CONNS VOTING TRUST AGREEMENT
THIS CONNS VOTING TRUST AGREEMENT (this "Agreement") is made as of this
18th day of November, 2003 by and among Xxxxx Xxxxxxxxx (the "Trustee"), and the
stockholder(s) listed on Exhibit A hereto (each a "Stockholder" and
collectively, the "Stockholders"). The term "Stockholders" shall include any
additional parties who may become parties hereto.
WITNESSETH:
WHEREAS, in order to engage in certain market-making activities and other
principal transactions in the common stock, par value $0.01 per share (the
"Common Stock"), of Conn's, Inc., a Delaware corporation (the "Corporation"),
without the need to deliver a prospectus under current law and regulations,
Xxxxxxxx Inc. desires not to be deemed an "affiliate" of the Corporation under
the Securities Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
WHEREAS, the relationships among the Stockholders, Xxxxxxxx Inc. and the
Corporation may create an inference that an affiliation might exist;
WHEREAS, the Stockholders believe it is in their best interests that
Xxxxxxxx Inc. engage in market-making activities and other principal
transactions in the Common Stock from time to time;
WHEREAS, each Stockholder owns certain securities of the Corporation or
its affiliates that may be exchanged for or converted into shares of the Common
Stock of the Corporation in conjunction with the initial public offering of
shares of the Common Stock of the Corporation or otherwise and/or certain shares
of Common Stock of the Corporation (the "Stock") as described on Exhibit A
hereto and believes it is in their best interests to enter into the Agreement so
as to facilitate such activities by Xxxxxxxx Inc.; and
WHEREAS, the Trustee desires to serve as trustee of the voting trust
created hereby.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and agreements set forth herein, the parties hereby agree as
follows:
1. Creation of Voting Trust.
Subject to the terms and conditions hereof, a voting trust in respect of the
Stock (the "Voting Trust") is hereby created and established in accordance with
Section 218 of the Delaware General Corporation Law ("DGCL"), and the Trustee
hereby accepts the trust created hereby and agrees to serve as trustee hereunder
..
2. Deposit and Transfer of Stock: Voting Trust Certificates.
(a) Deposit of Stock. Simultaneously with the execution and delivery
of this Agreement, each Stockholder has duly and validly assigned and
delivered to the Trustee all of the shares of Stock, represented by a
certificate or certificates duly and validly endorsed in blank, and
accompanied by instruments of transfer sufficient to enable the shares of
Stock to be transferred to the name of the Trustee not in its individual
capacity, but solely as Trustee.
(b) Transfer of Stock to Trustee. All certificates deposited with
the Trustee pursuant to Section 2(a) hereof shall be surrendered to the
Corporation for cancellation, and new certificates for the shares of Stock
shall be issued in the name of the Trustee, as trustee under this
Agreement.
(c) No Sale of Stock by Trustee/Pledge of Stock by Stockholder. The
Trustee shall have no authority to sell or otherwise dispose of or
encumber any of the Stock deposited pursuant to the provisions of this
Agreement, except as explicitly provided herein. Nothing herein shall
prevent a Stockholder from encumbering the Stock owned by it and held
under the Voting Trust. In the event a Stockholder desires to pledge any
of its shares of the Stock the Stockholder shall direct the Trustee in
writing, and the Trustee shall be obligated to cooperate reasonably with
such Stockholder, including pledging and delivering or causing to be
delivered a share certificate for shares of the Stock corresponding to the
number of shares in the Voting Trust pledged by such Stockholder. The
Trustee shall have no duty to follow the instructions or advice of any
pledgee.
(d) Voting Trust Certificates. On receipt by the Trustee from the
Corporation of a certificate or certificates, in the name of the Trustee,
representing the Stock, the Trustee shall hold such certificate(s) subject
to the terms of this Agreement, and shall issue and deliver to each
Stockholder, voting trust certificates (each hereinafter referred to as a
"Voting Trust Certificate" and together the "Voting Trust Certificates")
representing the Stock deposited hereunder by each Stockholder. The Voting
Trust Certificates shall be in substantially the form of Exhibit B
attached hereto and shall bear the following legend:
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY BE
REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
(e) Transfer of Voting: Trust Certificates. The Voting Trust
Certificates issued and delivered hereunder may not be transferred by the
Stockholders.
