THE AMENDED AND RESTATED XXXXXX X. XXXXX
VOTING TRUST AGREEMENT - 1997
THIS AGREEMENT, amended and restated as of the 14 day of September, 1999
(this "Agreement"), by and among Xxxxxxx X. Xxxxx, as trustee (together with his
successors in trust as provided herein, the "Trustees"), XXXXX INDUSTRIES, INC.,
a Delaware corporation (the "Company"), Xxxxxxx X. Xxxxx, individually, Xxxxxxx
X. Xxxxx, as Trustee of the Xxxxxx X. Xxxxx Trust - 1982, as currently
republished, Xxxxxxx X. Xxxxx, as Trustee of the Xxxxxx X. Xxxxx Trust - 1980,
Xxxxxxx X. Xxxxx, as Trustee of the Xxxxxxx Xxxxx Trust - 1976, Xxxxxxx X.
Xxxxx, as Trustee of the Xxxxxx X. Xxxxx Grandchildren's Trust - 1995 F/B/O Xxxx
X. Xxxxx, Xxxxxxx X. Xxxxx, as Trustee of the Xxxxxx X. Xxxxx Grandchildren's
Trust - 1995 F/B/O Xxxxxxx Xxxxx, Xxxx X. Xxxxx, Xxxxxx Xxx Xxxxx, as Trustee of
the Xxxxxxx Xxxxx Trust - 1984 and Xxxxxx Xxx Xxxxx as custodian for Xxxxxxx
Xxxxx (together with any other person or persons who hereafter might deposit
shares in this voting trust and thereby become holders of voting trust
certificates hereunder, individually as a "Depositor" and collectively as the
"Depositors"), and XXXXXX X. XXXXX individually (in such capacity hereinafter
sometimes referred to, together with the Depositors and any other person or
persons who are or hereafter become parties hereto as "Beneficiaries" hereunder
or subject hereto as holders of voting trust certificates, individually as a
"Beneficiary" and collectively as the "Beneficiaries").
WITNESSETH:
WHEREAS, the parties hereto entered into the Xxxxxx X. Xxxxx Voting Trust
Agreement-1997 dated as of August 26, 1997, as amended by the Amendment (the
"First Amendment") to The Xxxxxx X. Xxxxx Voting Trust Agreement-1997 dated as
of October 30, 1997 (the "Existing Agreement"), with a view toward promoting and
enhancing the long-term stability and growth of the Company; and
WHEREAS, the Trustees and the registered holders of greater than a
majority of voting trust certificates outstanding under the Voting Trust
Agreement, desire to amend and restate the Voting Trust Agreement to incorporate
the First Amendment and to further amend the Voting Trust Agreement to provide,
among other things, that any capital stock or other equity interest of a
corporation or other entity, other than the Company, received by a Beneficiary
as a result of a dividend or other distribution or issuance in respect of any
capital stock of the Company held by such Beneficiary will become subject to the
Voting Trust Agreement; and
WHEREAS, the parties hereto agree that, pursuant to this Agreement and on
the terms and conditions set forth herein, the Trustees shall be granted the
sole and exclusive voting power in all matters with respect to those shares of
capital stock of the Company and other securities which are subject to this
Agreement as set forth herein, together with the other rights and powers
specified herein; and
WHEREAS, the parties hereto intend that this Agreement will satisfy the
requirements of Section 218(a) of the Delaware General Corporation Law, as
amended (the "DGCL"), and be treated as a voting trust thereunder; and
WHEREAS, the Trustees have consented to act under this Agreement for the
purposes hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto mutually promise, covenant,
undertake and agree as follows:
1. Transfer of Stock to Trustees. The Depositor is, contemporaneously with the
execution of this Agreement, depositing with the Trustees one or more
certificates representing that number of shares of the Class B Common Stock of
the Company held by such Depositor as set forth opposite such Depositor's name
on Schedule A attached hereto, and each Beneficiary shall deposit with the
Trustees immediately upon receipt certificates representing (a) any shares of
capital stock of the Company having voting powers, (b) any shares of capital
stock or other equity interest or rights of a corporation (other than the
Company) or other entity having voting powers that are issued as a result of a
dividend or other distribution or issuance in respect of any shares of capital
stock of the Company (such corporation or other entity, an "Additional Issuer")
and (c) any shares of capital stock or other equity interest or rights of an
Additional Issuer having voting powers that are issued as a result of a dividend
or other distribution or issuance in respect of any shares of capital stock or
other equity interest of such Additional Issuer, in each case which shares or
other equity interest or rights are acquired or received by such Beneficiary
during the term of this Agreement other than (i) shares of Class A Common Stock
of the Company or shares of capital stock or other equity interest of an
Additional Issuer acquired by such Beneficiary under any stock purchase,
savings, option, bonus, stock appreciation, profit-sharing, thrift, incentive,
pension or similar plan of the Company or an Additional Issuer, or acquired by
such Beneficiary in any open market purchase, (ii) any shares of Class B Common
Stock listed on Schedule A as not being held pursuant to and subject to this
Agreement, if any, and (iii) shares of capital stock or other equity interest of
the Company or an Additional Issuer issued as a stock dividend or pursuant to a
stock split in respect of any shares of capital stock or other equity interest
of the Company or an Additional Issuer held by such Beneficiary which are not
subject to this Agreement. All such stock certificates shall be so endorsed, or
accompanied by such instruments of transfer, as to enable the Trustees to cause
such certificates to be transferred into the names of the Trustees after the
filing of this Agreement as required by law, which the Trustees shall forthwith
cause to be done as hereinafter provided. Upon receipt by the Trustees of the
certificates for any such shares of stock 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 issue and deliver to the depositors of shares of stock
hereunder voting trust certificates representing their interests in such stock
deposited pursuant to this Agreement. Except as specifically provided in this
Agreement, and without limitation of the voting rights of the Trustees including
in
connection with any merger or other sale of the Company or any Additional
Issuer, the Trustees shall not sell, assign, donate, pledge, encumber, grant any
security interest with respect to, hypothecate, or otherwise transfer or dispose
of any of the capital stock or other equity interest of the Company or any
Additional Issuer held pursuant to this Agreement.
