposited hereunder
except shares having general voting powers, as provided in the Articles of
Incorporation of the Company or such other corporation the stock of which is
held hereunder. All such share certificates shall be endorsed, or accompanied by
such instruments of transfer, as to enable the Trustees to cause such shares to
be transferred into the name of the Trustees, as hereinafter provided. On
receipt by the Trustees of the certificates for any such shares and the transfer
of the same into the names of the Trustees, the Trustees shall hold the same
subject to the terms of this Agreement, and shall thereupon issue and deliver to
the Shareholder voting trust certificates for the shares so deposited. Except as
hereinafter provided, any shares transferred to the Trustees to be held
hereunder shall be held and administered hereunder until the termination of the
Voting Trust pursuant to paragraph 12 hereof or the execution of a deed of
termination with respect to any such shares pursuant to subparagraph 12(a)(1)
hereof. If the Trustees receive and hold shares of a corporation other than the
Company, the Trustees shall issue a separate class of voting trust certificates
to represent the beneficial ownership of such shares and the rights of the
holders of such class of certificates shall, with respect to the shares
represented by such certificates, be the same as those of holders of
certificates representing shares of the Company, except to the extent the rights
of holders of certificates representing shares of the Company are affected by
the Shareholders' Agreement. At any time the Trustees hold stock of a
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corporation other than the Company pursuant to the provisions hereof, the term
"Company" herein shall also be deemed to refer to such other corporation,
considered as a separate entity.
(b) All certificates for shares of the Company or of another
corporation transferred and delivered to the Trustees pursuant to this Agreement
shall be surrendered by the Trustees to the Company or such other corporation
and cancelled, and new certificates therefor shall be issued to and held by the
Trustees in the names of "Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx [or the names of
any successor Trustees], as Voting Trustees".
3. Voting Trust Certificates. The Trustees shall maintain a voting
trust certificate register in which each holder of a voting trust certificate
issued under this Agreement, and the number of shares represented by each voting
trust certificate will be identified. The voting trust certificates shall be in
the form attached hereto as Exhibit A (and shall include any appropriate legends
required by Section 14 of this Agreement). Voting trust certificates previously
issued pursuant to the Voting Trust Agreement prior to this amendment and
restatement shall be deemed to comply with this paragraph provided that upon a
transfer of any such voting trust certificate, the new voting trust certificate
issued to the transferee pursuant to paragraph 4 below shall be issued in the
form attached hereto as Exhibit A.
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4. Transfer of Certificates.
(a) The voting trust certificates, if and to the extent
transferable under applicable securities law or under any agreement restricting
transferability including, without limitation, the Shareholders' Agreement,
shall be transferable at the principal office of the Company (and at such other
office as the Trustees may designate by an instrument in writing signed by the
Trustees and sent by mail to the registered holders of voting trust
certificates), on the books of the Trustees, by the registered owner thereof,
either in person or by attorney thereto duly authorized, upon surrender thereof,
according to the rules established for that purpose by the Trustees, subject to
the provisions set forth in this Section below. If a transfer of voting trust
certificates is so permitted, the holder shall notify the Trustees of the
details of such transfer, including the name, address and social security number
of the transferee and number of shares as to which the beneficial interest is
being transferred, and shall surrender to the Trustees the voting trust
certificate or certificates representing such shares, properly endorsed for
transfer, and the Trustees shall, upon receipt of such notice and voting trust
certificate(s), transfer the voting trust certificates on the voting trust
certificate registry and issue a new voting trust certificate to the transferee.
Until so transferred, the Trustees may treat the record holders of voting trust
certificates as the owners of said voting trust certificates for all purposes
whatsoever. As a condition to making any transfer or delivery of voting trust
certificates, the Trustees may require compliance by the transferee with any
applicable federal or state statute and the
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payment of a sum sufficient to pay for any stamp tax or other governmental
charge in connection therewith. Except as provided in subparagraph 4(b) below,
no transfer of voting trust certificates shall cause the shares represented by
such certificate or certificates to be distributable to the transferee by the
Trustees or otherwise cause the provisions of this Agreement to cease to apply
to such shares. Any transferee, by accepting a transfer of a voting trust
certificate, does hereby consent to be bound by the terms of this Agreement, and
upon becoming a holder of voting trust certificates shall be deemed to be a
party hereto as though an original signatory hereto.
