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Exhibit 9.1
MANAGEMENT VOTING TRUST AGREEMENT
THIS MANAGEMENT VOTING TRUST AGREEMENT (the "Agreement") is entered
into as of December 12, 1996, by and among Young & Rubicam Inc., a New York
corporation ("Y&R NY"), Young & Rubicam Holdings Inc., a New York corporation
("Holdings"), and Young & Rubicam Inc., a Delaware corporation ("Y&R DEL"), a
trust established pursuant to the Restricted Stock Trust Agreement (the
"Restricted Stock Trust"), each of the persons listed on Schedule A attached
hereto (the Restricted Stock Trust and such persons, collectively, the "Initial
Management Investors"), Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxx, Xxxx X. XxXxxxx, Xx.
and Xxxxxx X. Xxxx as voting trustees (together with their successors, the
"Voting Trustees") of the voting trust created hereunder (the "Management Voting
Trust"). The Initial Management Investors together with any individuals who
become holders of shares of Common Stock, or interests in Common Stock, or
holders of shares of Money Market Preferred Stock, who are employees of the
Company or its Affiliates (other than the HFCP Investors and their Affiliates),
and their permitted transferees, in each case who become parties hereto in
accordance with the terms hereof are referred to herein and their permitted
transferees, in each case as the "Management Investors."
All terms defined in the Stockholders' Agreement being entered into
concurrently herewith by and among the HFCP Investors, the Director Investors,
the Initial Management Investors, the Management Voting Trust, Holdings, Y&R NY
and Y&R DEL (as such agreement may be amended or modified pursuant to its terms,
the "Stockholders' Agreement"), that are not otherwise defined herein, are used
herein with the same meaning.
RECITALS
WHEREAS, the Company and the Initial Management Investors deem it
necessary and advisable that the Management Voting Trust be the record owner of
all shares of Common Stock and Money Market Preferred Stock, other than the
shares of Common Stock owned by the HFCP Investors (or, following the Closing,
their Affiliates and permitted transferees) or the Director Investors, on the
terms and conditions set forth herein, in order to assure that, among other
things, all Management Investors vote with a single voice with respect to all
matters submitted to the vote of the stockholders of the Company;
WHEREAS, the individual Initial Management Investors (i) pursuant to
the Stock Subscription Agreement, have subscribed to shares of common stock, par
value $0.01 per share, of Holdings ("Holding Common Stock"), and pursuant to the
Stock Option Plan have been granted Roll-Over Options and Executive Options and
(ii) pursuant to the Restricted Stock Plan have been allocated an interest in
shares of Holdings Common Stock under the Restricted Stock Trust (the
"Restricted Stock");
WHEREAS, the HFCP Investors have subscribed to certain shares, and
an option to purchase shares, of Common Stock pursuant to the terms of the
Contribution Agreement;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the parties hereto are entering into the Stockholders' Agreement;
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WHEREAS, immediately following the closing of the acquisition of
shares of Holdings Common Stock under the Contribution Agreement and the Stock
Subscription Agreement, Holdings will merge with and into Y&R NY (the "Holdings
Merger"), Y&R NY will be the surviving corporation in such merger, all
outstanding shares of common stock, par value $.25 per share, of Y&R NY ("Y&R NY
Common Stock") will be exchanged for cash (or, if elected by the holders
thereof, for shares of money market preferred stock, without par value, of Y&R
NY ("Y&R NY Money Market Preferred Stock")) and all outstanding shares of
Holdings Common Stock will become shares of Y&R NY Common Stock;
WHEREAS, following the Holdings Merger, upon the terms and subject
to the conditions set forth in the Contribution Agreement, Y&R NY will merge
with and into Y&R DEL (the "Company Merger"), Y&R DEL will be the surviving
corporation in such merger, all outstanding shares of Y&R NY Common Stock will
become shares of common stock, par value $.01 per share, of Y&R DEL ("Y&R DEL
Common Stock"), and all outstanding shares of Y&R NY Money Market Preferred
Stock will become shares of money market preferred stock, without par value, of
Y&R DEL ("Y&R DEL Money Market Preferred Stock") (Holdings, and its successors
by merger, Y&R NY and Y&R DEL, upon the occurrence of such mergers are referred
to collectively herein as the "Company"; the shares of Holdings Common Stock
which become shares of Y&R NY Common Stock and then become shares of Y&R DEL
Common Stock, upon the occurrence of such mergers, are hereinafter referred to
collectively herein as "Common Stock" and the shares of Y&R NY Money Market
Preferred Stock which become shares of Y&R DEL Money Market Preferred Stock,
upon the occurrence of such mergers, are hereinafter referred to collectively
herein as "Money Market Preferred Stock"); and
WHEREAS, the parties hereto deem it to be in the best interests of
the Company and the Management Investors to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and obligations set forth in this Agreement,
the parties hereto agree as follows:
1. Creation of Voting Trust.
1.1 Deposit of Shares. Each of the Management Investors hereby
assigns and transfers, and agrees to assign and transfer, to the Voting
Trustees, in their capacity as trustees of the Management Voting Trust, all of
the shares of Common Stock and all shares of Money Market Preferred Stock now or
at any time hereafter held by such Management Investor, or which such Management
Investor becomes entitled to receive, during the term of this Agreement, however
acquired (including, without limitation, pursuant to the Stock Subscription
Agreement, upon the exercise of any options to purchase Common Stock, or upon
distribution from the Restricted Stock Trust), and shall immediately deposit
with the Voting Trustees, in their capacity as trustees of the Management Voting
Trust, the certificates for any such shares now held by such Management
Investor, or which such Management Investor may receive, duly endorsed in blank
or accompanied by a proper instrument of assignment duly executed in blank. The
Company shall pay any requisite federal, state and local transfer taxes or other
taxes, or other governmental charges, if any, payable in respect of such deposit
or transfer.
