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AMENDMENT AGREEMENT
THIS AGREEMENT is entered into this 28 day of February, 1986 by
and among XXXXX INCORPORATED, a Delaware corporation (the "Corporation"),
XXXXXXX X.. XXXXXX ("Xxxxxx"), XXXXX X. XXXXXX ("Xxxxxx'x Spouse"), XXXX
TRAIN ("Train") and XXXX X. TRAIN ("Train's Spouse"),
RECITAL
The parties desire to amend that certain Stock Purchase Agreement
dated December 30, 1985 (the "Stock Purchase Agreement").
AGREEMENTS
In consideration of the premises and mutual agreements contained in
the Stock Purchase Agreement and herein, IT IS AGREED:
1. Paragraph 3 of the Stock Purchase Agreement is hereby amended to
read as follows:
3. Death.
(a) Upon the death of a Shareholder, the Corporation
shall purchase from the Shareholder's personal representative (the
"Personal Representative") and the Personal Representative shall sell to
the Corporation all of the Stock owned by the deceased Shareholder
(including any rights of his spouse in such Stock) at the purchase price
described in paragraph 7 hereof (the "Purchase Price") and upon the Terms
and Conditions.
(b) Notwithstanding the terms of paragraph 3(a), in the
event a Shareholder dies prior to January 1, 1988, the Personal
Representative may, by notice in writing to the Corporation at any time
within 30 days after the appointment of the Personal Representative, elect
not to sell the Stock to the Corporation in accordance with paragraph
3(a). In the event of such election, the Personal Representative or
successor to the Stock, as the case may be, shall have an option to sell
all of the Stock (including any rights of the deceased Shareholder's
spouse in such Stock) to the Corporation at any time prior to January 1,
1989 at the Purchase Price and upon the Terms and Conditions. The option
to sell by the Personal Representative or successor shall be exercised by
written notice to the Corporation, which notice shall specify the date as
of which the option is being exercised. In the event the Personal
Representative or successor fails to exercise such option prior to January
1, 1989, the Corporation shall purchase and the Personal Representative or
successor shall sell all of the Stock formerly owned by the deceased
Shareholder (including any rights of his spouse in such Stock) at the
Purchase Price and upon the Terms and Conditions.
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(c) In the event a Shareholder dies on or after January
1, 1988, the Personal Representative may, by notice in writing to the
Corporation at any time within 30 days after the appointment of the
Personal Representative, elect not to sell the Stock to the Corporation in
accordance with paragraph 3(a). In the event of such election, the
Personal Representative or successor to the Stock, as the case may be,
shall have an option to sell all of the Stock, as the case may be, shall
have an option to sell all of the Stock (including any rights of the
deceased Shareholder's spouse in such Stock) to the Corporation at any
time within one year after the death of the Shareholder at the Purchase
Price and upon the Terms and Conditions. The option to sell by the
Personal Representative or successor shall be exercised by written notice
to the Corporation, which notice shall specify the date as of which the
option is being exercised. In the event the Personal Representative or
successor fails to exercise such option within such one-year period, the
Corporation shall purchase and the Personal Representative or successor
shall sell all of the Stock formerly owned by the deceased Shareholder
(including any rights of the deceased Shareholder's spouse in such Stock)
at the Purchase Price and upon the Terms and Conditions.
(d) In the event the Personal Representative elects not
to sell the Stock pursuant to paragraph 3(a) pursuant to paragraph 3(b) or
3(c), the Personal Representative, the estate of the deceased Shareholder,
the deceased Shareholder's spouse, the surviving Shareholder and the
surviving Shareholder's spouse shall enter into a Voting Trust Agreement
in substantially the form of Exhibit A at such time that the Personal
Representative elects not to sell the Stock pursuant to paragraph 3(a) or
within 10 days thereafter. The failure of the Personal Representative, the
estate of the deceased Shareholder and the deceased Shareholder's spouse
to execute and deliver such Voting Trust Agreement within the above
described 10-day period shall nullify the election made by the Personal
Representative not to sell the Stock pursuant to paragraph 3(a). In the
event of such nullification, the Stock shall be purchased and sold
pursuant to paragraph 3(a).
