EXHIBIT 9
VOTING TRUST AGREEMENT
May 1, 1998
THIS VOTING TRUST AGREEMENT (hereinafter referred to as the
"Agreement") is made this 1st day of May, 1998 by and among Xxxxxx
X. Xxxxxx., Jr. (hereinafter referred to as the "Voting Trustees"),
and the persons, jointly and severally named at the end of this
Agreement (hereinafter referred to as the "Stockholders"), who
reside at the addresses set forth on the signature pages of this
Agreement and who own of record and beneficially certain shares of
issued and outstanding capital stock of Xxxxxx Industries, Inc., a
Colorado corporation, (hereinafter referred to as the
"Corporation"), as the same may be hereinafter increased, decreased
or reclassified (which capital stock of Xxxxxx shall be hereinafter
sometimes collectively referred to as the "Shares") as set forth on
the signature pages of this Agreement.
EXPLANATORY STATEMENT
This Voting Trust Agreement is made pursuant to the provisions
of that certain Change in Control Agreement of even date herewith
between the Stockholders, the Corporation, Xxxxxx X. Xxxxx, Xxxx
Xxxxxxxxx, Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx which is
incorporated herein by reference and hereafter referred to as the
("Change in Control Agreement"). Also contemporaneously herewith
and pursuant to the Change in Control Agreement, the parties have
executed a Shareholder Agreement which sets forth generally, and in
certain cases specifically, certain terms and conditions to this
Agreement and which is incorporated herein by reference (the
"Shareholder Agreement"). In order to stabilize the control and
ownership of the corporation following the change in control
effectuated by virtue of the Change in Control Agreement, and to
allow Xxxxx and Boethling sufficient time to carry out the purpose
and intent of such Change in Control Agreement, the Parties and the
Voting Trustee desire to enter into this Agreement, upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Explanatory Statement
hereinabove, the terms and conditions of the referenced Change in
Control Agreement, Shareholder Agreement and the mutual covenants
and promises hereinafter set forth, the parties hereto hereby agree
as follows:
1. Transfer of Shares to the Voting Trustee. The Stockholders
hereby assign and transfer all of their Shares, as set forth at the
end of this Agreement, to the Voting Trustee who, upon receipt of
certificates representing the Shares, shall cause the Shares
represented thereby to be transferred of record to the Voting
Trustee on the books of the Corporation. The stock certificates of
the Corporation respecting all of the Shares hereby assigned and
transferred by the Stockholders to the Voting Trustee, as
aforesaid, shall be immediately endorsed in blank by each of the
Stockholders of record thereof with such endorsement Medallion
signature guaranteed by a national bank or by a member broker of
the New York or American Stock Exchange and, as so endorsed,
immediately delivered by the Stockholders to the Voting Trustee.
The Stockholders agree that except shares issued for compensation
and registered under Securities Act Form S-8 hereafter, or except
for shares acquired or sold in open market transactions in
accordance with the buy sell provisions contained in the referenced
Shareholder Agreement, during the term of this Agreement, all
securities (as defined in the Federal Securities Act of 1933)
issued to them by the Corporation subsequent to the effective date
of this Agreement shall be made subject to the terms of this Voting
Trust.
