EXHIBIT 2.1.5
CENTENNIAL SPECIALTY FOODS CORPORATION
VOTING TRUST AGREEMENT
This Voting Trust Agreement is made and entered into and made effective
the 17th day of September, 2003, by Xxxxxxx X. Xxxxxx, as trustee (hereinafter,
with any successor trustee, referred to as the "Trustee"), Xxxxx X. Xxxxx (the
"Beneficiary") or any person(s) who become registered owners of Voting Trust
Certificates pursuant to the terms hereof (hereinafter referred to as the
"Beneficiaries") for the purpose of transferring, in accordance with the terms
hereof, the voting rights pertaining to 1,140,000 shares of Common Stock of
Centennial Specialty Foods Corporation , a Delaware corporation (hereinafter
called the "Company") owned of record and beneficially by the Beneficiary, and
the Company, as a third party beneficiary hereof and as obligor under, without
limitation, Sections 1(b), 1(d), 5(b), 5(g), 6(b) hereof.
In consideration of the mutual covenants and agreements herein
contained, the Beneficiary hereby creates and the Trustee hereby accepts a trust
on the terms herein stated, and the parties hereto covenant and agree as
follows:
1. Creation of Voting Trust, Deposit of Stock and Issuance of Voting
Trust Certificates.
(a) The Trustee is hereby appointed the Trustee under the
voting trust created by this Agreement. During the term hereof, the Trustee
shall act as voting trustee with respect to 1,140,000 shares of common stock of
the Company now owned of record and beneficially by the Beneficiary, together
with such voting shares as are subsequently received by the Trustee as a result
of the operation of this Agreement (such tendered 1,140,000 shares of the
Company's common stock and any subsequently received shares collectively
hereinafter the "Shares"), together with all powers, rights and privileges and
subject to all the conditions and covenants hereinafter set forth. The parties
hereto acknowledge that the Beneficiary owns an additional 960,000 shares of
common stock of the Company (the "Excluded Shares") that are not subject to the
voting trust created by this Agreement and as to which the Beneficiary retains
all voting and other rights.
(b) The Beneficiary, promptly upon the execution of this
Agreement, shall deliver to the Trustee certificates for the Shares, which are
owned of record and beneficially by Beneficiary, free and clear of any liens,
claims, or encumbrances, and will deliver to the Trustee certificates
representing the Shares, duly endorsed for transfer or accompanied by duly
executed instruments of transfer. The Company shall be responsible for, and
shall pay on behalf of the Trustee, all transfer taxes and expenses imposed upon
any such transfer. Promptly upon receipt of such certificates, the Trustee shall
cause the Shares to be registered in the name of the Trustee, as Trustee for
Beneficiary, shall cause the new Share certificates to bear a legend referring
to this Agreement, and shall file a duplicate copy of this Agreement with the
Secretary of the Company.
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(c) The Trustee shall issue and deliver to the Beneficiary a
voting trust certificate (herein a "Certificate") in respect of the Shares
deposited with and held by the Trustee for the benefit of such Beneficiary under
this Agreement, in the form of Exhibit "A" hereto and incorporated herein. Such
Certificate shall be signed by the Trustee.
(d) The Trustee and the Company shall provide joint
instructions to the Company's transfer agent and registrar (the "Transfer
Agent") to keep correct books of account of all trust transactions containing
the names of all Beneficiaries, showing their places of residence, the number of
shares represented by the Certificates held by them, and the time when they
became the owners thereof. This Agreement shall be open for inspection by any
stockholder of the Company, the Beneficiary or Beneficiaries, or the agent of
any of the foregoing upon the same terms as the record of stockholders of the
Company is open to inspection to such persons.
The Certificates shall be transferable only as provided in
said Certificates and this Agreement and upon payment of any transfer taxes and
other charges. All transfers shall be recorded by the Transfer Agent in the
books and records of the Company and any proper transfer made of any Certificate
shall vest in the transferee all rights of the transferor by the terms of the
Certificate so transferred and by this Agreement. Upon any such transfer, the
Trustee shall deliver a Certificate or Certificates to the transferee for the
number of shares represented by the Certificate so transferred.
