EXHIBIT 10.6
FIRST AMENDMENT TO THE
FIRST AMENDED AND RESTATED
VOTING TRUST AGREEMENT
REGARDING SHARES ISSUED TO XXXXX X. XXXXXXX
This FIRST AMENDMENT to the FIRST AMENDED AND RESTATED VOTING TRUST
AGREEMENT ("AMENDMENT") is entered into as of December 1, 1996 ("EXECUTION
DATE") by and among Xxxxxxx X. Xxxxxx, Xx. (the "VOTING TRUSTEE") and Xxxxx X.
Xxxxxxx, an individual ("XXXXXXX").
RECITALS
A. VOTING TRUSTEE, XXXXXXX and others entered into a Voting Trust
Agreement on June 30, 1994, an Extension Agreement on June 12, 1995 and a First
Amended and Restated Voting Trust Agreement Regarding Shares Issued to Xxxxx X.
Xxxxxxx effective as of April 1, 1996 (collectively, the "ORIGINAL AGREEMENT").
B. The KSI Group, Inc., a Delaware corporation (the "COMPANY") is
contemplating the effectuation of a "QUALIFIED PUBLIC OFFERING" as defined in
the Articles of Incorporation of the CORPORATION effective as of the EXECUTION
DATE.
C. Section 7.7 of the ORIGINAL AGREEMENT grants VOTING TRUSTEE and the
"BENEFICIAL OWNER" the right to amend the ORIGINAL AGREEMENT.
X. XXXXXXX currently is the "BENEFICIAL OWNER" as defined in the ORIGINAL
AGREEMENT.
E. The VOTING TRUSTEE and XXXXXXX desire to amend the ORIGINAL AGREEMENT
as set forth below effective as of the closing of the QUALIFIED PUBLIC OFFERING
(the "CLOSING").
NOW, THEREFORE, THE ORIGINAL AGREEMENT is amended as set forth below:
1. Conditioned Upon Effectuation of the CLOSING. Effective as of the
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CLOSING, and only upon the CLOSING, the ORIGINAL AGREEMENT is amended as set
forth below.
2. Amendments. Sections 2.5 and 3.2 of the ORIGINAL AGREEMENT shall be
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amended in their entirety as set forth below:
2.5 Transfer of BENEFICIAL CERTIFICATES. The BENEFICIAL CERTIFICATES
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shall be transferable only as provided in (a) the BENEFICIAL CERTIFICATES
and (b) this AGREEMENT and upon payment of any charges in effect at the
time of transfer. All transfers shall be recorded in accordance with
Section 5.2 below. Any transfer made of any BENEFICIAL CERTIFICATE shall
vest in the transferee all rights of the transferor and shall subject the
transferee to the same
limitations as those imposed on the transferor by the terms of the
BENEFICIAL CERTIFICATE so transferred and this AGREEMENT. Upon such
transfer the VOTING TRUSTEE shall deliver a BENEFICIAL CERTIFICATE or
CERTIFICATES to the transferee for the number of shares represented by the
BENEFICIAL CERTIFICATE so transferred.
3.2 Rights of BENEFICIAL OWNER. Notwithstanding the provisions of
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Section 3.1 above:
a. the BENEFICIAL OWNER shall have the exclusive right to make
the decisions required under (a) the First Amended and Restated Xxxxxx/The
KSI Group, Inc. Rights Agreement dated April 1, 1996 and (b) the First
Amended and Restated Registration Rights Agreement dated April 1, 1996.
b. The decision whether to (i) sell the VOTING TRUST
CERTIFICATES or (ii) vote in favor of the proposed dissolution and
liquidation, merger or consolidation of the COMPANY or a sale of all or
substantially all of its assets shall require the consent of both the
VOTING TRUSTEE and the BENEFICIAL OWNER.
3. Full Effect. Except as modified above, the ORIGINAL AGREEMENT shall
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remain in full force and effect.
VOTING TRUSTEE:
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx.
XXXXXXX:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
FIRST AMENDED AND RESTATED
VOTING TRUST AGREEMENT
REGARDING SHARES ISSUED TO XXXXX X. XXXXXXX
This FIRST AMENDED AND RESTATED VOTING TRUST AGREEMENT ("AGREEMENT") is entered
into effective as of April 1, 1996 ("EXECUTION DATE") by and among Xxxxxxx X.