(b) After a transfer of a voting trust certificate pursuant to
the Shareholders' Agreement to any person other than an Original Shareholder, a
Permitted Donee of an Original Shareholder or the Company, the Trustees shall
deliver the shares represented by such voting trust certificate(s) to the
transferee upon surrender of such transferred voting trust certificates:
(c) If a voting trust certificate is lost, stolen, mutilated,
or destroyed, the holder thereof shall promptly notify the Trustees and the
Trustees, in the Trustees' discretion, may issue to such holder a duplicate of
such certificate upon receipt of: (1) evidence of such fact satisfactory to the
Trustees; (2) indemnity satisfactory to the Trustees (whether bond or otherwise
in such form or amount and with such surety as the Trustees may require to
indemnify the Trustees against loss or liability that might arise due to the
issuance of such new voting trust certificate); (3) the existing certificate, if
mutilated; and (4) the
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reasonable fees and expenses of the Trustees in connection with the issuance of
a new trust certificate. The Trustees shall not be required to recognize any
transfer of a voting trust certificate not made in accordance with the
provisions hereof, unless the person claiming such ownership shall have produced
indicia of title satisfactory to the Trustees, and shall in addition deposit
with the Trustees indemnity satisfactory to the Trustees.
5. Termination Procedure.
(a) Subject to the provisions of Section 12, upon the
termination of this Agreement at any time, as hereinafter provided, the
Trustees, at such time as the Trustees may choose during the period commencing
twenty (20) days before and ending twenty (20) days after such termination,
shall mail written notice of such termination to the registered owners of the
voting trust certificates, at the addresses appearing on the transfer books of
the Trustees. After the date specified in any such notice (which shall be no
later than thirty (30) days after such termination), the voting trust
certificates shall cease to have any effect, and the holders of such voting
trust certificates shall have no further rights under this Agreement other than
to receive certificates for shares of the Company or other property
distributable under the terms hereof upon the surrender of such voting trust
certificates.
(b) Within thirty (30) days after the termination of this
Agreement, the Trustees shall deliver, to the registered holders of all voting
trust certificates, certificates for the number of shares represented thereby
(and other
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property then held hereunder), upon the surrender thereof properly endorsed,
such delivery to be made in each case at the office of the Company.
(c) At any time subsequent to the termination of this
Agreement and prior to thirty (30) days after such termination, the Trustees may
deposit with the Company share certificates representing the number of shares
(and other property) represented by the voting trust certificates then
outstanding, with authority in writing to the Company to deliver such share
certificates (and other property) in exchange for voting trust certificates
representing a like number of shares and for the Company to call upon and
require all holders of voting trust certificates to so surrender them; and upon
such deposit all further liability of the Trustees for the delivery of such
share certificates and the delivery or payment of dividends upon surrender of
the voting trust certificates shall cease, and the Trustees shall not be
required to take any further action hereunder.
6. Dividends.
(a) Until the termination of this Agreement pursuant to the
terms of Section 12, the holder of each voting trust certificate shall be
entitled to receive from the Trustees payments equal to the cash dividends, if
any, received by the Trustees upon the shares represented by each such voting
trust certificate registered in the name of such holder in the voting trust
certificate register. If any dividend in respect of the shares deposited with
the Trustees is paid, in whole or in part, in voting shares of the Company, the
Trustees shall likewise hold, subject to the terms of this Agreement, the
certificates for such voting shares which are
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received by the Trustees on account of such dividend, and the holder of each
voting trust certificate representing shares on which such stock dividend has
been paid shall be entitled to receive a voting trust certificate for the number
of shares received as such dividend. Holders entitled to receive the dividends
described above shall be those registered as such on the transfer books of the
Trustees at the close of business on the day fixed by the Company for the taking
of a record to determine those holders of its shares of stock entitled to
receive such dividends.
(b) Except as otherwise provided in Section 12, if any
dividend in respect of the shares deposited with the Trustees is paid other than
in cash or in voting shares, then the Trustees shall distribute the same among
the holders of voting trust certificates registered as such at the close of
business on the day fixed by the Trustees for taking a record to determine the
holders of voting trust certificates entitled to receive such distribution. Such
distribution shall be made to such holders of voting trust certificates ratably,
in accordance with the number of shares represented by their respective voting
trust certificates in respect of which such distribution was paid.
(c) In lieu of receiving dividends upon the shares which are
payable in cash and/or property other than voting shares and paying the same to
the holders of voting trust certificates pursuant to the provisions of this
Agreement, the Trustees may instruct the Company in writing to pay such
dividends to the holders of the voting trust certificates. Upon receipt of such
written instructions, the Company shall pay such dividends directly to the
holders
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of the voting trust certificates. Upon such instructions being given by the
Trustees to the Company, and until revoked by the Trustees, all liability of the
Trustees with respect to such dividends shall cease. The Trustees may at any
time revoke such instructions and by written notice to the Company direct it to
make such dividend payments to the Trustees.
7. Subscription Rights. In case any stock or other securities of the
Company are offered for subscription to the holders of shares deposited
hereunder, the Trustees, promptly upon receipt of notice of such offer, shall
mail a copy thereof to each of the holders of the voting trust certificates.
