EXHIBIT 9.1
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT made and entered into this 30th day of
November, 1998, by and between the parties listed as the depositors
("Depositors") on Schedule A and the trustees named in Section 1.04 (the
"Trustees").
WHEREAS, the Depositors are owners and holders of certain of the
shares of common stock, $0.01 par value (the "Shares") of the Xxxxxx Capital
Group, Inc., a Delaware corporation, having its principal office at 000 X.
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 (the "Corporation");
WHEREAS, the Depositors deem it advisable and for the best interests
of themselves and the Corporation to insure continuity and stability of
management of the Corporation and to protect their collective interests in the
Corporation;
WHEREAS, the Depositors wish to transfer all of the Shares to the
Trustees with the intent that the Trustees will have the sole and absolute right
to vote the Shares and otherwise deal with the Shares, as set forth in this
Agreement; and
WHEREAS, the Trustees have consented to act under this Agreement for
the purposes herein provided.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I. DEPOSIT OF SHARES AND ISSUANCE OF
VOTING TRUST CERTIFICATES; APPOINTMENT OF
TRUSTEES; VOTING LINES
Section 1.01. Deposit of Shares. Each Depositor hereby agrees to
deposit simultaneously with the execution of the Agreement stock certificates
representing the number of Shares as set forth after their names on Schedule A.
Each Trustee hereby covenants and agrees that he/she will receive and will hold
the Shares they receive from each Depositor, and all additional stock of the
Corporation as may be transferred and disposed of for the uses and purposes and
upon the terms and conditions set forth in this Agreement.
Section 1.02. Transfer of Title. At the time of deposit of stock
certificates with the Trustees, the Depositor shall transfer to the Trustee set
forth after their name on Schedule A, by proper endorsement, their full legal
title to all Shares and the Trustee shall thereby have and be vested with all of
the rights and powers of the owner of whatever nature necessary to enable the
Trustee to exercise the powers granted to Trustees under this Agreement. The
Shares shall be transferred upon the books of the Corporation into the name of
the Trustee, and shall remain in the name of the Trustee until this Agreement is
terminated as set forth in Article V hereof. The Trustees shall issue to the
Depositors voting trust certificates (the "Trust Certificates") for
the stock transferred by them to the Trustees in substantially the form attached
hereto as Exhibit A.
SECTION 1.03. TRUST CERTIFICATE OWNERSHIP. The Trustees may at all times
and for all purposes treat the Depositor to whom each outstanding Trust
Certificate is issued as the sole owner thereof.
SECTION 1.04. APPOINTMENT OF TRUSTEES: VOTING LINES. The following
persons are hereby appointed to serve as the Trustees in this Agreement:
Xxxx Xxxx Xxxxxx
Xxxxx Xxxxxx, who shall be the initial Trustee of the "Xxxxx Voting Line"
Xxxxx Xxxxxx, who shall be the initial Trustee of the "Xxxxx Voting Line"
Xxxxxxx X. Xxxxxx, who shall be the initial Trustee of the "Xxxxxxx Voting
Line" (together with the Xxxxx Voting Line and the Xxxxx Voting Line, the
"Voting Lines") and the "Xxxxx Family Shares" (hereinafter defined).
Except as may be modified by Section 4.02 and 4.05 below, each Trustee shall
have one and one-half (1.5) votes in all matters voted on by the Trustees,
except that Xxxx Xxxx Xxxxxx and Xxxxx Xxxxxx each shall have one (1) vote, so
that the total number of votes which can be cast by the Trustees numbers five.
ARTICLE II. DISTRIBUTIONS, LIQUIDATION AND REORGANIZATION
SECTION 2.01. DIVIDENDS. Prior to the termination of this Agreement, the
holder of each Trust Certificate shall be entitled to receive payments equal to
the cash dividends, if any, received by the Trustees upon a like number of
Shares as is called for by each Trust Certificate. If any dividend in respect
of the Shares deposited with the Trustees is paid, in whole or in part, in
voting common stock of the Corporation, the Trustees shall likewise hold,
subject to the terms of this Agreement, the certificates for stock which are
received by such Trustee on account of such dividend, and the holder of each
Trust Certificate representing Shares on which the stock dividend has been paid
shall be entitled to receive a Trust Certificate issued under this Agreement
for the number of shares and class of stock received as such dividend. Such
additional shares shall be included within the term "Shares" for all purposes
hereunder. Holders entitled to receive the dividends described above shall be
the Depositors registered as such on the transfer books of the Trustee at the
close of business on the day fixed by the Corporation for the taking of a
record to determine those holders of its stock entitled to receive such
dividends.
