Exhibit 9.1
VOTING TRUST AGREEMENT
This Agreement is made on the 1st day of February, 1998, by and between the
undersigned parties to create a Voting Trust of certain common stock of Xxxxx
Technology Group, Inc., an Illinois business corporation (the "Company").
ARTICLE I
CONSIDERATION AND PURPOSE OF TRUST
Consideration
1.01. In consideration of their mutual promises, the parties named below enter
into this Voting Trust Agreement.
Purpose of Trust
1.02. The parties enter into this Voting Trust Agreement for the purpose of
concentrating the vote of the shares represented under this Agreement into a
clear and definite policy of management under the discretion of the Voting
Trustee, and provide for continuity in the management and policies and the
stability of future market value of the Company by restricting the sale of any
and all of Shareholder's shares prior to occurrence of certain events.
ARTICLE II
PARTIES AND EFFECTIVE DATE
Parties
2.01. The parties to this Agreement are:
(a) The particular individual shareholders of Xxxxx Technology Group, Inc.,
who shall subscribe their names to this Agreement ("Shareholders");
(b) Xxxxxx X. Xxxxx, Trustee ("Trustee"); and
(c) Xxxxxxx X. Xxxxxxxxx, Secretary of the Company ("Registrar").
Effective Date
2.02. This Voting Trust Agreement shall become effective when signed the
Shareholders and all the other parties to this Agreement in accordance with
Paragraph 10.09.
ARTICLE III
TRUSTEES AND REGISTRAR
Number and Term of Trustee
3.01. There shall be one (1) Trustee of this Trust. The Trustee shall be as
named above and his successors shall be appointed as provided in Paragraph 3.05.
The Trustee shall serve for the entire term of this Trust in the absence of his
removal, resignation, incapacity, or death.
Death of Trustee
3.02. The rights and duties of the Trustee shall terminate on his/her death and
no interest in any of the property owned or held by the Trust or any of the
rights or duties of
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the Trustee may be transferred by will, devise, succession, or in any manner
except as provided in this Agreement. The heirs, administrators, and executors
of the Trustee shall, however, have the right and duty to convey any property
held by the Trustee under this Agreement to the successor Trustee.
Resignation
3.03. The Trustee may resign by giving notice of his or her resignation to the
Registrar. When a Trustee resigns, the successor Trustee may settle any account
or transaction with the resigning Trustee.
Removal
3.04. The Trustee may be removed for cause at any time by the affirmative vote
of not less than two thirds (2/3) of the Shareholders (pursuant to Paragraph
10.08).
Successor Trustee
3.05. In the event of the death, resignation, removal, or incapacity to act of
Xxxxxx X. Xxxxx, as Trustee, Xxxxxxxx X. Xxxxx shall be the successor. In the
event of the death, resignation, removal, incapacity to act of Xxxxxxxx X.
Xxxxx, as Trustee, or in the event she refuses to serve as Trustee, Xxxxxxx X.
Xxxxxxxxx shall be the successor. In the event of the death, resignation,
removal, incapacity to act of Xxxxxxx X. Xxxxxxxxx, as Trustee, or in the event
he refuses to serve as Trustee, Xxxxxxx X. Xxxxx shall be the successor.
Duties and Qualifications of Registrar
3.06. The Registrar is appointed as the agent of the Trustee to perform these
duties:
(a) To receive and hold as the Trustee's depositary share certificates of the
Company delivered to the Trustee under this Agreement; and
(b) The Trustee may appoint the Registrar, as his/her agent, to perform any
other of his/her functions. The Registrar may be an individual or a corporation.
The Registrar may be the Trustee, a shareholder of the Company, an officer or
director of the Company, or a Shareholder under this Agreement.