The Trustee shall not be required to recognize any transfer of
a Certificate not made in accordance with the provisions hereof unless the
person or persons claiming such ownership shall have produced indicia of title
satisfactory to the Trustee, and shall have deposited with the Trustee an
indemnity satisfactory to him.
(d) The Trustee may treat the registered holder of each
Certificate (or when presented duly endorsed in blank for transfer, the bearer
thereof) as the absolute owner and holder thereof and of all the rights and
interests represented thereby for all purposes whatsoever, and the Trustee shall
not be bound or affected by any notice to the contrary. Holders of Certificates
have received such Certificates and hold them subject to all of the terms of
this Agreement. The Beneficiary and each of the Beneficiaries, if any, who
properly become Beneficiaries in accordance with the terms hereof are deemed
conclusively for all purposes to have assented to this Agreement and all of its
terms, and any Beneficiaries shall be bound by this Agreement with the same
force and effect as if such Beneficiaries had originally been a party to this
Agreement.
(e) The Trustee accepts the trust created hereby in accordance
with all of the terms and conditions contained in this Agreement. The Shares
shall be held at all times by the Trustee for the purposes of and in accordance
with this Agreement, and none of the Shares, or any interest therein, shall be
sold, transferred, pledged or encumbered by the Trustee except as expressly
stated in this Agreement.
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2. Trustee's Rights as Stockholder of Company.
So long as the Trustee shall hold shares deposited pursuant to
the provisions of this Agreement, he shall possess and in his discretion shall
be entitled to exercise in person or by nominees, agents, attorneys-in-fact or
proxies (except the Beneficiary), all voting rights and powers of absolute
owners and holders of such shares, including the right to vote, assent, or
consent with respect thereto and to take part in and consent to any corporate or
stockholders' action of any kind whatsoever to the extent permitted by the
Certificate of Incorporation and Bylaws of the Company.
The right of the Trustee to vote, assent or consent shall
include, without limitation, the right to vote at any election of directors and
in favor of or in opposition to any dissolution or proposed dissolution,
liquidation or reorganization of the Company, or a sale of all or substantially
all of its assets, or a sale (including, but not limited to, a redemption) of
all or substantially all of the stock deposited pursuant to the provisions of
this Agreement, or the issuance or creation of additional classes of its
securities, or any action of any character whatsoever which may be presented at
any meeting or require the approval of stockholders of the Company.
3. Dividends and Distributions.
(a) The Beneficiary shall be entitled, until the termination
of this Agreement as hereinafter provided, to receive from time to time payments
equal to the amount of cash dividends, if any, collected or received by the
Trustee or his successors upon the number of shares in respect of which such
Certificate was issued, less the deductions provided for in subsection (d). Such
payments shall be made as soon as practicable after the receipt of such
dividends, to the Beneficiary or Beneficiaries at the close of business on the
record date determined pursuant to the provisions of Section 1(e). The Trustee
may, if he deems it desirable to do so, arrange with the Company for the direct
payment by the Company of dividends to the Beneficiary or Beneficiaries on the
record date for any dividend or other distribution.
(b) If the Trustee shall receive, as a dividend or other
distribution upon any shares held by him under this Agreement, any additional
shares of the Company having voting rights under the General Corporation Law of
Delaware or any other securities having such voting rights or convertible into
or exchangeable for securities having such voting rights, the Trustee shall hold
the same subject to this Agreement for the benefit of the Beneficiary or
Beneficiaries in proportion to their respective interests, and said shares or
other securities shall be and become subject to all of the terms and conditions
hereof to the same extent as if originally deposited hereunder. The Trustee
shall issue Certificates in respect to such shares or other securities to the
holders of outstanding Certificates of record at the close of business on the
record date of such dividend or distribution.
(c) If at any time during the term of this Agreement the
Trustee shall receive or collect any monies through a distribution by the
Company to its stockholders,
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other than in payment of cash dividends, or shall receive any property (other
than shares of stock of the Company) through a distribution by the Company to
its stockholders, the Trustee shall distribute the same to the Beneficiary or
such Beneficiaries as are registered as such at the close of business on the
record date for such dividend or distribution; provided that the Trustee may
withhold therefrom the deductions provided for in subsection (d) below.