Xxxxxx, Xx. (the "VOTING TRUSTEE"), Xxxxx X. Xxxxxxx, an individual ("XXXXXXX"),
Kinetic Systems, Inc., a California corporation ("KSI CA"), The KSI Group, Inc.,
a Delaware corporation (the "COMPANY"), and Xxxx & Xxxxxxxx, a Professional
Corporation (the "ESCROW HOLDER").
RECITALS
A. The parties entered into a Voting Trust Agreement on June 30, 1994
and an Extension Agreement on June 12, 1995 (collectively, the "ORIGINAL
AGREEMENT"). The parties wish to amend and restate the ORIGINAL AGREEMENT in
its entirety.
B. The parties have entered into this AGREEMENT to provide the VOTING
TRUSTEE, the President of the COMPANY and, through The Xxxxxx Family 1991 Trust
(the "XXXXXX FAMILY TRUST"), the controlling shareholder of the COMPANY, certain
voting rights with respect to certain shares held by XXXXXXX, as such shares are
defined below.
THE PARTIES AGREE AS FOLLOWS:
1. VOTING TRUSTEE. There shall be one voting trustee of this voting
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trust (the "VOTING TRUST"). Except as set forth in Section 6.7 below, the first
and only voting trustee shall be Xxxxxxx X. Xxxxxx, Xx.
2. DEPOSIT AND TRANSFER OF SHARES--ISSUANCE AND TRANSFER OF VOTING
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TRUST CERTIFICATES.
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2.1 Deposit of Shares. Upon execution of this AGREEMENT, XXXXXXX
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shall deposit with the ESCROW HOLDER the certificates for all shares of the
COMPANY which he owns (the "XXXXXXX CERTIFICATES"). In the event XXXXXXX is
issued any additional shares by the COMPANY during the term of this AGREEMENT,
such additional shares shall be deposited as set forth above and shall be
included in the definition of "XXXXXXX CERTIFICATES". The XXXXXXX CERTIFICATES
shall be endorsed in blank or to the VOTING TRUSTEE, and be accompanied by such
instruments of transfer as to enable the COMPANY to cause such certificates to
be transferred to the name of the VOTING TRUSTEE.
2.2 Transfer of VOTING TRUST CERTIFICATES to VOTING TRUSTEE. All
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XXXXXXX CERTIFICATES delivered to the ESCROW HOLDER shall be surrendered by the
ESCROW HOLDER to the COMPANY and canceled. New share certificates shall be
issued in the name of the VOTING TRUSTEE. The new share certificates shall
state that they
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are issued pursuant to this AGREEMENT. This fact shall also be noted in the
entry of ownership of the shares by the VOTING TRUSTEE in the stock transfer
records of the COMPANY. (The certificates issued to the VOTING TRUSTEE under
this Section hereafter shall be referred to as the "VOTING TRUST CERTIFICATES".)
2.3 BENEFICIAL CERTIFICATES. The VOTING TRUSTEE shall hold the VOTING
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TRUST CERTIFICATES subject to the terms of this AGREEMENT. The COMPANY shall
thereupon issue and deliver to XXXXXXX certificates representing SHIMMON'S
beneficial interest in the COMPANY. The voting trust beneficial certificates
shall be in substantially the form of Exhibit 2.3 attached hereto (the
"BENEFICIAL CERTIFICATES"). (XXXXXXX and any subsequent beneficial owner
hereafter shall be referred to as the "BENEFICIAL OWNER".)
2.4 Fractional BENEFICIAL CERTIFICATES. In the event the interest in
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this VOTING TRUST which is owned by any holder cannot be fully represented by
whole BENEFICIAL CERTIFICATES, the VOTING TRUSTEE may issue fractional share
certificates, scrip, or other evidence of ownership of the fractional part of
one BENEFICIAL CERTIFICATE which in their discretion properly indicates
ownership of the fractional interest represented thereby. In the event of such
issue, the fractional interest shall, under no circumstances, have any greater
rights nor lesser liabilities than any other BENEFICIAL CERTIFICATE provided for
herein.
2.5 Transfer of BENEFICIAL CERTIFICATES. The BENEFICIAL CERTIFICATES
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shall be transferable only as provided in (a) the BENEFICIAL CERTIFICATES, (b)
this AGREEMENT, (c) the Kinetic Systems, Inc. 1996 Shareholder Agreement dated
April 1, 1996 and any successor agreement or amendment thereto (the "SHAREHOLDER
AGREEMENT") and upon payment of any charges in effect at the time of transfer.