(f) Replacement of Certificates. If a Voting Trust Certificate shall
become mutilated or be destroyed, stolen or lost, the Trustee, in its
discretion, may issue a new Voting Trust Certificate of like tenor and
denomination in exchange and substitution for and on cancellation of the
mutilated Voting Trust Certificate, or in substitution of the Voting Trust
Certificate so destroyed, stolen or lost. The applicant for a substitute
Voting Trust Certificate shall furnish to the Trustee evidence of the
destruction, theft or loss of the Voting Trust Certificate satisfactory to
it in its discretion. The Trustee may also require the applicant to
furnish indemnity satisfactory to the Trustee and to its agents.
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3. Concerning the Trustee.
(a) Voting and Other Actions by Trustee. During the term of this
Agreement and so long as the Trustee shall hold shares of Stock pursuant
to this Agreement:
(i) The Trustee shall vote the Stock deposited hereunder, or
give written consents in lieu of voting thereon, in person or by
proxy at any and all meetings of the shareholders of the
Corporation, or when such consents are given in lieu of such
meetings, for whatsoever purpose called or held, and in any and all
proceedings, whether at a meeting of the shareholders or otherwise,
wherein the vote or written consent of shareholders may be required
or authorized by law;
(ii) The Trustee shall vote the Stock "for" and/or "against"
any proposal or other matter submitted to the shareholders of the
Corporation for approval, including the election of directors, in
the same proportion as the votes cast "for" and "against" such
proposal or other matter by all other shareholders, not counting
abstentions, and the Trustee shall not abstain from voting any
shares of the Stock; provided, however, that, prior to the initial
public offering of the Company, the Trustee shall vote the Stock as
directed by each Stockholder with respect to the Stock placed in the
Voting Trust by such Stockholder.
(iii) No person other than the Trustee shall have any voting
right in respect of the Stock;
(iv) The Stock shall be held by the Trustee for the benefit of
the Stockholders subject to the terms of this Agreement, and the
Stockholders shall retain the right to exercise conversion rights
and to receive dividends and distributions with respect to the Stock
as described in Section 4 hereof;
(v) The Trustee shall have no pecuniary interest in the Stock,
which interest shall reside with the Stockholders; and
(vi) Notwithstanding that the Trustee shall vote a substantial
number of shares of the Common Stock of the Corporation, the Trustee
shall have no duty or obligation to supervise, oversee, monitor, or
in any other way manage or become involved in the day-to-day
operations of the Corporation, and such duties and obligations shall
reside solely with the board of directors and officers of the
Corporation.
(b) Delegation of Duties. The duties, responsibilities and
obligations of the Trustee shall be limited to those expressly set forth
herein and no duties, responsibilities or obligations shall be inferred or
implied. The Trustee shall not be subject to, nor required to comply with,
any other agreement between or among any or all of the Stockholders or to
which any Stockholder is a party, even though reference thereto may be
made herein, or to comply with any direction or instruction (other than
those contained herein or delivered in accordance with this Agreement)
from any Stockholder or any entity acting on its behalf. The Trustee shall
not be required to, and shall not, expend or risk any of its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder.
(c) Compensation of Trustee. Xxxxxxxx Inc. shall pay the Trustee a
non-refundable annual fee of $10,000.00, payable upon execution of this
Agreement and thereafter on each anniversary date of this Agreement.
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(d) Expenses of Trustee: Indemnification. The Trustee is expressly
authorized to incur and pay all reasonable charges and other expenses
which it may deem necessary and proper in the performance of its duties
under this Agreement, including the reasonable compensation and the
expenses and disbursements of its agents and counsel. Xxxxxxxx Inc. agrees
to indemnify the Trustee and its agents against all claims, reasonable
costs of defense of claims (including reasonable attorneys' fees and
disbursements), expenses and liabilities incurred by the Trustee arising
out of or in connection with the administration of the Voting Trust,
including the reasonable costs and expenses of defense against any claim
or liability in connection with the exercise or performance of its powers
or duties hereunder, except in any case in which the Trustee acted with
gross negligence, willful misconduct or bad faith. Xxxxxxxx Inc. shall be
responsible for and shall reimburse the Trustee upon demand for all
expenses, disbursements and advances incurred or made by the Trustee in
connection with this Agreement. The provisions of this Section 3(d) shall
survive termination of this Agreement and the resignation or removal of
the Trustee.