During the term of this Agreement, no shares subject to this voting trust
may be withdrawn except in the manner provided below in this Section 1. Any such
withdrawal by a registered holder of voting trust certificates shall be effected
only by a written amendment to this Agreement in the form of Schedule B attached
hereto executed by the requisite number of Trustees then serving as such
hereunder then required to take action under Section 10. The Trustee having the
Determination Power shall have the right to consent to such amendment and
withdrawal in his sole discretion and approval by such Trustee having the
Determination Power with respect to such amendment and withdrawal shall be
deemed to constitute approval of all Trustees at any time serving. If XXXXXXX X.
XXXXX is not then serving as a Trustee hereunder, then consent to such amendment
and withdrawal shall be by the holders of at least a majority vote of the
outstanding voting trust certificates issued in respect of capital stock or
other securities of the Company or any Additional Issuer, as the case may be, as
to which the proposed withdrawal relates. Upon the surrender by such holder to
the Trustees of the voting trust certificate or certificates designated in such
amendment, the Trustees are authorized to deliver or cause to be delivered to
such holder (i) a certificate or certificates for the shares of the capital
stock or other equity interest of the Company or the Additional Issuer so
withdrawn, with any appropriate restrictive legends, and (ii) a new voting trust
certificate in respect of the remaining shares held hereunder, if any signed in
the manner contemplated by the terms of this Agreement. Shares withdrawn from
this voting trust, when so withdrawn, shall be free of any restrictions imposed
by this Agreement, but shall remain subject to any and all restrictions imposed
by other agreements or by law. Nothing in this Section 1 or in any such
amendment shall modify, amend, limit or terminate any other restrictions
contained in, or be construed as a consent to any transfer of shares subject to
this Agreement under, any other agreement or instrument, unless such amendment
specifically refers to such other agreement or instrument and satisfies all
requirements for amendment or waiver thereof (including execution and delivery
by appropriate parties).
The other provisions of this Section 1 notwithstanding, removal of shares
from this Voting Trust shall be required if the removal and liquidation of such
shares is needed to enable the Estate of a deceased holder of voting trust
certificates to pay its federal and/or state death or estate tax, and the other
assets of such estate are insufficient to pay such tax.
Any depositor may request that he or she be allowed to withdraw one or
more shares of stock from the trust by filing a written request for withdrawal
with the Trustee of the Trust. Such written request shall set forth the number
of shares that the depositor wishes to withdraw from the trust and shall state
the intended purpose for the requested withdrawal of shares from the trust. Any
request for withdrawal of shares may be
approved by the Trustee, within the Trustee's absolute discretion, provided that
the Trustee in his discretion shall have determined that approval of the request
for withdrawal shall not be adverse to the best interests of Xxxxx Industries,
Inc. ("Xxxxx") or its successors or the Additional Issuer or its successors, as
applicable, and provided that the Trustee shall have determined that a request
for withdrawal of any shares of Class B Common Stock of Xxxxx, if approved,
shall be in the best interests of the Class B Stockholders of Xxxxx. Shares of
Class B Common Stock of Xxxxx so withdrawn for any reason in accordance with
these provisions shall be subject to any restrictions imposed upon the said
shares of Class B Common Stock of Xxxxx in accordance with any Stock Restriction
Agreement entered by or on behalf of such Holder during his or her lifetime.
2. Agreement. Copies of this Agreement and of every agreement supplemental
hereto or amendatory hereof shall be provided to the Trustees, the Company, and
any Additional Issuer and shall, prior to the issuance of voting trust
certificates hereunder, be filed with and maintained in the registered office of
the Company in Delaware, in the registered office of any Additional Issuer in
its state of incorporation or organization and at such other place as the
Trustees shall designate, and shall be open to inspection daily during business
hours by any Beneficiary. All voting trust certificates shall be issued,
received and held subject to all of the terms of this Agreement. All persons and
entities who accept a voting trust certificate issued hereunder shall be bound
by the provisions of this Agreement with the same effect as if they were parties
to this Agreement.
All certificates for the Company's or any Additional Issuer's capital
stock or other equity interest transferred and delivered to the Trustees
pursuant hereto shall be surrendered by the Trustees to the Company or such
Additional Issuer, as applicable, and canceled and new certificates therefor
shall be issued to and held by the Trustees in their own names in their
capacities as Trustees hereunder and shall bear a legend indicating that the
shares represented by such certificate are subject to this Agreement (which fact
shall also be stated in the stock ledger of the Company or the Additional
Issuer, as applicable).
3. Voting Trust Certificates. Each voting trust certificate to be issued and
delivered by the Trustees in respect of the capital stock or other equity
interest of the Company or any Additional Issuer, as hereinbefore provided,
shall state the number of shares which it represents, shall be signed by the
Trustees then in office, and shall be in substantially the form of Schedule C
attached hereto and bear the restrictive legend set forth thereon, it being
understood that during any period in which a Trustee has the Determination Power
(as hereinafter defined), voting trust certificates issued hereunder may be
signed by that Trustee alone and such Trustee's signature shall be deemed for
all purposes to constitute the signature and authorization of all Trustees
hereunder and to evidence conclusively that the issuance of the related
certificate is the act of all Trustees then serving. In connection with the
issuance of voting trust certificates in respect of shares of capital stock or
other equity interest in an Additional Issuer, the voting trust certificate may
include changes to the form of certificate included herewith as Schedule C to
reflect such Additional Issuer.
4. Transfer of Certificates; Restrictions. The transfer of any voting trust
certificate (including without limitation any sale, assignment, donation,
pledge, encumbrance, grant of a security interest, hypothecation or other
transfer or disposition) (a) shall be effected only with the written consent of
all of the Trustees then serving hereunder (acting together, or, if all such
Trustees do not agree, by the Trustee, if any, having the Determination Power
with respect to such transfer under Section 10 hereof) and (b) shall be subject
to any restrictions, conditions and other provisions to the extent applicable to
it or to the stock which it represents, whether imposed by law, specified on the
relevant certificate or specified in the Restated Certificate of Incorporation
of the Company, as amended (the "Restated Certificate") (provided that any
transfer of voting trust certificates without a transfer of the underlying stock
held in this voting trust shall in no way affect the voting rights of such
underlying stock, consistent with the terms of the Restated Certificate), the
Certificate of Incorporation or other organizational documents of the applicable
Additional Issuer, as in effect from time to time, this Agreement or any other
agreement, including without limitation the Stock Restriction Agreement dated as
of August 28, 1986, as the same may have been or may hereafter be amended and/or
restated, among parties hereto. Any attempted transfer in violation of such
restrictions, conditions and other provisions shall be void ab initio and the
Trustees shall not register such transfer or recognize the intended transferee
as the holder of the voting trust certificate for any purpose. To the extent
permitted by law, voting trust certificates shall not be subject to attachment,
garnishment, judicial order, levy, execution or similar process, however
instituted, for satisfaction of a judgment or otherwise.