2. Term and Powers of Voting Trustee The Voting Trust
hereby declared and created shall, subject to earlier termination
or extension as hereinafter provided, continue for the full term of
one (1) year from the Effective Date of the Change in Control
Agreement, and throughout such period the Voting Trustee, as
Trustee of an active trust, shall have the exclusive right to act
in respect of and to vote the Shares held by him/her hereunder or
to give written consent in lieu of voting thereon, subject to any
limitation on the right to vote contained in the Articles of
Incorporation of the Corporation and subject to the limitations,
conditions and directives elsewhere provided herein (and to the
extent specified in such agreements, and applicable limitations,
conditions and directives set forth in the Change in Control
Agreement and/or the Shareholder Agreement), in person or by proxy
at any and all meetings of the Stockholders of the Corporation, for
whatsoever purpose called or held, and in any and all proceedings,
whether at meetings of the stockholders of the Corporation or
otherwise, wherein the vote or written consent of Stockholders of
the Corporation may be required or authorized by law. Except as in
this Agreement expressly limited, until the expiration of the term
of this Agreement, the Voting Trustee shall, in his/her sole and
uncontrolled discretion, in respect of any and all of the Shares
held by him/her hereunder, possess and be entitled to exercise the
right to vote thereon for every purpose, to waive any Stockholder's
privilege in respect thereof, and to consent to any lawful
corporate act of the Corporation, as though absolute owner of the
Shares of the capital stock of the Corporation, it being expressly
agreed that no voting right shall pass to others by or under the
voting trust certificates (as hereinafter provided), or by or under
this Agreement, or by or under any other agreement, express or
implied. The Voting Trustee may also be Stockholder(s) or a
registered holder of one or more voting trust certificates, and may
serve as a director and compensated officer of the Corporation and
may vote for himself/herself, as such. Any Voting Trustee, or any
successor as hereinafter provided for, may directly or indirectly
transact any lawful business with the Corporation, notwithstanding
his/her position as a Voting Trustee. The Voting Trustee is hereby
excused from the necessity of giving bond hereunder.
3. Limitation upon Voting Trustee, Action upon
Reclassification.
a. As set forth in Section 5 of the Shareholder
Agreement, the Parties agree and hereby direct that the
Voting Trustee shall vote the shares of stock of the
Corporation held in the Voting Trust as follows:
i. The board of directors of the Corporation will be
expanded to five (5) members and at the next meeting of
shareholders of the Corporation called to elect
directors, all of the shares in the Voting Trust will be
voted for four nominees named jointly by Xxxxx and
Xxxxxxxxx and one nominee named by Liberty Capital Corp.
The Voting Trustee may require the nominating Party to
provide evidence and other written assurances upon which
such Trustee may reasonably rely that the nominees are:
(i) legally eligible to hold the positions as directors
under Colorado law and under the federal securities laws
and (ii) are not subject to the respective "bad boy"
provisions of the federal and/or state securities laws.
In the event that Liberty fails to timely provide a
nominee who is qualified, willing and able to serve as
director of the Corporation, the Voting Trustee in its
discretion may nominate an alternate of its own accord or
may accept an alternate nominated by the then current
directors of the Corporation.
ii. At the next annual or special meeting of
Shareholders of the Corporation, the Voting Trustee will
vote for approval of the following amendments to the
Articles of Incorporation:
(1) Name change of the Corporation to be determined
by resolution of the board of directors prior to
delivery of notice of the meeting;
(2) Amendment of the authorized capital section of
the Articles of Incorporation to remove par value and
the split designation of common and preferred into one
aggregate class of equity security with rights of the
board to designate classes of common and preferred
shares by subsequent resolution, as is presently
authorized in the Colorado Business Corporation Act;
and
(3) Such other changes as are required or deemed
necessary by the board of directors to conform the
Articles of Incorporation to the provisions of the
Colorado Corporation Code and/or the minimum
requirements for fully reporting public companies.
iii The Voting Trustee shall vote for the proposed
Stock Compensation Plan described in the Change in
Control Agreement and propounded by the board of
directors at the next shareholder's meeting;
iv. The Voting Trustee shall vote to re-elect the
current auditors as auditors for the Company for the next
fiscal year if so proposed by the board of directors;
v. The Voting Trustee shall not vote the shares in the
Voting Trust so as to deprive Boulder Sports of its right
to nominate and have elected a majority of the board of
directors of Aggression as provided in the Change in
Control Agreement.