2. Paragraph 4 of the Stock Purchase Agreement is hereby amended to
add the following provisions:
(d) Exercise of Option Prior to January 1, 1988.
Notwithstanding the terms of paragraph 4(a), in the event the Corporation
exercises the option described in paragraph 4(a) prior to January 1, 1988,
the Shareholder may, by notice in writing to the corporation at any time
within 30 days after the exercise of such option, elect not to sell the
Stock to the Corporation in accordance with paragraph 4(a). In the event
of such election, the Shareholder shall have an option to sell all of the
Stock (including any rights of the Disabled Shareholder's spouse in such
Stock) to the Corporation at any time prior to January 1, 1989 at the
Purchase Price and upon the Terms and Conditions. The option to sell by
the Shareholder shall be exercised by written notice to the Corporation,
which notice shall specify the date as of which the option is being
exercised. In the event the Shareholder fails to exercise such option
prior to January 1, 1989, the Corporation shall
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purchase and the Shareholder shall sell all of the Stock (including any
rights of his spouse in such Stock) at the Purchase Price and upon the
Terms and Conditions.
(e) Exercise of Option on or After January 1, 1988.
Notwithstanding the terms of paragraph 4(a), in the event the Corporation
exercises the option described in paragraph 4(a) on or after January 1,
1988, the Shareholder may, by notice in writing to the Corporation at any
time within 30 days after the exercise of such option, elect not to sell
the Stock to the Corporation in accordance with paragraph 4(a). In the
event of such election, the Shareholder shall have an option to sell all
of the Stock (including any rights of the disabled Shareholder's spouse in
such Stock) to the Corporation at any time within one year after the
commencement of Permanent Total Disability at the Purchase Price and upon
the Terms and Conditions. The option to sell by the Shareholder shall be
exercised by written notice to the Corporation, which notice shall specify
the date as of which the option is being exercised. In the event the
Shareholder fails to exercise such option within such one-year period, the
Corporation shall purchase and the Shareholder shall sell all of the Stock
(including any rights of the disabled Shareholder's spouse in such Stock)
at the Purchase Price and upon the Terms and Conditions.
(f) Voting Trust Agreement. In the event the Shareholder
elects not to sell the Stock pursuant to paragraph 4(a) pursuant to
paragraph 4(d) or paragraph 4(e), the Shareholder, the Shareholder's
spouse, the nondisabled Shareholder and the nondisabled Shareholder's
spouse shall enter into a Voting Trust Agreement in substantially the form
of Exhibit B at such time that the Shareholder elects not to sell the
Stock pursuant to paragraph 4(a) or within ten days thereafter. The
failure of the disabled Shareholder and the disabled Shareholder's spouse
to execute and deliver such Voting Trust Agreement within the
above-described ten-day period shall nullify the election made by the
Shareholder not to sell the Stock pursuant to paragraph 4(a). In the event
of such nullification, the Stock shall be purchased and sold pursuant to
paragraph 4(a).
3. Paragraph 7(a) of the Stock Purchase Agreement is hereby amended
to read as follows:
(a) In the event of purchases pursuant to paragraph 3(a), the
date of death of the Shareholder shall be the Purchase Event. In the event
of purchases pursuant to paragraph 3(b), the date as of which the Personal
Representative or successor to the Stock exercises the option described in
paragraph 3(b) shall be the Purchase Event or, in the event the option
described in paragraph 3(b) is not exercised, January 1, 1989 shall be the
date of the Purchase Event. In the event of purchases pursuant to
paragraph 3(c), the date as of which the Personal Representative or
successor to the Stock exercises the option described in paragraph 3(c)
shall be the Purchase Event or, in the event the option described in
paragraph 3(c) is not exercised, the date which is one year after the
death of the Shareholder shall be the Purchase-Event.