Upon receipt by the Trustees, at least five (5) days prior to the last day fixed
by the Company for subscription and payment, of a request from any such
registered holder of voting trust certificates to subscribe in such holder's
behalf, accompanied with the sum of money required to pay for such stock or
securities (not in excess of the amount subject to subscription in respect to
the shares represented by the voting trust certificate held by such certificate
holder), the Trustees shall make such subscription and payment, and upon
receiving from the Company the certificates for shares or securities so
subscribed for, shall issue to such holder a voting trust certificate in respect
of voting shares so received and shall mail or deliver such other stock or
securities to the certificate holder in whose behalf the subscription was made,
or may instruct the Company to make delivery directly to the certificate holder
entitled thereto. In case any reduction of the voting shares of the Company
shall have been duly authorized, the Trustees are hereby authorized to make such
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surrender of shares of the Company held by the Trustees hereunder, pro-rata on
behalf of all holders of voting trust certificates, as may be required under the
terms pursuant to which such reduction is to be effected, and to receive and
hold any and all voting shares of the Company issued in exchange for such
surrendered shares and to distribute any cash or property other than voting
shares received in exchange for such surrendered shares to the certificate
holders entitled thereto. Following any such action, the voting trust
certificates issued and outstanding pursuant hereto shall be deemed to represent
a proportionately reduced number of shares.
8. Dissolution of Company. In the event of the dissolution or total or
partial liquidation of the Company, whether voluntary or involuntary, the
Trustees shall receive the moneys, securities, rights, or property to which the
holders of shares deposited hereunder are entitled, and shall timely distribute
the same among the registered holders of voting trust certificates in proportion
to their interests, as shown by the books of the Trustees, or the Trustees may
in the Trustees' discretion deposit such moneys, securities, rights, or property
with any bank as the Trustees may select, with authority and instructions to
distribute the same as above, provided that the Trustees shall continue-to hold
the shares of any corporation as to which the Trustees then hold hereunder
(including by reason of receipt from the Company upon such liquidation or
dissolution) more than fifty percent (50%) of the aggregate voting stock in
accordance with the provisions hereof as if such shares were voting shares of
the Company.
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9. Merger or Consolidation. Except as otherwise provided in Section 12
hereof, in the event the Company is merged into or consolidated with another
corporation or shares of the Company are exchanged for shares of another
corporation (including in connection with a reorganization of the Company), the
Trustees shall receive and hold, as Trustees hereunder, any stock of such
successor or other corporation received on account of the ownership of shares of
the Company held hereunder prior to such merger, consolidation or exchange,
provided that the Trustees shall distribute to the certificate holders entitled
thereto the stock of the Company or of another corporation at such time as the
ownership by the Trustees hereunder of stock of the Company or such other
corporation is not greater than fifty percent (50%) of the voting stock thereof.
10. Rights of Trustees.
(a) Until the actual delivery to the holders of voting trust
certificates issued hereunder of stock certificates in exchange therefor, and
until the surrender of the voting trust certificates for cancellation, the
Trustees shall possess and have the exclusive right, except as otherwise
expressly provided in this Agreement or the Shareholders' Agreement, to
exercise, in person or by nominees or proxies of the Trustees, all Shareholders'
voting rights and powers in respect to all shares deposited hereunder, for any
and every purpose, and to take part in or consent to any corporate or
stockholders' action of any kind whatsoever, as absolute owner of such shares.
The Shareholders have hereby assigned to Trustees all voting rights that they
otherwise might have had arising out of any
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ownership of the shares, whether by operation of law or agreement. The right to
vote shall include the right to vote for or against or to abstain with respect
to the election of directors, and in favor of or against or to abstain with
respect to any resolution or proposed action of any character whatsoever, which
may be presented at any meeting or require the consent of shareholders of the
Company. Without limiting such general right, it is understood that such action
or proceeding may include, upon terms satisfactory to the Trustees or to their
nominees or proxies thereto appointed by the Trustees, mortgaging, creating a
security interest in, and pledging of all or any part of the property of the
Company, the lease or sale of all or any part of the property of the Company,
for cash, securities, or other property, and the dissolution of the Company, or
the consolidation, merger, reorganization, or recapitalization of the Company.
It is further understood that: (i) action by the Trustees in voting or not
voting stock deposited hereunder in instances where there are shareholders'
statutory rights of appraisal may effectively waive or terminate any such rights
as to the shares represented thereby, and (ii) the Trustees, in taking part in,
or consenting to, any corporate or stockholders' action, as provided in this
subparagraph, may enter into any agreements and take such actions which, in the
determination of the Trustees, are reasonable, including, but not limited to,
agreements which provide representations, warranties and covenants on behalf of
Shareholders who are subject to this Voting Trust and provisions relating to
indemnification for breach of such representations. Should there be any such
agreements or provisions of the
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type referred to in (ii) above, the term of this Agreement shall be extended to
cover whatever period of time is necessary for the Voting Trustees to carry out
the functions of the Trustees (such as contesting or settling claims; receiving
and distributing proceeds and interest on behalf of the Shareholders, and any
others) arising therefrom.