SECTION 2.02. NON-STANDARD DIVIDENDS. If any dividend in respect of the
Shares deposited with the Trustees is paid other than in cash or in capital
stock of the Corporation having general voting powers, then the Trust
Certificates registered as such at the close of business on the day fixed by
the Corporation as the record date to determine the Depositors shall be
entitled to receive such dividend. Such distribution shall be made to such
holders of Trust Certificates ratably, in accordance with the number of Shares
represented by their respective Trust Certificates.
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Section 2.03. Dissolution or Liquidation. In the event of the
dissolution or total or partial liquidation of the Corporation, whether
voluntary or involuntary, the Trustees shall receive the moneys, securities,
rights, or property to which the Depositors hereunder are entitled, and shall
distribute the same among the registered Depositors in proportion to their
interests, as shown on Schedule A as amended from time to time, as of the date
such proceeds are received.
Section 2.04. Merger or Consolidation. In case the Corporation is merged
into or consolidated with another corporation, or all or substantially all of
the assets of the Corporation are transferred to another corporation, then in
connection with such transfer the term "Corporation" for all purposes of this
Agreement shall be taken to include such successor corporation, and the
Trustees shall receive and hold under this Agreement any common voting stock of
the successor corporation received on account of the ownership, as Trustee
hereunder, of the stock held hereunder prior to such merger, consolidation, and
transfer. Trust Certificates issued and outstanding under this Agreement at the
time of the merger, consolidation, or transfer may remain outstanding, or the
Trustees may substitute for the outstanding Trust Certificates new Trust
Certificates in appropriate form. The terms "stock" and "capital stock" as used
in this Agreement shall be taken to include any stock which may be received by
the Trustees in lieu of all or any part of the capital stock of the
Corporation. Any property other than common voting stock received by the
Trustees as part of the transaction will be distributed in accordance with the
provisions of Sections 2.02 and 2.03.
Section 2.05. Sale of Shares. Subject to compliance with the Share
Restriction Agreement dated as of November 30, 1998, by and between the
Principal Stockholders (as defined therein) and the Corporation, any Depositor
may direct a Trustee to sell any number of Shares deposited by the Depositor
with such Trustee on terms and conditions specified in writing by the
Depositor. The Trustee shall sell the Shares as agent and on behalf of the
Depositor, and all proceeds of the sale shall be forwarded immediately by the
Trustee to the Depositor. Upon completion of a sale of Shares pursuant to this
Section 2.05, the Trustee shall issue to the Depositor a new Trust Certificate
which represents the number of Shares originally transferred by such Depositor
which were not sold by the Trustee and Schedule A hereto shall be amended to
reflect such Depositor's then current interest.
ARTICLE III. POWERS AND OBLIGATIONS OF THE TRUSTEES
Section 3.01. Powers. Except as otherwise provided in this Agreement, the
Trustees, with respect to the Shares deposited or held under this Agreement,
shall be vested with all of the rights, powers and privileges of every kind and
character of an owner thereof, including, without limitation the rights to vote
the Shares, either in person or by proxy, for every purpose.
Section 3.02. Rights of Trustees. A Trustee, individually or otherwise,
may hold common stock of the Corporation or Trust Certificates issued to such
Trustee pursuant to this Agreement and, individually or as a Trustee, may vote
for himself/herself as a director and/or officer of the Corporation and
participate in fixing the amount of compensation therefor or as an employee of
the Corporation, and any Trustee, or any firm of which such Trustee is an
employee, owner, director or agent may contract with the Corporation or the
Trustees or be or
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become pecuniarily interested in any matter or transaction to which the
Corporation or the Trustees may be a party, as fully as though such person were
not a Trustee hereunder.
Section 3.03. No Compensation. The Trustees shall serve without
compensation. The Trustees shall have the right to incur and pay such
reasonable expenses and charges, and to employ and pay such agents, attorneys,
and counsel as the Trustees may deem necessary and proper for carrying this
Agreement into effect. Any such expenses or charges incurred by and due to the
Trustees may be deducted from the dividends or other moneys or property
received by the Trustee on the stock deposited hereunder.
