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EXHIBIT (d)(1)
VOTING TRUST AGREEMENT
THIS AGREEMENT is made effective the 31st day of August, 1993, by and
among Xxxxx X. Xxxxxx, an individual residing in Xxxxxxxxx Xxxxxx, Louisiana
("Xxxxxx"), Xxxxxxx Xxxxxxx, Trustee U/T/A between Xxxx X. Xxxxxx and Xxxx X.
Xxxxxx, Trustee pursuant to a restatement of his Trust Agreement dated April 19,
1991, as modified on October 24, 1992, an individual residing in University
Heights, Ohio ("Xxxxxxx") each of Xxxxxx and Xxxxxxx hereinafter "Grantor" or
"Grantors", and Xxxxx X. Xxxxxx, an individual residing in Xxxxxxxxx Xxxxxx,
Louisiana, (the "Trustee").
W I T N E S S E T H:
WHEREAS, Xxxxxx and Xxxxxxx respectively, are on the date hereof the
owners of 500 and 339,604 common shares, without par value, of The Fair Grounds
Corporation, a Louisiana corporation (the "Company");
WHEREAS, each of the Grantors desires and has agreed to deposit in a
voting trust all of such common shares held by him on the date hereof; and
WHEREAS, the Trustee desires to act as trustee of the voting trust in
accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants and
conditions set forth herein, the parties hereto agree as follows:
1. Deposit. The Grantors shall deposit with the Trustee, simultaneously
with their execution of this Agreement, share certificates representing,
respectively, the 500 and 339,604 common shares, without par value, of the
Company held by them (the "Shares"), together with proper assignments thereof to
the Trustee, and the Trustee shall deliver in exchange therefor voting trust
certificates (the "Certificates") in the form attached hereto as Exhibit A. Any
and all common shares of the Company hereafter acquired by the Grantors, and any
and all other shares of the Company of any kind or character acquired by the
Grantors or the Trustee in exchange for or otherwise as a consequence of holding
the Shares or the Certificates, shall be subject to this Agreement, and deemed
included in the Shares, immediately upon the Grantors' or the Trustees'
acquisition thereof, as the case may be.
2. Trustee's Rights. Title to the Shares shall be vested in the Trustee
during the Term (as hereinafter defined) of this Agreement. The Trustee may
cause the Shares to be transferred to her or her nominee on the books of the
Company, but the Trustee shall assume no liability as shareholder, her
interest in the Shares hereunder being that of the Trustee only. Except as
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otherwise provided herein, the Trustee shall have and shall be entitled to
exercise and enjoy with respect to the Shares, in her unrestricted discretion,
any and all rights of a holder of shares in the Company, including by way of
example and not limitation (i) the right to vote the Shares and to participate
in and consent or refuse to consent to any and all corporate or shareholders'
actions of any character, all in her sole and absolute discretion; (ii) the
right to examine the books and records of the Company; and (iii) all other
rights granted or available to the holders of shares in a Louisiana
corporation; provided, however, that the Grantors shall retain the exclusive
right to receive and retain any distributions of property (except shares of the
Company) made by the Company in the form of dividends or upon the liquidation,
dissolution or winding up of the Company. The matters regarding which the
Trustee shall be entitled to act in her sole discretion pursuant to clause (i)
above shall include, by way of example but not limitation, any sale of
substantially all of the assets of, or any liquidation of, the Company; any
increase or decrease in the authorized or outstanding number of shares of any
class of shares of the Company; any merger or consolidation involving the
Company; any acquisition by the Company of any other business or of
substantially all of the assets thereof; any election of directors of the
Company; any amendment to the articles of incorporation or regulations of the
Company; or any recapitalization or reorganization of the Company.
3. Limitation on Rights. Except as expressly set forth in section 2
hereof, the Grantors shall not be entitled during the Term hereof to vote or to
take part in, consent to or dissent from any corporate or shareholders' action,
or to do or perform any other act or thing that the holders of shares of the
Company are now or may hereafter become entitled to do or perform in that
capacity.
4. Exercise of Trustee's Rights. The Trustee shall assume no liability
or responsibility hereunder in connection with the exercise of her judgment or
rights hereunder, or in connection with the management of the Company or any
action taken by its directors in connection with that exercise, or in connection
with actions taken with or pursuant to the Trustee's consent thereto; provided,
that the Trustee shall incur liability to the Grantors hereunder for willful
misfeasance or malfeasance in connection with the Shares or her performance of
this Agreement.
5. Restriction on Transfer. Notwithstanding anything to the contrary
stated or implied herein, the Trustee shall not sell, transfer, assign, convey,
encumber, pledge, hypothecate or otherwise dispose of, or place any lien or
charge on, the Shares, other than in connection with any corporate event or
action also affecting shares of the Company other than the Shares that has that
result.
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6. Conflict. The Trustee may be or become a shareholder, director or
officer of the Company or of any affiliate thereof, may contract with and be
financially interested in any matter or transaction to which the Company or any
affiliate thereof is a party or in which it is concerned, and may otherwise
conduct and manage matters between herself and the Company, as fully and freely
as if she were not the Trustee hereunder.
7. Successor Trustee. The Trustee may appoint one or more successor
trustees, if she discontinues serving in her capacity as Trustee. If the
Trustee is unable or unwilling to appoint a successor Trustee or is deceased,
Xxxxx X. Xxxxxx shall select a successor Trustee. Xxxxx X. Xxxxxx may appoint
himself as successor Trustee if such appointment is not prohibited by law and
does not adversely affect the force and effect of this Voting Trust Agreement.
In each instance the appointment of the successor Trustee must be in writing
and a copy thereof delivered to the Grantors.
8. Term. The voting trust created pursuant to this Agreement shall be
for a term of fifteen years from the date hereof (the "Term"), shall be
irrevocable during the Term and shall survive the deaths of the Grantors. It
may be extended for an additional ten years on the written request of the
Grantors.
9. Regulatory Approvals. The parties acknowledge that this Voting
Trust Agreement may not be changed, amended, modified or terminated, nor may a
successor Trustee be appointed under Paragraph 7 hereunder, without certain
reports to and administrative approvals of the Chairman of the Nevada State
Gaming Control Board or his designee.
10. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect any other provision hereof, and such
unaffected provisions shall remain in full force and effect.
11. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their successors, heirs, legal
representatives and assigns.
12. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Louisiana.
13. Notices. All notices and other documents under this Agreement shall
be in writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the parties at their last known address.
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14. Non-Waiver. No delay or failure by a party to exercise any right
under this Agreement, and no partial or single exercise of the right shall
constitute a waiver of that right or any other right, unless otherwise
expressly provided herein.
15. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written in the presence of undersigned competent
witnesses, after reading of the whole.
WITNESSES:
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
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/s/ XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX, Trustee, u/t/a
between Xxxx X. Xxxxxx and Xxxx X.
----------------------------------- Masoni, Trustee, pursuant to a
restatement of his Trust Agreement
dated April 19, 1991 as modified on
October 24, 1992
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX, as Voting Trustee
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