vi. The Voting Trustee shall not vote the shares in the
Voting Trust so as to deprive Xxxxx and Boethlng of their
rights and entitlements under the Change in Control
Agreement especially to nominate a majority of the board
of directors of the Corporation for at least the first
year following the Effective Date;
vii. The Voting Trustee shall not vote the shares in
the Voting Trust contrary to the express provisions of,
or in any manner which would violate any express
provision of, the Change in Control Agreement or the
Shareholder Agreement.
viii. The Voting Trustee shall have no discretion in
respect thereof nor shall the provisions of Section 3(b)
below apply to such matters. This provision may not be
amended or modified except by unanimous written agreement
of the Stockholders.
b. Except as provided in the previous subsection 3(a),
with respect to those matters specifically described in
Section 5 of the referenced Shareholder Agreement, as the
same may be amended from time to time, notwithstanding
anything else to the contrary provided for herein, in the
event that the board of directors of the Corporation shall
have duly authorized, approved and advised, as required by
law, the:
i amendment of the Articles of Incorporation of the
Corporation other than for the purpose of conforming the
Articles of Incorporation to changes, amendments or
revisions to corporate statutes or common law;
ii consolidation of the Corporation with one or more
other corporations (other than wholly-owned subsidiaries
of the Corporation) to form a new consolidated
corporation;
iii merger of the Corporation into another corporation
(other than wholly-owned subsidiaries of the Corporation)
or the merger of one or more other corporations (other
than wholly-owned subsidiaries of the Corporation) into
the Corporation;
iv participation by the Corporation in a share exchange
(as defined by the Colorado Corporation Code) as the
Corporation the stock of which is to be acquired;
v sale, lease, exchange or transfer of all, or
substantially all, of the property and assets of the
Corporation, including its goodwill and franchises;
vi voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation; or
vii amendment of the By-Laws of the Corporation if such
amendment adversely affects the contract rights of any
stockholders of the Corporation;
then, the Voting Trustee shall promptly call a meeting of all
holders of voting trust certificates and shall, not less than
ten (10) days prior to the date of such meeting, give written
notice of such meeting to all holders of voting trust
certificates which notice shall include a brief summary of
the action to be taken at such meeting, and the following
provisions shall apply with respect thereto: the Voting
Trustee shall deliver to each respective holder of a voting
trust certificate or to his/her attorney-in-fact (who shall
exhibit to the Voting Trustee a duly executed power of
attorney with respect thereto) in attendance at such meeting
a proxy (entitling such voting trust certificate holder to
vote as hereinafter provided) of the Voting Trustee for the
specific purpose of permitting such voting trust certificate
holder to vote upon the matter designated in the written
notice hereinabove referred to, and at said meeting each
respective holder of a voting trust certificate who shall
have so received a proxy shall be entitled to cast that
number of votes equal to the number of Shares that the Voting
Trustee shall hold pursuant to this Agreement for such
respective holder of a voting trust certificate. The Voting
Trustee shall be entitled to cast all votes, in accordance
with his/her best judgment, represented by Shares with
respect to which he/she has not been required to deliver a
proxy pursuant hereto.
c. In case any reclassification of the stock of the
Corporation shall have been duly authorized as herein and by
law provided, the Voting Trustee is hereby authorized to make
such surrender of the Shares of the Corporation held by
him/her hereunder, pro-rata on behalf of all registered
holders of voting trust certificates (as hereinafter
provided) as may be required under the terms pursuant to
which such reclassification is to be effected, and to receive
and hold any and all Shares of the Corporation issued in
exchange for such surrendered Shares. Following any such
action, the voting trust certificates (as hereinafter
provided) issued and outstanding pursuant hereto shall be
deemed to represent a proportionate number of Shares or other
securities then received in exchange by the Voting Trustee.
Upon any duly authorized agreement of consolidation, merger
or share exchange becoming effective as by law and herein
provided, then the Voting Trustee is authorized to make such
surrender of the Shares of the Corporation held by him/her
hereunder as may be required thereby, and to receive and hold
hereunder any and all Shares or other securities issued to
him/her in exchange for such surrendered Shares or otherwise.