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1.2 Issuance of Stock Certificates to Management Voting Trust. Each
Management Investor agrees that, with respect to the shares of Common Stock
issued by the Company to such Management Investor pursuant to the Stock
Subscription Agreement, or upon the exercise by such Management Investor of any
options to acquire Common Stock or upon distribution from the Restricted Stock
Trust, or otherwise during the term of this Agreement, and with respect to the
shares of Money Market Preferred Stock issued by the Company in the Holdings
Merger, the Management Investor hereby directs Xxxxxxxxx X. Xxxxxxxx, as his or
her agent, to deposit with the Voting Trustees the shares so issued by
delivering directly to the Voting Trustees, in their capacity as trustees of the
Management Voting Trust, a certificate or certificates representing the shares
of Common Stock or Money Market Preferred Stock, as the case may be, so acquired
by and issued in the name of, such Management Investor, together with
appropriate stock powers transferring such certificate(s) to the Voting
Trustees. All certificates representing shares of Common Stock or Money Market
Preferred Stock so delivered to the Voting Trustees by any Management Investor
pursuant to this Agreement shall be surrendered by the Voting Trustees to the
Company and canceled, and new certificates shall be issued by the Company to and
in the name of the Voting Trustees, in their capacity as trustees of the
Management Voting Trust. All certificates for shares of Common Stock or Money
Market Preferred Stock issued to the Management Voting Trust pursuant to Section
1.1 or this Section 1.2, along with any other certificates for shares issued to
the Management Voting Trust pursuant to Section 3.2 hereof, shall be endorsed by
the Company with a legend to the effect that they are issued by the Company
pursuant to this Agreement and a similar notation shall appear in the
appropriate place in the transfer books of the Company.
1.3 Delivery of Voting Trust Certificates. Upon receipt by the
Voting Trustees of the certificates for any shares of Common Stock or Money
Market Preferred Stock of the Company, the Voting Trustees shall hold such
shares subject to the terms and conditions of this Agreement and shall deliver
or cause to be delivered to each respective Management Investor a voting trust
certificate ("Voting Trust Certificate") representing the shares so deposited by
such Management Investor in the form provided in Section 2.1 hereto.
1.4 Future Stockholders. Any person who has not previously become a
Management Investor and who acquires an interest in shares of Common Stock or
Money Market Preferred Stock in connection with (a) a Transfer permitted by this
Agreement to such person of Voting Trust Certificates, (b) the grant of any
options to acquire Common Stock to such person, or (c) the allocation of an
interest in Restricted Stock to such person, shall execute and deliver to the
Voting Trustees or the Agent (as hereinafter defined) on their behalf, a
supplement to this Agreement, by which such person shall agree to be bound by
the terms, limitations and conditions of this Agreement applicable to Management
Investors; provided, however, that no Voting Trust Certificates shall be issued
to such person in the case of clause (b) until such option is exercised and in
the case of clause (c) until such Restricted Stock vests and is released to such
person.
1.5 Acceptance of Trust. Each of the Management Voting Trust and the
Voting Trustees hereby accepts the trust created hereby in accordance with all
of the terms and conditions contained in this Agreement.
2. Voting Trust Certificates.
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2.1 Form; Legend. The Voting Trust Certificates to be issued and
delivered by the Management Voting Trust under this Agreement in respect of any
shares of Common Stock or Money Market Preferred Stock shall be substantially in
the form of Exhibit 1 (or in the case of Money Market Preferred Stock, Exhibit
2) attached hereto, with such changes thereto consistent with the provisions of
this Agreement as the Voting Trustees may from time to time deem appropriate.
Each Voting Trust Certificate shall be signed by at least two Voting Trustees
and shall bear a legend stamped, typed or otherwise legibly placed on the face
or reverse side thereof substantially in the form set forth below:
NOTICE IS HEREBY GIVEN that the securities represented by this certificate
have not been registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States or non-U.S.
jurisdiction. The securities cannot be offered, sold, transferred or
otherwise disposed of except (i) pursuant to an effective registration
statement or amendment thereto under such Act and any other applicable
laws or (ii) pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of such Act and such other
applicable laws. The sale, transfer or other disposition of the securities
represented by this certificate and certain other rights and obligations
of the holder of this certificate are also subject to the Stockholders'
Agreement and the Management Voting Trust Agreement, each dated as of
December 12, 1996 and by and among the Company and the other parties
thereto (copies of which are available for review at the principal office
of the Company by contacting the Secretary of the Company). The Company
reserves the right to refuse the transfer of such securities until all
terms and conditions have been fulfilled with respect to such transfer as
set forth in such agreements.
2.2 Transfer; Registered Holders; Transfer Books.
(a) Shares of Common Stock or Money Market Preferred Stock, as the
case may be, and the Voting Trust Certificates representing such shares are
necessarily linked and cannot be transferred separately. Any Transfer of Voting
Trust Certificates shall be deemed to effect a Transfer of the interest
represented thereby in the underlying shares, and any Transfer of an interest in
shares of Common Stock or Money Market Preferred Stock, as the case may be, with
respect to which Voting Trust Certificates have been issued shall be deemed to
effect a Transfer of such Voting Trust Certificates.
(b) Voting Trust Certificates shall be transferable only on the
books of the Management Voting Trust, upon surrender of such Voting Trust
Certificates (duly endorsed in blank or accompanied by a proper instrument of
assignment duly executed in blank, together with all requisite transfer tax
stamps attached thereto and an amount sufficient to pay all federal, state and
local taxes or other governmental charges, if any, then payable in connection
with such transfer) by the registered holder in person or by such holder's duly
authorized attorney. Upon the surrender of any Voting Trust Certificates for
transfer in conformity with this Agreement, the Management Voting Trust shall
cancel such Voting Trust Certificates and issue to the transferee new Voting
Trust Certificates in the same form and representing the same number of shares
of Common Stock or Money Market Preferred Stock, as the case may be, as the
Voting Trust Certificates presented for cancellation. Any new Voting Trust
Certificate so issued to a
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transferee shall specify thereon the name of the Management Investor who was
initially issued the interest in Common Stock or Money Market Preferred Stock,
as the case may be, represented by such Voting Trust Certificate.
(c) The Voting Trustees shall have the power to appoint an
administrative agent (the "Agent"), which may be the Company or an employee of
the Company, for the purposes of holding and maintaining the books of the
Management Voting Trust pursuant to this Agreement. The Company shall pay any
fees and expenses incurred by the Agent, and shall provide any customary
indemnification required by the Agent, in connection with the Agent's duties
hereunder.
