Exhibit 9.1
VOTING TRUST AGREEMENT
FIRST AID SELECT, INC.
THIS VOTING TRUST AGREEMENT (the "Agreement") is made this
16th day of December, 1999, by and among XXXXXX XXXXXX, XXXXX XXXXXX, Custodian
for Xxxxxx Xxxxxx under the Florida Uniform Gifts to Minors Act, XXXXX XXXXXX,
Custodian for Xxxxxx Xxxxxx under the Florida Uniform Gifts to Minors Act,
XXXXXX X. XXXXXXX and XXX XXXX-XXXXXX, INC., an Ohio corporation (each
individually a "Shareholder" and collectively the "Shareholders") and XXXXXX X.
XXXXXX, as voting trustee (the "Voting Trustee").
RECITALS
A. The Shareholders currently own shares of the common capital
stock of FIRST AID SELECT, INC., a Florida corporation ("FASI").
B. The Shareholders desire to establish a voting trust with
respect to such shares of FASI.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
Section 1. Deposit of Common Shares. Upon execution of this
Agreement the Shareholders shall deposit with the Voting Trustee a certificate
or certificates representing those shares of the voting common capital stock of
FASI set forth on Schedule A attached to this Agreement and made a part hereof,
along with respective stock powers duly executed in blank.
Section 2. Additional Beneficiaries. Any future owner of
shares of fully paid voting common capital stock of FASI or other voting
securities of FASI may at any time become a party to this Agreement as a
Shareholder with the same force and effect as though such person had originally
been a party to this Agreement. Each such person shall respectively become a
Shareholder by depositing with the Voting Trustee certificates for the voting
shares or other securities held by such person, accompanied by a stock power
duly executed in blank. All voting shares or other securities of FASI which may
be deposited pursuant to this Agreement are hereinafter referred to as the
"Shares."
Section 3. Reissuance of Certificates in Name of Voting
Trustee. The Voting Trustee may at any time in the Voting Trustee's discretion
cause the certificates for Shares deposited pursuant to this Agreement to be
surrendered in exchange for a certificate or certificates for a like number of
Shares issued in the
name of the Voting Trustee. As holder of record of the Shares so issued, the
Voting Trustee assumes no liability as a shareholder of FASI; the Voting
Trustee's interest in the Shares is that of a trustee only.
Section 4. Trust Certificates. The Voting Trustee shall issue
to each Shareholder with respect to the certificate or certificates for Shares
deposited with the Voting Trustee pursuant to this Agreement trust certificates
in substantially the form attached hereto as Exhibit A ("Trust Certificates").
Section 5. Transfer of Trust Certificates. The Trust
Certificates shall be transferable upon the books maintained by the Voting
Trustee upon surrender thereof by the registered holder in person or by attorney
duly authorized, in accordance with rules established for that purpose by the
Voting Trustee. Until so transferred, the Voting Trustee may treat the
registered holder as the owner of the Trust Certificates for all purposes. Every
transferee of a Trust Certificate issued shall, by the acceptance of such Trust
Certificate, become a party to this Agreement as a Shareholder with the same
effect as though such person had originally been a party to this Agreement. In
connection with, and as a condition of, making or permitting any transfer or
delivery of Share certificates or Trust Certificates under any provision of this
Agreement, the Voting Trustee may require the payment of a sum sufficient for
payment or reimbursement for any stamp tax or other governmental charge in
connection therewith.
Section 6. Delivery of Certificates for Shares. Upon
termination of this Agreement in accordance with Section 14, the Voting Trustee
shall deliver certificates for Shares in the amounts called for by the
respective Trust Certificates held by a Shareholder so as to exchange such Trust
Certificates for certificates for Shares. When the Voting Trustee has delivered
certificates for Shares to the Shareholders in exchange for Trust Certificates
pursuant to this Section, all further obligations or duties of the Voting
Trustee under this Agreement to the holder of Trust Certificates shall
terminate.