Successor Registrar
3.07. The Registrar may resign by giving ten (10) days' notice to the Trustee,
and the Registrar may at any time be removed by written instrument signed by the
Trustee and delivered to the Registrar. If a vacancy occurs in the position of
Registrar, the Trustee may appoint as successor another Registrar by an
instrument in writing signed by him/her and delivered to the successor. The
successor shall then be entitled to all the rights, authorities, and powers of a
Registrar under this Agreement. The Registrar so resigning or so removed shall
transfer and deliver to the successor the share certificates then held by him or
her, together with all books and records relating to this Trust. The successor
shall be required to execute a copy of this Agreement indicating his or her
consent to act in accordance with its terms.
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ARTICLE IV
DEPOSIT AND TRANSFER OF SHARES
ISSUANCE AND TRANSFER OF VOTING TRUST CERTIFICATES
Deposit of Shares
4.01. On the execution of this Agreement, the Shareholders shall deposit with
the Registrar share certificates for all shares of the Company owned by them.
All these share certificates shall be endorsed in blank or to the Trustee, and
shall be accompanied by instruments of transfer that will enable the Registrar
to cause the share certificates to be transferred to the name of the Trustee.
Transfer of Shares to Trustee
4.02. All share certificates of the Company delivered to the Registrar shall be
surrendered by the Registrar to the Company and shall be canceled. The new
share certificates shall state that they are issued pursuant to this Agreement.
The entry of ownership of the shares by the Trustee in the stock transfer
records of the Company shall also state that the share certificates are issued
pursuant to this Agreement.
Transfer of Shares to Successor Trustee
4.03. Despite any changes in the Trustee, the certificates for shares standing
in the name of the Trustee may be endorsed and transferred by any successor
Trustee or Trustees with the same effect as if endorsed and transferred by the
Trustee who has ceased to act. The Trustees are authorized and empowered to
cause any further transfer of the shares to be made that may be necessary
because of any change of persons holding the office of Trustee.
No Sale of Shares
4.04. Despite the provisions of Paragraph 4.01, the Trustee shall have no
authority to sell or otherwise dispose of or encumber any of the stock deposited
pursuant to the provisions of this Agreement.
Share Certificates
4.05. On receipt by the Registrar of the share certificates and transfer of
them into the name of the Trustee, the Trustee shall hold the share certificates
subject to the terms of this Agreement.
ARTICLE V
VOTING AND ACTION BY TRUSTEE
Voting of Shares
5.01. While the Trustee holds shares deposited pursuant to the provisions of
this Agreement, he/she shall possess and in their unrestricted discretion shall
be entitled to exercise in person or by their nominees, agents, attorneys-in-
fact, or proxies, all rights and powers of absolute owners and to vote assent,
or consent with respect to the shares and to take part in and consent to any
corporate or shareholders' actions, and to receive dividends and distributions
on the shares. No other person shall have any voting rights in connection with
the shares so long as this Agreement is in effect and the shares are registered
in the name of the Trustee.
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Voting in Interest of Company
5.02. In voting shares of stock or in doing any act regarding the control or
management of the Company or its affairs, as holder of stock deposited under
this Agreement, the Trustee shall exercise his best judgment in the interest of
the Company to the end that its affairs shall be properly managed, but he/she
assumes no responsibility regarding management or any action taken by him/her or
taken by the Company pursuant to his/her consent or pursuant to their vote.
Meeting With Shareholders
5.04. If any question arises on which the Trustee desires the opinion of the
Shareholders, the Trustee may call a meeting for this purpose. At the meeting,
the vote of not less than two thirds (2/3) of the Shareholders (pursuant to
Paragraph 10.08) may determine the manner in which they desire the Trustee to
act, and the Trustee shall be bound to act in the manner designated. The
Trustee shall not be called on or expected to take any action as a result of
this meeting unless and until he/she has been fully indemnified against all loss
damage, claim, or injury to which he/she might be subjected, either by reason of
his/her action or by reason of his/her position as Trustee under this Agreement.
The Trustee shall have no obligation to call a meeting or seek the opinion of
the Shareholders during the term of this Trust.
