EXHIBIT 9.1.1
AMENDED AND RESTATED
VOTING AGREEMENT
This AMENDED AND RESTATED VOTING AGREEMENT ("Voting Agreement") is made as
of February 21, 2003, among XXXXXXX X. XXXXX & COMPANY, a Nebraska corporation
("Xxxxx Co."), and XXXXXXX X. XXXXX individually (collectively with Xxxxx Co.,
the "Xxxxx Advisors"), and XXXXXX X. XXXX ("Bull") and XXXXXXX X. XXXXXX
("Xxxxxx"), shareholders of REDWOOD TRUST, INC., a Maryland corporation
("Redwood").
WITNESSETH:
WHEREAS, Redwood's Charter limits beneficial ownership of capital
stock of Redwood by any person to 9.8% of the outstanding capital stock. On
October 29, 1997, the Board of Directors of Redwood granted a waiver of the
ownership limit to the Xxxxx Advisors, provided that the Xxxxx Advisors and
persons advised by the Xxxxx Advisors did not in the aggregate possess
beneficial ownership in excess of 15%, in number of shares or value, of each
class of outstanding capital stock of Redwood; and
WHEREAS, on August 6, 1998 the Board of Directors of Redwood confirmed
to the Xxxxx Advisors that the maximum ownership percentage of 15% contained in
the waiver granted to the Xxxxx Advisors is to be applied only at the time of
acquisition of shares by the Xxxxx Advisors, and that subsequent reductions in
the total number of shares of capital stock outstanding due to Redwood" stock
repurchases do not cause the waiver to be violated; and
WHEREAS, on March 9, 2000 the Board of Directors granted the Xxxxx
Advisors a further waiver (the "First Further Waiver") of the ownership limit,
up to a maximum of 1,000,000 shares of Common Stock (the "Initial Excess
Shares"), which could be held at any one time by the Xxxxx Advisors and persons
advised by the Xxxxx Advisors in excess of 2,104,214 shares of Common Stock then
held by them and covered by the prior waiver, provided that Initial Excess
Shares purchased from time to time would be subject to a Voting Agreement
substantially in the form approved by the Board of Directors (the "Voting
Agreement"); and
WHEREAS, the Xxxxx Advisors have requested a further waiver (the
"Second Further Waiver" and, together with the First Further Waiver, the
"Further Waivers") of the ownership limit, up to a maximum of 1,000,000 shares
of Common Stock (the "Additional Excess Shares" and, together with the Initial
Excess Shares, the "Excess Shares"), which may be held at any one time by the
Xxxxx Advisors and persons advised by the Xxxxx Advisors in excess of the
3,104,214 shares currently permitted to be held by them and covered by the prior
waivers, provided that all Excess Shares held from time to time shall be subject
to the Voting Agreement as amended and restated (the "Amended and Restated
Voting Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements contained in this Voting Agreement, the parties
hereto, intending to be legally bound, agree as follows:
1. Term. This Voting Agreement amends and restates the Initial Voting
Agreement, effective as of the date hereof, and shall continue in effect for so
long as the Xxxxx Advisors or
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EXHIBIT 9.1.1
any persons advised by the Xxxxx Advisors hold outstanding capital stock of
Redwood, except as otherwise provided in Section 3.
2. Transfer of Voting Rights. The Xxxxx Advisors, upon execution of
this Voting Agreement and subject to the terms hereof, hereby grant, on behalf
of the Xxxxx Advisors and any persons advised by them, to Bull and Xxxxxx the
voting rights for any Excess Shares held by the Xxxxx Advisors or such persons
advised by them.
3. Appointment of Proxies; Mirror Voting. To carry out the transfer of
voting rights pursuant to Section 2, the Xxxxx Advisors hereby appoint Bull and
Xxxxxx, and each of them singly, as proxies for the Excess Shares acquired by
the Xxxxx Advisors. The Xxxxx Advisors will cause any persons advised by them
that acquire Excess Shares to appoint Bull and Xxxxxx, and each of them singly,
as proxies for such shares effective upon the acquisition thereof. The Xxxxx
Advisors shall forward a copy of all proxy cards received by them or any person
advised by them for the voting of such Excess Shares within five (5) business
days after receipt of all cards for such Excess Shares to be voted at any
meeting (or action by written consent). Bull and Xxxxxx, and each of them
singly, shall have the full power to vote the Excess Shares through any method
legally permitted, provided, however, that Bull and Xxxxxx agree to vote the
Excess Shares on each matter or action to be voted on such that the Excess
Shares shall mirror the votes cast on such action or matter by all Redwood
Shareholders other than the Xxxxx Advisors and any persons advised by them (that
is, the proportion of Excess Shares voted for or against any matter shall equal
the proportion voted for or against such matter by all shareholders excluding
the Xxxxx Advisors and persons advised by them). In the event that either Bull
or Xxxxxx are no longer employed by or on the board of directors of Redwood, the
remaining proxy holder shall continue to be authorized to act as a proxy
pursuant to the terms hereof. In the event both Bull and Xxxxxx cease to be
employed by or on the board of Redwood, the transfer of voting rights and
appointment of proxies for the Excess Shares shall immediately cease to be
effective, the voting power with respect to the Excess Shares shall revert to
the beneficial owner(s) of the Excess Shares and the term of this Voting
Agreement shall immediately terminate, provided, however, that such reversion
and termination shall not make invalid the prior waivers by the Redwood Board of
Directors of the 9.8% Charter ownership limitation or in any way cause the
Excess Shares existing on the date of termination to become subject to Article
XI of the Redwood Charter, and provided further that no additional purchases of
Redwood capital stock by the Xxxxx Advisors or persons advised by them after the
date of termination shall be covered by the Further Waivers.