The voting trust certificates (as hereinafter provided) shall
thereupon be deemed to represent a proportionate number of
the Shares or other securities then received in exchange by
Voting Trustee. In the event of the distribution of the
assets of the Corporation upon the dissolution thereof, the
Voting Trustee shall promptly distribute the amount thereof
received by him/her according to the interests of such
registered voting trust certificate holders, upon the
surrender of the voting trust certificates (as hereinafter
provided) held by them respectively, duly endorsed in blank
by each of the Stockholders with such endorsement guaranteed
by a national bank or by a member broker of the New York or
American Stock Exchange. Upon the distribution of such assets
by the Voting Trustee, as aforesaid, this Agreement shall
terminate and all liability of the Voting Trustee for the
delivery of stock certificates representing the Shares held
by the Voting Trustee shall likewise terminate.
4. Voting Trust Certificates. Upon surrender to and
cancellation by the Corporation of the stock certificates
representing all of the Shares owned of record and beneficially by
the Stockholders and the issuance by the Corporation to the Voting
Trustee of a stock certificate or certificates representing such
Shares registered in the name of the Voting Trustee, as such, the
Voting Trustee shall issue and deliver to each of the Stockholders
a voting trust certificate or certificates for the number of Shares
transferred by the Stockholders to the Voting Trustee, as
aforesaid, in the form set forth at Exhibit A annexed hereto and
made a part hereof.
5. Transfer of Trust Certificates, Cancellation and Reissuance,
Release of Shares from Voting Trust.
a. The Voting Trust Certificates issued by the Voting
Trustee hereunder may be transferred on the books of the
Voting Trust upon the surrender and cancellation of such
certificates duly endorsed by the registered holder thereof,
with Medallion signature guaranteed by a national bank or a
member broker of the New York or American Stock Exchange.
Tender of such endorsed certificates must be accompanied by
written consent to such transfer by the Chief Executive
Officer of the Corporation and/or a written opinion of
counsel for the Corporation that such transfer will not
violate applicable federal or state registration requirements
or otherwise violate applicable contractual restrictions on
transfer of the underlying Shares contained in the referenced
Shareholder Agreement. Except as provided in Paragraph 5(b)
of this Agreement and as provided in said Shareholder
Agreement, delivery of such voting trust certificates, duly
endorsed in blank, by the registered holder thereof, as
aforesaid, shall vest title thereto and all rights thereunder
in the transferees to the same extent and for all purposes as
would delivery under like circumstances of negotiable
instruments payable to bearer; provided, however, that the
Voting Trustee may treat the holders of record thereof, or
when presented duly endorsed, as aforesaid, in blank, the
bearers thereof, as the owners thereof for all purposes
whatsoever, and shall not be affected by any notice to the
contrary; provided further, however, that the Voting Trustee
shall not be required to deliver any stock certificates
hereunder without the surrender of voting trust certificates
calling therefor. Title to the voting trust certificates,
when duly endorsed, as aforesaid, shall, to the extent
permitted by law, be transferable with the same effect as in
the case of negotiable instruments.
Every transferee of any voting trust certificate or
certificates issued hereunder shall by the acceptance of such
trust certificate or certificates become a party hereto with
like effect as though an original party hereto, and shall be
embraced within the meaning of the term "Stockholders"
whenever used herein.