(b) In voting the shares held by the Trustees hereunder either
in person or by nominees or proxies, each Trustee shall exercise the Trustee's
best judgment to exercise the vote of the Trustee with respect to suitable
directors and officers of the Company (which may include the Trustees), or to
the adequacy of any consideration to be received by the Company and its
shareholders, and shall otherwise, insofar as the Trustees may be a shareholder
of the Company, take such part or action in respect to the management of its
affairs as the Trustees may deem necessary to the end that the Trustees may be
advised on the affairs of the Company and the management thereof; and in voting
upon any matters that may come before the Trustees at any stockholders' meeting,
the Trustees shall exercise like judgment, but the Trustees shall not be
personally responsible with respect to any action taken pursuant to the vote of
the Trustees so cast in any matter or act committed or omitted to be done under
this Agreement, provided such commission or omission does not amount to willful
misconduct or gross negligence on the part of the Trustees, and provided further
that the Trustees at all times exercise good faith in such matters. In addition,
the Shareholders, jointly and severally, agree to indemnify and hold the
Trustees harmless from any and all
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liabilities resulting from actions taken pursuant to this Agreement, except only
for acts which constitute gross negligence or willful misconduct on the part of
the Trustees. In the exercise of any and all of the rights of the Trustees under
this Agreement, the Trustees may choose at any time to waive any such exercise,
without the consent of any other party.
(c) Unless otherwise agreed to by the Trustees, action by the
Trustees shall be taken at a meeting of Trustees. Meetings of the Trustees shall
be held whenever ordered by a majority of the Trustees or, if there is an equal
number of Trustees at any time, by-one-half of the Trustees. Written notice
stating the place and time of any meeting of the Trustees shall be sufficient if
given at least one day in advance of the time fixed for the meeting. Notice
shall be given by hand delivery, first class mail, a nationally recognized
courier service or United States Express Mail, or by facsimile, receipt
confirmed. Notice shall be deemed to have been given (i) if delivered by hand,
when delivered at the address appearing in the records of the Trust or supplied
by such recipient to the Trustees for the purpose of notice, (ii) if sent by
first class mail, seven days after such mailing to the address appearing in the
records of the Trust or supplied by such recipient to the Trustees for the
purpose of notice, (iii) if sent by nationally recognized overnight courier
service or by United States Express Mail, on the second following business day
after delivery to such service or such mailing and (iv) if given by facsimile,
when such facsimile is transmitted to the facsimile number appearing in the
records of the Trust or supplied by such recipient to the
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Trustees for the purpose of notice and the appropriate answer back or
confirmation is received. Any Trustee may participate in any meeting of the
Trustees, be counted for the purpose of determining a quorum thereof and
exercise all rights and privileges to which such Trustee might be entitled were
he or she personally in attendance, including the right to vote, or any other
rights attendant to presence in person at such meeting, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Except as otherwise provided
in paragraph 11 below, a majority of the Trustees shall be necessary to
constitute a quorum for the transaction of business and all acts of the Trustees
under this Voting Trust Agreement must be by unanimous consent.
11. Trustees and Successor Trustees.
(a) Any Trustee (and successor Trustees) may at any time
resign by mailing to the registered holders of voting trust certificates a
written resignation, to take effect ten (10) days thereafter or upon the prior
acceptance thereof, provided that the resignation of a sole Trustee shall be
effective only upon the acceptance of Trusteeship by a successor Trustee.
(b) At all times while the Trustees shall hold shares
represented by Voting Trust Certificates owned directly or indirectly by
DBrennan or DBrennan Permitted Donees, there shall be a DBrennan Family Trustee.
The initial DBrennan Family Trustee shall be DBrennan. Upon the death or
resignation of DBrennan as a Trustee hereunder, Xxxxxx Xxxxxxx Oakley shall
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become the DBrennan Family Trustee. If Xxxxxx Xxxxxxx Oakley or any successor
DBrennan Family Trustee shall fail or cease to act as Trustee hereunder, the
next oldest child of DBrennan shall become the DBrennan Family Trustee.
JBrennan may designate by an acknowledged written
instrument or by his last Will and Testament duly admitted to probate an
individual or a series of individuals to act as his successor as Trustee
hereunder upon his death or resignation as Trustee hereunder (or as successor to
any such successor Trustee upon such successor Trustee's death or resignation as
Trustee hereunder) or if no such successor to JBrennan is so designated,
JBrennan's wife, Xxxx X. Xxxxxxx, shall act as successor Trustee to JBrennan, or
if she shall fail to act as such successor trustee, the personal representative
of JBrennan or JBrennan's Estate, as the case may be, or the nominee of such
personal representative shall act as successor Trustee to JBrennan. If Xxxx X.