4. Paragraph 7(b) of the Stock Purchase Agreement is hereby amended
to read as follows:
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(b) In the event of purchases pursuant to paragraph 4(a), the
date upon which Permanent Total Disability companies shall be the Purchase
Event. In the event of purchases pursuant to paragraph 4(d), the date as
of which the Shareholder exercises the option described in paragraph 4(d)
shall be the Purchase Event or, in the event the option described in
paragraph 4(d) is not exercised, January 1, 1989 shall be the date of the
Purchase Event. In the event of purchases pursuant to paragraph 4(e), the
date as of which the Shareholder exercises the option described in
paragraph 4(e) shall be the Purchase Event or, in the event the option
described in paragraph 4(e) is not exercised, the date which is one year
after the commencement of Permanent Total Disability shall be the Purchase
Event.
5. Paragraph 9(b) of the Stock Purchase Agreement is hereby amended
to read as follows:
(b) In the event of purchases under paragraph 3(a) hereof, the
date of Closing shall be within 90 days after the date upon which the
Personal Representative is appointed. In the event of purchases under
paragraph 3(b) or 3(c) hereof., the date of Closing shall be within 40
days after the delivery of the notice exercising the option described in
paragraphs 3(b) and 3(c). In the event the option described in paragraph
3(b) is not exercised, the date of Closing shall be no later than February
15, 1989. In the event the option described in paragraph 3(c) is not
exercised, the date of Closing shall be within 40 days after the first
anniversary of the death of the Shareholder.
6. Paragraph 9(c) of the Stock Purchase Agreement is hereby amended
to read as follows:
In the event of purchases under paragraph 4(a) or paragraph
4(b), the date of Closing shall be within 40 days after the exercise of an
option described in paragraph 4(a) or paragraph 4(b). In the event of
purchases, under paragraph 4(d) or paragraph 4(e) hereof, the date of
Closing shall be within 40 days after the delivery by the disabled
Shareholder of the notice exercising the option described in paragraphs
4(d) or 4(e). In the event the option described in paragraph 4(d) is not
exercised, the date of Closing shall be no later than February 15, 1989.
In the event the option described in paragraph 4(e) is not exercised, the
date of Closing shall be within 40 days after the first anniversary of the
commencement of the Shareholder's Permanent Total Disability.
7. The Stock Purchase Agreement is hereby amended to add the
following paragraph after paragraph 22:
23. Pledge. Notwithstanding the terms of this Agreement,
Xxxxxx and Train shall be entitled to pledge their respective shares of
Stock to financial institutions for purposes of securing obligations of
Xxxxxx or Train, as the case may be, to such financial institutions;
provided, however, that in the
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event any party hereto obtains notice or knowledge of the intent of any
such financial institution to transfer title to such Stock into its name,
such party shall provide written notice thereof to the Corporation. In the
event of such an intended transfer, the Corporation shall have an
immediate option to purchase the Stock at the Purchase Price, less 25%,
and upon the Terms and Conditions. Such option shall be exercised by
notice in writing to the Shareholder in question. Closing of the purchase
and sale shall occur is soon as reasonably practicable after exercise of
such option.
8. Except as set forth in this Amendment Agreement all of the terms
of the Stock Purchase Agreement shall remain in full force and effect. Defined
terms herein shall have the same meaning as such terms in the Stock Purchase
Agreement.
XXXXX INCORPORATED
BY /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
Attest:
/s/ Xxxx Train
-----------------------------
Xxxx Train, Secretary
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx Train
-----------------------------
Xxxx Train
/s/ Xxxx X. Train
-----------------------------
Xxxx X. Train
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EXHIBIT A
VOTING TRUST AGREEMENT
THIS AGREEMENT is entered into this __________ day of ___________,
__ by and among the Estate of ________________________ (the "Estate"),
_____________________ (the "Personal Representative"),
___________________________________ (the "Deceased Shareholder's Spouse")
_____________________________, (the "Voting Trustee") and
________________________________ (the "Voting Trustee's Spouse").
RECITALS
A. The Estate owns ___________ shares of the 700 issued and
outstanding shares of $.10 par value Class A Voting Common Stock (the "Stock")
of Xxxxx Incorporated, a Delaware corporation ("Xxxxx").