Section 3.04. No Liability. No Trustee shall be liable or responsible in
any event under this Agreement except for individual personal malfeasance, nor
shall any Trustee, whether original or successor or substitute, at any time be
required to give or file any bond in order to qualify or continue as a Trustee
hereunder. In voting the Shares, the Trustee assumes no responsibility with
respect to the management of the Corporation or with respect to any act or
omission of any director of the Corporation elected by the Trustee or of any
other person or entity. The Depositor acknowledges and agrees that, in voting
for directors of the Corporation, the Trustee is entitled to act for his own
benefit. The Trustee shall incur no responsibility or liability with respect to
any act or omission under this Agreement, except for his own wilful misconduct.
Section 3.05. Voting. The presence at a meeting (in person or by proxy)
of Trustees with a majority of the number of votes eligible to be cast by the
Trustees shall constitute a quorum for the transaction of business. If less
than a majority of the Trustees are present at a meeting of the Trustees, a
majority of the Trustees present may adjourn the meeting from time to time
without further notice. The act of a majority of the votes cast by the Trustees
present at a meeting at which a quorum is present shall be the act of the
Trustees. All actions taken by the Trustees in their capacities as Trustees
pursuant to this Agreement shall be taken by majority vote of all the Trustees.
Section 3.06. Voting by Proxy: Calling Meetings. A Trustee may vote in
person or by proxy on any action required to be taken pursuant to this
Agreement. Meetings of the Trustees may be called by any Trustee by depositing
notice of the date, time and place of the meeting in the mail properly
addressed to the remaining Trustees at least 20 days prior to the scheduled
date of the meeting; however, action of the Trustees may be taken by informal
action without the necessity of a formal meeting.
ARTICLE IV. RESIGNATION AND REPLACEMENT OF A TRUSTEE
Section 4.01. Successor Trustee for Xxxx Xxxxxx. In the event of the
death, resignation, refusal, failure or inability of Xxxx Xxxx Xxxxxx to act as
a Trustee, the vacancy so caused shall not be filled. Thereafter, the remaining
Trustees shall be the sole Trustees.
Section 4.02. Decisions by Trustees. After the death of Xxxx Xxxx Xxxxxx,
in the event that any "Family Group" (hereinafter defined) shall own, in total,
less than two-thirds (2/3) of the total number of Shares owned by any other
Family Group, then for the remaining term of
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this Agreement, all decisions contemplated by the provisions of this Agreement
with respect to Shares shall be directed by a majority vote of all Shares, with
each Share entitled to one (1) vote; provided, however, all Shares owned by a
separate Family Group shall be voted with respect to each such separate
decision in the manner determined by a majority vote of all Shares owned by
such separate Family Group, with each Share entitled to one (1) vote. Such
majority vote shall then be voted and executed by the Trustee of the respective
Voting Line to which such separate Family Group shall belong.
For purposes of this Section 4.02, "Xxxxx Family Shares" (hereinafter
defined) shall be voted by the Trustee of such Xxxxx Family Shares with respect
to each separate decision with respect to Shares in the manner determined by a
majority of all Shares owned by the Depositors of all Voting Lines.
For purposes of this Section 4.02, a "Family Group" shall consist of Xxxxx
Xxxxxx, Xxxxx Xxxxxx or Xxxxxxx X. Xxxxxx, his or her spouse (or surviving
spouse), his or her descendants living from time to time, the respective spouses
(or surviving spouses) of said descendants, and each and any trust which is held
for the benefit of any one (1) or more of the foregoing persons. For purposes of
this Section 4.02, "Xxxxx Family Shares" shall mean Shares owned by Xxxxx
Xxxxxx, his spouse (or surviving spouse), his descendants living from time to
time, the respective spouses (or surviving spouses) of said descendents, and
each and any trust which is held for the benefit of any one (1) or more of the
foregoing persons. For purposes of this Agreement, a person who has the
discretion to vote the Shares of a Depositor or to make a current distribution
to a Depositor shall be deemed to hold such Shares "for the benefit" of such
Depositor.