All transfers shall be recorded in accordance with Section 5. 2 below. Any
transfer made of any BENEFICIAL CERTIFICATE shall vest in the transferee all
rights of the transferor and shall subject the transferee to the same
limitations as those imposed on the transferor by the terms of the BENEFICIAL
CERTIFICATE so transferred, this AGREEMENT and the SHAREHOLDER AGREEMENT. Upon
such transfer the VOTING TRUSTEE shall deliver a BENEFICIAL CERTIFICATE or
CERTIFICATES to the transferee for the number of shares represented by the
BENEFICIAL CERTIFICATE so transferred.
2.6 Proof of Ownership. The VOTING TRUSTEE shall not be required to
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recognize any transfer of a BENEFICIAL CERTIFICATE not made in accordance with
the provisions hereof unless the person or persons claiming such ownership shall
have produced indicia of title satisfactory to the VOTING TRUSTEE, and shall
have deposited with the VOTING TRUSTEE indemnity satisfactory to him.
2.7 Holder of BENEFICIAL CERTIFICATE as Owner. The VOTING TRUSTEE may
-----------------------------------------
treat the registered holder, for the time being, of each BENEFICIAL CERTIFICATE
(or when presented duly endorsed in blank for transfer, the bearer thereof) as
the absolute owner and holder thereof and of all the rights and interests
represented thereby for all purposes
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whatsoever. The VOTING TRUSTEE shall not be bound or affected by any notice to
the contrary.
2.8 Replacement of BENEFICIAL CERTIFICATE. If a BENEFICIAL
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CERTIFICATE is lost, stolen, mutilated, or destroyed, the VOTING TRUSTEE, in his
discretion, may issue a duplicate of the BENEFICIAL CERTIFICATE upon receipt of
(a) evidence of such fact and (b) indemnification satisfactory to him.
3. VOTING AND ACTION BY VOTING TRUSTEE.
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3.1 Voting of VOTING TRUST CERTIFICATES. Subject to the provisions
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of Section 3.2 below, so long as the VOTING TRUSTEE shall hold VOTING TRUST
CERTIFICATES deposited pursuant to the provisions of this AGREEMENT, he shall
possess and in his unrestricted discretion shall be entitled to exercise in
person or by his attorneys-in-fact or proxies, all rights and powers of absolute
owners and holders of the VOTING TRUST CERTIFICATES, including the full and
unqualified right to vote, assent or consent with respect thereto and to take
part in and consent to any corporate or shareholders' action of any kind
whatsoever. No other person shall have any voting rights in respect to the
VOTING TRUST CERTIFICATES so long as this AGREEMENT is in effect and such shares
are registered in the name of the VOTING TRUSTEE. The right of the VOTING
TRUSTEE to vote, assent, or consent shall include the right to vote at any
election of directors and in favor of or in opposition to any resolution or the
issuance or creation of additional securities of the COMPANY, or any action of
any character whatsoever which may be presented at any meeting or require the
consent of shareholders of the COMPANY.
3.2 Rights of BENEFICIAL OWNER. Notwithstanding the provisions of
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Section 3.1 above, the BENEFICIAL OWNER shall have the exclusive right to make
the decisions required under (a) the SHAREHOLDER AGREEMENT (b) the First Amended
and Restated Xxxxxx/The KSI Group, Inc. Rights Agreement dated April 1, 1996 and
(c) the First Amended and Restated Registration Rights Agreement dated April 1,
1996. As between the BENEFICIAL OWNER and the VOTING TRUSTEE, the BENEFICIAL
OWNER shall have the exclusive right to decide whether to sell the VOTING TRUST
CERTIFICATES. Finally, unless the VOTING TRUSTEE first obtains the written
consent of the BENEFICIAL OWNER, the VOTING TRUSTEE shall have no right to vote
in favor of the proposed dissolution and liquidation, merger or consolidation of
the COMPANY or a sale of all or substantially all of its assets.
3.3 Voting in Interest of COMPANY. In voting the VOTING TRUST
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CERTIFICATES or in doing any act in respect of the control or management of the
COMPANY or its affairs, as holder of stock deposited hereunder, the VOTING
TRUSTEE shall exercise its best judgment in the interest of the COMPANY to the
end that its affairs shall be properly managed.