Trustee's Relationship with Company
5.05. Any Trustee, its employees or agents, and any firm or corporation of
which it may be a member, agent, or employee, and any corporation, trust, or
association of which it may be a trustee, stockholder, director, officer, agent,
or employee may contract with or be or become peculiarly interested, directly or
indirectly, in any matter or transaction to which the Company or any subsidiary
or controlled or affiliated corporation may be a party or in which it may be
concerned, as fully and freely as though the Trustee were not a Trustee under
this Agreement. The Trustee, his/her employees, and his/her agents may act as
directors or officers of the Company or of any subsidiary or controlled or
affiliated corporation.
Compensation of Trustee
5.06. The Trustee shall serve without compensation.
Expenses
5.07. The Trustee is expressly authorized to incur and pay those reasonable
charges and expenses that he/she may deem necessary and proper for administering
this Agreement. The Shareholders agree to reimburse and indemnify the Trustee
for all claims, expenses, and liabilities incurred by the Trustee in connection
with the good faith discharge of his/her duties under this Agreement. Any such
claims, expenses, or liabilities shall be charged to the Shareholders pro rata,
and may be deducted from dividends or other distributions to them, or may be
made a charge payable by the Shareholders and the Trustee shall be entitled to a
lien for the charge on the shares, funds, or other property in his/her
possession or in the possession of the Registrar.
Trustee's Liability
5.08. The Trustee shall be free from liability in acting on any paper,
document, or
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signature believed by him/her to be genuine and to have been signed by the
proper party. The Trustee shall not be liable for any error of judgment or for
any act done or omitted, or for any mistake of fact or law, or for anything that
he/she may do or refrain from doing in good faith, nor generally shall the
Trustee have any accountability under this Agreement, except that Trustee shall
be liable for his or her own willful default or gross negligence. The Trustee
may seek the advice of legal counsel, and any action under this Agreement taken
or suffered in good faith by them in accordance with the opinion of counsel
shall be conclusive on the parties to this Agreement and the Trustee shall be
fully protected and shall not be subject to liability in connection with any
action so taken.
ARTICLE VI
DIVIDEND AND DISTRIBUTION RIGHTS OF CERTIFICATE HOLDERS
Cash Dividends
6.01. Each Shareholder shall be entitled to receive from time to time payments
equal to the amount of cash dividends, if any, collected or received by the
Trustee on the shares by the Trustee under this Agreement, less the deductions
provided for in Paragraph 6.05. These payments shall be made, as soon as
practicable after the receipt of the dividends. Instead of receiving cash
dividends and paying them to the Shareholders, the Trustees may instruct the
Company in writing to pay the dividends directly to the Shareholders. When
these instructions are given to the Company, all liability of the Trustee with
regard to the dividends shall cease until the instructions are revoked. The
Trustee may at any time revoke the instructions and by written notice to the
Company direct it to make dividend payments to the Trustee.
Share Dividends
6.02. If the Trustee receive as a dividend or other distribution on any shares
of stock held by him/her under this Agreement, any additional shares of the
Company, the Trustee shall hold such additional shares subject to this Agreement
for the benefit of the Shareholders in proportion to their respective interests,
and the shares shall become subject to all terms and conditions of this
Agreement to the same extent as if they were originally deposited under it.
Distributions on Liquidation
6.03. In the event of the dissolution or total or partial liquidation of the
Company, the Trustee shall receive the moneys, securities, rights, or property
to which Shareholders are entitled, and shall distribute it among the
Shareholders in proportion to their interests, as shown by the books of the
Trustee.
Other Distributions to Shareholders
6.04. If, at any time during the continuation of this Agreement, the Trustees
shall receive or collect any moneys through a distribution by the Company to its
shareholders, other than in payment of cash dividends, or shall receive any
property (other than shares of stock of the Company) through a distribution by
the Company to its shareholders, the Trustee shall distribute it to the
Shareholders as soon as practicable after receipt of such distribution. The
Trustee may withhold from the distribution the deductions provided for in
Paragraph 6.05.