By way of example, if each Voting Line owns 1 million Shares after the
death of Xxxx Xxxx Xxxxxx, 100,000 shares are Xxxxx Family Shares and Depositors
to the Xxxxx Voting Line sell 500,000 Shares to a third party or parties, then
the total number of votes eligible to be cast by the Trustees shall be 2,600,000
million votes, with each vote representing a single Share, as follows:
Xxxxx Voting Line 1,000,000
Xxxxxxx Voting Line 1,000,000
Xxxxx Voting Line 500,000
Xxxxx Family Shares 100,000 (voted in accordance with the majority
of the Voting Lines)
---------
2,600,000
=========
Section 4.03. Appointment of Successor Trustees of Voting Lines Other
Than Iris Voting Line. In the event of the death, resignation, refusal, failure
or inability of any Trustee appointed by this Agreement (other than Xxxx Xxxx
Xxxxxx) to act as Trustee as provided herein (and subject to Section 4.05
below), the successor Trustee to fill the vacancy in the position of Trustee so
caused (and each further successor Trustee) shall be one (1) person or
corporation, designated by name or appointed by the vote of the majority of all
Shares owned by the Depositors of the Voting Line so effected; provided,
however, there shall only be one acting Trustee of each separate Voting Line at
any given time; provided, further that the Trustee
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designated or appointed by the Xxxxxxx Voting Line shall serve as Trustee with
respect to all Xxxxx Family Shares.
Section 4.04. Rights of Successor Trustees. The rights, powers, and
privileges of the Trustee named hereunder shall be possessed by a successor
Trustee, with the same effect as though such successor had originally been a
party to this Agreement. The word "Trustee" as used in this Agreement, means the
Trustee or any successor Trustees acting hereunder, and shall include both the
singular and the plural number.
Section 4.05. Surviving Brother. Notwithstanding anything to the contrary
contained herein, upon the first to die of either Xxxxx Xxxxxx or Xxxxxxx X.
Xxxxxx (the "Non-Surviving Brother"), the survivor shall become the Trustee of
that Voting Line held by the Non-Surviving Brother for one year from the date of
the death of the Non-Surviving Brother. From and after the first anniversary of
the death of the Non-Surviving Brother, and notwithstanding Section 4.02 above,
(i) a successor Trustee shall be appointed in accordance with Section 4.03
above, and (ii) each Trustee shall have one (1) vote in all matters voted on by
the Trustees.
ARTICLE V. TERM OF THE TRUST: RIGHTS ON TERMINATION
Section 5.01. Termination. This Agreement shall, and any extension thereof,
continue in effect until terminated by a majority of the number of votes
eligible to be cast by the Trustees or the written consent of Depositors holding
Trust Certificates representing 66-2/3 percent of all the Shares held in trust
under this Agreement.
Section 5.02. Return of Shares. Upon termination of this Agreement, the
Trustees shall promptly mail written notice of the termination to the registered
owners of the Trust Certificates, at the addresses appearing on Schedule A.
After the date specified in this notice (which date shall be fixed by the
Trustees), the Trust Certificates shall cease to have any effect, and the
holders of the Trust Certificates shall have no further rights under this
Agreement other than to receive certificates for the Shares or other property
distributable under the terms hereof upon the surrender of their respective
Trust Certificates.
ARTICLE VI. AMENDMENT
The Trustees shall have the power from time to time, by unanimous vote
only, to amend this Agreement. Notice of all amendments shall be given to the
Depositors. Such amendments shall become effective and shall be binding upon all
parties to this Agreement. All parties to this Agreement shall be finally and
conclusively deemed to have assented to the amendments whether they receive
actual notice or not, and this Agreement shall be modified accordingly.
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ARTICLE VII. MISCELLANEOUS
Section 7.01. Notice. Any and all notices to the Depositors herein provided
for shall be in writing and may be personally delivered or shall be given by
mailing such notice by first-class mail postage prepaid to the address of the
person or entity to whom such notice is given c/o Xxxx Xxxxxx Bank, 000 Xxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000. Any notice may be waived by
written document to that effect. Notice of any meeting will be deemed waived by
all attending the meeting.
Section 7.02. Severability. If any provision of the Agreement shall under
any circumstances be deemed valid or inoperative to any extent, it is agreed and
understood that such invalidity shall not invalidate the whole Agreement, but
the Agreement shall be construed as not containing the provision or provisions
deemed invalid and inoperative, and the right and obligations of the parties
shall be construed and enforced accordingly.
Section 7.03. Governing Law. The construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
State of Delaware.
Section 7.04. References to Gender and Number Terms. In construing the
Agreement, feminine or neuter pronouns shall be substituted for those masculine
in form and visa versa, and plural terms shall be substituted for singular and
singular for plural in any place in which the context so requires.