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3.4 VOTING TRUSTEE's Relationship With COMPANY. The VOTING TRUSTEE or
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any firm or corporation of which it may be a member, agent, or employee, or any
corporation, trust, or association of which it may be a trustee, stockholder,
director, officer, agent, or employee, may contract with or be or become
pecuniarily interested, directly or indirectly, in any matter or transaction to
which the COMPANY or any subsidiary or controlled or affiliated corporation may
be a party or in which it may be concerned, as fully and freely as though such
VOTING TRUSTEE were not a VOTING TRUSTEE hereunder. The VOTING TRUSTEE may act
as a director or officer of the COMPANY or of any such subsidiary or controlled
or affiliated corporation.
3.5 Expenses. The VOTING TRUSTEE is expressly authorized to incur and
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pay such reasonable expenses and charges, to employ and pay such agents,
attorneys, and counsel, and to incur and pay such other charges and expenses as
he may deem necessary and proper for administering this AGREEMENT. The
BENEFICIAL OWNER agrees to reimburse and indemnify the VOTING TRUSTEE for and
against any and all such claims, expenses, and liabilities incurred by him, or
asserted against him, in connection with or growing out of this AGREEMENT or the
discharge of his duties hereunder. Any such claims, expenses or liabilities not
so paid by the BENEFICIAL OWNER may be deducted from dividends or other
distributions to him or may be made a charge payable as a condition to the
delivery of shares in exchange for BENEFICIAL CERTIFICATES as provided herein.
The VOTING TRUSTEE shall be entitled to a lien therefor upon the shares, funds
or other property in his possession or in the possession of the ESCROW HOLDER.
Notwithstanding the above, the VOTING TRUSTEE shall not receive a salary in
connection with his services as VOTING TRUSTEE.
3.6 VOTING TRUSTEE's Liability. The VOTING TRUSTEE shall always be
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protected and free from liability in acting upon any document or signature
believed by him to be genuine and to have been signed by the proper party or
parties or by the party or parties purporting to have signed the same. The
VOTING TRUSTEE shall not be liable for any error of judgement nor for any act
done or omitted nor for any mistake of fact or law nor for anything which he may
do or refrain from doing in good faith nor generally shall the VOTING TRUSTEE
have any accountability hereunder, except the VOTING TRUSTEE shall be liable for
his own willful default or gross negligence. The VOTING TRUSTEE may advise with
legal counsel and any action under this AGREEMENT taken or suffered in good
faith by him in accordance with the opinion of such counsel shall be conclusive
upon the parties hereto and the VOTING TRUSTEE shall be fully protected and be
subject to no liability in respect thereof.
4. DIVIDEND, DISTRIBUTION, AND SUBSCRIPTION RIGHTS OF BENEFICIAL OWNER.
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4.1 Cash Dividends. The BENEFICIAL OWNER shall be entitled, until the
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termination of this AGREEMENT as hereinafter provided, to receive from time to
time payments equal to the amount of cash dividends, if any, collected or
received by the VOTING TRUSTEE or his successor upon the number of shares in
respect of which such BENEFICIAL CERTIFICATE was issued, less the deductions
provided for in Section 3.5. Such payments shall be made as soon as practicable
after the receipt of such dividends, to the BENEFICIAL OWNER. In lieu of
receiving cash dividends and paying such dividends to the BENEFICIAL OWNER, the
VOTING TRUSTEE may instruct the COMPANY in writing to pay such dividends
directly to the BENEFICIAL OWNER. Upon giving such instructions to the COMPANY,
all liability of the VOTING TRUSTEE with respect to such dividends shall cease,
until the instructions are revoked. The VOTING TRUSTEE may at any time revoke
such instructions and by written notice to the COMPANY direct it to make
dividend payments to the VOTING TRUSTEE.
4.2 Share Dividends. In case the VOTING TRUSTEE shall receive, as a
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dividend or other distribution upon any VOTING TRUST CERTIFICATES held by him
under this AGREEMENT any additional shares of the COMPANY, the VOTING TRUSTEE
shall hold the same subject to this AGREEMENT for the benefit of the BENEFICIAL
OWNER and said shares shall be and become subject to all of the terms and
conditions hereof to the same extent as if originally deposited hereunder. The
VOTING TRUSTEE may, in its discretion, issue BENEFICIAL CERTIFICATES in respect
of such shares to the BENEFICIAL OWNER of record at the close of business on the
record date determined pursuant to the provisions of Section 4.6.