(d) The Management Investors represent and warrant that they are
acquiring the Voting Trust Certificates for investment purposes and not with a
view to their resale or distribution. The Management Voting Trust shall not be
required to Transfer Voting Trust Certificates unless it shall receive an
opinion of counsel satisfactory to it that no violation of the registration
provisions of the United States federal or state securities laws would result
from the transfer.
(e) The Management Voting Trust may treat the registered holder of
each of the Voting Trust Certificates as the absolute owner thereof for all
purposes whatsoever, and accordingly shall not be required to recognize any
legal, equitable or other claim or interest in each such Voting Trust
Certificate on the part of any other person, whether or not the Management
Voting Trustees shall have express or other notice thereof.
2.3 Restrictions on Transfer. No Transfer of the Voting Trust
Certificates (or the related shares of Common Stock or Money Market Preferred
Stock, as the case may be) will be effective, recognized by the Company or the
Voting Trustees or recorded on the books and records of the Company and the
Management Voting Trust unless (a) the intended transferee first becomes a party
to this Agreement, (b) in the case of Common Stock, such Transfer is permitted
under the Stockholders' Agreement and the applicable provisions of the
Stockholders' Agreement relating to Transfers are duly complied with and in the
case of Common Stock, the Management Investor complies with Section 7.2(b)
hereof if applicable. 3. Dividends; Distributions Upon Termination of Employment
of Management Investor and Certain Other Events.
3.1 Cash or Other Non-Stock Dividends. The Management Voting Trust
shall receive, subject to the terms of this Agreement, any dividends or
distributions declared and paid on the shares deposited hereunder and shall
distribute directly any such dividends or distributions to holders of Voting
Trust Certificates in proportion to their respective interests therein as shown
on the books of the Management Voting Trust, such distribution to be equivalent
to the dividends or distribution which each respective holder would have been
entitled to receive had he or she not deposited the shares of Common Stock or
Money Market Preferred Stock, as the case may be, hereunder.
3.2 Stock Dividends. The Management Voting Trust shall receive and
hold, subject to the terms of this Agreement, any shares of Common Stock or
other capital stock of the
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Company and any securities convertible or exchangeable for shares of Common
Stock or such other capital stock or warrants to purchase Common Stock or such
other capital stock, or (unless otherwise determined by the Voting Trustees) any
stock of any other entity, issued in respect of the Company's stock by reason of
any capital reorganization, stock dividend, stock split, combination or any
other change or adjustment in respect of the shares of Common Stock or such
other capital stock held by it, and shall issue and deliver Voting Trust
Certificates therefor to the holders of the Voting Trust Certificates in
proportion to their respective interests therein as shown on the books of the
Management Voting Trust.
3.3 Distributions Upon Termination of Employment of Management
Investor. Upon surrender and delivery to the Management Voting Trust by a
Management Investor of Voting Trust Certificates representing an interest in
shares of Common Stock purchased by the Company or the HFCP Investors pursuant
to Sections 4.02, 4.03, or 4.10 of the Stockholders' Agreement, the Management
Voting Trust shall (a) transfer to such Management Investor any payments
received by the Management Voting Trust in consideration of such shares of
Common Stock and (b) deliver to the party from whom it has received such payment
certificates endorsed in blank for shares of Common Stock representing the same
number of shares of Common Stock as are represented by the Voting Trust
Certificates so surrendered and delivered to the Management Voting Trust, and
thereupon all liability of the Management Voting Trust for delivery of such
certificates shall terminate. Any Voting Trust Certificates delivered to the
Management Voting Trust pursuant to this Section 3.3 shall be canceled by the
Management Voting Trust.
3.4 Distributions to Satisfy Withholding And other Income Tax
Obligations in Connection with Distributions under the Restricted Stock Plan.
Upon surrender and delivery by the Restricted Stock Trust (or any Participant or
Permitted Transferee (each as defined in the Restricted Stock Plan)) under the
Restricted Stock Plan) to the Management Voting Trust of any Voting Trust
Certificate, the Management Voting Trust shall deliver to the Company
certificates endorsed in blank for shares of Common Stock representing the same
number of shares of Common Stock as are represented by the Voting Trust
Certificate so surrendered and delivered, and thereupon all liability of the
Management Voting Trust for delivery of such certificates shall terminate;
provided, however, that the Management Voting Trust shall not make any such
delivery pursuant to this Section 3.4 unless it has received written notice from
the Restricted Stock Trust that a Vesting Event under the Restricted Stock Plan
has occurred (as defined therein) and has received written notice from the
Restricted Stock Trust (or such Participant or Permitted Transferee) that (a)
the Restricted Stock Trust intends to deliver, or the Participant or Permitted
Transferee intends for the Management Voting Trust to deliver, to the Company a
number of shares of Common Stock in connection with a distribution of Voting
Trust Certificates under the Restricted Stock Plan in order to satisfy
applicable withholding or other income taxes or other similar charges in
connection with such a distribution and that such action is permitted under
Section 6.2 of the Restricted Stock Plan and (b) immediately upon delivery of
any such certificates to the Restricted Stock Trust, the Restricted Stock Trust
shall deliver them to the Company. If the value of the shares of Common Stock
represented by the Voting Trust Certificate so surrendered and delivered is
greater than the amount necessary to satisfy the applicable withholding or other
income taxes or other similar charges, the Management Voting Trust shall deliver
a Voting Trust Certificate representing the number of shares of Common
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Stock equal to such excess value to the Participant or Permitted Transferee
whose Voting Trust Certificate was so surrendered and delivered in accordance
with Section 1.3 hereof.