(d) There shall be deducted and withheld from every
distribution of every kind under this Agreement any applicable taxes that may be
required by any present or then-existing law or laws to be deducted or withheld,
subject to the right of the Beneficiary to furnish the Trustee with such
documentation as shall demonstrate, to the Trustee's reasonable satisfaction,
that any such deduction or withholding is not then required.
4. Rights to Subscribe.
If any securities of the Company shall be offered for
subscription to the Beneficiary or Beneficiaries that relate to the Shares
subject to the terms hereof, the Trustee, promptly upon receipt of notice of
such offer, shall mail a copy thereof to the Beneficiary or Beneficiaries. Upon
receipt by the Trustee, at least three (3) days prior to the last date fixed by
the Company for subscription, of a request from the Beneficiary or any of the
Beneficiaries to subscribe in such person's behalf, accompanied by the sum of
money required to be paid for such securities, the Trustee shall make such
subscription and payment on behalf of the Beneficiary or Beneficiaries, and upon
receiving from the Company the certificates for the securities so subscribed
for, shall issue to the Beneficiary or Beneficiaries, as may be the case, a
Certificate in respect thereof if the same are securities having voting rights
as that term is used in Section 3(b) hereof, or, if the same be securities other
than securities having such voting rights, the Trustee shall deliver the same to
the Beneficiary or Beneficiaries in whose behalf the subscription was made.
If any subscription rights are not exercised by the
Beneficiary or any of the Beneficiaries entitled thereto, the Trustee may
subscribe and pay for the new securities on behalf of any other Beneficiaries
(to the extent there are other Beneficiaries) desiring the same who shall comply
with the provisions of this Section 5 or may, in his discretion, sell such
rights and distribute the proceeds of such sale to the Beneficiary or
Beneficiaries entitled thereto.
5. The Trustee.
(a) In voting shares or in doing any act in respect to the
control or management of the Company or its affairs, as voting Trustee of Shares
deposited hereunder, the Trustee shall exercise his best judgment but assumes no
responsibility in respect of any action taken or not taken by the Company in
pursuance of a vote so cast. The Trustee has no implied obligations and assumes
no responsibility in his capacity as
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Trustee in respect of any action taken (or not taken) by the Company or any
other person in response to the vote cast by the Trustee.
(b) The Trustee is expressly authorized to incur and pay such
reasonable expenses and charges, to employ and pay such agents, attorneys, and
counsel, and to incur and pay such other charges and expenses as deemed
necessary and proper for administering this Agreement. The Company agrees that
it shall reimburse the Trustee for such reasonable expenses and charges. Any
invoices for legal services obtained by the Trustee may be redacted as is
necessary to preserve attorney-client confidentiality and any other applicable
privilege.
(c) The Trustee or any successor Trustee shall enjoy all of
the rights, powers, interests and immunities of the Trustee as originally
constituted hereunder. The trust created by this Agreement is not intended to
be, and shall not be deemed to be, and shall not be treated as a general
partnership, limited partnership, joint venture, corporation, or joint stock
company or association. The relationship of the Beneficiary or Beneficiaries to
the Trustee shall be solely that of Beneficiary or Beneficiaries of the Trust
created by this Agreement and his or their rights shall be limited to those
conferred upon him or them by this Agreement.
(d) In the event of the death, resignation or incapacity to
act of the Trustee so that there is no incumbent Trustee, Xxxxxxx X. Xxxxx shall
be appointed as successor Trustee without any further action or consent of the
Beneficiary or Beneficiaries then constituted. If Xxxxxxx X. Xxxxx shall decline
to serve as successor Trustee in spite of his appointment or thereafter dies,
resigns or becomes incapacitated, then in any of such events Xxxxx Xxxxxx shall
be appointed as successor Trustee without any further action or consent of the
Beneficiary or Beneficiaries then constituted. If Xxxxx Xxxxxx shall decline to
serve as successor Trustee in spite of his appointment or thereafter dies,
resigns or becomes incapacitated, the Beneficiary or Beneficiaries then existing
shall hold a meeting to elect a successor Trustee to act under this Trust. Such
meeting may be called by the Beneficiary or any of the Beneficiaries, and notice
thereof shall be given not less than ten (10) or more than sixty (60) days
before the date of the meeting. The record date for such meeting shall be the
date of the declination to serve, death, resignation or incapacity to act of the
Trustee. Such successor Trustee shall be elected by vote of the Beneficiary or,
if there are then Beneficiaries, by a majority vote of the Beneficiaries.