Section 7.05. Counterparts of this Agreement. This Agreement shall be
executed in counterparts by the Depositors and the original Trustees as
originally constituted. At least one of the counterparts and a copy of all
amendments to this Agreement shall be retained by the Trustees at all times and
one of the counterparts and a copy of all amendments to this Agreement shall be
filed with the secretary of the Corporation.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have hereunto affixed their signatures and
seals as of the day and year first above written.
Trustees
/s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Depositors
XXXXXXX XXXX GRANDCHILDRENS TRUST
FBO XXXXXXX XXXXXX U/A DTD 1/20/78
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX XXXX GRANDCHILDRENS TRUST
F/B/O XXXXX XXXXXX U/A DTD 1/20/78
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX XXXX GRANDCHILDRENS TRUST
F/B/O XXXXX XXXXXX XXXXX U/A DTD 1/20/78
By: /s/ Xxxx Xxxx Xxxxxx, Trustee
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX XXXX GREAT GRANDCHILDRENS TRUST
F/B/O FAMILY OF XXXXXXX XXXXXX U/A DTD 1/20/78
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX XXXX GREAT GRANDCHILDRENS TRUST
F/B/O FAMILY OF XXXXX XXXXXX XXXXX U/A DTD 1/20/78
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXXX XXXX GREAT GRANDCHILDRENS TRUST
F/B/O FAMILY OF XXXXX XXXXXX U/A DTD 1/20/78
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXXXX X. XXXXXX U/A DTD 12/14/82
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXX X. XXXXXX U/A DTD 12/14/82
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXX XXXXXX XXXXX U/A DTD 12/14/82
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXX XXXXXX U/A DTD 12/14/82
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXX XXXXXX U/A DTD 12/14/82
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXXXX XXXXXX U/A DTD 12/14/82
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXX XXXXXX U/A DTD 12/14/82
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXXXXXX XXXX XXXXXX U/A DTD 7/10/83
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXX XXXXXXX XXXXXX U/A DTD 7/10/83
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXXXX XXXX XXXXX U/A DTD 11/18/85
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXXX XXXXXX XXXXXX U/A DTD 11/18/85
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
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XXXXXX ANNUAL GIFT TRUST
FBO XXXXXXXXX XXX XXXXX U/A DTD 12/15/87
By: Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXX ANNUAL GIFT TRUST
FBO XXXX XXXXXX U/A DTD 8/1/88
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
XXXXXXX X. XXXX XXXX FUND U/A DTD 10/20/71
By: /s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx, Trustee
By: XXXX XXXXXX BANK, Trustee
By: /s/ ????
----------------------------------
Its: President
----------------------------------
XXXXXX 1992 TRUST FBO XXXXXXXXX XXXX XXXXXX
U/A DTD 12/17/92
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXX XXXXXXX XXXXXX
U/A DTD 12/17/92
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXXXX XXXX XXXXX
U/A DTD 12/17/92
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXX XXXXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXXXXXX XXX XXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXXXX XXXXXXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXXXX XXXXXX
U/A DTD 12/17/92
By: Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX 1992 TRUST FBO XXXXX XXXXXX
U/A DTD 12/17/92
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX X. XXXXXX, TTEE UNDER SELF
DECLARATION OF TRUST DTD 09/17/76
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX X. XXXXXX, TTEE UNDER SELF
DECLARATION OF TRUST DTD 09/17/76
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX X. XXXXXX ROLLOVER XXX
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
XXXXX XXXXXX REVOCABLE TRUST
U/A DTD 3/25/94
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
Exhibit A
No. _________________________ _________________________ Shares
TRUST CERTIFICATE
________________________ (or his predecessor in interest) has deposited
with the undersigned Trustees ______ shares of common stock of Xxxxxx Capital
Group, Inc.
This stock was deposited and this certificate is issued under and pursuant
to the terms of a certain Trust Agreement relating to such common stock, dated
as of ___________, __ 19__, and now on file with the undersigned Trustees, and
the successive holders of this Trust Certificate are entitled to the rights,
benefits and privileges and this Trust Certificate is subject to the terms,
provisions, and conditions of the above-mentioned Trust Agreement.
This certificate is transferable only on the books of the Trustees. The
Trustees named in such Trust Agreement and any successor Trustees at all times
and for all purposes and irrespective of notice to the contrary may regard the
registered holders, as the name of such registered holder appears on the books
of the Trustees, as the sole owner of all rights hereunder.