B. The Estate desires to vest voting power with respect to the Stock
owned by it in the Voting Trustee.
C. The Voting Trustee personally owns all of the remaining issued
and outstanding shares of Class A Voting Common Stock of Xxxxx.
AGREEMENTS
In consideration of the premises and mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. Transfer of Stock and Voting Power to Voting Trustee. The Estate
hereby assigns to the Voting Trustee full power to vote all of its shares of
Stock owned or which may hereafter be acquired by it for any and all purposes
for said shares of Stock may from time to time be voted and agrees to transfer
or cause to be transferred into the name of the Voting Trustee upon the books of
Xxxxx legal title to all of the said shares of Stock with all rights and powers
of whatever nature necessary to enable the Voting Trustee to exercise the powers
vested in him hereunder. The Estate hereby authorizes and empowers the Voting
Trustee, as attorney-in-fact for the Estate, to cause to be made on the books of
Xxxxx, subject to the conditions hereinafter set forth, a transfer to the Voting
Trustee of all of the certificates for said shares of Stock. In lieu of the
certificates for Stock of Xxxxx now or hereafter deposited hereunder,
certificates for all of such Stock shall be issued to and in the name of the
Voting Trustee and shall be held by the Voting Trustee in a place of
safekeeping. The certificates shall be held by the Voting Trustee in accordance
with the terms of this Agreement and shall be retained by the Voting Trustee
until the termination of this Agreement. All such stock certificates shall refer
to the fact that they are issued to the Voting Trustee under this Agreement.
2. Voting Trust Certificates. The Voting Trustee shall execute and
deliver to the Estate Voting Trust Certificates for the number of shares of
Stock now and which hereafter
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may be deposited hereunder. Said Voting Trust Certificates shall be in
substantially the form of Exhibit A attached hereto.
3. Assignment. The Voting Trust Certificates issued hereunder shall
not be transferred or assigned except pursuant to the Stock Purchase Agreement
dated December 30, 1985 by and among Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxx Train and Xxxx X. Train, as amended ("Stock Purchase Agreement"). Upon any
such assignment, the assignor of said Voting Trust Certificates shall notify the
Voting Trustee of such assignment in writing. Every assignee of a Voting Trust
Certificate issued hereunder shall, by the acceptance of such Voting Trust
Certificate, become a party hereto, with like effect as though an actual signer
of this Agreement and shall be embraced within the meaning of the terms "Voting
Trust Certificate holder" or "holder of the Voting Trust Certificate" as used
herein, unless the context shall otherwise require.
4. Replacement of Voting Trust Certificates. In case any Voting
Trust Certificate issued hereunder shall be mutilated or defaced or be
destroyed, lost or stolen, the Voting Trustee shall, in his discretion, issue or
cause to be issued in exchange for and upon cancellation of the mutilated Voting
Trust Certificate or, in lieu of the Voting Trust Certificate so destroyed, lost
or stolen, a new Voting Trust Certificate representing the same number and kind
of shares, upon the production of evidence of such loss, destruction or theft
satisfactory to the Voting Trustee, upon receipt of indemnity satisfactory to
the Voting Trustee and upon compliance with such other reasonable requirements
as the Voting Trustee may prescribe.
5. Rights and Duties of Voting Trustee.
(a) Except as herein provided, the Voting Trustee stall be
entitled to exercise, in his uncontrolled discretion, all rights and powers of
every kind and nature with respect to any or all of the shares of Stock of Xxxxx
at any time deposited hereunder, including especially, (but without limiting the
general rights and powers of the Voting Trustee):
(i) the right to collect all distributions and
dividends payable on any of said shares of Stock which shall be promptly
distributed in accordance with the provisions of this Agreement and the Voting
Trust Certificate applicable thereto; and
(ii) the right to vote said shares for every purpose
and to consent to every and any corporate act of Xxxxx or its stockholders.
(b) The Voting Trustee hereby accepts the powers and the trust
created hereunder and agrees to faithfully perform the duties set forth herein.