In connection with, and as a condition of, making or
permitting any transfer or delivery of stock certificates or
other securities or voting trust certificates under any
provision of this Agreement, the Voting Trustee may require
the payment of a sum sufficient to pay or reimburse him/her
for any stamp tax or other governmental charge in connection
therewith. The transfer books for trust certificates may be
closed by the Voting Trustee, at any time prior to the
payment or distribution of dividends, or for any other
purpose; or the Voting Trustee, in his/her discretion, in
lieu of closing the transfer books, may fix a date as the day
as of which the registered holders of voting trust
certificates entitled to such payment or distribution or for
such other purpose shall be determined.
b. Anything contained herein to the contrary notwithstanding, the
Stockholders covenant and agree that all voting trust certificates
subject hereto shall be conspicuously imprinted with and subject to
the terms of the following legend:
"This Voting Trust Certificate is subject to the terms,
restrictions and conditions of a Voting Trust Agreement on file
with Xxxxxx Industries, Inc. dated May 1, 1998 and a Shareholder
Agreement dated May 1, 1998. The securities represented by this
Voting Trust Certificate have not been registered under the
Securities Act of 1933 (the "Act") or applicable state securities
laws (the "State Acts"), and shall not be sold, pledged,
hypothecated, donated or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the Voting
Trustee of a favorable opinion of his/her counsel or submission to
the Voting Trustee of such other evidence as may be satisfactory to
counsel to the Voting Trustee, to the effect that any such transfer
shall not be in violation of the Act and the State Acts."
Each of the Stockholders warrants and represents that the
voting trust certificates being acquired by the Stockholders
pursuant hereto are being acquired by the Stockholder for
investment for each Stockholder's own account and not with a view
to, offer for sale or for sale in connection with, the distribution
or transfer thereof. Each of the Stockholders further warrants and
represents that such Stockholder is neither participating in or has
a direct or indirect participation in the distribution or transfer
of such voting trust certificates, nor is participating in or has a
participation in the direct or indirect underwriting of any such
distribution or transfer of the voting trust certificates. Each of
the Stockholders acknowledge and represent that he/she has been
advised by the Voting Trustee that the voting trust certificates
are not registered under the Securities Act of 1933, as amended
(hereinafter referred to as the "Act"), and that the Voting Trustee
is neither presently required to file nor does he/she presently
intend to voluntarily register under Section 12 of the Securities
and Exchange Act of 1934 (hereinafter referred to as the "1934
Act") and file periodic reports with the Securities Exchange
Commission (hereinafter referred to as the "SEC") pursuant to
Section 13 or 15(d) of the 1934 Act. Each of the Stockholders
further warrant and represent that he/she has been advised by the
Voting Trustee that the Voting Trustee has not agreed with any of
the Stockholders to register any or all of the voting trust
certificates for distribution in accordance with the Act, and that
Corporation has not agreed with any Stockholder to comply with
Regulation A or any other exemption under the Act respecting the
resale or other transfer for consideration of the voting trust
certificates. The Voting Trustee has not agreed to supply any
Stockholder with such information as shall be required to enable
any Stockholder to make routine sales of any or all of the voting
trust certificates under the provisions of Rule 144 promulgated by
the SEC under the Act respecting "restricted securities."
Accordingly, each of the Stockholders warrants and represents that
he/she has been advised by the Voting Trustee that in addition to
the applicable contractual restrictions imposed on transfer by the
Shareholder Agreement, the voting trust certificates that each of
the Stockholders is acquiring pursuant hereto must be held by each
such Stockholder indefinitely unless and until subsequently
registered under the Act and applicable state securities law or
unless an exemption from such registration is available.
c. The Voting Trustee shall accept Voting Trust Certificates for
cancellation and reissuance of Shares, removing from the Voting Trust
any such Shares which are to be resold into the open market pursuant
to the buy-sell provisions of the Shareholder Agreement. The party
submitting such Voting Trust Certificates must prove to the
satisfaction of the Voting Trustee, that he/she has complied with
applicable provisions of the Shareholder Agreement. A certificate of
the Chief Executive Officer, corporation Secretary or legal counsel
to the corporation certifying to such compliance shall be conclusive
evidence of such compliance.