3.5 Distributions In Connection With Indemnity Claims of the HFCP
Investors. Upon surrender and delivery by the Restricted Stock Trust to the
Management Voting Trust of any Voting Trust Certificate, the Management Voting
Trust shall deliver to the Company certificates endorsed in blank for shares of
Common Stock representing the same number of shares of Common Stock as are
represented by the Voting Trust Certificate so surrendered and delivered, and
thereupon all liability of the Management Voting Trust for delivery of such
certificates shall terminate; provided, however, that the Management Voting
Trust shall not make any such delivery pursuant to this Section 3.5 unless it
has received written notice from the Restricted Stock Trust that the Restricted
Stock Trust is required under Article IX of the Contribution Agreement and
Section 5 of the Restricted Stock Plan to deliver such certificates to the
Company. If the value of the shares of Common Stock represented by the Voting
Trust Certificate so surrendered and delivered is greater than the amount
necessary to satisfy the indemnity obligations under Article IX of the
Contribution Agreement, the Management Voting Trust shall deliver a Voting Trust
Certificate representing the number of shares of Common Stock equal to such
excess value to the Restricted Stock Trust in accordance with Section 1.3
hereof.
3.6 Distributions to Satisfy Exercise Price and Withholding And
Other Income Tax Obligations in Connection with Exercise of Options. Upon
surrender and delivery by a Management Investor who is a Participant or
Permitted Transferee (each as defined in the Stock Option Plan) under the Stock
Option Plan to the Management Voting Trust of any Voting Trust Certificate, the
Management Voting Trust shall deliver to the Company certificates endorsed in
blank for shares of Common Stock representing the same number of shares of
Common Stock as are represented by the Voting Trust Certificate so surrendered
and delivered, and thereupon all liability of the Management Voting Trust for
delivery of such certificates shall terminate; provided, however, that the
Management Voting Trust shall not make any such delivery pursuant to this
Section 3.6 unless it has received written notice from such Management Investor
that such Management Investor (i) is exercising an Option or Options in
accordance with Section 8 of the Stock Option Plan, and (ii) to the extent
permitted under Sections 8.4 or 8.1 of the Stock Option Plan, respectively,
intends the Management Voting Trust to deliver to the Company the number of
shares of Common Stock represented by the Voting Trust Certificate surrendered
and delivered to the Management Voting Trust in order to (A) satisfy applicable
withholding or other income taxes or other similar charges in connection with
the exercise of such Option or Options and/or (B) pay the exercise price for
such Option or Options. If the value of the shares of Common Stock represented
by the Voting Trust Certificate so surrendered and delivered is greater than the
amount necessary to satisfy such taxes or charges and/or to pay such exercise
price, the Management Voting Trust shall deliver a Voting Trust Certificate
representing the number of shares of Common Stock equal to such excess value to
the Participant or Permitted Transferee whose Voting Trust Certificate was so
surrendered and delivered in accordance with Section 1.3 hereof.
4. Powers and Rights of the Management Voting Trust.
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4.1 Voting. (a) Subject to paragraph (b) below, so long as Xxxxx X.
Xxxxxxxxx (or any other person duly elected chief executive officer of the
Company with the prior approval of the Management Voting Trust) (the "CEO")
shall be a Voting Trustee, any action (i) approved in writing or at a meeting by
the CEO and any two other Voting Trustees, and (ii) any action approved over the
objection of the CEO at a meeting of Voting Trustees by a vote of that number of
Voting Trustees as equals not less than the total number of Voting Trustees then
in office minus two, shall constitute the action of, and shall be binding upon,
the Management Voting Trust (unless there shall be fewer than seven Voting
Trustees then in office, in which event any action under clause (ii) shall
require the vote of all the Voting Trustees other than the CEO). Subject to
paragraph (b) below, if at any time there is no CEO, or if the chief executive
officer of the Company was not approved in advance by the Management Voting
Trust, a majority vote of the Voting Trustees then in office shall be sufficient
to constitute the action of, and shall be binding upon, the Management Voting
Trust, unless and until a new CEO is elected with the prior approval of the
Management Voting Trust.
(b) Pursuant to the voting rules set forth in Section 4.1(a) above,
as they may be amended pursuant to this Section 4.1(b), the Voting Trustees may
remove one or more Voting Trustees, elect one or more replacement Voting
Trustees, increase or decrease the number of Voting Trustees, elect additional
Voting Trustees to fill any vacancies, or amend the voting rules set forth in
Section 4.1(a), but in no event shall there be more than eleven Voting Trustees.
In the event that there are fewer than six Voting Trustees, the Voting Trustees
then in office shall promptly elect at least that number of new Voting Trustees
sufficient to increase the total number of Voting Trustees to six, but the
validity of any action taken by the Voting Trustees pursuant to this Section 4.1
shall not be affected by the fact that there are fewer than six Voting Trustees
in office at the time such action is taken.
4.2 Meetings; Notice. Regular meetings of the Management Voting
Trust may be held without notice at such places and times as shall be determined
from time to time by the Voting Trustees. Special meetings of the Management
Voting Trust may be called by the CEO or by any other two Voting Trustees on at
least twenty-four hours' written notice to each Voting Trustee (except to any
Voting Trustee who attends such meeting or waives such notice in writing,
whether prior to or following such meeting) delivered personally or by telegram
or facsimile transmission or by electronic mail. Meetings may be held by means
of conference telephone or similar communications equipment by means of which
all persons in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting. The requirement of
notice may be waived by any Voting Trustee in writing prior to or following the
meeting, or by such Voting Trustee's attendance at the meeting. Action may also
be taken by an action in writing executed by the requisite number of Voting
Trustees, in which event prompt notice of such act shall be given to all other
Voting Trustees.
4.3 Powers of Management Voting Trustees. The Voting Trustees, as
trustees of the Management Voting Trust, shall have the full and unqualified
right, power and authority, and are hereby fully and exclusively empowered and
authorized from the date of this Agreement until its expiration or sooner
termination, including all extensions of its term, to vote in person or by
proxy, and to execute written consents in lieu of voting with respect to, all
shares of Common Stock and Money Market Preferred Stock held by the Voting
Trustees and registered in their names, as trustees of the Management Voting
Trust, at every annual and special meeting of the
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stockholders of the Company, or in connection with action by written consent of
stockholders in lieu of a meeting, and shall have full and complete authority to
vote upon any and all questions arising at any such meetings or in connection
with such action by written consent, including without limitation the sale or
mortgage of all of the assets and property of the Company, its merger with any
other corporation or its dissolution. The Voting Trustees shall have no
liability to any Management Investor for any act or omission unless the
Management Investor shall sustain the burden of establishing by clear and
convincing evidence that such act or omission was not taken in good faith or was
not reasonably believed to be in or not opposed to the best interests of the
Company and the Management Investors as a group, and then only to the extent of
actual, proximate, quantifiable damages. In any action by the holder of any
Voting Trust Certificate against any Voting Trustee or the Management Voting
Trust, whether at law or in equity, the prevailing party shall be entitled to
the reimbursement of such party's legal fees and expenses in connection with
such action.
