VOTING TRUST AGREEMENT, dated as of June 14, 2002 between XXXXXXX XXXX,
(the "Trustee"), PRIME MANAGEMENT CORPORATION, a New York corporation (the
"First Beneficiary"), and XXXXXXX XXXXXX (the "Second Beneficiary", and together
with the First Beneficiary, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, the First Beneficiary is the owner of 165,000 shares (the
"Purchased Shares") of the common stock, par value $0.01 per share (the "Common
Stock"), of Xxxxxx & Xxxxxx, Inc., a Delaware corporation (the "Company");
WHEREAS, the Second Beneficiary is the owner of 168,981 shares (the
"Option Shares") of Common Stock; and
WHEREAS, in order to vest in the Trustee the sole right to vote the
Purchased Shares and the Option Shares, the Beneficiaries are willing to deposit
the Option Shares and Purchased Shares with the Trustee under this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DELIVERY TO TRUSTEE OF CERTIFICATES FOR SHARES. Simultaneously
with the execution and delivery of this Agreement: (a) the First Beneficiary
shall deliver to the Trustee certificates representing an aggregate of 165,000
shares of Common Stock representing the Purchased Shares held by the First
Beneficiary, and (b) the Second Beneficiary shall deliver to the Trustee
certificates representing an aggregate of 168,981 shares of Common Stock
representing the Option Shares held by the Second Beneficiary. Such certificates
shall be endorsed in blank or accompanied by duly completed stock powers
executed by the Beneficiaries. Immediately subsequent to the execution and
delivery of this Agreement, the Trustee shall deliver a copy of this Agreement
to the Company for filing in the Company's registered office in the State of
Delaware, shall surrender to the Company said certificates and stock powers, and
the Trustee and Beneficiaries shall take all further necessary or appropriate
actions to enter the name of the Trustee in the register of stockholders in
respect thereof and to cancel said certificates and to issue to the Trustee a
new certificate, representing 333,981 shares of Common Stock (the "Trust
Shares"), in the name of the Trustee, which certificate shall bear a legend
indicating that it has been issued pursuant to this Agreement. Said new
certificate shall be held by the Trustee, in trust, for the benefit of the
Beneficiaries, subject to the terms hereinafter set forth.
2. DELIVERY OF TRUSTEE'S CERTIFICATES. Upon the delivery to the
Trustee of the certificates and stock powers referred to in paragraph 1 hereof,
the Trustee shall deliver to the First Beneficiary a certificate substantially
in the form hereinafter set forth (a "Trustee's Certificate") for the number of
Shares delivered to the Trustee by the First Beneficiary, and the Trustee shall
deliver to the Second Beneficiary a Trustee's certificate for the number of
Shares delivered to the Trustee by the Second Beneficiary.
The Trustee's Certificate (the provisions of which are a part of this
Agreement) shall be substantially in the following form:
TRUSTEE'S CERTIFICATE
This is to certify that the undersigned Trustee has received a
certificate or certificates issued in the name of [First
Beneficiary][Second Beneficiary], evidencing the ownership of _______
shares of common stock, par value $0.01, of Xxxxxx & Xxxxxx, Inc., a
Delaware corporation (the "Shares"), and that the Shares are held
subject to all the terms of that certain Agreement (the "Voting Trust
Agreement"), dated as of _________, 2002, between Prime Management
Corporation, Xxxx and Xxxxxxx Xxxxxx, and Xxxxxxx Xxxx, as Trustee.
During the term of the Voting Trust Agreement, the Trustee shall, as
provided in the Voting Trust Agreement, possess and be entitled to
exercise the right to vote and otherwise represent all of the Shares
for all purposes, it being agreed that no voting authority or power
shall pass to the holder hereof by virtue of the ownership of this
Certificate.
This Certificate is assignable with the right to issuance of a new
certificate of like tenor only upon the surrender to the Trustee of
this certificate properly endorsed. Upon the termination of the Voting
Trust Agreement, this certificate shall be surrendered to the Trustee
by the holder hereof upon delivery to the holder hereof of a
certificate representing the Shares.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
____ day of ___________, 2002.
--------------------------
Xxxxxxx Xxxx, Trustee
Each Trustee's Certificate may be transferred by endorsement by the
person to whom issued, or by his, her or its attorney-in-fact, or by the
administrator or executor of his, her or its estate, by delivery of such
Trustee's Certificate so endorsed to the Trustee; but such transfer shall not be
evidence to or be binding upon the Trustee until such Trustee's Certificate is
surrendered to the Trustee and the transfer is entered upon the "Trustee's
Certificate Book," which shall be kept by the Trustee to show the names of the
parties by whom and to whom transferred, the numbers of the certificates, the
number of shares and the date of transfer. No new Trustee's Certificate shall be
issued until the Trustee's Certificate for the shares represented thereby shall
have been surrendered to and cancelled by the Trustee, and the Trustee shall
preserve the certificates so cancelled as vouchers. In case any Trustee's
Certificate shall be claimed to be lost or destroyed, a new Trustee's
Certificate may be issued in lieu thereof, upon such proof of loss as may be
required by the Trustee.