(e) Liability of Trustee. The Trustee shall not be liable for any
action taken or omitted or for any loss or injury resulting from its
actions or its performance or lack of performance of its duties hereunder
in the absence of gross negligence or willful misconduct on its part. The
Trustee shall be free from liability in acting upon any paper, document or
signature believed by it to be genuine and to have been signed by the
proper party. The Trustee shall not be liable for any error in judgment or
for any act taken or omitted to be taken, or for any mistake of fact or
law, or for anything for which it may do or refrain from doing in good
faith, except that the Trustee shall be liable for its gross negligence,
willful misconduct or bad faith.
(f) Term. The Trustee shall serve as trustee hereunder during the
entire term of this Agreement or until its earlier resignation or removal.
(g) Resignation of Trustee. The Trustee may resign by giving sixty
(60) days advance written notice of its resignation to the Stockholders.
(h) Removal of Trustee. The Trustee shall be subject to removal by
the affirmative vote of Stockholders owning a majority of the Stock held
under this Voting Trust Agreement only if the Trustee (i) materially
breaches the terms of this Voting Trust Agreement, (ii) is (if an
individual) found to be incompetent, or (iii) becomes the subject of an
order for relief on a proceeding under the federal bankruptcy laws or
other similar laws.
(i) Death of Trustee. The rights and duties of the Trustee hereunder
shall terminate on the death of an individual Trustee and no interest in
any of the property owned or held by the Trustee nor any of the rights or
duties of the Trustee may be transferred by will, devise, succession or in
any manner except as provided in this Agreement. The heirs, administrators
and executors of the Trustee shall, however, have the right to convey any
property held by the Trustee to the successor Trustee.
(j) Successor Trustee. In the event of the resignation, removal or
death of the Trustee, the Trustee shall be succeeded by a successor
Trustee, designated by Xxxxxxxx Group, Inc. who shall not be a Xxxxxxxx
Party (as defined in Section 5(a)). Any successor Trustee shall succeed to
all of the rights and obligations of the Trustee hereunder. The Trustee
shall not be liable for the selection of a successor Trustee hereunder.
Upon receipt of the identity of the successor Trustee, the Trustee shall
deliver the property then held hereunder to the successor trustee. If the
Trustee hereunder is not a natural person(s), then the surviving or
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acquiring company in any merger, consolidation, conversion or acquisition
of the Trustee or of all or substantially all the corporate trust assets
of the Trustee may become the successor Trustee upon notice to the
Stockholders and approval by Xxxxxxxx Group, Inc.
Upon delivery of the property to successor Trustee, the Trustee shall have
no further duties, responsibilities or obligations hereunder.
4. Rights and Duties of Stockholders.
(a) Cash Dividends. The Stockholders shall be entitled to receive from
time to time payments equal to the amount of cash dividends, if any, collected
or received by the Trustee with respect to the shares of Stock in proportion to
their respective interests in the Voting Trust as of the close of business on
record date determined pursuant to the provisions of Section 4(d). These
payments shall be made as soon as practicable after the receipt of the dividends
at the risk and expense of the Stockholder. The Trustee may, if reasonably
required in connection with any payment or distribution hereunder to a
Stockholder, require any Stockholder to provide IRS Form W-9 or other
appropriate documentation as a condition to making such payment or distribution
without deduction on account of withholding taxes. In the performance of its
duties to deliver cash dividends under this Agreement, the Trustee shall not be
obligated to risk its own funds and will not be liable for taxes or other charge
related to the delivery of such dividends or distributions.
(b) Share Dividends. If the Trustee receives any additional shares of
capital stock of the Corporation as a dividend or other distribution with
respect to any shares of Stock, the Trustee shall hold such shares subject to
this Agreement for the benefit of the Stockholders in proportion to their
respective interests, and the shares shall become subject to all of the terms
and conditions of this Agreement to the same extent as if they were originally
deposited hereunder. The Trustee shall issue Voting Trust Certificates in
respect of these shares to the Stockholders of record at the close of business
on the record date determined pursuant to the provisions of Section 4(d).