4.4 Authority to Enter Into Stockholders' Agreement. Each Management
Investor hereby authorizes the Management Voting Trust to become a party to the
Stockholders' Agreement, which is being entered into concurrently herewith, and
to act on behalf of such Management Investor, pursuant to Article V and Section
6.05 of the Stockholders' Agreement.
4.5 Construction. The Voting Trustees shall be fully authorized and
empowered to construe this Agreement, and their construction of the same in good
faith shall be final, conclusive and binding upon all holders of the Voting
Trust Certificates and on all other parties interested.
4.6 Qualifications of the Voting Trustees. The Voting Trustees shall
not be required to give any bond or security for the discharge of their duties
hereunder. Each Voting Trustee may act as, and receive compensation as,
director, officer, or agent of the Company or any Subsidiary or Affiliate
thereof. Any Voting Trustee may be, but is not required to be, a beneficiary of
the Voting Trust. All Voting Trustees shall be officers of the Company and if
any Voting Trustee shall cease to be an officer of the Company, such person's
term as a Voting Trustee shall terminate automatically.
4.7 Compensation; Reimbursement. The Voting Trustees shall not be
entitled to compensation for their services performed in their capacity as
Voting Trustees. Each Voting Trustee shall be entitled to reimbursement from the
Company for reasonable expenses and charges which may be incurred as Voting
Trustee, including the fees of such agents, attorneys and counsel (who may be
agents, attorneys or counsel to the Company, if so selected by the Voting
Trustee) as such Voting Trustee may reasonably deem necessary and proper for the
carrying out of this Agreement (it being understood that each Voting Trustee
shall be entitled to retain and be reimbursed for the reasonable expenses and
charges of separate counsel if such Voting Trustee reasonably believes such
separate representation to be advisable), and all taxes or other governmental
charges paid or incurred as a result of the transfer or issuance of any Common
Stock or Voting Trust Certificates or in respect of the ownership of Common
stock held as trustee or in respect of any dividends, distributions or other
rights in respect of such stock. Any such charges or expenses incurred shall be
promptly reimbursed to the Voting Trustees by the Company.
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4.8 Resignation. A Voting Trustee may resign at any time by written
notice of such resignation to the Company and to the other Voting Trustees. Such
resignation shall take effect upon delivery to the Company (unless otherwise
specified in such notice), whereupon all powers, rights and obligations of the
resigning Voting Trustee under this Agreement shall cease and terminate.
5. Indemnification of Voting Trustees by the Company and Management
Investors. The Company hereby agrees to assume liability for and does hereby
indemnify, protect, save and hold harmless the Voting Trustees and their
successors, assigns, agents and servants to the full extent lawful from and
against any and all liabilities, obligations, losses, damages, penalties, taxes,
claims, actions, suits, costs, expenses or disbursements (including legal fees
and expenses) of any kind and nature whatsoever ("Losses") that may be imposed,
incurred by or asserted against the Voting Trustees or any of them individually
in any way relating to or arising under this Agreement or the enforcement of any
of the terms hereof or in any way relating to or arising out of the
administration of the trusts created hereby or the action or inaction of the
Management Voting Trust hereunder, unless the Company shall sustain the burden
of proving by clear and convincing evidence that such Losses were proximately
caused by an act or omission on the part of such Voting Trustee or Voting
Trustees that was not taken in good faith or that was not reasonably believed to
be in or not opposed to the best interests of the Company and the Management
Investors as a group. The Company shall advance to any Voting Trustee all
reasonable expenses in connection with litigation arising under this Agreement
or the enforcement of any of the terms hereof or in any way relating to or
arising out of the administration of the trusts created hereby or the action or
inaction of the Management Voting Trust hereunder, including, but not limited
to, expenses in connection with litigation in which such Voting Trustee purports
to seek to enforce any portion of this Agreement. A Voting Trustee shall be
required to execute an undertaking agreeing to repay the Company the amount so
advanced in the event it is ultimately determined that such Voting Trustee is
not entitled to indemnification with respect to such Losses, but the Voting
Trustee shall not be required to give a bond or any security for the advancement
of such expenses. To the extent insurance is available on commercially
reasonable terms, the Company will procure and maintain (for the benefit of the
Company and the Voting Trustees) insurance covering the Voting Trustees at least
to the extent their conduct would give rise to indemnification hereunder. The
provisions contained in this Section 5 shall survive the termination of this
Voting Trust Agreement.
A Voting Trustee shall not be answerable for the default or
misconduct of any agent or attorney appointed by it in pursuance hereof if such
agent or attorney shall have been selected with reasonable care.
6. Holders of Voting Trust Certificates Bound; Waiver of Claims
Against Voting Trustees. Every registered holder of a Voting Trust Certificate,
and every bearer of a Voting Trust Certificate properly endorsed in blank or
properly assigned, by the acceptance or holding thereof: (a) 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; (b)
severally agrees to waive and by such act does waive any and all claims of every
kind and nature which hereafter each such holder or bearer may have against the
Voting Trustees (except as provided in Section 4.3); and (c) agrees to release
and by such act does release the Voting Trustees, their successors and
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assigns, from any liability whatsoever arising out of or in connection with the
exercise of their powers or the performance of their duties under this
Agreement, except as expressly provided in Section 4.3.
7. Termination and Release of Common Stock and Money Market
Preferred Stock.
