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EXHIBIT 99.5
AMENDMENT TO VOTING TRUST AGREEMENT
This AMENDMENT TO VOTING TRUST AGREEMENT (this "Voting Trust
Amendment"), dated as of the 15th day of October, 1997, by and between Xxxxxx
X. Xxxx (the "Beneficiary") and Dart Group Corporation ("Dart").
WITNESSETH:
WHEREAS, Dart and the Beneficiary entered into that certain Settlement
Agreement, dated as of October 6, 1995 (the "RSH/Dart Settlement Agreement"),
for the purpose of, inter alia, settling certain lawsuits and other disputes
between them;
WHEREAS, in connection with the RSH/Dart Settlement Agreement, the
Beneficiary and Dart, together with Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx,
as the initial voting trustees (the "Interim Voting Trustees"), entered into
that certain Voting Trust Agreement, dated as of October 6, 1995 (the "Voting
Trust Agreement");
WHEREAS, in December 1995 the Interim Voting Trustees appointed Xxxxxxx
X. Xxxxx as Voting Trustee under the Voting Trust Agreement, in accordance with
Section 9(a) of the Voting Trust Agreement, and resigned as Interim Voting
Trustees, in accordance with Section 9(c) of the Voting Trust Agreement;
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WHEREAS, on October 18, 1995, Xxxxxx X. Xxxx, Xxxxxx X. Xxxx and Xxxxx
X. Xxxx (collectively, "RGL") filed a lawsuit captioned Xxxxxx Xxxx, et al. v.
Xxxxx Xxxxxxxx, et al., Civ. A. No. 14620 (Del. Ch.), challenging the legal
effect of the Voting Trust Agreement, claiming that shares of Dart Class B
Common Stock held by RGL represented majority voting control of Dart and
seeking a judicial declaration that directors selected by RGL were the properly
empowered directors of Dart (the "Section 225 Lawsuit");
WHEREAS, on November 6, 1995, Xxxxxxx X. Xxxx ("HHH") filed a lawsuit
captioned Xxxxxxx X. Xxxx x. Xxxx Group Corporation, et al., Civ. A. No. 14685
(Del. Ch.), challenging the transactions pursuant to the RSH/Dart Settlement
Agreement (the "HHH Settlement Lawsuit");
WHEREAS, Dart and certain of its subsidiaries have entered into, and
consummated the closing under, a Settlement Agreement, dated August 18, 1997,
with RGL pursuant to which, inter alia, Dart has purchased a total of 104,976
shares of Dart Class B Common Stock for a total price of approximately $14.7
million and consummated certain other settlement transactions with RGL
involving additional payments by Dart and/or its subsidiaries totalling more
than $35 million, and RGL have dismissed the Section 225 Lawsuit;
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WHEREAS, Dart and HHH are entering into a Settlement Agreement, dated
on or about the date hereof (the "HHH/Dart Settlement Agreement"), pursuant to
which, inter alia, HHH has agreed to relinquish his claim to power to vote
shares of Dart Class B Common Stock and to terminate the HHH Settlement
Lawsuit, and Dart has agreed to consummate certain other settlement
transactions with HHH involving payments by Dart and/or its subsidiaries
totalling more than $27 million and a loan by Dart of $10 million.
WHEREAS, in connection with the execution and delivery of the HHH/Dart
Settlement Agreement, Dart and the Beneficiary entered into that certain Second
Supplemental Settlement Agreement, dated as of October 15, 1997, which provides
for the execution and delivery of this Voting Trust Amendment;
WHEREAS, the execution and delivery of this Voting Trust Amendment, and
the amendment of Dart's Certificate of Incorporation contemplated hereby, are
conditions precedent to the closing of the transactions contemplated by the
HHH/Dart Settlement Agreement;
WHEREAS, the fourth recital to the Voting Trust Agreement anticipates
"an orderly transition of the corporate governance of
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Dart from domination by the previous holders of Dart's Class B Common Stock or
their affiliates";
WHEREAS, Section 12 of the Voting Trust Agreement provides that the
Voting Trust Agreement may be amended by a written agreement executed by the
Beneficiary and Dart, and that any such amendment of the Voting Trust Agreement
that is not also executed by the Voting Trustees shall not be effective until
the earlier of written acceptance thereof by the Voting Trustee or 10 days
after delivery of written notice of the amendment to the Voting Trustees; and
WHEREAS, Dart and the Beneficiary wish to amend the Voting Trust
Agreement as set forth herein.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendment of Voting Trust Agreement. The Voting Trust
Agreement shall hereby be amended by adding the following new paragraphs (c)
and (d) at the end of Section 4 of the Voting Trust Agreement:
(c) Notwithstanding any other provision of this Agreement,
upon the adoption by the Board of Directors of Dart of a resolution
setting forth, and declaring the advisability of, an amendment to the
Certificate of Incorporation of Dart, as amended, to provide the holder
of each outstanding share of Dart's Class A Common Stock with
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the right to vote in the election of directors and all other matters on
the same basis as the holder of each outstanding share of Dart's Class
B Common Stock, the Voting Trustee shall be required to vote all of the
Trust Shares (to the full extent the Trust Shares are entitled to be
voted) in favor of such amendment, either by written consent of
majority stockholder in lieu of a meeting pursuant to Section 228 of
the Delaware General Corporation Law or at a special meeting of
stockholders called for such purpose, so as to cause such amendment to
become effective immediately at the time of the HHH Closing (as defined
in that certain Second Supplemental Settlement Agreement, dated as of
October 15, 1997, by and between the Beneficiary and Dart).
"(d) Notwithstanding any other provision of this Agreement,
after an amendment of Dart's Certificate of Incorporation referenced in
paragraph (c) of this Section 4 has become effective, the Voting
Trustees shall not be entitled to vote any of the Trust Shares in any
election of directors or on any other matter, unless all of the Trust
Shares are voted in the same proportion as the other outstanding shares
of Dart that are voted in such election or on such matter, so that the
voting of the Trust Shares in such election or on such matter shall not
change the outcome."
2. Effectiveness. Dart is hereby authorized to deliver written
notice of this Voting Trust Amendment to Xxxxxxx X. Xxxxx, as Voting Trustee
under the Voting Trust Agreement. In accordance with Section 12 of the Voting
Trust Agreement, the amendment of the Voting Trust Agreement set forth in
Section 1 of this Voting Trust Amendment shall be effective immediately upon
the earlier of (i) the written acceptance of such amendment by Xxxxxxx X.
Xxxxx, as Voting Trustee, or (ii) ten (10) days after written notice of this
Voting Trust Amendment is delivered to
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Xxxxxxx X. Xxxxx pursuant to the first sentence of this Section 2.
3. Counterparts. This Voting Trust Amendment may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Beneficiary and Dart have executed this
Amendment, or have caused this Amendment to be executed on their behalf, on the
date first above written.
/S/ Xxxxxx X. Xxxx
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XXXXXX X. XXXX
DART GROUP CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
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Sr. Vice President and
Corporate Secretary
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