(c) Other Distributions to Stockholders/Conversions. If at any time during
the continuation of this Agreement, the Trustee shall receive or collect any
moneys through a distribution by the Corporation to its shareholders, other than
in payment of cash dividends, or shall receive any property (other than shares
of capital stock of the Corporation) through a distribution by the Corporation
to its shareholders, the Trustee shall promptly distribute such money or other
property to the Stockholders, in proportion to their respective interests,
registered at the close of business on the record date determined pursuant to
the provisions of Section 4(d). If any Stock held under this Agreement shall
have conversion rights, the Trustee shall exercise such conversion rights as
directed by the Stockholder or Stockholders that contributed the Stock that
carries such rights, and the resulting Stock shall continue to be held under
this Agreement for the account of such Stockholder or Stockholders.
(d) Record Date for Distributions. The date fixed by the Board of
Directors of the Corporation for closing the transfer books of the Corporation
shall constitute the record date for the determination of the Stockholders
entitled to receive the payment or distribution of dividends or the distribution
of rights.
(e) Acquisition of Additional Shares. At such time as a Stockholder
acquires additional shares of stock of the Corporation, other than pursuant to
Section 4(b), or disposes of shares of stock of the Corporation in accordance
with the terms of Section 5(a), such Stockholder shall promptly notify Xxxxxxxx
Inc., to the attention of Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx, of such
acquisition or disposition.
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(f) Schedule 13D/13G. Each Stockholder shall take any and all reasonable
action necessary to assist the Trustee in promptly filing any Schedule 13D or
Schedule 13G (or any amendment thereto) required to be filed with the U .S.
Securities and Exchange Commission to reflect the arrangements set forth herein
or subsequent actions affecting the Voting Trust.
5. Transfer of the Stock.
(a) Permitted Sale/Transfer. Except as provided below, no sale or transfer
of Stock held under this Voting Trust is permitted during the term of this
Voting Trust. Nothing herein shall restrict the rights of Stockholders to sell
or transfer all or any shares of the Stock to any person other than Xxxxxxxx
Inc. an "affiliate" of Xxxxxxxx Inc. determined under the provisions of the
Securities Act or the Exchange Act (Xxxxxxxx Inc. and each such "affiliate" is
herein referred to as a "Xxxxxxxx Party"); provided, however, that any such sale
or transfer must meet at least one of the following criteria: the sale or
transfer must (i) have the consent of the Corporation, such consent to be
evidenced by either the consent of a majority of the Board of Directors of the
Corporation (excluding for such purposes any members of the Corporation's Board
of Directors who are affiliates, employees, officers, directors, general
partners or agents of either Xxxxxxxx Inc. or Xxxxxxxx Group, Inc.) or a
registration statement filed by the Company with the SEC disclosing such
proposed sale or transfer, or (ii) bona fide gift or charitable donation of such
shares or (iii) be permissible under Rule 144 under the Securities Act (provided
that such sales comply with the provisions of subparagraphs (d), (e) and (f) of
Rule 144 and that all sales or transfers by all Stockholders occurring within
any three- month period shall be aggregated for purposes of determining the
applicable volume limitation under Rule 144(e)) or (iv) be effected in
connection with a business combination, tender offer or other fundamental
corporate transaction under which a third-party acquiror obtains control of the
Corporation (other than solely through the purchase of the Stock).
Notwithstanding the foregoing, any Stockholder may sell or transfer all or
any portion of the Stock to a Xxxxxxxx Party, but only if the shares of Stock so
transferred remain deposited in and subject to the terms of this Voting Trust,
in which case the transferee shall execute the Consent attached hereto as
Exhibit C and will be deemed a Stockholder, and the Trustee will issue to the
transferee one or more Voting Trust Certificates in respect thereof.
Notwithstanding the foregoing, the Stockholders may accept the imposition
of transfer restrictions on the Stock in addition to those set forth herein, and
will deliver to the Trustee copies of any such restrictions. The Trustee shall
have no duties or responsibilities with respect to such other restrictions.