Subject to the foregoing provisions, the voting trust certificates shall
be transferable on the books of the Trustees, at such office as the Trustees may
designate, by the registered owner thereof, either in person or by attorney duly
authorized, upon surrender thereof, according to the rules established for that
purpose by the Trustees, and the Trustees may treat the registered holder as the
owner thereof for all purposes whatsoever, but they shall not be required to
deliver new voting trust certificates hereunder without the surrender of such
existing voting trust certificates for cancellation by the Trustees at the time
of their issuance of new voting trust certificates.
If a voting trust certificate is lost, stolen, mutilated or destroyed, the
Trustees, in their discretion, may issue a duplicate of such certificate upon
receipt of (a) evidence of such fact satisfactory to them; (b) indemnity
satisfactory to them; (c) the existing certificate, if mutilated; and (d) their
reasonable fees and expenses in connection with the issuance of a new trust
certificate.
5. Termination Procedure. Upon the termination of the voting trust at any time,
as hereinafter provided, the Trustees shall mail written notice of such
termination to the registered owners of the outstanding voting trust
certificates at the address appearing on the transfer books of the Trustees.
From the date specified in any such notice (which date shall be fixed by the
Trustees) 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 voting trust other than to receive certificates for shares of stock of
the Company or any Additional Issuer or other property distributable under the
terms hereof upon the surrender of such voting trust certificates.
Within 30 days after the termination of this voting trust, the Trustees
shall deliver to the registered holders of all voting trust certificates
outstanding as of the date of such termination, stock certificates for the
number of shares of such class or classes of the Company's or any Additional
Issuer's capital stock or other equity interest represented thereby as to which
they shall be entitled upon the surrender for cancellation of such voting trust
certificates, properly endorsed or accompanied by properly endorsed instruments
of transfer, if appropriate, at the place designated by the Trustees, and after
payment, if the Trustees so require, by the persons entitled to receive such
stock certificates, of a sum sufficient to cover any stamp tax or governmental
charge in respect of the transfer or delivery of such stock certificates. Such
certificates or shares shall bear such legend referring to the restrictions on
transfer of such shares as may be required by this Agreement, by law or
otherwise. Thereupon, all liability of the Trustees for delivery of such
certificates of shares shall terminate, and the voting trust certificates
representing the beneficial interest in the shares so delivered by the Trustees
shall be null and void.
If upon such termination, one or more registered holders of outstanding
voting trust certificates shall fail to surrender such voting trust
certificates, or the Trustees for any reason shall be unable to comply with the
provisions of the preceding paragraph, the Trustees may, at any time subsequent
to 30 days after the termination of this Agreement, deposit (x) with the Company
stock certificates representing the number of shares of capital stock or other
equity interest represented by such voting trust certificates, together with
written instructions authorizing the Company to deliver to the applicable
registered holder such stock certificates representing stock in the Company in
exchange for voting trust certificates representing a like interest in the
capital stock of the Company and (y) with each Additional Issuer stock
certificates representing the number of shares of capital stock or other equity
interest in such Additional Issuer represented by such voting trust
certificates, together with written instructions authorizing such Additional
Issuer to deliver to the applicable registered holder such stock certificates
representing capital stock or other equity interest in such Additional Issuer in
exchange for voting trust certificates representing a like interest in the
capital stock or other equity interest of such Additional Issuer; and upon such
deposit, all further liability of the Trustees for the delivery of such stock
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 actions hereunder.
Notwithstanding anything herein to the contrary, upon any extension of
this voting trust as contemplated by Section 13 hereof, the shares of stock held
herein with respect to which this voting trust is being extended shall continue
to be held by the Trustees and/or their successor Trustees rather than being
transferred to the registered holders of voting trust certificates in respect
thereof for recontribution, and in such event no transfer of such shares shall
be deemed to have occurred for any purpose.
6. Dividends. If any dividend in respect of the stock deposited with the Trustee
is paid, in whole or in part, in stock of the Company or an Additional Issuer
having voting powers, the Trustees shall likewise hold, subject to the terms of
this Agreement, the stock certificates which are received by them on account of
such dividend, and the holder of each outstanding voting trust certificate
representing stock on which such dividend has been paid shall be entitled to
receive a voting trust certificate issued under this Agreement for the number of
shares and class of stock received as such dividend with respect to the shares
represented by such voting trust certificate. Holders entitled to receive the
voting trust certificates issued in respect of such dividends shall be those
registered as such on the transfer books of the Trustees at the close of
business on the record date for such dividend.
If any dividend in respect of the stock deposited with the Trustees
is paid other than in capital stock or other equity interest having voting
powers of the Company or any Additional Issuer, then the Trustees shall promptly
distribute the same to the holders of outstanding voting trust certificates
registered as such at the close of business on the record date for 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 lieu of receiving cash dividends upon the capital stock or other
equity interest of the Company or any Additional Issuer deposited with the
Trustees and paying the same to the holders of outstanding voting trust
certificates pursuant to the preceding paragraph, the Trustees may instruct the
Company or the Additional Issuer in writing to pay such dividends directly to
the holders of the voting trust certificates specified by the Trustees. Such
instructions are deemed given hereby and until receipt of written instructions
to the contrary from the Trustees, the Company or the applicable Additional
Issuer agrees to pay such dividends directly to the holders of the voting trust
certificates. The Trustees may at any time revoke such instructions and by
written notice to the Company or the applicable Additional Issuer direct it to
make dividend payments to the Trustees. Neither the Company nor any Additional
Issuer shall be liable to any holder of a voting trust certificate or any person
claiming to be entitled to any such dividends by reason of adhering to any
written instructions of the Trustees.