7.1 Termination Date. (a) The Voting Trust created by this Agreement
shall terminate without any notice or other action of the Management Voting
Trust at such time as an Initial Public Offering shall have been consummated and
(i) no Person is the owner of more than 20% of the Outstanding Shares, (ii) the
number of shares of Common Stock owned by the Management Voting Trust is less
than 10% of the Outstanding Shares or (iii) the Voting Trustees shall determine
to terminate the Voting Trust pursuant to Section 4.1 hereof.
(b) If not terminated earlier, the Voting Trust created by this
Agreement shall (subject to Section 9.3 hereof) terminate upon the tenth
anniversary hereof, unless Management Investors together owning Voting Trust
Certificates representing a majority of the voting power of the beneficial
interest in shares of Common Stock and Money Market Preferred Stock held by the
Management Voting Trust shall agree in writing within six months prior to the
tenth anniversary hereof to extend this Agreement for an additional period of
not more than ten years, in which case this Agreement shall not terminate as a
result of the occurrence of such initial tenth anniversary; provided, however,
that any Management Investor who has not agreed to such extension shall not be
subject to the extended Agreement and, upon surrender to the Management Voting
Trust of all Voting Trust Certificates owned by such Management Investor, shall
receive certificates endorsed in blank for shares of Common Stock or Money
Market Preferred Stock, as the case may be, representing the same number of
shares of Common Stock or Money Market Preferred Stock, as the case may be, as
are represented by such Voting Trust Certificates. Notwithstanding the
foregoing, if prior to the tenth anniversary of this Agreement, the New York
Business Corporation Law is amended to permit voting trusts to have a duration
in excess of ten years, and such amendment would be applicable to the Management
Voting Trust, this Agreement shall terminate (if not theretofore terminated
pursuant to Section 7.1(a)) on the earlier of the 20th anniversary hereof or the
earliest date required by law.
7.2 Exchange of Shares and Voting Trust Certificates. (a) Upon
termination of this Agreement, the Management Voting Trust, in exchange for or
upon surrender of any Voting Trust Certificates then outstanding, shall, in
accordance with the terms thereof and the certificates for shares of Common
Stock or Money Market Preferred Stock, as the case may be, received and held by
it under this Agreement, deliver to the holders of Voting Trust Certificates,
certificates endorsed in blank for shares of Common Stock or Money Market
Preferred Stock, as the case may be, representing the same number of shares of
Common Stock or Money Market Preferred Stock, as the case may be, as are
represented by such Voting Trust Certificates, and thereupon all liability of
the Management Voting Trust for delivery of such certificates shall terminate.
(b) Notwithstanding Sections 1 and 2 hereof, from and after such
time as a holder of Voting Trust Certificates is permitted under the
Stockholders' Agreement to transfer shares of Common Stock through sales
pursuant to an effective registration statement or in compliance
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with paragraph (f) of Rule 144 under the Exchange Act (whether or not Rule 144
is applicable) and, thereafter, in the event of such a Transfer, upon surrender
and delivery by such holder to the Management Voting Trust of any Voting Trust
Certificate, the Management Voting Trust shall deliver to such holder
certificates endorsed in blank for shares of Common Stock representing the same
number of shares of Common Stock as are represented by the Voting Trust
Certificate so surrendered and delivered, and thereupon all liability of the
Management Voting Trust for delivery of such certificates shall terminate;
provided, however, that the Management Voting Trust shall not make any such
delivery pursuant to this Section 7.2(b) unless such holder has delivered to the
Management Voting Trust (i) a certificate of his or her intention to make such a
sale and (ii) an irrevocable proxy in favor of the Voting Trustees to vote in
person or by proxy, or to execute written consents in lieu of voting with
respect to, all shares of Common Stock represented by the certificates so
delivered to such holder, which proxy shall terminate upon such sale; and,
provided, further, that notwithstanding any such delivery, unless such shares of
Common Stock are sold by such holder within 30 days after such delivery, such
holder shall be obligated to transfer such shares of Common Stock back to the
Management Voting Trust pursuant to Section 1.1 hereof upon the expiration of
such 30-day period.
(c) It shall be a condition of the delivery of certificates for
shares of Common Stock to any holder surrendering Voting Trust Certificates to
the Management Voting Trust pursuant to Section 7.2(a) or (b) hereof that such
holder has executed such documents as the Company may request with respect to
such holder's continuing agreement to be bound by the covenants set forth in
Section 8 after such delivery and after the termination of this Agreement.
8. Non-Competition; Non-Solicitation; Confidentiality and
Termination Notices. (a) Each Management Investor (other than Management
Co-Investors or individuals who are Management Investors solely as a result of
their ownership of Money Market Preferred Stock) hereby covenants and agrees
that:
(i) for one (1) year after termination of employment with the
Company (which term, as used in this Section 8, shall be deemed to include
any Affiliate of the Company) for any reason, such Management Investor
shall not work for any competitor of the Company on the account of any
client of the Company with whom such Management Investor had a direct
relationship or as to which such Management Investor had a significant
supervisory responsibility or otherwise was significantly involved at any
time during the two years prior to such termination;
(ii) for six (6) months after termination of employment with the
Company for any reason, with respect to a Management Investor whose
principal responsibilities are of a corporate nature or for a corporate
department (e.g., finance, tax, treasury, legal, business affairs, etc.)
and do not principally involve client service related functions, such
Management Investor shall not work for a principal competitor of the
Company in a substantially similar corporate function as such Management
Investor held with the Company during the two-year period prior to
termination of employment or with respect to a Management Investor whose
principal responsibilities are of a client service related nature (e.g.,
creative, account management, etc.), such Management Investor shall not
work for a competitor of the Company on the account of any substantial
competitor of any client of the Company for which such Management Investor
had substantial
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responsibility during the two-year period prior to termination of
employment and shall not work directly for such a competitor of such a
client;
(iii) for one (1) year after termination of employment with
the Company for any reason, such Management Investor may not directly or
indirectly solicit or hire, or assist any other person in soliciting or
hiring, any employee of the Company (as of the date of termination) or any
person who, as of the date of termination, was in the process of being
recruited by the Company or induce any such employee to terminate his or
her employment with the Company;
(iv) such Management Investor shall retain in strictest
confidence all confidential information of the Company and its clients
learned by such Management Investor during the period of his or her
employment, and shall not disclose any of such information to anyone
outside the Company, except in the course of his or her duties for the
Company or with the Company's express written consent;
(v) such Management Investor shall give six weeks written
notice prior to voluntary termination, unless a shorter period is approved
by the Company; and
(vi) the covenants contained in this Section 8(a) are for the
benefit of the Company, shall survive any termination of this Agreement
and may be waived in whole or in part for one or more Management Investors
by the Company without the consent of the Voting Trustees or any
Management Investor.