The Voting Trustee shall be entitled to receive advice or counsel upon any and
all matters concerning his duties hereunder and the Voting Trustee shall not be
accountable or liable for any loss, damage or liability whatsoever, except for
his own malfeasance. The Voting Trustee shall not be required to give any bond
or security for the discharge of his duties hereunder. If the Voting Trustee
receives any dividend or distribution of cash property other than common or
other voting stock, the Voting Trustee shall distribute such dividend or
distribution to the beneficiaries as their respective interests appeared as of
the date and time of such dividend or other distribution. In the case of
dividends or distributions of common stock or other voting stock, such stock
shall be added to
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the Stock held by the Voting Trustee hereunder and trust certificates evidencing
such stock shall be distributed to the beneficiaries in proportion to their
holdings or trust certificates representing stock deposited hereunder.
(c) The Voting Trustee may hold common stock of Xxxxx and,
individually or as a trustee, may vote for himself as a director and/or officer
of Xxxxx and participate in fixing the amount of compensation therefor.
6. Death of Disability. If the Voting Trustee shall die or become
unable to act, this Agreement shall terminate in accordance with paragraph 8
hereof.
7. Compensation. The Voting Trustee shall not be entitled to any
compensation for his services hereunder as Voting Trustee. However, the Voting
Trustee shall be reimbursed by the holders of the Voting Trust Certificates for
expenses incurred and shall be entitled to act as, and receive compensation as,
an officer, director or employee of Xxxxx.
8. Termination. This Agreement shall remain in full force and effect
unless terminated as provided below. This Agreement shall terminate upon the
first to occur of the following:
(a) the voluntary agreement of all of the parties hereto;
(b) the death of or inability to act of the Voting
Trustee; or
(c) sale of the Stock to the Corporation pursuant to paragraph
3 of the Stock Purchase Agreement.
Upon termination of this Agreement, the Voting Trustee, in exchange for and upon
surrender of the trust certificates then outstanding, shall in accordance with
the terms hereof deliver or cause to be delivered to the holders thereof the
shares of Stock and any of the securities held by him as Voting Trustee in the
amounts represented by the interest therein of the holders of said trust
certificates and then require the respective holders to exchange such trust
certificates for their respective shares of Stock and other securities.
9. Voting Trust Agreement on File. The Voting Trustee shall file a
copy of this Agreement in the registered office of the Corporation in the State
of Wisconsin, which copy shall be open to the inspection of any stockholder of
Xxxxx or any beneficiary of the trust created under this Agreement, daily during
business hours.
10. Notice. All calls for surrender or presentation of Voting Trust
Certificates and all other notices to be given hereunder shall be in writing and
be deemed given when properly delivered or deposited in the United States mail,
proper postage prepaid, addressed to the registered holders of the Voting Trust
Certificates at their respective addresses as shown in the register books of the
Voting Trustee and to the Voting Trustee at:
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or at such other addresses as the Voting Trustee shall designate in writing
given to each Voting Trust Certificate holder.
11. Severability. If, for any reason, any provision or part of any
provision hereof shall be or become invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby.
12. Amendment. This Agreement may be amended or modified only by an
agreement signed by the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin.