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Deductions from Distributions
6.05. There shall be deducted and withheld from every distribution of every
kind under this Agreement any taxes, assessments, or other charges that may be
required by law to be deducted or withheld, as well as expenses and charges
incurred pursuant to Paragraph 5.07, to the extent that the expenses and charges
remain unpaid or unreimbursed.
ARTICLE VII
BOOKS AND RECORDS
Record of Shares
7.01. It shall be the duty of the Registrar to maintain a record of all share
certificates of the corporation that are transferred to the Trustee, indicating
the name in which the stock was held, the date or issuance of the stock, the
class and series of the stock, the number of shares, and the number of the
certificates representing those shares. The Registrar shall also maintain a
record of the date on which he or she received any share certificates; the date
on which they were delivered to the corporation for transfer to the Trustee and
shall obtain a receipt for any certificates so delivered. The Registrar shall
receive and hold the new share certificates issued by the corporation in the
name of the Trustee and shall maintain a record indicating the date of issuance
of the certificates, the date of receipt of the certificates, and the place in
which the certificates are held by him or her.
Books of Accounts
7.03. The Registrar or his or her agent shall maintain a Book of Accounts that
shall be in the form prescribed from time to time by the Trustee. In addition
to other matters that the Trustee may insert in the record, the record shall
show all sums of money received by the Trustee, all disbursements made by the
Trustee and all unpaid obligations incurred by the Trustee. Information
concerning these accounts shall be posted at least monthly.
Other Records
7.04. The Registrar shall maintain such other books and records and shall
perform the duties required of him or her to be performed elsewhere in this
Agreement and as are requested from time to time by the Trustee.
Inspection of Records
7.05. The parties to this Agreement shall deposit a certified copy of this
Agreement with the Company at its principal office and the Agreement shall be
subject to the same right of examination by a shareholder of the Company, in
person or by agent or attorney, as are the books and records of the Company.
ARTICLE VIII
RESTRICTIONS
Restrictions on Transfer
8.01. Except as expressly provided in this Agreement, the Shareholders shall
not at any time prior to termination of this Trust assign, transfer, mortgage,
hypothecate or in any manner dispose of, or permit a levy or attachment on all
or any part of their shares or any interest in those shares subject to this
Agreement, without the prior written consent of the Trustee.
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Permitted Transfers
8.02. The Shareholders may, solely by testamentary transfer, the laws of
descent, or transfer to a trust or trusts for estate planning purposes, transfer
all or a portion of their shares or any interest in those shares subject to this
Agreement to their respective spouses and/or children and/or natural heirs under
the laws of descent ("Permitted Transferee"). In the event of such a transfer
or transfers, the transferred shares or transferred interests and the Permitted
Transferees holding such shares or interests shall be subject to the terms of
this Agreement, the same as Shareholder. In the event a Permitted Transferee
desires to transfer his/her/its shares or interests during the term of this
Trust, said Permitted Transferee may do so only under terms of this Paragraph
8.02.
ARTICLE IX
TERM OF TRUST
Irrevocability of Trust
9.01. The Trust created by this Agreement is expressly declared to be
irrevocable, except as otherwise provided in this Agreement.
Termination
9.02. This Agreement shall terminate in any event three (3) years after its
effective date without any action by the Trustee or any other parties. This
Agreement may be terminated at an earlier date by instruments in writing
executed by the Trustee.
Return of Share Certificates after Termination
9.03. Within thirty (30) days after the termination of this Agreement, the
Trustees shall deliver or cause to be delivered to the Shareholders share
certificates representing the number of shares in respect to the beneficial
interests of the Shareholders under this Agreement on the execution of a receipt
for such certificates and on payment by the persons entitled to receive the
share certificates of a sum sufficient to cover any governmental charge on the
transfer or delivery of the share certificates.
Final Accounting
904. Within ninety (90) days after termination of this Trust, the Trustee shall
render a final accounting to the Shareholders and to the Company and shall
distribute any funds or other assets held by the Trustee to the parties entitled
to the funds or assets.