7. Subscription Rights. If any stock or other equity interest of the Company or
any Additional Issuer are offered for subscription to all of the holders of any
class of the Company's or such Additional Issuer's capital stock or other equity
interest deposited hereunder, the Trustees promptly, upon receipt of notice of
such offer, shall mail a copy thereof to each registered holder of the
outstanding voting trust certificates representing such class of capital stock
or other equity interest. Upon receipt by the Trustees, at least five days prior
to the last day fixed by the Company or such Additional Issuer, as applicable,
for subscription and payment, of a request for any such registered holder of
voting trust certificates to subscribe for such shares on behalf of such
registered holder, accompanied by the sum of money required to pay for such
stock or other equity interest, the Trustees shall make such subscription and
payment, and upon receipt from the Company or such Additional Issuer, as
applicable of the certificates for shares or
other equity interest so subscribed for, shall issue to such registered holder a
voting trust certificate representing such shares if the same be stock of the
Company or such Additional Issuer, as applicable, having voting powers, but if
the same be shares or securities other than stock having voting powers, the
Trustees shall mail or deliver such securities to the voting trust certificate
holder in whose behalf the subscription was made, or may instruct the Company or
such Additional Issuer, as applicable to make delivery directly to the voting
trust certificate holder entitled thereto.
8. Dissolution of the Company. In the event of the dissolution or total or
partial liquidation of the Company or an Additional Issuer (other than in the
event of a transaction described in Section 9 below), whether voluntary or
involuntary, the Trustees shall receive the moneys, securities, rights or
property to which the holders of outstanding shares of the Company's or such
Additional Issuer's capital stock or other equity interest, as applicable,
deposited hereunder are entitled, and shall distribute the same among the
registered holders of voting trust certificates in proportion to their
interests, as shown by the transfer books of the Trustees, or the Trustees may
in their discretion deposit such moneys, securities, rights or property with any
bank or trust company with authority and instructions to distribute the same as
above provided, and upon such deposit, all further obligations or liabilities of
the Trustee in respect of such moneys, securities, rights or property so
deposited shall cease.
9. Reorganization or Sale of the Company. In the event that there occurs (i) any
merger or consolidation transaction involving the Company or an Additional
Issuer and one or more other entities, or a transaction in which all or
substantially all of the assets of the Company or an Additional Issuer are
transferred to another entity or (ii) a transaction in which stockholders of the
Company or an Additional Issuer transfer or exchange shares held by them wholly
or partially for capital stock or other equity interest of another entity having
voting powers, and in any such transaction securities of such entity having
voting powers are received by the Trustees in respect of the shares subject to
this voting trust, it being understood that in connection with any such
transaction or otherwise all voting powers in respect of shares subject to this
voting trust shall be exercised by the Trustees in accordance with the terms
hereof and that shares may be removed from this voting trust only in accordance
with Section 1, thus giving the Trustees all power and authority to vote all
shares subject hereto in connection with any such transaction, then (x) in
connection with any such transaction involving the Company the term "Company"
for all purposes of this Agreement shall include the successor entity to the
Company, (y) in connection with any such transaction involving an Additional
Issuer the term "Additional Issuer" for all purposes of this Agreement shall
include the successor entity to such Additional Issuer and (z) the Trustees
shall receive and hold under this Agreement any such capital stock or other
equity interest of such successor entity received on account of the ownership,
as Trustees hereunder, of the stock held hereunder immediately prior to such
transaction. Voting trust certificates issued and outstanding under this
Agreement at the time of such transaction may remain outstanding or the Trustees
may, in their discretion, substitute for such voting trust certificates new
voting trust certificates in appropriate form and with appropriate modifications
to reflect the number of shares of other securities then held, and the terms,
"stock" and "capital
stock" as used herein shall be taken to include any securities, including any
other type of equity interest, which may be received by the Trustees in lieu of
all or any part of the capital stock or other securities of the Company or an
Additional Issuer, as applicable.
In the event that there occurs any transaction described in the preceding
paragraph and in connection therewith the Trustees receive assets other than
capital stock or other equity interest having voting powers, the Trustees shall
distribute such assets to the registered holders of the outstanding voting trust
certificates hereunder pro rata on the basis of their respective interests in
the shares held hereunder and, if such consideration shall consist wholly of
such assets, this Agreement shall thereafter terminate.
10. Rights, Powers and Duties of Trustees. Until the actual delivery to the
holders of voting trust certificates issued hereunder of stock certificates in
exchange therefor, and until the surrender of such voting trust certificates for
cancellation, in each case in accordance with the terms of this Agreement, title
to all of the Company's and each Additional Issuer's stock deposited hereunder
shall be vested in the Trustees, who shall be deemed the holders of record of
such shares for all purposes, and the Trustees shall have the sole and exclusive
right, acting as hereinafter provided and subject to such limitations as are set
forth herein, to exercise, in person or by their nominees or proxies, all of the
rights and powers in respect of all stock deposited hereunder, including the
right to vote such stock and to take part in or consent to any corporate or
stockholders' action of any kind whatsoever, whether ordinary or extraordinary,
subject to the provisions hereinafter set forth. The right to vote shall include
the right to vote in connection with the election of directors and other
resolution or proposed action of any character whatsoever which may be presented
at any meeting or require the consent of stockholders of the Company or any
Additional Issuer. It is expressly understood and agreed that the holders of
voting trust certificates in their capacities as such shall not have any right,
either under said voting trust certificates or under this Agreement, or under
any agreement or doctrine or concept of law, express or implied, or otherwise,
with respect to any shares held by the Trustees hereunder to vote such shares or
to take part in or consent to any corporate action, or to do or perform any
other act or thing which the holders of the Company's or any Additional Issuer's
common stock of any class are now or may hereafter become entitled to do or
perform.
No Trustee shall incur any responsibility in his capacity as trustee,
individually or otherwise, in voting the shares held hereunder or in any matter
or act committed or omitted to be done under or in connection with this
Agreement, or for any vote or act committed or omitted to be done by any
predecessor or successor Trustee, except for such Trustee's willful malfeasance.