(b) The Company agrees to give each Management Investor six months
severance pay upon termination by the Company of his or her employment other
than for Cause.
(c) To the extent permitted by applicable law, each Management
Investor waives any and all rights he or she may have to any severance pay (or
similar compensation) or any claim to damages under any employment agreement (i)
in excess of, or in addition to, the severance pay under Section 8(b) hereof
under any law or regulation or (ii) pursuant to any agreement entered into prior
to the date of the Contribution Agreement.
9. Miscellaneous.
9.1 Binding Effect; Successors. This Agreement shall be binding upon
and inure to the benefit of and shall be enforceable by the parties hereto and
their respective legal representatives, heirs, legatees, successors and assigns.
9.2 Amendment and Waiver. This Agreement may be amended, modified or
supplemented or any term or condition waived only by a written instrument
executed by the parties hereto.
9.3 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without regard to principles of conflict laws; provided, however, that from and
after the Company Merger, (a) this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware
without regard to principles of conflict laws and Section 7.1(b) shall be
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deemed deleted from this Agreement, and (b) each Management Investor agrees to
submit to personal jurisdiction and to waive any objection as to venue of the
Court of Chancery in the State of Delaware in connection with any action arising
out of or relating to this Agreement. Service of process on any of the parties
hereto in any action arising out of or relating to this Agreement shall be
effective if served upon such party in accordance with Section 9.8 hereof.
9.4 Specific Performance. The parties hereto agree that irreparable
damages would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms, or were otherwise
breached. It is, accordingly, agreed that the parties shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement, and
to enforce specifically the terms and provisions hereof, in addition to any
other remedy to which they may be entitled at law or in equity.
9.5 Unenforceability. If any provision of this Agreement is held or
deemed to be invalid or unenforceable to any extent when applied to any person
or circumstance, the remaining provisions of this Agreement and the enforcement
of such provisions to other persons or circumstances shall not be affected, and
each provision of this Agreement shall be enforced to the fullest extent allowed
by law.
9.6 Headings. The headings of articles and sections contained in
this Agreement are solely for convenience of reference, are not part of the
agreement of the parties, and shall not affect the meaning or interpretation of
this Agreement.
9.7 Copies on File. Copies of this Agreement and of every agreement
amending or supplementing this Agreement shall be kept at the office of the
Secretary of the Company at the principal executive office of the Company and at
the registered office of Y&R DEL (which, following the Company Merger, will be
the registered office of the Company) in the State of Delaware and shall be open
to inspection in accordance with the requirements of law.
9.8 Notices. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered by hand, by
messenger, or by a nationally recognized overnight delivery company, when
delivered by telecopy and confirmed by return telecopy, or when delivered by
first-class mail, postage prepaid and return receipt requested, in each case to
the applicable addresses set forth below:
(a) If to the Company:
Young & Rubicam Inc.
000 Xxxxxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to the Voting Trustees:
Trustees of the Management Voting Trust
do Young & Rubicam Inc.
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000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx,
Voting Trustee Representative
Facsimile: (000) 000-0000
(c) If to any Management Investor, at the latest address of
such Management Investor as recorded in the employment records of the
Company or its subsidiaries
or, as to the Company or the Voting Trustees, to such other address as such
party (including the Restricted Stock Trust) shall from time to time designate
by written notice to the other parties.
9.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed to constitute one and the same Agreement.
9.10 Restricted Stock Trust Agreement. The parties hereto agree that
the rights, duties and liabilities of the trustee of the Restricted Stock Trust
pursuant to this Agreement shall be subject to the Restricted Stock Trust
Agreement and that in the event of a conflict between the terms of this
Agreement and the Restricted Stock Trust Agreement in respect of such rights,
duties and liabilities, the terms of the Restricted Stock Trust Agreement shall
be controlling.
IN WITNESS WHEREOF, the respective parties have caused this
Agreement to be executed as of the date first above written.
YOUNG & RUBICAM INC., a New York
corporation
By: /s/
--------------------------
Name:
Title:
YOUNG & RUBICAM HOLDINGS INC.
By: /s/
--------------------------
Name:
Title:
YOUNG & RUBICAM INC., a Delaware
corporation
By: /s/
--------------------------
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Name:
Title:
VOTING TRUSTEES
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
Voting Trustee
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
Voting Trustee
/s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxxxx X. Xxxxxxxx
Voting Trustee
16
17
/s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx
Voting Trustee
/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Voting Trustee
/s/ Xxxxxxxx Xxxx
--------------------------
Xxxxxxxx Xxxx
Voting Trustee
/s/ Xxxx X. XxXxxxx, Xx.
--------------------------
Xxxx X. XxXxxxx, Xx.
Voting Trustee
/s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx
Voting Trustee
17
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THE INITIAL MANAGEMENT INVESTORS
named on Schedule A
attached hereto
By: /s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxxxx X. Xxxxxxxx
Attorney-in-Fact
18
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YOUNG & RUBICAM RESTRICTED STOCK
TRUST
By THE BANK OF NEW YORK, Trustee
By: /s/
--------------------------
Name:
Title:
19
20
Exhibit 1
to
Management
Voting Trust
Agreement
Form of Voting Trust Certificate
for Common Stock
21
Certificate No.__________ No. of Shares
YOUNG & RUBICAM HOLDINGS INC.
Voting Trust Certificate
for Shares of Common Stock,
par value $0.01 per share
See Reverse for
Certain Information
THIS IS TO CERTIFY THAT, upon the terms and subject to the
conditions described in a certain Management Voting Trust Agreement (the "Voting
Trust Agreement") pursuant to which this certificate has been issued, dated as
of December 12, 1996, by and among Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx,
Xxxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxx, Xxxx X.