ESTATE OF --------------------------------
BY ---------------------------------------
---------------------------------------
Voting Trustee
---------------------------------------
Deceased Shareholder's Spouse
---------------------------------------
Voting Trustee's Spouse
---------------------------------------
Personal Representative
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EXHIBIT A
Number ________
XXXXX INCORPORATED
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
VOTING TRUST CERTIFICATE FOR
_______________ SHARES OF $.10 PAR VALUE CLASS A
VOTING COMMON STOCK
This is to certify that upon termination of the Voting Trust
Agreement dated ________________, ____ and upon the condition hereinafter set
forth, _____________________ will be entitled, upon surrender hereof to the
Voting Trustee duly endorsed, to receive a certificate or certificates for
_____________________ fully paid and nonassessable shares of $.10 par value
Class A Voting Common Stock of Xxxxx Incorporated ("Xxxxx") , a Delaware
corporation. Until termination of the Voting Trust Agreement, the Estate of
_______________, or its successors and assigns, is entitled to all benefits and
interests and is subject to all of the terms specified in such Agreement (which
is on file with Xxxxx), including, but not limited to, the right to receive
payments equal to the distribution or dividends, if any, received by the
undersigned Voting Trustee upon a like number of shares of Class A Voting Common
Stock of Xxxxx. Until the termination of the Voting Trust Agreement, the voting
Trustee shall possess and be entitled to exercise all rights of every kind and
nature pertaining to the Class A Voting Common Stock owned by the Estate of
__________________, or its successors and assigns, including the right to vote
such stock at any meeting in which the same are entitled to vote, it being
expressly understood and agreed that no voting right pertaining to said stock
and no right to take part in or consent to any corporate or stockholders' action
or to do or perform any other act pertaining to ownership of such stock passes
by or under or belongs to this Voting Trust Certificate or the owner hereof or
its successors or assigns or by or under any agreement, express or implied,
except to the extent expressly provided in said Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the books of
the Voting Trustee by the registered holder hereof either in person or by
attorney, duly authorized in writing, upon surrender hereof, properly endorsed,
and in accordance with the rules established by the Voting Trustee for that
purpose.
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Until so surrendered, the Voting Trustee and all other persons
dealing with Voting Trust Certificates may treat the registered holder as the
owner hereof for all purposes whatsoever, any notice to the contrary
notwithstanding, and every holder hereof, by accepting this Voting Trust
Certificate, assents to and agrees to be bound by all of the terms of this
Voting Trust Certificate and of said Voting Trust Agreement.
Dated this ________ day of ___________________, 19__.
VOTING TRUSTEE:
_______________________________________
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EXHIBIT B
VOTING TRUST AGREEMENT
THIS AGREEMENT is entered into this ________ day of _____________,
____ by and among ___________________________ (the "Disabled Shareholder"),
_____________________________ (the "Disabled Shareholder's Spouse"),
_____________________________ (the "Voting Trustee") and
__________________________ (the "Voting Trustee's Spouse").
RECITALS
A. The Disabled Shareholder owns _____________ shares of the 700
issued and outstanding shares of $.10 par value Class A Voting Common Stock (the
"Stock") of Xxxxx Incorporated, a Delaware corporation ("Xxxxx").
B. The Disabled Shareholder desires to vest voting power with
respect to the Stock owned by it in the Voting Trustee.
C. The Voting Trustee personally owns all of the remaining issued
and outstanding shares of Class A Voting Common Stock of Xxxxx.
AGREEMENTS
In consideration of the premises and mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. Transfer of Stock and Voting Power to Voting Trustee. The
Disabled Shareholder hereby assigns to the Voting Trustee full power to vote all
of his shares of Stock owned or which may hereafter be acquired by him for any
and all purposes for which said shares of Stock may from time to time be voted
and agrees to transfer or cause to be transferred into the name of the Voting
Trustee upon the books of Xxxxx legal title to all of the said shares of Stock
with all rights and powers of whatever nature necessary to enable the Voting
Trustee to exercise the powers vested in him hereunder. The Disabled Shareholder
hereby authorizes and empowers the Voting Trustee, as attorney-in-fact for the
Disabled Shareholder, to cause to be made on the books of Xxxxx, subject to the
conditions hereinafter set forth, a transfer to the Voting Trustee of all of the
certificates for said shares of Stock. In lieu of the certificates for Stock of
Xxxxx now or hereafter deposited hereunder, certificates for all of such Stock
shall be issued to and in the name of the Voting Trustee and shall be held by
the Voting Trustee in a place of safekeeping. The certificates shall be held by
the Voting Trustee in accordance with the terms of this Agreement and shall be
retained by the Voting Trustee until the termination of this Agreement. All such
stock certificates shall refer to the fact that they are issued to the Voting
Trustee under this Agreement.