This certificate is a non-registered security and can only be transferred
upon registration or with an opinion of counsel satisfactory to the Corporation
and its legal counsel to the effect that a proposed transfer of the certificate
will not violate any applicable federal or state securities laws.
Dated at __________, __________ this _____ day of ___________, 19___.
_____________________ (Trustee) _____________________ (Address)
_____________________ (Trustee) _____________________ (Address)
For value received, the undersigned hereby sells, assigns and transfers
unto _______________ all his interest in the common stock of ______________
evidenced by the within Trust Certificate and all other rights represented
thereby, subject to the Trust Agreement dated as of ___________, 19__, and
hereby authorizes the Trustees to transfer this certificate on the Trustees
books and to issue in lieu thereof to the assignee a new certificate or
certificates in accordance with this assignment and with said agreement.
Dated ___________, 19__.
IN THE PRESENCE OF:
________________________ ________________________ (SEAL)
________________________
SCHEDULE A
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Percentage of
Depositor Shares Family Stock* Trustee
---------- ------- ------------- -------
XXXXXXX XXXX GRANDCHILDRENS TRUSTS:
for Xxxxxxx 211,320 5.09% Xxxxxxx Xxxxxx
for Xxxxx 211,320 5.09% Xxxxx Xxxxxx
for Xxxxx 211,320 5.09% Xxxxx Xxxxxx Xxxxx
XXXXXXX TARK GREAT-GRANDCHILDRENS TRUST:
for Family of Xxxxxxx 261,320 6.29% Xxxxxxx Xxxxxx
for Family of Xxxxx 261,320 6.29% Xxxxx Xxxxxx Xxxxx
for Family of Xxxxx 261,320 6.29% Xxxxx Xxxxxx
XXXXXX ANNUAL GIFT TRUSTS:
for Xxxxxxx 17,800 .43% Xxxxxxx Xxxxxx
for Xxxxx 21,720 .52% Xxxxx Xxxxxx
for Xxxxx 21,720 .52% Xxxxx Xxxxxx Xxxxx
for Xxxxx 21,720 .52% Xxxxxxx Xxxxxx
for Xxxx 21,720 .52% Xxxxxxx Xxxxxx
for Xxxxxxx 21,760 .52% Xxxxxxx Xxxxxx
for Xxxxx 21,760 .52% Xxxxxxx Xxxxxx
for Xxxxxxxxx Xxxx 16,960 .41% Xxxxx Xxxxxx
for Xxxx Xxxxxxx 16,960 .41% Xxxxxxx Xxxxxx
for Xxxxxxx Xxxx 11,320 .27% Xxxxx Xxxxxx Xxxxx
for Xxxxx Xxxxxx 11,320 .27% Xxxxx Xxxxxx
for Xxxxxxxxx Xxx 4,640 .11% Xxxxx Xxxxxx Xxxxx
for Xxxx 1,480 .04% Xxxxx Xxxxxx
-----------
* Shares owned by Xxxxxx Family Partnership, L.P., in certain Uniform Transfers
to Minors Act accounts for Xxxxxxx Xxxxxx'x children and in certain Xxxxxx
Gift Trusts dated 6/10/82 which are not parties to the
Voting Trust Agreement
have been taken into account for the purpose of calculating respective
percentages of family stock.
-17-
Iris Fund U/Xxxxxxx X. Xxxx Trust 152,200 3.66% Xxxx Xxxx Xxxxxx
XXXXXX 1992 GIFT TRUSTS:
for Xxxxxxxxx 5,280 .13% Xxxxx Xxxxxx
for Xxxx 5,380 .13% Xxxxxxx Xxxxxx
for Xxxxxxx 9,500 .23% Xxxxx Xxxxxx Xxxxx
for Xxxxx 9,500 .23% Xxxxx Xxxxxx
for Xxxxxxxxx 9,500 .23% Xxxxx Xxxxxx
for Xxxx 9,500 .23% Xxxxx Xxxxxx
for Xxxxxxx 9,500 .23% Xxxxxxx Xxxxxx
for Xxxx 480 .01% Xxxxxxx Xxxxxx
for Xxxxx 580 .01% Xxxxxxx Xxxxxx
for Xxxxxxx 580 .01% Xxxxxxx Xxxxxx
for Xxxxx 580 .01% Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx Revocable Trust 509,280 12.26% Xxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx Revocable Trust 38,040 .92% Xxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx 45,830 1.10% Xxxx Xxxx Xxxxxx
Xxxxxx J. Xxxxxx XXX 2,500 .06% Xxxx Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx 127,360 3.07% Xxxxx Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxx 223,630 5.39% Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxx 267,630 6.44% Xxxxx Xxxxxx
Xxxxx Xxxxxx Revocable Trust 40,700 .98% Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx 700 .02% Xxxxx Xxxxxx
Xxx Xxxxx 700 .02% Xxxxx Xxxxxx Xxxxx
AMENDMENT NUMBER ONE OF
VOTING TRUST AGREEMENT
WHEREAS, a certain
Voting Trust Agreement (the "Agreement") was made and
entered into on November 30, 1998 by and between the parties listed as
Depositors and the parties listed as Trustees on Schedule A attached hereto; and
WHEREAS, pursuant to the provisions of Article VI of the Agreement,
the Trustees shall have the power from time to time, by unanimous vote only to
amend the Agreement, and notice of all amendments shall be given to the
Depositors; and
WHEREAS, the Trustees desire to amend the Agreement.