The Trustees shall at all times keep, or cause to be kept, complete and
accurate records of all stock deposited with them hereunder, the identity,
addresses and ownership of the Depositors and Beneficiaries, and all voting
trust certificates issued by the Trustee. Such records shall be open to
inspection by any Depositor or Beneficiary under this Agreement on reasonable
notice given to the Trustees at their usual place of business during their
normal business hours.
Whenever action is required of the Trustees, such action may be taken by
written consent signed by the requisite number of Trustees or by vote of the
requisite number of Trustees at a meeting of the Trustees. So long as there are
two (2) or more Trustees hereunder, the concurrence of both (if there are two
(2) Trustees) or a majority (if there are more than two (2) Trustees) of the
Trustees then serving shall be necessary and sufficient for the validity of any
action taken by the Trustees, and if at any time there is one Trustee hereunder
(subject to Section 11) such Trustee's action shall be necessary and sufficient
for the validity of any action taken by the Trustees. Notwithstanding the
foregoing, if at any time XXXXXXX X. XXXXX and or any other person shall serve
as co-Trustees hereunder, and if for any reason the Trustees shall fail to
concur with respect to any action proposed to be taken by the Trustees under or
pursuant to this Agreement (including without limitation any voting decision,
any amendment in connection with the withdrawal of shares as contemplated by
Section 1, any other trust amendment or trust termination), then XXXXXXX X.
XXXXX, for so long as he is serving as a Trustee hereunder, shall have the power
(such power being herein called the "Determination Power") to determine in his
sole discretion, whether or not such proposed action is to be taken and upon his
approval such action when and if taken shall have the same force and effect as
if both or all of the Trustees had agreed with respect thereto. Any and all
documents or instruments executed by or on behalf of the Trustees hereunder
(including without limitation voting trusting certificates) may be executed by
Xxxxxxx X. Xxxxx alone and his signature shall evidence conclusively the
authorization and all of the Trustees hereunder.
In the event that XXXXXXX X. XXXXX shall cease to serve as a Trustee
hereunder, then no Trustee hereunder shall have the Determination Power, except
in accordance with a duly-published amendment to this Agreement adopted in
accordance with the terms hereof, provided, however, that the foregoing shall
not be deemed to limit the authority of any person serving as a sole Trustee
under and in accordance with this Agreement.
11. Remaining Trustees; Successor Trustees, Successors' Determination Power. At
least one (1) individual shall serve as a Trustee hereunder during any period in
which XXXXXXX X. XXXXX serves as a Trustee hereunder. The said XXXXXXX X. XXXXX
shall have full discretionary authority to serve as the sole Trustee until such
time as he shall determine that he is unwilling or unable to so serve and shall
have resigned by written instrument, or until his death or permanent incapacity
or disability. During any period following XXXXXXX X. XXXXX'x service as a
Trustee hereunder (subject to the further provisions of this Section 11 as set
forth in the second paragraph hereof), there shall be at least two (2) Trustees
hereunder. Notwithstanding the preceding two sentences or any other provisions
of this Agreement or otherwise to the contrary, if at any time no Trustee shall
be serving hereunder for any reason (as a result, for example, of the deaths of
the Trustees), then this Agreement and the voting trust created hereby shall
nevertheless remain in existence and in full force and effect until a new
Trustee shall be appointed in accordance with this Section 11. All Trustees
hereunder shall be individuals. Trustees shall in no event be subject to removal
for any reason and any Trustee hereunder shall serve until his or her
resignation, death,
permanent disability or incapacity (as hereinafter defined). Any Trustee
hereunder may resign by a signed instrument delivered to the remaining Trustee
or Trustees, if any, or otherwise to the registered holders of the outstanding
voting trust certificates.
The following provisions shall govern the succession of Trustees
hereunder. In the event XXXXXXX X. XXXXX shall cease to serve as a Trustee
hereunder, then Attorney XXXXXX X. XXXXXXX, Attorney XXXXX X. XXXXX and XXXXXX
X. XXXXXX, III shall thereupon become Co-Trustees hereunder if they are then
living and willing and able to serve as such. In the event that any of XXXXXX X.
XXXXXXX, XXXXX X. XXXXX or XXXXXX X. XXXXXX, III shall be unwilling or unable to
serve as a Co-Trustee, then a Primary Designee or a Secondary Designee (as
defined hereinbelow) shall be appointed to serve in the stead of any such named
Co-Trustee who shall be unwilling or unable to serve in that capacity. In the
event that any of XXXXXX X. XXXXXXX, XXXXX X. XXXXX or XXXXXX X. XXXXXX, III or
any Primary Designee or Secondary Designee is unable or unwilling or shall
otherwise fail to serve as a Trustee hereunder at the time he would otherwise
become such, or after becoming a Co-Trustee shall cease to serve as such for any
reason, then there shall continue to be two (2) trustees hereunder, and a person
or the persons indicated below (if available) shall become a Co-Trustee or
Co-Trustees in accordance with the following line of succession in order that
there will ultimately be three (3) Co-Trustees to serve in such office in
accordance with the terms of this Trust:
(1) First, any individual designated as the "Primary Designee" in
accordance with the following paragraph of this Section 11;
(2) Next, any individual designated as the "Secondary Designee" in
accordance with the following paragraph of this Section 11; and
(3) Then, one (1) or two (2) individuals (as applicable) appointed
by the holders of a majority in interest of the voting trust
certificates issued in respect of capital stock of the Company then
outstanding
such that in the event the individual or individuals contemplated to serve as a
Trustee or Trustee(s) hereunder for any reason fail or are unable to serve as
such at the time they would otherwise be a Trustee or Trustees hereunder or
thereafter cease to serve as such for any reason, or if no designation of a
Primary Designee and/or a Secondary Designee shall be in effect, then the next
available individual in the line of succession shall become a Trustee hereunder,
provided, however, that if for any reason there shall ever be a single Trustee
hereunder during any period following Xxxxxxx X. Xxxxx'x service as a Trustee
hereunder, then such sole Trustee shall be authorized to take all actions on
behalf of the Trustee until such time as another Trustee shall be appointed,
provided that the party or parties authorized to designate a successor or
successors shall endeavor to do so promptly. In the event of any disagreement
between the Co-Trustees with regard to any issue involving the Trust, the
majority vote of the Trustees then in office shall be determinative of any issue
which shall be considered by the Trustees.