2. Voting Trust Certificates. The Voting Trustee shall execute and
deliver to the Disabled Shareholder Voting Trust Certificates for the number of
shares of Stock now and which
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hereafter may be deposited hereunder. Said Voting Trust Certificates shall be in
substantially the form of Exhibit A attached hereto.
3. Assignment. The Voting Trust Certificates issued hereunder shall
not be transferred or assigned except pursuant to the Stock Purchase Agreement
dated December 30, 1985 by and among Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxx Train and Xxxx X. Train, as amended ("Stock Purchase Agreement"). Upon any
such assignment, the assignor of said Voting Trust Certificates shall notify the
Voting Trustee of such assignment in writing. Every assignee of Voting Trust
Certificate issued hereunder shall, by the acceptance of such Voting Trust
Certificate, become a party hereto, with like effect as though an actual signer
of this Agreement and shall be embraced within the meaning of the terms "Voting
Trust Certificate holder" or "holder of the Voting Trust Certificate" as used
herein, unless the context shall otherwise require.
4. Replacement of Voting Trust Certificates. In case any voting
Trust Certificate issued hereunder shall be mutilated or defaced or be
destroyed, lost or stolen, the Voting Trustee shall, in his discretion, issue or
cause to be issued in exchange for and upon cancellation of the mutilated Voting
Trust Certificate or, in lieu of the Voting Trust Certificate so destroyed, lost
or stolen, a new Voting Trust Certificate representing the same number and kind
of shares, upon the production of evidence of such loss, destruction or theft
satisfactory to the Voting Trustee, upon receipt of indemnity satisfactory to
the Voting Trustee and upon compliance with such other reasonable requirements
as the Voting Trustee may prescribe.
5. Rights and Duties of Voting Trustee.
(a) Except as herein provided, the Voting Trustee shall be
entitled to exercise, in his uncontrolled discretion, all rights and powers of
every kind and nature with respect to any or all of the shares of Stock of Xxxxx
at any time deposited hereunder, including especially, (but without limiting the
general rights and powers of the Voting Trustee):
(i) the right to collect all distributions and
dividends payable on any of said shares of Stock which shall be promptly
distributed in accordance with the provisions of this Agreement and the Voting
Trust Certificate applicable thereto; and
(ii) the right to vote said shares for every purpose
and to consent to every and any corporate act of Xxxxx or its stockholders.
(b) The Voting Trustee hereby accepts the powers and the trust
created hereunder and agrees to faithfully perform the duties set forth herein.
The Voting Trustee shall be entitled to receive advice or counsel upon any and
all matters concerning his duties hereunder and the Voting Trustee shall not be
accountable or liable for any loss, damage or liability whatsoever, except for
his own malfeasance. The Voting Trustee shall not be required to give any bond
or security for the discharge of his duties hereunder. If the Voting Trustee
receives any dividend or distribution of cash property other than common or
other voting stock, the Voting Trustee shall immediately distribute such
dividend or distribution to the beneficiaries as their respective interests
appeared as of the date and time of such dividend or other distribution. In the
case of dividends or distributions of common stock or other voting stock, such
stock shall be added to the Stock held by
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the Voting Trustee hereunder and trust certificates evidencing such stock shall
be distributed to the beneficiaries in proportion to their holdings or trust
certificates representing stock deposited hereunder.
(c) The Voting Trustee may hold common stock of Xxxxx and,
individually or as a trustee, may vote for himself as a director and/or officer
of Xxxxx and participate in fixing the amount of compensation therefor.
6. Death of Disability. If the Voting Trustee shall die or become
unable to act, this Agreement shall terminate in accordance with paragraph 8
hereof.
7. Compensation. The Voting Trustee shall not be entitled to any
compensation for his services hereunder as Voting Trustee. However, the Voting
Trustee shall be reimbursed by the holders of the Voting Trust Certificates for
expenses incurred and shall be entitled to act as, and receive compensation as,
an officer, director or employee of Xxxxx.