NOW, THEREFORE, the Trustees do hereby amend the Agreement as follows:
FIRST: The Trustees do hereby revoke Section 1.04 of Article I of such
Agreement in its entirety and substitute therefor the following Section 1.04 of
Article I:
"Section 1.04. Appointment of Trustees. The following persons are hereby
appointed to serve as the Trustees in this Agreement:
Xxxx Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx
Except as may be modified by Section 4.02 and 4.05 below, each Trustee shall
have one and one-half (1.5) votes in all matters voted on by the Trustees,
except that Xxxx Xxxx Xxxxxx and Xxxxx Xxxxxx each shall have one (1) vote, so
that the total number of votes which can be cast by the Trustees numbers five."
SECOND: The Trustees hereby add Section 2.06 of Article II of such
Agreement which shall immediately follow Section 2.05 of Article II:
"Section 2.06. Transfer of Trust Certificates. Subject to compliance with
the Share Restriction Agreement dated as of November 30, 1998, by and between
the Principal Stockholders (as defined therein) and the Corporation, and
amended from time to time, any Depositor may direct the Trustees to sell,
transfer, assign, pledge or encumber all or any interest in the Depositor's
Trust Certificate(s) on terms and conditions specified in writing by the
Depositor. The Trustees shall transfer the interest in the Trust
Certificate(s) as agent and on behalf of the Depositor, and any proceeds of the
sale of Trust Certificate(s), or any interest therein, shall be forwarded
immediately by the Trustee to the Depositor. Upon completion of the transfer of
Trust Certificate(s) pursuant to this Section 2.06, the Trustee shall issue to
the transferee a Trust Certificate which represents the number of Shares
represented by the interest transferred and the
Trustee shall issue to the Depositor a new Trust Certificate which represents
the number of Shares represented by the interest not transferred by the
Trustee. The Voting Trust's records shall be amended to reflect such Depositor's
and such transferee's then current interest."
THIRD: The Trustees do hereby revoke Section 4.02 of Article IV of such
Agreement in its entirety and substitute therefor the following Section 4.02 of
Article IV:
"Section 4.02. Decisions by Trustees: Voting Lines. After the death of
Xxxx Xxxx Xxxxxx, in the event that any 'Family Group' (hereinafter defined)
shall own, in total, less than two-thirds (2/3) of the total number of Shares
owned by any other Family Group, then for the remaining term of this Agreement,
all decisions contemplated by the provisions of this Agreement with respect to
Shares shall be directed by a majority vote of all Shares, with each Share
entitled to one (1) vote; provided, however, all Shares owned by a separate
Family Group shall be voted with respect to each such separate decision in the
manner determined by a majority vote of all Shares owned by such separate
Family Group, with each Share entitled to one (1) vote. Such majority vote
shall then be voted and executed by the Trustee of the respective 'Voting Line'
(hereinafter defined) to which such separate Family Group shall belong.
For purposes of this Section 4.02, a 'Family Group' shall consist of Xxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxxx or Xxxxxxx X. Xxxxxx, his or her respective spouse
(or surviving spouse), his or her respective descendants living from time to
time, the respective spouses (or surviving spouses) of said descendants, and
each and any trust which is held for the benefit of any one (1) or more of the
respective foregoing persons.
In determining the total number of shares owned by a particular Family
Group for purposes of this Section 4.02, (i) any Shares owned by the Xxxxxx
Family Partnership, L.P., shall be treated as though they were distributed on a
pro rata basis to the respective partners pursuant to a liquidation of such
partnership, and (ii) any Shares owned by the employee stock ownership plan of
the Company shall not be counted.