(b) Procedure for Effecting Sale or Transfer of Stock. Upon the sale or
transfer of all or any portion of the Stock, the transferring Stockholder shall
deliver to the Trustee (i) a notice specifying the number of shares transferred
and a representation that the transfer may be effected under any restrictions on
transfer not set forth herein and, in the case of a transfer under which the
shares transferred will not remain subject to the Voting Trust, a notice
specifying to whom delivery of certificates representing such shares, duly
endorsed by the Trustee in blank, shall be delivered, together with a written
representation on the part of the transferring Stockholder that such transfer is
in accordance with the requirements of Section 5(a) above, and (ii) if the
transferee's shares will be subject to the Voting Trust and bound by the terms
of this Agreement, an executed counterpart signature page to this Agreement
executed by the transferee under which the transferee consents to being deemed a
Stockholder hereunder for all purposes. The Stockholder's or transferee's
failure to deliver an executed counterpart signature page in no way limits or
affects the application of the Voting Trust or the terms of this Agreement to a
transferee or its shares if by the terms hereof such shares are to be subject to
the Voting Trust. The Trustee will have no duty to determine whether any
transfer is in accordance with the requirements of Section 5(a) above, but shall
be permitted to rely upon the
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written advice of the Stockholder and of Xxxxxxxx Inc. In the case of a transfer
of shares to a transferee who will not be required to maintain the shares in the
Voting Trust, upon receipt of all required documentation from the transferring
Stockholder and the written advice of the Stockholder and Xxxxxxxx Inc. the
Trustee shall request that the Corporation deliver or cause to be delivered the
appropriate number of shares of Stock as instructed. Transferred shares not
required to be subject to the Voting Trust will be free of any restrictions
under this Agreement.
6. Term of Voting Trust Agreement.
(a) Irrevocability of Trust. The Voting Trust created by this Agreement is
declared expressly irrevocable except as otherwise specifically stated herein.
(b) This Agreement and the Voting Trust and transfer restrictions created
hereby shall terminate upon the first to occur of:
(i) October 31, 2013;
(ii) the sale or transfer of all of the Stock to transferees under
circumstances in which no shares of the Stock are required to be subject
to the Voting Trust in accordance with Section 5 of this Agreement;
(iii) delivery to the Trustee of a certificate of Xxxxxxxx Inc., in
form and substance satisfactory to the Trustee, that Xxxxxxxx Inc. no
longer engages in market-making activities and other principal
transactions in the Common Stock of the Corporation and will not so engage
until it has received a written opinion of nationally recognized
securities counsel that Xxxxxxxx Inc. will not be deemed an "affiliate" of
the Corporation under the Securities Act or the Exchange Act;
(iv) delivery to the Trustee of a certificate of Xxxxxxxx Inc., in
form and substance satisfactory to the Trustee, that a shelf registration
statement for the Corporation registering the market-making activities and
other principal transactions of Xxxxxxxx Inc. has been filed with and
declared effective by the U.S. Securities and Exchange Commission and that
Xxxxxxxx Inc. undertakes to deliver a prospectus with the confirmation of
each sale by it as principal;
(v) delivery to the Trustee of a written opinion of nationally
recognized securities counsel, in form and substance satisfactory to
Xxxxxxxx Inc. and the Trustee, that after giving effect to termination of
the Voting Trust Xxxxxxxx Inc. will not be deemed an "affiliate" of the
Corporation under the Securities Act or the Exchange Act; or
(vi) the failure of the Corporation to effect a sale of its Common
Stock to the public in a registered, underwritten initial public offering
of such Common Stock on or before January 1, 2004.
(c) Return of Stock Certificates After Termination. As soon as practicable
after the termination of this Agreement, upon payment by Xxxxxxxx Inc. of a sum
sufficient to cover any governmental charge on the transfer or delivery of the
certificates for shares of Stock that remained subject to the Voting Trust
immediately prior to the termination of this Agreement, the Trustee shall
deliver to the Stockholders (or their designees) certificates representing the
number of shares of Stock to which they are entitled in accordance with their
respective interests subject to the Voting Trust immediately prior to the
termination of this Agreement or shall direct the Corporation to deliver or
cause to be delivered the appropriate certificates to the Stockholders.
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7. Records and Books.