4.3 Distribution of Liquidation. In the event of the dissolution or
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total or partial liquidation of the COMPANY, whether voluntary or involuntary,
the VOTING TRUSTEE shall receive the moneys, securities, rights, or property to
which the BENEFICIAL OWNER as shareholder of the COMPANY is entitled and shall
distribute the same to the BENEFICIAL OWNER.
4.4 Other Distributions to Shareholders. If at any time during the
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continuation of this AGREEMENT the VOTING TRUSTEE shall receive or collect any
moneys through a distribution by the COMPANY to its shareholders, other than in
payment of cash dividends, or shall receive any property (other than shares of
stock of the COMPANY) through a distribution by the COMPANY to its shareholders,
the VOTING TRUSTEE shall distribute the same to the BENEFICIAL OWNER registered
as such at the close of business on the record date determined pursuant to the
provisions of Section 4.6; provided that the VOTING TRUSTEE may withhold
therefrom the deductions provided for in Section 3.5.
4.5 Deductions from Distributions. There shall be deducted and
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withheld from every distribution of every kind under this AGREEMENT any taxes,
assessments, or other charges that may be required by any present or future law
to be deducted or withheld, as well as
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expenses and charges incurred pursuant to Section 3.5 hereof, to the extent that
such expenses and charges remain unpaid or unreimbursed.
4.6 Record Date for Distributions. The VOTING TRUSTEE may, if he
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deems it advisable, fix a date not exceeding 20 days preceding any date for the
payment or distribution of dividends or for the distribution of assets or rights
as a record date for the determination of the BENEFICIAL OWNER entitled to
receive such payment or distribution, and the BENEFICIAL OWNER of record on such
date shall be exclusively entitled to participate in such payments or
distributions. In any case in which the VOTING TRUSTEE shall fail to fix such a
record date, the date 3 days prior to the date of payment or distribution of
dividends or the distribution of assets or rights, shall constitute the record
date for the determination of the BENEFICIAL OWNER entitled to receive such
payment or distribution.
5. BOOKS AND RECORDS.
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5.1 Record of Shares. It shall be the duty of the ESCROW HOLDER to
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maintain a record of all VOTING TRUST CERTIFICATES which are transferred to the
VOTING TRUSTEE and all BENEFICIAL CERTIFICATES indicating the name in which the
stock was held, the date of issuance of the stock, the class and series of the
stock, the number of shares, and the number of the certificate or certificates
representing those shares. The ESCROW HOLDER also shall maintain a record of
the date on which any such share certificates were received by them. The ESCROW
HOLDER shall receive and hold the new share certificates issued by the COMPANY
in the name of the VOTING TRUSTEE and shall maintain a record indicating the
date of issuance of such certificates, the date of receipt of such certificates
and the place in which such certificates are held by them.
5.2 Record of Trust Certificates. The Secretary of the Company shall
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maintain a record showing the name and address of the BENEFICIAL OWNER. The
record shall show the dates on which the BENEFICIAL CERTIFICATES were issued,
canceled, transferred, or replaced. The record shall be known as the Beneficial
Owner Certificate Record Book and shall be open to inspection by any of the
parties to this AGREEMENT or their successors at any reasonable time. The first
BENEFICIAL OWNER to appear in the Beneficial Owner Certificate Record Book shall
be the party to this AGREEMENT to whom BENEFICIAL CERTIFICATES are to be issued.
The record shall show any subsequent transfer, assignment, pledge, attachment,
execution, and any other matter affecting the title to the BENEFICIAL
CERTIFICATES which come to the attention of the ESCROW HOLDER or VOTING TRUSTEE.
Any documents, including BENEFICIAL CERTIFICATES which are canceled, purporting
to affect the title of the BENEFICIAL CERTIFICATES shall also be kept in the
Beneficial Owner Record Book, together with a sample copy of the BENEFICIAL
CERTIFICATE.
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5.3 Inspection of Records. The books and records of this VOTING TRUST
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shall be open to inspection by any of the parties to this AGREEMENT or their
successors at any reasonable time. The inspection shall be made at the office
of the COMPANY and shall include the right to make copies of the books and
records; provided, however, that any such activity must be conducted with
reasonable notice first given to the Secretary of the COMPANY. In the event of
a dispute, the matter shall be referred to the VOTING TRUSTEE for his decision
as to the reasonableness of the request for inspection and copying.