6. Compensation, Indemnity and Expenses. The Voting Trustee
shall be entitled to reasonable hourly compensation for services
and reimbursement or advance of expenses as Voting Trustee and
shall be indemnified from and against any and all losses, costs,
damages, expenses and liabilities (including reasonable attorneys'
fees) incurred by him/her arising out of or in connection with this
Agreement or the discharge of his/her duties hereunder; and the
Voting Trustee shall receive such indemnity from the Corporation
and the Stockholders who shall be liable to the Voting Trustee
therefor pro-rata. The Corporation shall be deemed to be fully
entitled, by action of the board of directors of the Corporation,
to assume or provide otherwise for payment (including payment in
advance if the board of directors should make a finding based on
present facts known or reasonably available, that the Trustee would
be so entitled) of any and all losses, costs, damages, expenses and
liabilities (including reasonable attorneys' fees) incurred by the
Voting Trustee arising out of or in connection with this Agreement
or the discharge of his/her duties hereunder, with liability for
pro-rata contribution for all of such expenses so advanced from the
Stockholders. To the extent that such payments or adequate
provision therefor shall not have been made by the Corporation, the
Voting Trustee and his/her agents shall have a first lien on all
the Shares and other securities deposited or held hereunder and the
income received thereon and the proceeds thereof, for repayment to
the Voting Trustee of such losses, costs, damages, expenses and
liabilities (including reasonable attorneys' fees) incurred by the
Voting Trustee arising out of or in connection with this Agreement
or the discharge of his/her duties hereunder.
Notwithstanding anything provided in this Section 6 to the
contrary, no Voting Trustee shall be indemnified for any act with
respect to which it has been judicially determined that the Voting
Trustee has engaged in willful misconduct.
7. Termination. Notwithstanding anything to the contrary
provided for herein, this Agreement shall terminate upon the first
of the following events to occur: (i) the expiration of the term
herein provided; (ii) the unwinding of either of the provisions
relating to formation of "New Sports" or of the provisions
relating to the Change in Control, pursuant to paragraph 5 of the
Change in Control Agreement; or (iii) solely as to Shares which
are eligible to be resold in open market transactions under the
terms of and in compliance with the buy-sell provisions of the
referenced Shareholder's Agreement. Upon the termination of this
Agreement as above specified, the Voting Trustee, his/her guardians
or personal representative, as the case may be, in exchange for,
and upon surrender of, any voting trust certificate then
outstanding, duly endorsed in blank by the registered holder
thereof with Medallion signature guaranteed by a national bank or
by a member broker of the New York or American Stock Exchange
shall, in accordance with the terms hereof, and out of the stock
held by him/her hereunder, deliver certificates of stock of the
Corporation to the registered holders of voting trust certificates
and thereupon all liability of the Voting Trustee for the delivery
of said stock certificates shall cease and terminate. The Voting
Trustee may call upon and require the registered holders of voting
trust certificates to surrender them in exchange for certificates
of stock of the number of shares to which they are entitled
hereunder.
8. Act of Trustee; Appointment of Successor Trustee.
a. The Voting Trustee shall administer the Voting Trust and
act on its behalf in all formal and informal matters and
shall be entitled to be compensated accordingly on a pro-rata
basis by the Stockholders. The Voting Trustee may take any
action authorized in this Voting Trust Agreement in his/her
own name or signing in the capacity of Voting Trustee in
respect of the Shares held subject to this Trust as the full
legal owner of such Shares.
b. In the event of the death, resignation, or other
permanent inability to serve as Voting Trustee of Xxxxxx X.
Xxxxxx then the remaining Stockholders shall appoint a
successor within 30 days of such disability by unanimous
written agreement. The authority, powers, duties,
obligations, and limitations of the original Voting Trustee
shall devolve upon such successor with the same effect as if
such successos had been named as original Voting Trustee. The
successor of any person acting as Voting Trustee shall, by
written agreement, undertake the performance of this Voting
Trust in accordance with its terms. Whenever the sense of
this Agreement so requires, the term Voting Trustee shall
mean the original Voting Trustee or the successor Voting
Trustee.