Extension of Term of Trust
9.05. At any time prior to the termination of Trust as provide for in Paragraph
9.02, the Trust may be extended for up to an additional two (2) years following
the termination date stated in Paragraph 9.02 if the Shareholders unanimously
assent in writing to such extension and deliver such written assents to the
Trustees.
ARTICLE X
MISCELLANEOUS
Place of Performance
10.01. This Agreement is made, executed, and entered into at Chicago, Illinois,
and it is mutually agreed that the performance of all parts of this Agreement
shall be made at
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Chicago, Illinois.
Governing Law
10.02. This Agreement is intended by the parties to be governed and construed
in accordance with the laws of the State of Illinois.
Severability of Provisions
10.03. This Agreement shall not be severable or divisible in any way but it is
specifically agreed that, if any provision should be invalid, that the
invalidity shall not affect the validity of the remainder of the Agreement.
Construction by Trustee
10.04. The Trustee is authorized and empowered to construe this Agreement and
his/her reasonable construction made in good faith shall be conclusive and
binding on the Shareholders and on all parties to this Agreement.
Notice to Trustee
10.05. Any notice to be given to the Trustee under this Agreement shall be
sufficiently given if mailed to the Trustees at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000, or at such other address as the Trustee may from time to time
designate by written notice given to the Shareholders.
Notice to Shareholders
10.06. Any notice to be given to a Shareholder shall be sufficiently given if
mailed, postage prepaid, to him or her at the address of the Shareholder
appearing in the records to be maintained by the Trustee, or at such other
address as a Shareholder may from time to time designate by written notice given
to the Trustee. Every notice so given shall be effective whether or not
received, and notice shall for all purposes be deemed to have been given on the
earlier of the date of receipt by the Shareholder or two (2) business days after
the date of mailing.
Meetings of Shareholders
10.08. A meeting of the Shareholders may be called by the Trustee at any time
on seven (7) days' notice. The notice shall contain a statement of the matters
to be discussed at the meeting. At any meeting a quorum, consisting of at least
fifty percent (50%) of the beneficial interests in this Trust must be present
before a vote shall be taken on any matter before the meeting. Each Shareholder
may vote at any meeting in person or by proxy. Each Shareholder shall have one
vote for each share deposited with the Trustee under this Agreement. Action may
be taken on any of the matters covered in this Agreement by the written consent
of all of the parties that could have taken any action at a meeting.
Execution
10.09. This Agreement shall be prepared in multiple originals and forwarded to
each of the parties for execution. The Agreement shall become effective at the
time provided in Paragraph 2.02. All of the signatures may be affixed to one
original or to separate originals and when all originals are received, signed by
all the parties, they shall
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constitute one Agreement that is not otherwise separable or divisible.
Amendment of Agreement
10.10. If at any time the Trustee deems it advisable to amend this Agreement,
he/she shall submit the amendment to the Shareholders for their approval at a
special meeting of the Shareholders called for that purpose. Notice of the time
and place of the meeting shall be given in the manner provided in Paragraph
10.08, and shall contain a copy of the proposed amendment. If, at the meeting
or any adjournment of the meeting, the proposed amendment shall be approved by
the affirmative vote of a majority of the Shareholders, the proposed amendment
so approved shall become a part of this Agreement as if originally incorporated
in this Agreement.
Executed and effective the 1st day of February, 1998.
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxxxxx X. Xxxxxxxxx
________________________ ___________________________________
XXXXX X. XXXXXXXXX XXXXXXXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxx /s/ XxXxxxx X. Xxxxx
________________________ ___________________________________
XXXX X. XXXXX XxXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
________________________ ___________________________________
XXXXXXX X. XXXXX XXXXXXX X. XXXXX
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
________________________ ___________________________________
XXXXX X. XXXXXXXXX XXXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxxx
________________________ ____________________________________
XXXXXX X. XXXXX, Trustee XXXXXXX X. XXXXXXXXX
Registrar
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