(e) If the Trustee or any successor Trustee shall materially
fail to discharge his duties hereunder or fails to act in good faith in
discharging his duties hereunder, the Beneficiary (or the Beneficiaries acting
by majority vote as described in (d) above) shall have the right, on ten days'
written notice, to remove the then Trustee. During such 10 day notice period,
the Trustee may resign, may cure any failures to discharge his duties or act in
good faith (if such failure or failures are in fact curable) or, failing either
of these, the Trustee shall be removed from such position upon expiration of
such 10 day period. Upon such removal, a successor Trustee shall be appointed in
accordance with subsection (d) above.
(f) The Trustee herein appointed and successors from time to
time may be parties to this Agreement as Beneficiaries. Any Trustee and any firm
or corporation of which such Trustee may be a member, agent or employee and any
corporation, trust or association of which such Trustee may be a trustee,
stockholder, director, officer, agent, or employee may contract with or be or
become pecuniarily interested, directly or indirectly, in any matter or
transaction to which the Company or any subsidiary or controlled or affiliated
corporation may be a party or in which it may be concerned, as fully and freely
as though such Trustee were not a Trustee hereunder. The Trustee may act as a
director and/or officer of the Company, may provide services to the Company,
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may consult with the Company, or serve in such capacities for any subsidiary or
controlled or affiliated corporation of the Company.
(g) Notwithstanding any change in the Trustee, the
Certificates for Shares standing in the name of the Trustee may be endorsed and
transferred by any successor Trustee for the time being with the same effect as
if endorsed and transferred by the Trustee who has ceased to act. The Trustee is
authorized and empowered to cause any further transfer of said shares to be made
which may be necessary through the occurrence of any change of persons acting as
Trustee hereunder.
(h) The Company and the Beneficiary shall hold the Trustee
harmless from and against, and will indemnify the Trustee from, any and all
liabilities, losses, costs , expenses (including reasonable attorneys' fees and
expert witness fees), damages, amounts paid in settlement or awards in
connection with, or arising out of, this Agreement or its administration or the
exercise of permitted powers or performance of any duties described or permitted
herein by the Trustee, except in such instances where the Trustee is determined
in a judicial proceeding, not subject to further appeal or not actually appealed
by the Trustee, to have engaged in willful misconduct or gross negligence.
The Trustee may consult with legal counsel, which may be
counsel to the Company, and any action under this Agreement taken or suffered in
good faith by him in accordance with the opinion of such counsel shall be
conclusive upon the parties hereto and the Trustee shall be fully protected and
be subject to no liability in respect thereof. In no event shall a vote against
the wishes of the Beneficiary, by itself, constitute a failure to exercise good
faith.
The Trustee is authorized and empowered to construe this
Agreement and its reasonable construction made in good faith shall be conclusive
and binding upon the Beneficiary, the Beneficiaries and upon all parties hereto.
The Trustee shall not be liable for any error of judgment nor
for any act done or omitted, nor for any mistake of fact or law nor for anything
that is done or refrained from doing in good faith, nor shall the Trustee have
any accountability hereunder, except the Trustee's own willful misconduct or
gross negligence. The Trustee is not obligated to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, or order.
The Trustee shall be protected and free from liability in
acting upon any notice, request, consent, certificate, declaration, telegram,
facsimile, e-signed document, guarantee, affidavit, or other paper or document
or signature believed by him to be genuine and to have been signed by the proper
party or parties or by the party or parties purporting to have signed the same.
(i) The Trustee is not to receive any compensation for his
services hereunder.
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6. Termination.