Xxxxxxx shall act as Trustee hereunder, she may designate by an acknowledged
written instrument or by her last Will and Testament duly admitted to probate
any child of JBrennan to act as her successor as Trustee (or as successor to any
such successor Trustee) hereunder upon her death or resignation as Trustee
hereunder (or the death or resignation of any such successor Trustee hereunder).
A final adjudication of incompetence of any
individual acting as Trustee hereunder giving rise to the appointment of a
custodian or other representative shall be deemed to be the resignation of such
Trustee.
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If at any time there shall be no Trustee hereunder,
holders of voting trust certificates representing a majority in interest of all
the shares then held hereunder shall appoint a successor Trustee.
(c) After the death or resignation of DBrennan and while
JBrennan shall continue to act as Trustee hereunder, the vote of JBrennan shall
constitute the unanimous vote of the Trustees under paragraph 10(c) in the event
of any disagreement between JBrennan and the DBrennan Family Trustee regarding
the voting of any stock held hereunder.
After the death or resignation as Trustee hereunder
of both DBrennan and JBrennan and while Xxxx X. Xxxxxxx shall be acting as
Trustee hereunder, the vote of Xxxx X. Xxxxxxx shall constitute the unanimous
vote of the Trustees under paragraph 10(c) in the event of any disagreement
between Xxxx X. Xxxxxxx and the DBrennan Family Trustee regarding the voting of
any stock held hereunder with respect to the approval of an agreement which,
with the necessary shareholder approval, would result in a Change of Control of
the Company. For purposes of this Agreement, a Change of Control of the Company
shall mean (i) the merger or consolidation of the Company with another
corporation where the stockholders of the Company, immediately prior to the
merger or consolidation, would not beneficially own, immediately after the
merger or consolidation, shares entitling such stockholders to thirty percent
(30%) or more of all votes (without consideration of the rights of any class of
stock to elect directors by a separate class vote) to which all stockholders of
the surviving corporation would be
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entitled in the election of directors or where the members of the Board of
Directors, immediately prior to the merger or consolidation, would not,
immediately after the merger or consolidation, constitute a majority of the
Board of the surviving corporation or (ii) the sale or other disposition of all
or substantially all the assets of the Company.
For purposes of this paragraph (c), if notice of a
meeting of Trustees and a description of matters to be voted on by the Trustees
at such meeting has been given to the DBrennan Family Trustee not less than ten
(10) days prior to the date set for such meeting and the DBrennan Family Trustee
shall either fail to attend or participate in the meeting (unless such failure
shall be in good faith and due to extenuating circumstances as to which the
DBrennan Family Trustee shall have notified the JBrennan Family Trustee prior to
the time set for such meeting) or shall fail to vote with respect to any of the
matters to be voted on described in such notice, such failure shall be deemed to
constitute a disagreement with respect to (i) all such matters described in the
notice in the case of the failure of the DBrennan Family Trustee to attend or
participate in the meeting or (ii) each matter as to which the DBrennan Family
Trustee shall fail to vote if the DBrennan Family Trustee shall otherwise attend
or participate in the meeting. If the DBrennan Family Trustee shall fail to
attend or participate in the meeting under the circumstances described above,
JBrennan or Xxxx X. Xxxxxxx, as the case may be, acting as the JBrennan Family
Trustee shall alone constitute a quorum with respect to the vote on any matter
described in such notice as to which the vote of
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such Trustee pursuant to this paragraph (c) would constitute the unanimous vote
of the Trustees.
(d) At any time when the only Trustees acting hereunder shall
be a DBrennan Family Trustee (other than DBrennan) and a JBrennan Family Trustee
(other than JBrennan or Xxxx X. Xxxxxxx), the Trustees shall within thirty (30)
days, acting jointly, appoint in writing an Independent Trustee to act as a Co-
Trustee with them hereunder. For purposes of this Agreement, an Independent
Trustee shall mean a person or entity who or which in the judgment of the
Trustees making the appointment of such Independent Trustee (i) is experienced
and sophisticated in financial management matters, (ii) has no relationship to
the Company (and has had no such relationship within the three years prior to
such appointment as Independent Trustee) that may interfere with the independent
exercise of such Trustee's powers hereunder and (iii) is not an immediate family
member of either of the Trustees making the appointment of such Independent
Trustee. For purposes of the preceding sentence an immediate family member with
respect to any person means such person's spouse, ancestors, descendants,
siblings, mothers-in-law, fathers-in-law, sons and daughters-in-law, brothers
and sisters-in-law, and any person who shares such person's home.