At any time XXXXXXX X. XXXXX, if then living and not then subject to any
incapacity (as hereinafter defined) may by written instrument signed and filed
with the registered office of the Company in Delaware and with the registered
office of each Additional Issuer in its state of incorporation or organization,
designate (i) an individual to serve as Primary Designee in the line of
succession contemplated by this Section 11 (the "Primary Designee"), and (ii) if
he so elects, an additional individual to succeed, or to serve in lieu of or
with the Primary Designee as a trustee hereunder (the "Secondary Designee") as
also contemplated by this Section 11. Any such designation shall also be
revocable by a written instrument signed by XXXXXXX X. XXXXX if then living and
not then subject to any incapacity (as hereinafter defined), and filed with the
registered office of the Company in Delaware and with the registered office of
each Additional Issuer in its state of incorporation or organization at any time
prior to the time at which a designated successor becomes a Trustee hereunder.
It is understood that the provisions of this Section 11 are intended to permit
the designation of up to two individuals to become Trustees in accordance with
the line of succession as Trustees hereunder, and while designations of
particular individuals may be revoked and a new individual designated in his or
her place (such as in the case of a designee's death, for example), no more than
two individuals may become Trustees hereunder pursuant to a designation as a
Primary or Secondary Designee absent an amendment to this Agreement, it being
understood that in event a Secondary Designee becomes a Trustee hereunder
because a Primary Designee shall have failed to serve as a Trustee hereunder,
then the individual who becomes a Trustee hereunder shall be deemed the Primary
Designee and the individuals so empowered in this paragraph may thereafter name
a new Secondary Designee in accordance with the terms hereof. In the event that
XXXXXXX X. XXXXX dies or becomes subject to any incapacity (as hereinafter
defined), the power designated in this paragraph shall become personal to and
may be exercised only by the individuals named in this paragraph in accordance
with the terms hereof. The provisions of this paragraph are intended to be
permissive and shall authorize, but not require, the appointment of a Primary or
Secondary Designee.
In the event of the permanent disability or incapacity of a Trustee, he
shall cease to serve in that capacity as provided in this paragraph. For
purposes of this Agreement, "permanent disability" shall mean any physical or
mental disability or incapacitation that precludes a Trustee from performing his
responsibilities under this Agreement and which is not capable of cure or
correction, and "incapacity" shall mean any mental state by reason of which the
individual in question would not be deemed competent under the law of his state
of principal residence. If permanent disability or incapacity is claimed with
respect to a Trustee or other person, said permanent disability or incapacity
shall be evidenced by a written certification (a "Certification") signed by two
doctors attending such Trustee or other person, which doctors shall be licensed
to practice medicine in the state of the relevant person's principal residence,
and , in the case of a Trustee, such Trustee shall cease to serve in such
capacity upon receipt by a co-Trustee, successor Trustee or the registered
holders of the voting trust certificates then outstanding, as the case may be,
of a Certification. Absent a Certification, the individual in question shall be
presumed to be not subject to any permanent disability or incapacity and he
shall be recognized as a duly-appointed Trustee of this Trust.
The rights, powers and privileges of each of the Trustees named hereunder
shall be possessed by any successor Trustee with the same effect as though such
successor had originally been a party to this Agreement; provided, however, that
no Trustee or successor Trustee hereunder shall possess the Determination Power
referred to in Section 10 unless it is specifically conferred upon such Trustee
pursuant to the provisions hereof.
In any other circumstance, no Trustee hereunder other than XXXXXXX X.
XXXXX shall have the Determination Power. In the event that there shall be more
than one Trustee serving at any time, and in the event that the Trustees shall
not concur on matters not specifically contemplated by the terms of this
Agreement, the Trustees shall consider such matter and they shall vote among
them to determine the disposition of the issue among them, (bearing in mind the
relative interests of the Shareholders, the Company, and the Depositors into
this Trust). The majority vote of the Trustees shall be determinative and shall
resolve the matter after giving due consideration to the purposes of this Trust.
Each Trustee shall affix his signatures to this Agreement and each
successor Trustee appointed pursuant to this Section 11 shall accept appointment
or election hereunder by affixing his signature to this Agreement at the time he
becomes a Trustee hereunder. By affixing their signatures to this Agreement, the
Trustees and each successor Trustee agree to be bound by the terms hereof.
Reference in this Agreement to "Trustees" means the Trustee or Trustees at
the time acting in that capacity, whether an original Trustee or any additional
or successor Trustee, as the context requires.
12. Compensation and Reimbursement of Trustees. Each Trustee shall serve without
compensation. The Trustees shall have the right to incur and to pay such
reasonable expenses and charges and to employ and pay such agents, attorneys and
counsel as they may deem necessary and proper. Any such expenses or charges
incurred by and due to the Trustees may be deducted from the dividends, proceeds
or other moneys or property received by the Trustees in respect of the stock
deposited hereunder or may be payable by the Company or any Additional Issuer in
their discretion. Nothing herein contained shall disqualify any Trustee or any
successor Trustee, including without limitation any person named as a Primary or
Secondary Designee, or any firm in which he is interested, from serving the
Company, any Additional Issuer or any of their respective subsidiaries as an
officer or director or in any other capacity (including without limitation as
legal counsel, financial adviser or lender), holding any class of stock in the
Company or any Additional Issuer, becoming a creditor of the Company or any
Additional Issuer or otherwise dealing with it in good faith, depositing his
stock in trust pursuant to this Agreement, voting for himself as a director of
the Company or any Additional Issuer in any election thereof, or taking any
other action as a Trustee hereunder in connection with any matter in which such
Trustee has any direct or indirect interest. The provisions of the foregoing
notwithstanding, each Trustee shall be entitled to be fully indemnified by the
assets of the voting trust and the holders of outstanding voting trust
certificates, pro rata in accordance with their interests at the time of the
relevant payment, against all costs,
charges, expenses, loss, liability and damage (except for damage caused by his
own willful malfeasance) incurred by him in the administration of this trust or
in the exercise of any power conferred upon the Trustees by this Agreement.