(a) This Agreement shall terminate at the earlier of ten (10)
years from the effective date hereof or upon the occurrence of one or more of
the following events (each such event is hereinafter referred to as a
"Triggering Event" or collectively as "Triggering Events"):
(i) sale of all of the Shares by the Beneficiary in a merger,
sale, exchange or similar transaction in which the Company's
stockholders before such transaction own less than 50% of the equity of
the Company after the transaction or after which the Company is not the
surviving entity;
(ii) issuance (in one or more transactions) of (x) common
stock of the Company in a public or private offering, acquisition,
exchange or a similar transaction that will, or (y) convertible
preferred stock or convertible debt instruments of the Company in a
public or private offering, acquisition, exchange or a similar
transaction that upon conversion, will (z) result in the Beneficiary
(together with any shares then owned by Beneficiaries) owning less than
25% of the Company's outstanding common stock. The ownership percentage
of the Beneficiary shall be calculated by including both the Shares and
Excluded Shares in such percentage ownership, together with any other
shares of common stock of the Company acquired or received by the
Beneficiary after the date hereof but excluding any shares of common
stock previously owned by the Beneficiary and sold by him after the
date hereof and before such transaction;
(ii) sales of Shares by the Beneficiary or Beneficiaries in a
private sale to unaffiliated third parties or under Rule 144, in which
event the Shares sold (but not any unsold Shares) shall be
automatically released from the provisions of this Agreement without
further action of the parties hereto;
(iii) sale of all or substantially all of the Company's
assets;
(iv) declaration of an event of default under the Company's
loan agreement or promissory note with its proposed senior lender,
Heartland Bank, or any senior debt incurred by the Company to refinance
such senior debt with any other financial institution, or under the
Company's loan agreement and secured notes with Xxxxx X. and Xxxxx X.
Xxxxx, or any permitted assigns of Xxxxx X. and Xxxxx X. Xxxxx;
(v) a reorganization of the Company in which the stockholders
of the Company immediately prior to such reorganization do not control
51% or more of the outstanding stock of the Company after such
reorganization; or
(vi) liquidation of the Company.
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The termination of this Agreement shall not affect the rights
of the Trustee set forth in Section 5 hereof, which rights will survive
such termination. Except as otherwise provided in this Agreement, the
trust created by this Agreement is hereby expressly declared
irrevocable.
(b) As soon as practicable after the termination of this
Agreement or occurrence of a Triggering Event, the Trustee shall deliver to the
Beneficiary or Beneficiaries share certificates or securities representing the
number of Shares or other securities in respect of which Certificates registered
in the name of the Beneficiary or Beneficiaries were issued, upon the surrender
of such Certificates properly endorsed. Any tax or governmental charge in
respect of the transfer or delivery of such certificates representing the Shares
will be paid by the Company.
If the Beneficiary or any Beneficiaries cannot be located or
fail or refuse to surrender Certificates in exchange for shares or other
securities as aforesaid, the Trustee may in his discretion deliver said shares
or other securities to the Company or may place the certificates representing
the Shares in the registry of a court of competent jurisdiction and file an
action to interplead the parties hereto and any other persons claiming any right
or interest in the Shares. Upon any such delivery or the filing of an action in
interpleader, the Trustee shall be fully discharged with respect to any further
obligations hereunder.
7. Miscellaneous
(a) This Agreement shall bind and inure to the benefit of the
Trustee and the Beneficiary, any successor Trustee or additional Beneficiaries,
and each and all of the heirs, executors, administrators, successors and assigns
thereof, as well as any successors and assigns of the Company. If this Agreement
is to terminate on occurrence of a Triggering Event, such termination shall be
deemed to occur immediately prior to such Triggering Event and no assignment of
this Agreement shall be permitted by contract or operation of law.
(b) Any notice to be given to the holder of a Certificate
shall be sufficiently given if mailed, postage prepaid, to the registered holder
of such Certificate at the address of such registered holder appearing on the
records of the Company. Every notice so given shall be effective whether or not
received, and such notice shall for all purposes be deemed to have been given on
the date of mailing thereof.
(c) Any notice to be given to the Trustee hereunder shall be
sufficiently given if mailed to the Trustee at the address of the Trustee
appearing on the records of the Company or at such other address as the Trustee
may from time to time designate by written notice given to the Beneficiary or
Beneficiaries. Any notice to be given to the Company shall be sufficiently given
if mailed to the Company at its address of record.