6. TERM OF VOTING TRUST.
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6.1 Irrevocability of VOTING TRUST. Except as otherwise provided in
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this AGREEMENT, the VOTING TRUST created by this AGREEMENT is hereby expressly
declared to be irrevocable.
6.2 Termination. This AGREEMENT shall terminate: (a) the date Xxxxxxx
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X. Xxxxxx, Xx. ceases to be employed by the COMPANY, for any reason or no
reason whether during the original term of this AGREEMENT or any extension
thereof; (b) the date 50% or more of the voting securities of the COMPANY are
transferred to a third party or parties pursuant to one transaction or a series
of related transactions or (c) June 30, 1999. Provided Xxxxxxx X. Xxxxxx, Xx.
is still employed by the COMPANY, this AGREEMENT may be extended as provided in
Section 6.3 below.
6.3 Extension of Term. The prescribed term of this AGREEMENT may be
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extended, provided, within the three month period prior to the expiration date
hereof, the BENEFICIAL OWNER by written AGREEMENT, with the written consent of
the VOTING TRUSTEE, extends the duration hereof, as to such BENEFICIAL OWNER'S
shares only, for an additional period not exceeding five (5) years from the
expiration date then in effect. In the event of such extension, the VOTING
TRUSTEE, prior to the expiration as hereinabove provided, as originally fixed,
or as theretofore extended, as the case may be, files in the principal executive
office of the COMPANY a copy of an agreement extending the expiration date of
this AGREEMENT and thereupon the duration of this AGREEMENT shall be extended
for the period fixed by such extension agreement; provided, however, that no
such extension agreement shall affect the rights or obligations of persons not
parties thereto.
6.4 Return of VOTING TRUST CERTIFICATES After Termination. Within 60
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days after the termination of this AGREEMENT, the VOTING TRUSTEE shall deliver
to the BENEFICIAL HOLDERS, certificates representing the number of shares in
respect of which such BENEFICIAL CERTIFICATES were issued upon the surrender of
such BENEFICIAL CERTIFICATES properly endorsed and upon payment by the persons
entitled to receive such
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share certificates of a sum sufficient to cover any governmental charge on the
transfer or delivery of such certificates.
6.5 Final Accounting. Within 90 days after termination of this VOTING
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TRUST, the VOTING TRUSTEE shall render a final accounting to the BENEFICIAL
OWNER and to the COMPANY and shall distribute any funds or other assets held by
him to the parties entitled thereto.
6.6 Deposit of Other Shares. Except as specifically provided for in
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this AGREEMENT as set forth above, no additional shares may be deposited into
the VOTING TRUST.
6.7 Death of VOTING TRUSTEE. Pursuant to Section 6.2, the death of
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the VOTING TRUSTEE shall cause this AGREEMENT to terminate. In such event the
BENEFICIAL OWNER shall appoint a "termination trustee" to perform those services
necessary to effectuate the termination of this AGREEMENT.
7. GENERAL.
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7.1 Place of Performance. This AGREEMENT is made, executed, and
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entered into at Santa Clara, California, and it is mutually agreed that the
performance of all parts of this contract shall be made at Santa Clara,
California.
7.2 Governing Law. This AGREEMENT is intended by the parties to be
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governed and construed in accordance with the laws of the State of California.
7.3 Severability of Provisions. This AGREEMENT shall not be severable
--------------------------
or divisible in any way but it is specifically agreed that should any provision
herein be, or become invalid that such invalidity shall not affect the validity
of the remainder of the AGREEMENT.
7.4 Construction by VOTING TRUSTEE. The VOTING TRUSTEE is authorized
------------------------------
and empowered to construe this AGREEMENT and his reasonable construction made in
good faith shall be conclusive and binding upon the BENEFICIAL OWNER and upon
all parties hereto.
7.5 Merger or Consolidation. In the event that the COMPANY shall
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merge into or consolidate with another corporation or corporations, or in the
event that all or substantially all of the assets of the COMPANY are transferred
to another corporation the shares of which are
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issued to shareholders of the COMPANY in connection with such transfer, then the
term "COMPANY" shall be construed to include such successor corporation and the
VOTING TRUSTEE shall receive and hold under this AGREEMENT any shares of such
successor corporation received by him on account of his ownership as VOTING
TRUSTEE of shares held by him hereunder prior to such merger, consolidation, of
transfer. BENEFICIAL CERTIFICATES issued and outstanding under this AGREEMENT at
the time of such merger, consolidation, or transfer may remain outstanding, but
the VOTING TRUSTEE may, in his discretion, substitute therefor new BENEFICIAL
CERTIFICATES in appropriate form.