13. Amendment, Termination. This Agreement may be amended by a written amendment
signed by the number of Trustees authorized to take action at the relevant time
under Section 10, or, if the Trustees (if more than one) do not concur with
respect to any proposed amendment at any time when any Trustee holds the
Determination Power, then by the Trustee having the Determination Power, which
approval shall constitute approval of all of the Trustees then serving and,
except as contemplated by Section 1, by registered holders of at least a
majority vote of the outstanding voting trust certificates issued in respect of
capital stock or other equity interest of the Company or any Additional Issuer,
as the case may be, as to which the matter relates; provided, however, that no
such amendment shall modify or amend the provisions of the following two
paragraphs without the written consent of each individual Depositor or the
Trustee of each Trust Depositor who is living at the time of such proposed
amendment. For all purposes of this Agreement, references to percentages of
voting trust certificates outstanding shall refer to, (x) in the case of a
matter relating to the Company, the number of votes represented by the shares of
stock of the Company represented by voting trust certificates issued in respect
of shares of stock of the Company and, (y) in the case of a matter relating to
an Additional Issuer, the number of votes represented by the shares of stock of
the applicable Additional Issuer represented by voting trust certificates issued
in respect of the capital stock or other equity interest of such Additional
Issuer.
This Agreement may be terminated only by a written instrument signed by
the number of Trustees authorized to take action at the relevant time under
Section 1 or, if the Trustees (if more than one) do not concur with respect to
any proposed termination at any time when any Trustee holds the Determination
Power, then by the Trustee having the Determination Power, which approval shall
constitute approval of all of the Trustees, the registered holders of a majority
of the voting trust certificates issued in respect of the capital stock of the
Company then outstanding and each individual Depositor or the Trustee of each
Trust Depositor who is living at the time of the proposed termination.
If not previously terminated in accordance with the terms hereof
(including under the circumstances contemplated by the provisions of Section 9)
this Agreement shall terminate on August 26, 2021; provided, however, that at
any time within two (2) years prior to such date (or prior to any subsequent
date of termination fixed in accordance with the provisions hereof and of
applicable law), one or more of the persons designated in the following
provisions of this Section 13 may, by written agreement, extend the duration of
this Agreement for an additional term not exceeding twenty-four (24) years from
the expiration date as originally fixed or as last extended. The foregoing right
of extension shall be exercisable in respect of particular shares subject hereto
by (i) the individual Depositor who originally deposited the relevant shares, if
the Depositor is then living and is not subject to any incapacity at the time of
the proposed extension, and if so exercised such extension shall be binding upon
any and all holders of voting trust certificates in respect of the shares
deposited hereunder by such individual Depositor, (ii) the trustee of
any trust Depositor which deposited the relevant shares, including without
limitation any trust Depositor which is a revocable trust, which trustee is then
living and not subject to any incapacity at the time of the proposed extension,
and regardless of whether such trust is then still in existence, and if so
exercised shall be binding upon any and all holders of voting trust certificates
in respect of shares deposited hereunder by such trust Depositor and any and all
beneficiaries thereof or successors in interest thereto, and (iii) the holder of
any voting trust certificate representing shares not covered by either of the
preceding clauses (i) or (ii), and if so exercised shall be effective with
respect to all shares represented by such voting trust certificate, it being
understood that the provisions only of clauses (i) or (ii) of this paragraph and
not of clause (iii) shall govern any extension with respect to shares referred
to therein if and to the extent a Depositor referred to therein is available to
consent to such extension. Any such action to extend this Agreement shall be
binding upon the Trustees and Depositor and upon all holders of the related
voting trust certificates (including without limitation trustees, officers,
beneficiaries and owners of any trust or other entity which is such a holder
thereof) and any and all successors in interest of any of the foregoing
(including without limitation any holder of voting trust certificates
representing shares deposited by any Depositor consenting or on whose behalf
consent is given by the relevant trustee to such extension in the manner
provided above, and any Beneficiary or successor of a Beneficiary of any trust
Depositor. Extensions in accordance with this Section 13 (i) shall not be deemed
to constitute the commencement of a new voting trust for purposes of the DGCL or
the law governing the incorporation or organization of any Additional Issuer,
(ii) shall be filed with the registered offices of the Company in Delaware and
with the registered offices of each Additional Issuer in its state of
incorporation or organization, as provided by law, and (iii) shall not involve
or require any transfer of shares as contemplated by the last provisions of
Section 5.
14. Notices, Distributions. Unless otherwise specifically provided in this
Agreement, any notice to or communication with any holder of any voting trust
certificate or other party hereunder shall be deemed to be sufficiently given or
made if mailed, postage prepaid, to such holder at his or her address appearing
on the books of the trust, which shall in all cases be deemed to be the address
of such holder for all purposes under this Agreement, without regard to what
other or different addresses of which the Trustees may have notice. 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.
Any notice to any Trustee hereunder shall be sufficient if mailed, postage
prepaid, by certified or registered mail to him, with a copy sent to the Company
at Xxxxx Industries, Inc., Xxxxx 000 xxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxxxxxxxx 00000.
Subject to Section 6 hereof, 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,
registered or certified 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.
15. Construction. This Agreement is to be construed as a Delaware contract, is
to take effect as a sealed instrument, and is binding upon and inures to the
benefit of the parties hereto and their heirs, executors, administrators,
representatives, successors and permitted assigns. In case any one or more of
the provisions or parts of a provisions contained in this Agreement or in any
voting trust certificate hereunder shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceablitity shall not affect any other provision or part of a provision
hereof or thereof, but this Agreement and such voting trust certificates shall
be construed as if such invalid or illegal or unenforceable provision or part of
a provision had never been contained herein, and the parties will use their best
efforts to substitute a valid, legal and enforceable provision which, insofar as
practicable, implements the purposes and intents thereof.
16. Gender. Words used in this Agreement, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural (and all references to the `Trustees' shall refer to the
Trustee then serving if only one Trustee is then serving), and any other gender,
masculine, feminine, or neuter, as the context requires.
17. Execution. This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of which
together shall constitute but one and the same instrument. Any Additional Issuer
shall become a party to this Agreement by executing a counterpart signature page
hereto and shall file a copy of this Agreement with the Secretary of State or
other appropriate office of its state of incorporation or organization.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement under
seal, all as of this day and year first above written.