(a) Record of Shares. The Trustee shall maintain a record of all stock
certificates of the Corporation which are transferred to the Trustee. The
Trustee shall receive and hold the new stock certificates issued by the
Corporation in the name of the Trustee and shall maintain a record indicating
the date of issuance of the certificates, the certificate numbers, the name of
the Stockholders whose shares are represented by such certificates, the date of
receipt of the certificates, and the place in which the certificates are held by
it.
(b) Record of Voting Trust Certificates. The Trustee shall keep a record
of the holders of Voting Trust Certificates, which record shall indicate the
names and addresses of all such holders and the number of shares of Stock in
respect of which the Voting Trust Certificate held by each is issued, and shall
deposit a copy of such record with the Corporation at its registered office or
principal place of business.
(c) Other Records. The Trustee shall maintain such other records and books
as to enable it to carry out the terms and provisions of this Agreement.
(d) Inspection of Records. Pursuant to Section 218 of the Delaware General
Corporation Law, this Agreement and the record of the Stockholders maintained by
the Trustee shall be subject to the same right of examination by a shareholder
of the Corporation, in person or by agent or attorney, as are the books and
records of the Corporation under applicable laws and the Certificate of
Incorporation and Bylaws of the Corporation.
8. Miscellaneous.
(a) Additional Actions. Each of the parties hereto agrees to take or cause
to be taken such further actions, to execute and deliver or cause to be executed
and delivered such further instruments and to use their reasonable best efforts
to obtain such requisite consents as any other party may from time to time
reasonably request in order to fully effectuate the purposes, terms and
conditions of this Agreement.
(b) Notices. All notices and other communications given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or mailed by first class, registered mail, postage prepaid,
or by facsimile transmission, telegram or overnight courier and addressed to the
parties at their addresses shown below:
(i) If to Trustee: Mr. Xxxxx Xxxxxxxxx
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
(ii) If to Xxxxxxxx Inc.: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
(iii) If to any Stockholder: to such stockholder
in care of Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
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or to such other address as any of them by written notice to the others may from
time to time designate. Each notice or other communication which shall be
personally delivered, mailed, telecopied or couriered in the manner described
above, or which shall be delivered to a telegraph company, shall be deemed
sufficiently received for all purposes at such time as it is delivered to the
addressee (with any return receipt or delivery receipt being deemed conclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
(c) Severability. If any part of any provision of this Agreement or any
other agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provisions or the remaining provisions of
said agreement.
(d) Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, devisees,
executors, administrators, legal representatives, successors and assigns.
(e) Amendment. No amendment or modification of this Agreement, and no
waiver hereunder, shall be valid or binding unless set forth in a writing duly
executed by all of the parties to this Agreement.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as identity of the
person or entity may require.
(g) Counterparts. This Agreement may be executed in multiple counterparts
all of which counterparts together shall constitute one agreement. Upon
execution of this Agreement and the establishment of the Voting Trust created
herein, the Trustee shall cause a copy of this Agreement to be filed in the
registered office of the Corporation in the State of Delaware, and the Agreement
shall be open to inspection in the manner provided for inspection under the laws
of the State of Delaware.
(h) Reliance. The Trustee and each Stockholder acknowledge that Xxxxxxxx
will rely on this Agreement in complying with the Securities Act and the
Exchange Act. The Trustee acknowledges that Xxxxxxxx will rely on the Trustee
abiding by the terms of this Agreement, including, without limitation, that the
Trustee will vote the Stock as set forth in this Agreement.
(i) Stockholder Representations. Each Stockholder hereby represents and
warrants (a) that this Agreement has been duly authorized, executed and
delivered on its behalf and constitutes its legal, valid and binding obligation
and (b) that the execution, delivery and performance of this Agreement by the
Stockholder does not and will not violate any applicable law or regulation.
9. Merger, Consolidation, etc. Upon any merger, consolidation,
reorganization or dissolution of the Corporation or the sale of all or
substantially all of the assets of the Corporation pursuant to which shares of
capital stock or other voting securities of another entity are to be issued in
payment or exchange for or upon conversion of Stock and other voting securities,
the shares of said other entity shall automatically be and become subject to the
terms of this Agreement and be held by the Trustee hereunder in the same manner
and upon the same terms as the Stock, and in such event the Trustee shall issue
to the Stockholders that have deposited Stock with the Trustee new Voting Trust
Certificates in lieu of the old Voting Trust certificates for the appropriate
number of shares and other voting securities of such other entity.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Voting
Trust Agreement, or have caused this Voting Trust Agreement to be duly executed
on their behalf, as of the day and year first hereinabove set forth.