(e) The Trustees shall vote all shares held hereunder to elect
DBrennan as a director of the Company if DBrennan shall have been nominated for
such position and shall vote all such shares against the removal of DBrennan as
director if he shall then be so serving unless, in either case, (i) DBrennan
shall
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have been adjudicated an incompetent and a custodian or other representative has
been appointed, (ii) DBrennan is unable to perform his duties as a director due
to partial or total disability or incapacity resulting from a mental or physical
illness, injury or any other health-related cause for a cumulative period of
twenty-six (26) weeks during the one-year period ending on the date set for the
relevant vote, or (iii) the acts or omissions of DBrennan with respect to the
Company have been finally adjudicated to constitute willful misconduct or gross
negligence. This paragraph shall not be applicable if the Trustees (at least one
of whom is a DBrennan Family Trustee) shall unanimously (without regard to
paragraph 11(c) above) agree.
(f) The rights, powers, and privileges of the Trustees named
hereunder (other than any such right, power and privilege granted specifically
to a named individual under paragraph 11(c)) shall be possessed by the successor
Trustees, with the same effect as though such successors had originally been
parties to this Agreement. The word "Trustees", as used in this Agreement, means
the Trustees or any successor Trustees acting hereunder, and shall include both
the single and the plural number.
12. Term.
(a) This Agreement shall continue in effect until December 31,
2080 (subject to extension as hereinafter set forth) but shall terminate at any
time upon the first to occur of the following events: (1) the execution and
acknowledgment by the Trustees (acting unanimously if more than one) of a deed
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of termination (which may be as to all or any portion of the shares held
hereunder), duly filed in the office of the Company; or (2) a merger or
consolidation of the Company with another corporation or a sale or exchange of
voting shares of the Company unless immediately after such merger, consolidation
or sale or exchange more than fifty percent (50U of the voting stock of any of
the following is held hereunder: (i) the Company, (ii) the surviving corporation
in a merger or consolidation in which the Company does not survive, or (iii) in
the case of an exchange of stock, the corporation the stock of which is acquired
in exchange for voting shares of the Company; or (3) the liquidation or
dissolution of the Company unless, immediately after such liquidation or
dissolution, more than fifty percent (50%) of the voting stock of another
corporation is held hereunder.
(b) At any time within one (1) year prior to the expiration of
this Agreement as theretofore extended, the holders of a majority of the voting
trust certificates hereunder may, by agreement in writing and with the written
consent of the Trustees, extend the duration of this Agreement for an additional
period not exceeding ten (10) years. In the event of such extension, the
Trustees shall, prior to the time of expiration as hereinabove provided, as
originally fixed, or as theretofore extended, as the case may be, file in the
principal office of the Company, a copy of such extension agreement, and of the
consent thereto, and thereupon the duration of this Agreement shall be extended
for the period fixed by such extension agreement, provided, however, that no
such extension agreement
22
shall extend the term of this Agreement beyond the maximum period then permitted
by applicable law or affect the rights, or obligations of persons not parties
thereto.
13. Compensation and Reimbursement of Trustees. The Trustees shall
serve without compensation, unless such compensation is authorized by a majority
vote of the persons then holding voting trust certificates hereunder, but it is
expressly agreed that the Trustees shall have the right to incur and pay such
reasonable expenses and charges, to employ and pay such agents, attorneys, and
counsel as the Trustees may deem necessary and proper with respect to the
Trustees carrying out any of the Trustees' duties under this Agreement or
interpreting or exercising any of the Trustees' powers under this Agreement. Any
such expenses or charges incurred by and due to the Trustees paid by the
Company, where the Company deems it appropriate to its interests, may be
deducted pro rata from the dividends or other moneys or property received by the
Trustees on the stock deposited hereunder. Nothing herein contained shall
disqualify the Trustees or successor Trustees, or incapacitate any of them from
serving the Company or any of its subsidiaries as officer or director, or in any
other capacity, and in any such capacity receiving compensation.
14. Legend. All voting trust certificates issued pursuant to this
Agreement shall be marked with the following legend:
"This certificate and the shares represented hereby
are held subject to the terms, covenants and conditions of an
Amended and Restated Voting Trust Agreement dated as
23
of October 16, 2000 by and among the Company, certain of its
Shareholders and Xxxx Xxxxxxx and Xxxxxx Xxxxxxx and such
persons' successors in trust, as Voting Trustees."
15. Meetings of Holders. The Trustees shall have no duty to hold
meetings of holders of voting trust certificates, but the Trustees shall be
entitled to do so. Two (2) days written notice of every meeting of holders shall
be given and such notice shall state the place, day, hour and purposes of such
meeting, but any holder may waive such notice in writing, either before, during
or after the meeting. No notice of any adjourned meeting need be given. Every
such meeting shall be held at a place designated by the Trustees. The failure to
hold meetings shall not in any manner or degree impair or reduce the authority
of the Trustees hereunder.
16. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
24
(b) Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(c) Notice.
(i) Unless otherwise in this Agreement specifically
provided, any notice to or communication with the holders of the voting trust
certificates hereunder shall be deemed to be sufficiently given or made if
enclosed in postpaid wrappers (registered mail) addressed to such holders at
their respective addresses appearing on the transfer books of the Trustee, and
deposited in any post office or post office box, personally delivered with
evidence of receipt or submitted to an overnight delivery service such as
Federal Express or similarly recognized service and so addressed. The addresses
of the holders of voting trust certificates, as shown on the transfer books of
the Trustees, shall in all cases be deemed to be the addresses of voting trust
certificate holders for all purposes under this Agreement, without regard to
what other or different addresses the Trustees may have for any voting trust
certificate holder on any other books or records of the Trustee. Every notice so
given shall be effective, whether or not received; and the date of mailing shall
be the date such notice is deemed given for all purposes.
25
(ii) Any notice of the Company hereunder shall be
sufficient if enclosed in a postpaid wrapper and sent by registered mail,
personally delivered with evidence of receipt, or submitted to Federal Express
or similarly recognized service, to the Company addressed as follows:
ICT Group, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(iii) Except as otherwise provided herein, any notice
to the Trustees hereunder may be enclosed in a postpaid wrapper and sent by
registered mail, personally delivered with evidence of receipt, or submitted to
Federal Express or similarly recognized service, to the Trustees, addressed to
them at such addresses as may from time to time be furnished in writing to the
Company by the Trustees, and if no such address has been so furnished by the
Trustees, then to the Trustees in care of the Company.
(iv) All distributions of cash, securities, or other
property hereunder by the Trustees to the holders of voting trust certificates
may be made, in the discretion of the Trustees, by mail (regular or registered
mail, as the Trustees may deem advisable), in the same manner as hereinabove
provided for the giving of notices to the holders of voting trust certificates.
(d) Binding Nature of Agreement; No Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto,
26
including future holders of voting trust certificates, and their respective
heirs, personal representatives, successors and assigns. No party may sell,
assign, transfer or encumber such party's rights or obligations under this
Agreement, the voting trust certificates or the shares represented thereby,
without the prior written consent of the other parties hereto, except to the
extent expressly permitted in this Agreement or the Shareholders' Agreement.
Neither the death, disability nor incapacity of a holder of voting trust
certificates shall in any way remove the shares from being held by the Trustees
under this Agreement.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein provided. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
27
(g) Paragraph Headings. The paragraph headings in this
Agreement are for convenience only; they form no part of this agreement and
shall not affect its interpretation.
(h) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(i) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period (including the effective date of a notice or other communication given
hereunder) falls on a Saturday, Sunday or holiday on which federal banks are or
may elect to be closed, then the final day shall be deemed to be the next day
which is not a Saturday, Sunday or such holiday.
IN WITNESS WHEREOF JBrennan and DBrennan, as Trustees and Shareholders,
and the Company have signed and sealed this Amended and Restated Voting Trust
Agreement.
Attest: ICT GROUP, INC.
____________________________ By:_______________________
, Secretary Xxxx X. Xxxxxxx
President
Witness:
____________________________ _______________________(SEAL)
Xxxx X. Xxxxxxx, Trustee
and Shareholder
____________________________ _______________________(SEAL)
Xxxxxx X. Xxxxxxx, Trustee
and Shareholder
28
EXHIBIT A
"No. VT-_________________
______________________Shares
ICT Group, Inc.