For purposes of this Section 4.02, all Shares owned by a particular Family
Group which are Depositors shall constitute said Family Group's 'Voting Line'.
Xxxxx Xxxxxx Xxxxx shall be the initial Trustee of the 'Xxxxx Voting Line'
Xxxxx Xxxxxx shall be the initial Trustee of the 'Xxxxx Voting Line'
Xxxxxxx X. Xxxxxx shall be the initial Trustee of the 'Xxxxxxx Voting
Line' and the 'Xxxxx Family Shares' (hereinafter defined).
The Xxxxxxx Voting Line, the Xxxxx Voting Line, and the Xxxxx Voting Line
are collectively referred to as the 'Voting Lines'.
For purposes of this Section 4.02, 'Xxxxx Family Shares' shall mean
Shares owned by Xxxxx Xxxxxx, his spouse (or surviving spouse), his descendants
living from time to time, the respective
2
spouses (or surviving spouses) of said descendants, and each and any trust
which is held for the benefit of any one (1) or more of the foregoing persons.
For purposes of this Section 4.02, Xxxxx Family Shares shall be voted and
executed by the Trustee of the Xxxxx Family Shares with respect to each
separate decision with respect to Shares in the manner determined by a majority
vote of all Shares owned by all Voting Lines.
For purposes of this Agreement, a person who has the discretion to vote
the Shares of a Depositor or to make a current distribution to a Depositor
shall be deemed to hold such Shares 'for the benefit' of such Depositor."
FOURTH: The Trustees do hereby otherwise affirm and ratify the Agreement.
IN WITNESS WHEREOF, the parties have hereunto affixed their signatures and
seals as of the 1st day of December, 1999.
TRUSTEES
/s/ Xxxx Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
3
SCHEDULE A
Depositor Trustee
--------- -------
XXXXXXX XXXX GRANDCHILDRENS TRUSTS:
for Xxxxxxx Xxxxxxx Xxxxxx
for Xxxxx Xxxxx Xxxxxx
for Xxxxx Xxxxx Xxxxxx Xxxxx
XXXXXXX TARK GREAT-GRANDCHILDRENS TRUST:
for Family of Xxxxxxx Xxxxxxx Xxxxxx
for Family of Xxxxx Xxxxx Xxxxxx Xxxxx
for Family of Xxxxx Xxxxx Xxxxxx
XXXXXX ANNUAL GIFT TRUSTS:
for Xxxxxxx Xxxxxxx Xxxxxx
for Xxxxx Xxxxx Xxxxxx
for Xxxxx Xxxxx Xxxxxx Xxxxx
for Xxxxx Xxxxxxx Xxxxxx
for Xxxx Xxxxxxx Xxxxxx
for Xxxxxxx Xxxxxxx Xxxxxx
for Xxxxx Xxxxxxx Xxxxxx
for Xxxxxxxxx Xxxx Xxxxx Xxxxxx
for Xxxx Xxxxxxx Xxxxxxx Xxxxxx
for Xxxxxxx Xxxx Xxxxx Xxxxxx Xxxxx
for Xxxxx Xxxxxx Xxxxx Xxxxxx
for Xxxxxxxxx Xxx Xxxxx Xxxxxx Xxxxx
for Xxxx Xxxxx Xxxxxx
IRIS FUND U/XXXXXXX X. XXXX TRUST Xxxx Xxxx Xxxxxx
XXXXXX 1992 GIFT TRUSTS:
for Xxxxxxxxx Xxxxx Xxxxxx
for Xxxx Xxxxxxx Xxxxxx
for Xxxxxxx Xxxxx Xxxxxx Xxxxx
for Xxxxx Xxxxx Xxxxxx
for Xxxxxxxxx Xxxxx Xxxxxx
for Xxxx Xxxxx Xxxxxx
for Xxxxxxx Xxxxxxx Xxxxxx
for Xxxx Xxxxxxx Xxxxxx
for Xxxxx Xxxxxxx Xxxxxx
for Xxxxxxx Xxxxxxx Xxxxxx
for Xxxxx Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx Revocable Trust Xxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx Revocable Trust Xxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx Xxxx Xxxx Xxxxxx
Xxxxxx J. Xxxxxx XXX Xxxx Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Revocable Trust Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxxxx Xxxxx
5