VOTING TRUSTEE:
/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx, Voting Trustee
Xxxxxxxx Group, Inc., for itself and as attorney-in-fact
For the persons listed below
BY: /s/ Xxxxxxx Xxxxxx, Jr.
----------------------------------------
Jacons Xxxxxx, Jr., Vice President
Xxxxxxxx Inc.
Xxxxxxx X. Xxxxxxxx Trust No. One
Xxxx X. Xxxxxxxx Trust
Xxxxxx X. Xxxxxxxx Trust
Xxxxxx X. Xxxxxxxx Grantor Trust
Xxxxxxx X. Xxxxxxxx Trust
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx 95 Trust
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx Trust
Xxxx Xxxxxxx Xxxxxxxx 95 Trust
Xxxx Xxxxxxx Xxxxxxxx Trust
Xxxxx Xxxxxxxx Xxxxxxxx 95 Trust
Xxxxx Xxxxxxxx Xxxxxxxx Trust
Grandchild's Trust #2
X. X. Xxxxxxxx Xx. Children's Trust
X. X. Xxxxxxxx III
Xxxxx Xxxxxx Xxxxxxxx Trust
Xxxxx X. Xxxxxxxx
X. X. Xxxxxxxx Xx. Revocable Trust
Xxxxxx X. Xxxxxxxx Trust One
MAM International Holdings, Inc.
Xxxxxxxxx X. Xxxxxxxx Revocable Trust
Xxx Xxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxx XXX
Xxxx Xxxxxx
Xxx Xxxx XXX
Xxx Xxxx
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EXHIBIT A
CONNS VOTING TRUST AGREEMENT
SHAREHOLDERS
TOTAL TOTAL
COMMON PFD.
INVESTORS SHARES(1) SHARES(1)
--------- --------- ---------
Xxxxxxxx Group, Inc. 490,000 51,127
Xxxxxxxx Inc. -- 14,351
Xxxxxxx X. Xxxxxxxx Trust No. One -- 20,017
Xxxx X. Xxxxxxxx Trust -- 20,017
Xxxxxx X. Xxxxxxxx Trust 2,019,527 5,004
Xxxxxx X. Xxxxxxxx Grantor Trust 168,498 --
Xxxxxxx X. Xxxxxxxx Trust 789,100 --
Xxxxxx & Xxxxxxx Xxxxxxxx Children's Trust 1,018,124 --
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx 95 Trust 51,282 --
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx Trust 3,920 42
Xxxx Xxxxxxx Xxxxxxxx 95 Trust 51,282 --
Xxxx Xxxxxxx Xxxxxxxx Trust 3,920 42
Xxxxx Xxxxxxxx Xxxxxxxx 95 Trust 51,282 --
Xxxxx Xxxxxxxx Xxxxxxxx Trust 3,920 42
Grandchild's Trust #2 765,100 --
X. X. Xxxxxxxx Xx. Children's Trust 227,775 --
X. X. Xxxxxxxx III Trust 38,990 48
Xxxxx Xxxxxx Xxxxxxxx Trust 38,990 48
Xxxxx X. Xxxxxxxx 13,519 --
X. X. Xxxxxxxx Xx. Revocable Trust 1,345,167 1,668
Xxxxxx X. Xxxxxxxx Trust One 1,664,510 1,763
MAM International Holdings, Inc. 249,344 95
Xxxxxxxxx X. Xxxxxxxx Revocable Trust 1,415,167 1,668
Xxx Xxxxxx 602,210 7,175
Xxxx Xxxxxxxx 240,870 2,870
Xxxx Xxxxxx XXX 1,914
Xxxx Xxxxxx 160,580
Xxx Xxxx XXX -- 1,913
Xxx Xxxx 160,580 --
----------
(1) The shares shown above, as of the date of the Conns Voting Trust Agreement,
are shares of Conn Appliances, Inc., an affiliate of Conn's Inc. These shares
are expected to be exchanged for or converted into shares of Common Stock of
Conn's, Inc. upon the occurrence of the initial public offering of shares of
Common Stock of Conn's, Inc.