8. Termination. This Agreement shall remain in full force and effect
unless terminated as provided below. This Agreement shall terminate upon the
first to occur of the following:
(a) the voluntary agreement of all of the parties hereto;
(b) the death of or inability to act of the Voting
Trustee;
(c) sale of the Stock to the Corporation pursuant to paragraph
4 of the Stock Purchase Agreement; or
(d) death of the Disabled Shareholder.
Upon termination of this Agreement, the Voting Trustee, in exchange for and upon
surrender of the trust certificates then outstanding, shall in accordance with
the terms hereof deliver or cause to be delivered to the holders thereof the
shares of Stock and any of the securities held by him as Voting Trustee in the
amounts represented by the interest therein of the holders of said trust
certificates and then require the respective holders to exchange such trust
certificates for their respective shares of Stock and other securities.
9. Voting Trust Agreement on File. The Voting Trustee shall file a
copy of this Agreement in the registered office of the Corporation in the State
of Wisconsin, which copy shall be open to the inspection of any stockholder of
Xxxxx or any beneficiary of the trust created under this Agreement, daily during
business hours.
10. Notice. All calls for surrender or presentation of Voting Trust
Certificates and all other notices to be given hereunder shall be in writing and
be deemed given when properly delivered or deposited in the United States mail,
proper postage prepaid, addressed to the registered holders of the Voting Trust
Certificates at their respective addresses as shown in the register books of the
Voting Trustee and to Voting Trustee at:
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or at such other addresses as the Voting Trustee shall designate in
writing given to each Voting Trust Certificate holder.
11. Severability. If, for any reason, any provision or part of any
provision hereof shall be or become invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby.
12. Amendment. This Agreement may be amended or modified only by an
agreement signed by the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin.
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Disabled Shareholder
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Voting Trustee
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Disabled Shareholder's Spouse
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Voting Trustee's Spouse
-4-
16
EXHIBIT A
Number ______
XXXXX INCORPORATED
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
VOTING TRUST CERTIFICATE FOR
_____________ SHARES OF $.10 PAR VALUE CLASS A
VOTING COMMON STOCK
This is to certify that upon termination of the Voting Trust
Agreement dated _____________, ___ and upon the conditions hereinafter set
forth, ___________________ will be entitled, upon surrender hereof to the Voting
Trustee duly endorsed, to receive a certificate or certificates for
________________________ fully paid and nonassessable shares of $.10 par value
Class A Voting Common Stock, of Xxxxx Incorporated ("Xxxxx"), a Delaware
corporation. Until termination of the Voting Trust Agreement __________________
is entitled to all benefits and interests and is subject to all of the terms
specified in such Agreement (which is on file with Xxxxx), including, but not
limited to, the right to receive payments equal to the distribution or
dividends, if any, received by the undersigned Voting Trustee upon a like number
of shares of Class A Voting Common Stock of Xxxxx. Until the termination of the
Voting Trust Agreement, the Voting Trustee shall possess and be entitled to
exercise all rights of every kind and nature pertaining to the Class A Voting
Common Stock owned by _______________________, including the right to vote such
stock at any meeting in which the same are entitled to vote, it being expressly
understood and agreed that no voting right pertaining to said stock and no right
to take part in or consent to any corporate or stockholders' action or to do or
perform any other act pertaining to ownership of such stock passes by or under
or belongs to this Voting Trust Certificate or the owner hereof or his
successors or assigns or by or under any agreement, express or implied, except
to the extent expressly provided in said Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the books of
the Voting Trustee by the registered holder hereof either in person or by
attorney, duly authorized in writing, upon surrender hereof, properly endorsed,
and in accordance with the rules established by the Voting Trustee for that
purpose.
Until so surrendered, the Voting Trustee and all other persons
dealing with Voting Trust Certificates may treat the registered holder as the
owner hereof for all purposes whatsoever, any notice to the contrary
notwithstanding, and every holder hereof, by accepting this Voting Trust
Certificate, assents to and agrees to be bound by all of the terms of this
Voting Trust Certificate and of said Voting Trust Agreement.
Dated this __________ day of ___________________, 19__.
VOTING TRUSTEE:
________________________________