XxXxxxx and Xxxxxx X. Xxxx, as voting trustees (the "Voting Trustees"), Young &
Rubicam Inc., a New York corporation ("Y&R NY"), Young & Rubicam Inc., a
Delaware corporation ("Y&R DEL"), and Young & Rubicam Holdings Inc., a New York
corporation ("Holdings" and, together with its successors by merger, Y&R NY and
Y&R DEL, the "Company"), and certain stockholders of the Company,
________________________________________ will be entitled to receive upon
termination of the Voting Trust Agreement (or as otherwise provided in the
Voting Trust Agreement) certificates for the number of fully-paid and
non-assessable shares of common stock, par value $0.01 each, of Holdings (or of
shares of common stock, par value $.25 and $0.01, respectively, of its
successors by merger, Y&R NY and Y&R DEL, upon the occurrence of such mergers)
hereinabove specified (the "Shares") and for the duration of such Voting Trust
Agreement, to receive all dividends or distributions (other than, unless
otherwise determined by the Voting Trustees, common stock and certain other
stock dividends specified in the Voting Trust Agreement), if any, collected by
the Voting Trustees upon a like number of the Shares standing in the name of the
Voting Trustees. Prior to the actual delivery of such certificates, the Voting
Trustees, with respect to any and all of the Shares shall possess and be
entitled to exercise, in the manner and to the extent provided in the aforesaid
Voting Trust Agreement, all of the rights of every kind of the holder of this
certificate, including the right to vote and take part in, or to consent to any
corporate or stockholders' action, it being expressly stipulated that no right
to vote, or take part in, or to consent to any corporate or stockholders'
action, shall pass by, or under, this certificate.
This certificate is not valid unless signed by at least two of the
Voting Trustees and is also subject to the terms and conditions set forth on the
reverse side hereof. The holder hereof, by accepting this certificate, manifests
his or her consent that the Voting Trustees may treat the registered holder
hereof as the true owner for all purposes, except the delivery of certificates
for Shares which delivery shall not be made without the surrender hereof.
IN WITNESS WHEREOF, the undersigned Voting Trustees, have caused
this certificate to be signed as of the 12th day of December, 1996.
/s/ /s/
----------------------------------- -------------------------------
,as Voting Trustee , as Voting Trustee
22
Exhibit 2
to
Management Voting Trust
Agreement
Form of Voting Trust Certificate
for Money Market
Preferred Stock
23
Certificate No._____________ No. of Shares __________
YOUNG & RUBICAM HOLDINGS INC.
Voting Trust Certificate
for Shares of Money Market Preferred Stock,
without par value
See Reverse for
Certain Information
THIS IS TO CERTIFY THAT, upon the terms and subject to the
conditions described in a certain Management Voting Trust Agreement (the "Voting
Trust Agreement") pursuant to which this certificate has been issued, dated as
of December 12, 1996, by and among Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx,
Xxxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxx, Xxxx X.
XxXxxxx and Xxxxxx X. Xxxx, as voting trustees (the "Voting Trustees"), Young &
Rubicam Inc., a New York corporation ("Y&R NY"), Young & Rubicam Inc., a
Delaware corporation ("Y&R DEL"), and Young & Rubicam Holdings Inc., a New York
corporation ("Holdings" and, together with its successors by merger, Y&R NY and
Y&R DEL, the "Company"), and certain stockholders of the Company,
________________________________________ will be entitled to receive upon
termination of the Voting Trust Agreement (or as otherwise provided in the
Voting Trust Agreement) certificates for the number of fully-paid and
non-assessable shares of money market preferred stock, without par value, (or of
shares of money marked preferred stock, without par value, of its successors by
merger, Y&R NY and Y&R DEL, upon the occurrence of such mergers) hereinabove
specified (the "Shares") and for the duration of such Voting Trust Agreement, to
receive all dividends or distributions (other than, unless otherwise determined
by the Voting Trustees, money market preferred stock and certain other stock
dividends specified in the Voting Trust Agreement), if any, collected by the
Voting Trustees upon a like number of the Shares standing in the name of the
Voting Trustees. Prior to the actual delivery of such certificates, the Voting
Trustees, with respect to any and all of the Shares shall possess and be
entitled to exercise, in the manner and to the extent provided in the aforesaid
Voting Trust Agreement, all of the rights of every kind of the holder of this
certificate, including the right to vote and take part in, or to consent to any
corporate or stockholders' action, it being expressly stipulated that no right
to vote, or take part in, or to consent to any corporate or stockholders'
action, shall pass by, or under, this certificate.
This certificate is not valid unless signed by at least two of the
Voting Trustees and is also subject to the terms and conditions set forth on the
reverse side hereof. The holder hereof, by accepting this certificate, manifests
his or her consent that the Voting Trustees may treat the registered holder
hereof as the true owner for all purposes, except the delivery of certificates
for Shares which delivery shall not be made without the surrender hereof.
IN WITNESS WHEREOF, the undersigned Voting Trustees, have caused
this certificate to be signed as of the 12th day of December, 1996.
/s/ /s/
----------------------------------- -------------------------------
,as Voting Trustee , as Voting Trustee
24
[REVERSE SIDE]
Notice is hereby given that the securities represented by this
certificate have not been registered under the Securities Act of 1933, as
amended, or the securities laws of any state of the United States or non-U.S.
jurisdiction. The securities cannot be offered, sold, transferred or otherwise
disposed of except (i) pursuant to an effective registration statement or
amendment thereto under such act and any other applicable laws or (ii) pursuant
to an exemption from, or in a transaction not subject to the registration
requirements of such act and such other applicable laws.
The sale, transfer or other disposition of the securities
represented by this certificate and certain other rights and obligations of the
holder of this certificate are also subject to the Voting Trust Agreement and
the Stockholders' Agreement, dated as of December 12, 1996, by and among the
Company and the other parties thereto (copies of which are available for review
at the principal office of the Company by contacting the Secretary of the
Company) and the Company reserves the right to refuse the transfer of such
securities until all terms and conditions have been fulfilled with respect to
such transfer as set forth in such agreements.