2
3. VOTING AUTHORITY AND POWER OF TRUSTEE.
(a) Subject to Section 4 below, during the term of this
Agreement, the Trustee shall have the sole and exclusive voting authority and
power with respect to the Trust Shares at all regular and special meetings of
the stockholders of the Company and may vote for, do or assent or consent to and
shall have all the powers, rights and privileges of a stockholder of the
Company.
(b) The Trustee may vote in person or by proxy, and a proxy in
writing signed by the Trustee shall be sufficient authority to the person named
therein to vote all the Trust Shares at any meeting, regular or special, of the
stockholders of the Company.
4. SALE OF OPTION SHARES. If, subsequent to the second anniversary
of the date of this Agreement, the Second Beneficiary sells or otherwise
transfers any of the Option Shares (the "Transferred Shares"), the Trustee's
voting power and authority shall cease with respect to such Transferred Shares,
the Transferred Shares shall no longer be subject to the terms of this
Agreement. The Trustee's Certificate representing the Option Shares shall be
surrendered to the Trustee and a new Trustee's Certificate issued to the First
Beneficiary pursuant to Section 2 above representing the Option Shares less any
Transferred Shares, and the certificate representing the Trust Shares shall be
cancelled and a new certificate issued in the name of the Trustee representing
the Trust Shares less any Transferred Shares.
5. DISTRIBUTION OF CASH DIVIDENDS.
(a) The Trustee shall distribute directly any cash dividends
or distributions declared and paid on the Trust Shares (other than dividends or
distributions made in the form of voting securities of the Company) to the
holders of Trustee's Certificates in proportion to their respective interests
therein as shown on the books of the Trustee, such distribution to be equivalent
to the dividends or distribution which each respective holder would have been
entitled to receive had the Shares not been deposited hereunder.
(b) The Trustee shall receive and hold, subject to the terms
of this Agreement, any voting securities of the Company issued in respect of the
Trust Shares by reason of any dividend, distribution, capital reorganization,
stock split, combination or the like and shall issue and deliver Trustee's
Certificates therefor to the holders of the Trustee's Certificates in proportion
to their respective interests therein as shown on the books of the Trustee.
6. TERM OF AGREEMENT. The trust hereby created shall terminate on
May _, 2007. Until termination in accordance with the terms of this Agreement,
neither this Agreement nor the trust hereby created shall be revocable or
amendable, in whole or in part.
7. LIABILITY FOR WILLFUL MISCONDUCT. The Trustee shall not be liable
for any error of judgment or mistake of fact or law, or for any act or omission
undertaken in good faith in connection with his powers and duties under this
Agreement, except for his own willful misconduct or gross negligence. The
Trustee shall not be liable for acts or omissions of any employee or
3
agent of the Company. The Trustee shall not be liable for acting in reliance on
any notice, request, consent, certificate, instruction, or other paper or
document or signature believed to be genuine and to have been signed by the
proper party or parties. The Trustee may consult with legal and other counsel of
his choosing, and any act or omission undertaken by the Trustee in good faith in
accordance with the opinion of legal or other counsel shall be binding and
conclusive on the parties to this Agreement.
8. BINDING AGREEMENT. Every registered holder of a Trustee's
Certificate, and every bearer of a Trustee's Certificate properly endorsed in
blank or properly assigned, by the acceptance or holding thereof, shall be
deemed conclusively for all purposes to have assented to this Agreement and to
all of its terms, conditions and provisions and shall be bound thereby with the
same force and effect as if such holder or bearer had executed this Agreement.
Without limiting the foregoing, this Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
9. SEVERABILITY. The invalidity of any term or provision of this
Agreement shall not affect the validity of the remainder of this Agreement.
10. GOVERNING LAW. Regardless of the place of execution, delivery,
performance or any other aspect of this Agreement, this Agreement and all of the
rights of the parties under this Agreement shall be governed by, construed under
and enforced in accordance with the substantive law of the State of Delaware
without regard to conflicts of law principles.
11. NO WAIVER. No waiver of any covenant or condition or the breach
of any covenant or condition of this Agreement shall be deemed to constitute a
waiver of any subsequent breach of such covenant or condition nor justify or
authorize a nonobservance upon any occasion of such covenant or condition or any
other covenant or condition of this Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire
-agreement between the parties hereto with regard to the subject matter thereof,
and shall not be modified or amended except in a writing executed by both of the
parties hereto.
4
IN WITNESS WHEREOF, the Trustee and the Beneficiaries have executed
this Agreement as of the date set forth above.
/s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx, as Trustee
PRIME MANAGEMENT CORPORATION
By: /s/ Xxxxxxx Xxxx, President
---------------------------------
/s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
5