A Pennsylvania Corporation
Voting Trust Certificate for Capital Stock
This certifies that _____________________________ or registered assigns is
entitled to all the benefits arising from the deposit with and transfer to the
Trustees under the Amended and Restated Voting Trust Agreement hereinafter
mentioned, of certificates for shares of the capital stock of ICT Group, Inc, a
Pennsylvania corporation (hereinafter called the "Company"), as provided in such
Amended and Restated Voting Trust Agreement and subject to the terms thereof and
to the Amended and Restated Shareholders' Agreement dated as of October 16,
2000. The registered holder hereof, or assigns, is entitled to receive payment,
in the manner set forth in the Amended and Restated Voting Trust Agreement,
equal to the amount of dividends, if any, received by the Trustees upon the
number of shares of capital stock of the Company in respect of which this
certificate is issued; provided, however, except to the extent provided above,
that any dividends received by the Trustees in common or other stock of the
Company having general voting powers shall be held by the Trustees under the
Amended and Restated Voting Trust Agreement and shall be represented by voting
trust
certificates issued in form similar hereto. Until the Trustees shall have
delivered the shares of stock held under such Amended and Restated Voting Trust
Agreement to the holders of the trust certificates, or to the Company, as
specified in such Amended and Restated Voting Trust Agreement, the Trustees
shall possess and shall be entitled to exercise all rights and powers of an
absolute owner of such shares of stock, including the right to vote thereon for
every purpose, and to execute consents in respect thereof for every purpose, it
being expressly stipulated that no voting right passes to the owner hereof, or
such owner's assigns, under this certificate or any agreement, expressed or
implied. This certificate is issued, received, and held under, and the rights of
the owner hereof are subject to, the terms of an Amended and Restated Voting
Trust Agreement dated as of October 16, 2000, between the Company and Xxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxx, and such persons' successors in trust (the
"Amended and Restated Voting Trust Agreement"), and certain Shareholders of the
Company (copies of which Amended and Restated Voting Trust Agreement, and of
every agreement amending or supplementing the same, are on file in the principal
office of ,the Company, and shall be open to the inspection of any Shareholder
of the Company, daily during business hours); to all the provisions of which
Amended and Restated Voting Trust Agreement the holder of this certificate, and
such holder's heirs, personal representatives, successors and assigns, by
acceptance hereof, assents and is bound as if such Amended and Restated Voting
Trust Agreement had been signed by such person.
2
Subject to Sections 8, 9 and 12 of the Amended and Restated Voting Trust
Agreement, in the event of the dissolution or total or partial liquidation of
the Company, the moneys, securities or property received by the Trustees in
respect of the shares of stock deposited under such Amended and Restated Voting
Trust Agreement shall be distributed among the registered holders of trust
certificates in proportion to their interests as shown on the books of the
Trustees. Except as otherwise provided in Sections 9 and 12 of the Amended and
Restated Voting Trust Agreement, in the event that any dividend or distribution
other than in cash or shares of common or other stock of the Company having
general voting powers is received by the Trustees, the Trustees shall distribute
the same ratably to the registered holders of voting trust certificates, on the
date of such distribution, in accordance with the number of shares represented
by their respective voting trust certificates.
Share certificates for the number of shares of capital stock then represented by
this certificate, or the net proceeds in cash or property representing such
shares, shall be due and deliverable hereunder upon the termination of such
Amended and Restated Voting Trust Agreement as provided therein.
The Amended and Restated Voting Trust Agreement shall continue in full force and
effect until December 31, 2080 (subject to extension as hereinafter set forth),
unless terminated prior thereto in accordance with the provisions of the Amended
and Restated Voting Trust Agreement. The Amended and Restated Voting Trust
Agreement may be extended for successive ten-year periods or such shorter
3
periods as the parties may agree, as provided in Section 12 of the Amended and
Restated Voting Trust Agreement.
This certificate is transferable on the books of the Trustees at the office of
the Company (or elsewhere as designated by the Trustees) by the holder hereof,
either in person or by attorney duly authorized, in accordance with the rules
established for that purpose by the Trustees and on surrender of this
certificate properly endorsed, subject to compliance with all applicable state
and federal securities laws. Title to this certificate when duly endorsed shall,
to the extent permitted by law and the Shareholders' Agreement, be transferable
with the same effect as in the case of a negotiable instrument. Each holder
hereof agrees that delivery of this certificate, duly endorsed by any holder
hereof, shall vest title hereto and all rights hereunder in the transferee;
provided, however, that the Trustees may treat the registered holder hereof, or
when presented duly endorsed in blank the bearer hereof, as the absolute owner
hereof, and of all rights and interests represented hereby, for all purposes
whatsoever, and the Trustees shall not be bound or affected by any notice to the
contrary, or by any notice of any trust, whether express or implied, or
constructive, or of any charge or equity respecting the title or ownership of
this certificate, or the share of stock represented hereby; provided, however,
that no delivery of stock certificates hereunder, or the proceeds thereof, shall
be made without surrender hereof properly endorsed. This certificate shall not
be valid for any purpose until duly signed by the Trustees.
4
The word "Trustees" as used in this certificate means the Trustees or the
successor Trustees acting under such Amended and Restated Voting Trust
Agreement. IN WITNESS WHEREOF, the Trustees have signed this certificate on
_________________, 2000.
---------------------------
Xxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
(Form of Assignment):
For value received _____________________ hereby assigns the within certificate,
and all rights and interests represented thereby, to and appoints Xxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxx, Voting Trustees, attorney to transfer this
certificate on the books of the Trustees mentioned therein, with full power of
substitution.
Dated:
------------------------------------
In presence of:
--------------------------------
--------------------------------
5
Note: The signature to this assignment must correspond with the name as written
upon the face of this certificate in every particular, without alteration,
enlargement, or any change whatever. All endorsements, in the discretion of the
Trustees, shall be guaranteed by a bank or trust company satisfactory to the
Trustees."
6