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(d) This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one instrument.
(e) The corporate laws of Delaware shall govern all issues
concerning the validity, interpretation and relative rights of the parties under
this Agreement.
(f) If in any judicial proceedings a court shall refuse to
enforce any of the provisions of this Agreement, then such unenforceable
provision shall be deemed excised and eliminated from this Agreement for the
purpose of those proceedings to the extent necessary to permit the remaining
provisions to be enforced.
(g) This Agreement shall be void ab initio in the event the
Company's initial public offering is not declared effective and closed prior to
November 30, 2003.
IN WITNESS WHEREOF, the Trustee, the Beneficiary and the Company have
executed this Agreement effective as of September 17, 2003.
TRUSTEE: BENEFICIARY:
-------- ------------
/s/ XXXXXXX X. XXXXXX /s/ XXXXX X. XXXXX
------------------------- ---------------------------
XXXXXXX X. XXXXXX XXXXX X. XXXXX
THE COMPANY:
As Third Party Beneficiary and Obligor under,
without limitation, Sections 1(b), 1(d), 5(b), 5(g), 6(b) hereof.
CENTENNIAL SPECIALTY FOODS CORPORATION
/s/ XXXXXXX X. XXXXXX
-------------------------
XXXXXXX X. XXXXXX,
Chief Executive Officer
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EXHIBIT "A"
FORM OF VOTING TRUST CERTIFICATE
No. VT1 1,140,000 Shares of Common Stock
CENTENNIAL SPECIALTY FOODS CORPORATION,
a Delaware corporation
VOTING TRUST CERTIFICATE IN RESPECT
OF COMMON STOCK
THIS CERTIFIES that there have been deposited with the undersigned as
Trustee under the Voting Trust Agreement hereinafter mentioned (the
"Agreement"), certificates for 1,140,000 shares of common stock (the "Shares")
of Centennial Specialty Foods Corporation, a Delaware corporation (hereinafter
called the "Company"), in the number set forth above on this certificate, and
that Xxxxx X. Xxxxx or registered assigns is entitled to all of the benefits
specified in the Agreement arising from said shares deposited with the Trustee,
all as provided in and subject to the terms and conditions of the Agreement.
Until the Trustee shall have delivered the shares held by him under the
Agreement to the holders of the Voting Trust Certificates, the Trustee, or
successors in trust, shall possess and shall be entitled to exercise all voting
rights and powers of every nature of an absolute owner of said shares, including
but not limited to the right to vote thereon for every purpose and to execute
assents and consents in respect thereof for every purpose, it being expressly
stipulated that no voting right passes to the above named owner hereof or
assigns by or under this Certificate or by or under any agreement, express or
implied, except to the extent set forth in the Agreement. The holder of this
Certificate, by acceptance hereof, assents to all of the provisions of the
Agreement (a copy of which is on file at the principal executive office of the
Company) and agrees to be bound thereby with like effect as if the Agreement had
been signed by such person.
Certificates for the number of shares in respect of which this
Certificate was issued, or the net proceeds in cash or property of said number
of shares at the time of surrender hereof, all as provided in the Agreement,
shall be deliverable hereunder upon the termination of the Agreement.
This Certificate is transferable on the books of the Company only by
the registered holder hereof in person or by attorney duly authorized, and upon
the surrender hereof. The Trustee may treat the registered holder hereof, or
when presented duly endorsed in blank, the bearer hereof, as the absolute owner
hereof and of all of the rights and interests represented hereby for all
purposes whatsoever, and the Trustee shall not be bound or affected by any
notice to the contrary.
The Agreement shall terminate on September 17, 2013 or upon the
occurrence of a Triggering Event, as such term is defined in the Agreement. If
the Triggering Event
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is a sale of Shares deposited hereunder pursuant to Rule 144 under the
Securities Act of 1933, only those Shares actually sold pursuant to Rule 144
shall be released from the Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
executed.
DATED: September 17, 2003.
/s/ XXXXXXX X. XXXXXX
-------------------------
XXXXXXX X. XXXXXX,
VOTING TRUSTEE
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