4. Notification of Share Purchases. The Xxxxx Advisors agree to notify
Redwood, in writing, of all purchases of shares of outstanding capital stock of
Redwood by them or any person advised by them within ten (10) business days of
the end of each month. The Xxxxx Advisors shall send via telefax copies of all
trade confirmations for such purchases with the monthly written notifications of
purchase.
5. Proxy Coupled with Interest. THE PARTIES HERETO ACKNOWLEDGE THAT
THE PROXY GRANTED TO BULL AND XXXXXX IS COUPLED WITH AN INTEREST AND IS THEREBY
IRREVOCABLE.
6. Rights of Shareholders. The Xxxxx Advisors and persons advised by
them shall retain all rights, not including the voting rights, attributable to
the Excess Shares of Redwood
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EXHIBIT 9.1.1
capital stock. Subject to Section 9 below, the custodian for the Xxxxx Advisors
and persons advised by them shall retain physical possession of all stock
certificates.
7. Transfer of Excess Shares to Third Parties. The proxy for any
Excess Shares shall terminate upon the transfer of such Excess Shares from the
Xxxxx Advisors or any person advised by them to a third party. For purposes of
this Voting Agreement, all transfers of shares of Redwood capital stock by the
Xxxxx Advisors or any person advised by them to a third party shall be deemed to
be transfers of Excess Shares, up to the number of Excess Shares existing on the
date of transfer. The proxy will continue to be effective with respect to any
new Excess Shares purchased in the future until the expiration of the term
hereof.
8. Voting Agreement. A duplicate of this Voting Agreement, and of any
amendment or extension hereof, shall be filed with the Secretary of Redwood and
shall be open to inspection by any shareholder of Redwood.
9. Section 2-510 of Maryland Corporation Code. Upon request by Bull
and Xxxxxx, the Xxxxx Advisors agree to transfer or cause to be transferred any
Excess Shares to Bull and Xxxxxx. Bull and Xxxxxx agree to hold any such Excess
Shares in trust for the benefit of the Xxxxx Advisors or persons advised by
them.
10. Notices. All notes may be made by mail (regular first-class,
registered or certified) or by fax, to the addresses and fax numbers set forth
below:
Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxxx and Redwood Trust:
Redwood Trust, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxx Xxxxxx, XX 00000
Attention: Secretary
(000) 000-0000
(000) 000-0000 (fax)
Xxxxxxx X. Xxxxx & Company:
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: General Counsel
(000) 000-0000
(000) 000-0000 (fax)
Xxxxxxx X. Xxxxx:
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: General Counsel
(000) 000-0000
(000) 000-0000 (fax)
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EXHIBIT 9.1.1
11. Binding Nature of Agreement; No Assignment. This Voting Agreement
shall be binding upon and inure to the benefit of the parties hereto. No party
shall sell, assign, transfer or encumber such party's rights or obligations
under this Voting Agreement without the prior written consent of the other
parties hereto, except to the extent expressly permitted in this Voting
Agreement.
12. Counterparts. This Voting Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original and such counterparts shall constitute but one and the same
instrument.
13. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Voting Agreement shall be held invalid
for any reason whatsoever, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Voting Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Voting Agreement.
14. Governing Law. This Voting Agreement shall be construed in
accordance with the laws of the State of Maryland and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
IN WITNESS WHEREOF, each of the parties hereto have caused its name to
be signed hereto by its respective officer thereunto duly authorized, all as of
the day and year first above written.
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XXXXXX X. XXXX
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XXXXXXX X. XXXXXX
XXXXXXX X. XXXXX & COMPANY
By:
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Name:
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Title:
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XXXXXXX X. XXXXX
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