9. Standard of Care. In voting the Shares represented by the
stock certificate or certificates issued to the Voting Trustee as
hereinbefore provided, the Voting Trustee shall exercise his/her
best judgment to the end that the business and affairs of the
Corporation shall be properly managed, but, except for his/her own
willful misconduct, the Voting Trustee shall not assume any
responsibility or liability in respect of such management, or in
respect of any action taken by the Voting Trustee, or taken in
pursuance of his/her consent thereto, or in pursuance of his/her
vote so cast, and the Voting Trustee shall not incur any
responsibility or liability, as Stockholder, Voting Trustee or
otherwise, by reason of any error of fact or law or of any matter
or thing done or omitted to be done.
10. Notices. All notices to the registered holders of voting
trust certificates shall be given by mail addressed to the
registered holders of such voting trust certificates at the
addresses furnished by such registered holders to the Voting
Trustee or to the transfer agent for the Corporation; and any
notice whatsoever when so mailed by the Voting Trustee shall be
taken and considered as though personally served on all parties
hereto including the registered holders of said voting trust
certificates, and upon all parties becoming bound hereby, and such
mailing shall be the only notice required to be given under any
provision of this Agreement.
11. Stock Issuances. In the event that the Voting Trustee
shall receive any additional securities (as defined by the Federal
Securities Act of 1933) of the Corporation, including by way of
example, and not of limitation, by way of dividend upon stock held
by it under this Agreement, the Voting Trustee shall hold such
stock certificates likewise subject to the terms of this Agreement,
and shall issue voting trust certificates representing such stock
certificates to the respective registered holder of the then
outstanding voting trust certificate entitled to such issuance.
12. Dividends and Other Payment. Until the termination of
this Agreement, each registered holder of a voting trust
certificate shall be entitled to receive promptly from the Voting
Trustee payments equal to the amount of the dividends (other than
stock dividends) or other distributions, if any, collected by
Voting Trustee upon the number of Shares standing in the name of
such registered holder, and any payment representing the amount
received upon redemption or sale of any shares, represented by the
voting trust certificate or certificates held by him/her, subject,
however, to the terms and conditions of this Agreement. Those
registered as holders of voting trust certificates on the dates
fixed as record dates by the Corporation for dividends and for the
allotment of rights shall be entitled to such payments and to any
rights to the benefit of which holders of voting trust certificates
may be entitled under this Agreement. The Voting Trustee may, in
his/her discretion, from time to time, close the voting trust
certificate books against transfers of voting trust certificates
for the purpose of determining the voting trust certificate holders
entitled to such payments or to such rights, or for the purpose of
determining the voting trust certificate holders entitled to vote
at any meeting thereof or to do any thing or act to be done or
performed by said holders.
13. Captions. The captions set forth herein are for
convenience and reference only and are not intended to modify,
limit, describe or affect in any way the contents, scope or intent
of this Agreement.
14. Definitions, Controlling Interpretations. All terms
used herein which are defined in this Agreement or alternatively in
the Change in Control Agreement or the Shareholder Agreement shall
have the meaning set forth in this Agreement or in the agreement in
which defined, unless the context clearly indicates otherwise.
Since this Agreement is referenced and references other agreements
entered into by the Parties simultaneously, questions of
interpretation of conflicting provisions shall be resolved such
that specific provisions in one such agreement shall control
general provisions in the other agreement.
15. Gender and Plural. Whenever the sense of this Agreement
so requires, the masculine or feminine gender shall be substituted
for or deemed to include the neuter and the plural the singular,
and vice versa.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts shall together constitute one and
the same instrument.