EXHIBIT B
CONNS VOTING TRUST CERTIFICATE
THIS CONNS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY BE
REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
NO. C-__
This certifies that the undersigned Trustee has received certificates
representing __________ shares of Common Stock, par value $0.01 per (the
"Shares"), of Conn's, Inc. (the "Corporation") from Xxxxxxxx Group, Inc.
(hereinafter referred to as the "Holder"), duly endorsed in blank or to the
undersigned Trustee on the following terms and conditions pursuant to the Conns
Voting Trust Agreement, dated November 18, 2003 (the "Voting Trust Agreement")
among the Trustee, and additional parties who may become parties thereto.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to such terms in the Voting Trust Agreement.
VOTING RIGHTS
The undersigned Trustee during the term of the Voting Trust Agreement is
the owner of the Shares for all purposes relating to the Voting Trust Agreement
and in all matters of the Corporation for which the shares may be voted. The
Trustee shall exercise voting rights in respect of the Shares as provided in the
Voting Trust Agreement. No voting rights of the shares of the Corporation are
granted by this Certificate and only those rights provided to the holders of
Voting Trust Certificates in the Voting Trust Agreement are represented by this
Certificate.
DIVIDENDS AND DISTRIBUTIONS
The Holder shall be entitled to receive, subject to the limitations set
forth in the Voting Trust Agreement, all dividends and other distributions of
the Corporation received by the undersigned Trustee in respect of the Shares,
except that the Trustee shall receive and hold any stock dividends pursuant to
the terms of the Voting Trust Agreement.
TERMINATION
This Agreement and the Voting Trust and transfer restrictions created
hereby shall terminate upon the earlier to occur of: (i) the expiration of ten
(10) years from the date hereof; (ii) the sale or transfer of all of the Stock
in accordance with the Voting Trust Agreement; (iii) delivery to the Trustee of
a certificate of Xxxxxxxx Inc., in form and substance satisfactory to the
Trustee, that Xxxxxxxx Inc. no longer engages in market-making activities and
other principal transactions in the Common Stock of the Corporation and will not
so engage until it has received a written opinion of nationally recognized
securities counsel that Xxxxxxxx Inc. will not be deemed an "affiliate" of the
Corporation under the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (iv)
delivery to the Trustee of a certificate of Xxxxxxxx Inc., in form and substance
satisfactory to the Trustee, that a shelf registration statement for the
Corporation registering the market-making activities and other principal
transactions of Xxxxxxxx Inc. has been filed with and declared effective by the
U.S. Securities and Exchange Commission and that Xxxxxxxx Inc. undertakes to
deliver a prospectus with the confirmation of each sale by it as principal; or
(v) delivery to the Trustee of a written opinion of nationally recognized
securities counsel, in form and substance satisfactory to Xxxxxxxx Inc. and the
Trustee, that after giving effect to termination of the Voting Trust, Xxxxxxxx
Inc. will not be deemed an "affiliate" of the Corporation under the Securities
Act or the Exchange Act or the failure of the Corporation to effect a sale of
its Common Stock to the public in a registered, underwritten initial public
offering of such Common Stock on or before January 1, 2004.
TRANSFER OF CERTIFICATES
This Certificate shall not be transferable.
DATED, the _____ day of ______________, 2003.
XXXXX XXXXXXXXX
________________________________
as VOTING TRUSTEE
EXHIBIT C
CONSENT
The undersigned, ___________________________, being a holder or transferee
of __________ shares (the "Shares") of common stock par value $0.01 per share,
of ________________________ (the "Common Stock") hereby (i) agrees to become a
party to the Conns Voting Trust Agreement dated as of November 18, 2003 (the
"Voting Trust Agreement") relating to the Common Stock, (ii) agrees to be bound
by all the provisions thereof as if the undersigned were an original party
thereto, and (iii) agrees to surrender the certificates representing the Shares
to the Trustee under the Voting Trust Agreement in exchange for a Voting Trust
Certificate as provided in the Agreement.
Dated:________________ __________________________________
By: ____________________________