7.6 Notice to BENEFICIAL OWNER. Any notice to be given to the
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BENEFICIAL OWNER shall be sufficiently given if mailed, postage prepaid, to the
registered BENEFICIAL OWNER of such BENEFICIAL CERTIFICATE at the address of
such registered BENEFICIAL HOLDER appearing on the certificate book to be
maintained by the VOTING TRUSTEE. Every notice so given shall be effective
whether or not received, and such notice shall for all purposes be deemed to
have been given on the date of mailing thereof.
7.7 Amendment of AGREEMENT. If at any time the VOTING TRUSTEE deems
----------------------
it advisable to amend this AGREEMENT, he shall submit such amendment to the
BENEFICIAL OWNER for his approval at a special meeting which shall be called for
that purpose. If, at such meeting or any adjournment thereof, the proposed
amendment shall be approved by the affirmative vote of the VOTING TRUSTEE and
the BENEFICIAL OWNER, the proposed amendment so approved shall become a part of
this AGREEMENT as if originally incorporated herein.
7.8 Attorneys' Fees. In the event of any dispute between or among the
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parties, the prevailing party or parties in such action shall be entitled to
receive from the party or parties held to be liable, in addition to any damages
or other remedies provided by law or in equity, an amount equal to the
attorneys' fees and costs expended by such prevailing party or parties in such
action.
7.9 Post Judgment. In addition to any such amount, the prevailing
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party or parties also shall be entitled to receive from the party or parties
held to be liable, an amount equal to the attorneys' fees and costs incurred in
enforcing any judgment against such party or parties. This Section 7.9 is
severable from the other provisions of this AGREEMENT and survives any judgment
and is not deemed merged into any judgment.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT effective as
of the date first set forth above.
VOTING TRUSTEE:
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx.
BENEFICIAL OWNER:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
COMPANY:
The KSI Group, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxx, Xx., President
KSI CA:
Kinetic Systems, Inc.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxx, Xx., President
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ESCROW HOLDER:
Xxxx & Xxxxxxxx,
a Professional Corporation
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President
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EXHIBIT 2.3
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BENEFICIAL CERTIFICATE
This Beneficial Certificate hereby certifies that Xxxxx X. Xxxxxxx hereby
owns a beneficial interest in 2,000, 000 shares of The KSI Group, Inc. Series A
Common Stock. The beneficiary interest is subject to the FIRST AMENDED AND
RESTATED VOTING TRUST AGREEMENT dated April 1, 1996 (the "VOTING TRUST
AGREEMENT") and the rights granted the VOTING TRUSTEE, as that term is defined
in the VOTING TRUST AGREEMENT.
Dated: April 1, 1996
--------------------
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------- --------------------------
Xxxxxxx X. Xxxxxx, Xx., President Xxxxx X. Xxxxxx, Secretary
12
THE KSI GROUP, INC.
BENEFICIAL SHARES
HELD BY VOTING TRUSTEE
Beneficial Number of Certificate Issuance Date Received
Owner Shares Number Date By Escrow
---------- --------- ----------- -------- -------------
Xxxxx X. Xxxxxxx 2,000,000
[All BENEFICIAL SHARES are held at Xxxx & Xxxxxxxx,
000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000]
13
THE KSI GROUP, INC.
VOTING TRUST CERTIFICATES
HELD BY VOTING TRUSTEE
Number of Certificate Issuance Date of
Series Shares Number Date Receipt
------ ---------- ----------- -------- -------
Series A Common 2,000,000 CSA-2 03/31/96
[All VOTING TRUST CERTIFICATES are held at Xxxx & Xxxxxxxx,
000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000]
14
THE KSI GROUP, INC.
BENEFICIAL OWNER
CERTIFICATE RECORD BOOK
Number of Voting Date Date Canceled
Name & Address Trust Certificates Issued or Transferred
------------------- ------------------ ------- --------------
Notes
-----
Xxxxx X. Xxxxxxx CSA-2 03/31/96
00000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
[All BENEFICIAL SHARES are held at Xxxx & Xxxxxxxx,
000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000]
15