17. Miscellaneous.
a. This Agreement was made and will be executed and
performed in the State of Colorado and shall be governed by
and construed in all respects in accordance with the laws of
the State of Colorado.
b. The term "Corporation", for the purposes of this
Agreement and of all rights hereunder, including the issue
and delivery of stock certificates, shall be taken to mean
Xxxxxx Industries, Inc., a Colorado Corporation, or any
corporation successor to it.
c. Each and all of the terms and provisions of this
Agreement shall be and are hereby made binding upon the
Stockholders, their heirs, legatees, personal
representatives, guardians and permitted assigns.
d. Except as provided in Paragraph 3(b), the Voting Trustee
shall have no duty to hold meetings of holders of voting
trust certificates, but he/she shall be entitled to do so as
he/she desires in his/her sole discretion. At least ten (10)
days but no more than thirty (30) days' prior written notice
of every meeting of holders of voting trust certificates
shall be given and such notice shall state the place, day and
hour and the purpose, if any, of such meeting, but any holder
of voting trust certificates may waive such notice in
writing, either before or after the holding of the meeting.
No notice of any adjourned meeting need be given. Every such
meeting shall be held in the State of Colorado at a place
designated by the Voting Trustee, unless the holders of
voting trust certificates representing two-thirds of the
stock held by the Voting Trustee consent in writing to the
holding thereof at another place. Alternatively, such
meetings may be called and held by electronic or telephonic
means including by way of example and not limitation,
teleconference, video conference or other electronic media in
which each party may hear each other party on a live or real-
time basis. The failure to hold meetings, except as provided
in Paragraph 3, shall not in any manner or degree impair or
reduce the authority of Voting Trustee hereunder.
e. The Voting Trustee shall furnish to the Stockholders, at
the expense of the Corporation, copies of such financial
statements of the Corporation as shall be furnished the
Voting Trustee by the accountants regularly servicing the
Corporation and such other notices and communications as are
directed to stockholders of the Corporation.
f. The holder of any voting trust certificate shall
immediately notify the Voting Trustee of any mutilation, loss
or destruction thereof, and the Voting Trustee may, in
his/her discretion, cause one or more new certificates
representing the same number of Shares in the Aggregate, to
be issued to such holder upon the surrender of the mutilated
certificates, or in case of loss or destruction, upon
satisfactory proof of such loss or destruction, and the
deposit of indemnity by way of bond or otherwise, in such
form and amount and with such surety or sureties as the
Voting Trustee may require to indemnity him/her against loss
or liability by reason of the issuance of such new
certificates; but the Voting Trustee may, in his/her
discretion, refuse to issue such new certificates, save upon
the order of a court having jurisdiction in such matters.
g. This Voting Trust Agreement may be amended by the
unanimous written agreement of holders of voting trust
certificates representing the Shares entitled to vote.
h. This Agreement shall be filed with the Voting Trustee,
and a duplicate hereof shall be filed in the principal office
of the Corporation.
18. Signatures.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above stated.
Voting Trustee:
___________________________
Xxxxxx X. Xxxxxx Xx.
XXXXXX INDUSTRIES, INC. ATTEST:
__________________________________ By:_________
By: Xxxxxx X. Xxxxx, President/CEO Xxxx Xxxxxxxxx, Secretary
THE STOCKHOLDERS:
Signatures: Number of Shares of Stock
_________________________ _____________________
Xxxxxxx X. Xxxxx, Individually
and Pres. of Liberty Capital Corp.
_________________________ ______________________
Xxxxxxx X. Xxxxxxx, Individually
and V-Pres. of Liberty Capital Corp.
_________________________ ______________________
Xxxxxx X. Xxxxx, Individually
and as Member of Boulder Sports, LLC
_________________________ ______________________
Xxxx Xxxxxxxxx Individually
and as Member of Boulder Sports, LLC.
_________________________ ______________________
Xxxxx X. Xxxxx
Liberty Capital,Corp
By: ____________________ ______________________
Boulder Sports, LLC.
By: ____________________ ______________________