Xxxxxxx X. Xxxxx, as Trustee
Xxxxxxx X. Xxxxx, individually
Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxx X. Xxxxx Trust--1982
Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxxx Xxxxx Trust--1976
Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxxx X. Xxxxx Trust--1980
Xxxxxxx X. Xxxxx, as Trustee of the
Grandchildren's Trust f/b/o
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx, as Trustee of the
Grandchildren's Trust f/b/o
Xxxxxxx X. Xxxxx
SCHEDULE A
------------------------------------------------------------------------
No. of Shares No. of Shares
Subject to Not Subject
Depositor (if any) Trust to Trust
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx as Trustee of The 2,124,600
Xxxxxx X. Xxxxx Trust - 1982 as
Currently Published
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 2,751,220
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx as Trustee of the 1,335,840
Xxxxxx X. Xxxxx Trust - 1980
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx as Trustee of the 1,335,840
Xxxxxxx Xxxxx Trust - 1980
------------------------------------------------------------------------
Xxxx X. Xxxxx 40,000
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx as Trustee of The 30,200
Xxxxxx X. Xxxxx Grandchildren's Trust -
1995 f/b/o Xxxx X. Xxxxx
------------------------------------------------------------------------
Xxxxxxx X. Xxxxx as Trustee of The 22,600
Xxxxxx X. Xxxxx Grandchildren's Trust -
1995 f/b/o Xxxxxxx Xxxxx
------------------------------------------------------------------------
Xxxxxx Xxx Xxxxx as Trustee of The 163,520
Xxxxxxx Xxxxx Trust - 1984
------------------------------------------------------------------------
Xxxxxx Xxx Xxxxx as Custodian for 44,220
Xxxxxxx Xxxxx
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
SCHEDULE B
AMENDMENT TO VOTING TRUST AGREEMENT
WHEREAS, [____________] and [____________] ] are Trustees under a Voting
Trust Agreement dated as of August 1997, such Voting Trust Agreement, being
referred to herein as the "Agreement"); and
WHEREAS, [_________________] desires to withdraw [________________
(_____)] [shares of Class B Common Stock of Xxxxx Industries, Inc., a Delaware
corporation/shares of common stock of [Additional Issuer] (the "Company")]
WHEREAS, the Trustees and the holders of not less than a majority in
interest of the voting trust certificates issued in respect of the capital stock
or other equity interest of the Company outstanding hereunder desire to consent
and agree to the above-described transactions.
NOW, THEREFORE, the parties hereto do hereby agree as follows: The parties
hereto do hereby consent to the withdrawal of such shares and to amend Schedule
A to the Agreement by amending and restating Schedule A in its entirety to read
as follows:
SCHEDULE A
-------------------------------------------------------------------------------
Class B Stock
Name Number of Shares Certificate No.
-------------------------------------------------------------------------------
Name of Registered Holder
-------------------------------------------------------------------------------
Name of Registered Holder
-------------------------------------------------------------------------------
2. Except as hereinabove provided, the parties ratify and confirm the
Agreement in all respects.
The parties hereto have executed this Amendment to the Agreement in one or
more counterparts under seal as of the ____ day of _______, 19__.
[Signatures to be added per the terms of the
Agreement]
SCHEDULE C
FORM OF VOTING TRUST CERTIFICATE
This Voting Trust Certificate has not been registered under the Securities
Act of 1933, as amended, and may not be sold or otherwise transferred unless (a)
covered by an effective registration statement under the Securities Act of 1933,
as amended, or (b) the trustees and the Company have been furnished with an
opinion of counsel satisfactory to them to the effect that no registration is
legally required for such transfer.
This Voting Trust Certificate has been issued under, and is subject to, a
certain Voting Trust Agreement, dated as of August 26, 1997, by and among the
Company and Xxxxxxx X. Xxxxx as Trustee, and certain other persons, (as
identified on Schedule A of said Agreement as amended), a copy of which will be
furnished by the Company to the holder of this Voting Trust Certificate upon
written request and without charge, and this Voting Trust Certificate can only
be transferred subject to, and in accordance with, such Agreement.
This Voting Trust Certificate is subject to restrictions on transfer
contained in the Company's Restated Certificate of Incorporation, as amended, a
copy of which restrictions will be provided to the holder of this Voting Trust
Certificate upon request and without charge.
The shares represented by this Voting Trust Certificate are subject to
restrictions on transfer pursuant to a Stock Restriction Agreement, a copy of
which will be furnished by the Company to the holder of this Voting Trust
Certificate upon written request and without charge.
No. Shares:
This certificate that the undersigned trustee has received a certificate
or certificates in the name of evidencing ownership of shares of the [Class B
Common Stock of Xxxxx Industries, Inc., a Delaware corporation (the
"Company"),/Additional Issuer] and that said shares are held subject to all of
the terms and conditions of a certain Voting Trust Agreement dated as of the day
of August, 1997 (the "Agreement"), and are entitled to all of the benefits set
forth in the Agreement. Copies of the Agreement and of every amendment and
supplement thereto are on file at the office of the Company and shall be
available for the inspection of every Beneficiary thereof or party thereto
during normal business hours. The holder of this Certificate, which is issued,
received and held under the Agreement, by acceptance hereof, assents to and is
bound by the Agreement with the same effect as if the Agreement has been signed
by him in person.
The shares of stock represented by this Certificate bear the legend:
"These shares are subject to a certain Voting Trust Agreement,
dated as of August 26, 1997, by and among the Company and Xxxxxxx X.
Xxxxx as trustee, and certain other persons, [as amended] a copy of
which will be furnished by the Company to the holder of this
Certificate upon written request and without charge, and these
shares can only be transferred subject to, and in accordance with,
such Agreement."
Subject to the provisions of the foregoing and the Agreement, this
Certificate is transferable only on the books of the Trustees by the registered
holder in person or his duly authorized attorney, and the holder hereof, by
accepting this certificate, manifests his consent that the trustees may treat
the registered holder hereof as the true owner for all purposes, except the
delivery of stock certificates, which delivery shall not be made without the
surrender of this certificate or otherwise pursuant to the Agreement.
IN WITNESS WHEREOF, ___________________ [and _________________], trustee,
[have] [has] executed this certificate as of this ____ day of ________________,
19__.
, as Trustee