Section 7. Rights and Powers of Trustee. The Voting Trustee
shall possess and be entitled, subject to the provisions of this Agreement, in
the Voting Trustee's absolute discretion, to exclusively exercise all the rights
and powers of an absolute owner of the Shares, including, but not limited to,
the right to (i) receive dividends on the Shares, (ii) vote the Shares and (iii)
take part in meetings of the shareholders of FASI; provided, however, that the
Voting Trustee shall have no right to sell or otherwise dispose of the Shares.
The Voting Trustee may in the Voting Trustee's absolute discretion vote for or
against any merger, sale of substantially all of the assets of FASI or other
similar transaction. It is expressly stipulated and agreed that the Shareholders
shall have no such rights with respect to the Shares during the term of this
Agreement.
Section 8. Dividends on Shares. While Shares are held in trust
under this Agreement, a Shareholder shall be entitled to promptly receive a cash
payment
from the Voting Trustee in an amount equal to any cash dividend or
distribution received by the Voting Trustee with respect to the Shares held
pursuant to this Agreement for such Shareholder. In the case of any dividend or
distribution paid other than in cash, the Voting Trustee shall deliver to a
Shareholder in kind of any such dividend or distribution received by the Voting
Trustee; provided, however, that if any such dividend or distribution shall be
paid to and received by the Voting Trustee in fully paid voting shares of the
capital stock of FASI, the Voting Trustee shall hold, subject to the terms of
this Agreement, the certificates for such additional shares, which for purposes
of this Agreement shall also be Shares.
Section 9. Purchase of New Securities. In the event that the
Voting Trustee is offered or has the right to subscribe for any additional
shares or other securities of FASI, then the Voting Trustee shall promptly
notify such Shareholder in writing of such subscription rights; provided,
however, such notice shall be given not less than 10 business days prior to the
Trustee taking any action on such subscription. If the Voting Trustee receives
from such Shareholder, at least 10 business days prior to the time fixed for the
expiration of such subscription rights, a written direction to the Voting
Trustee to exercise the subscription rights allocable to the Shares beneficially
owned by such Shareholder, accompanied by sufficient funds to pay for the
exercise of such subscription rights, then upon full and complete compliance by
a Shareholder with all other terms and conditions of such subscription, the
Voting Trustee shall make such purchase and payment for such shares or other
securities. The Voting Trustee shall deliver such shares or securities to such
Shareholder unless such shares or other securities are voting shares or
securities, in which case the Voting Trustee shall hold, subject to the terms of
this Agreement, the certificates for such shares or securities, which for
purposes of this Agreement shall also be Shares.
In the event a Shareholder has the right to purchase any
additional voting shares or securities of FASI under stock options, stock
warrants or otherwise, and the Shareholder desires to exercise such option, then
the Shareholder shall notify the Voting Trustee in writing of the exercise of
such at least ten days prior to such exercise. Upon the exercise of such option,
the Shareholders shall deliver to the Voting Trustee such voting shares or
securities, in which case the Voting Trustee shall hold, subject to the terms of
this Agreement, the certificates for such shares or securities, which for
purposes of this Agreement shall also be Shares.
Section 10. Successor Voting Trustee; Resignation of Voting
Trustee.
A. Successor Voting Trustee. If XXXXXX X. XXXXXX shall resign
or for any other reason cease or be unable to serve as the Voting
Trustee, and no successor is appointed as provided below, then XXXXX X.
XXXXXX shall, upon acceptance of the trust, serve as the Voting
Trustee.
B. Special Power to Appoint Voting Trustee. The Voting Trustee
shall have the right from time to time to appoint one or more
individuals as successor Voting
Trustee. Each such appointment shall be made by delivering to the
Shareholders (i) a written notice of such appointment and (ii) a
written acceptance thereof signed by the appointee.
If the last named Voting Trustee as provided above shall
resign or for any other reason cease or be unable to serve as the
Voting Trustee, then the Board of Directors of Xxx Xxxx-Xxxxxx, Inc.
may appoint one or more individuals, financial institutions or trust
companies as successor Voting Trustee, or failing such appointment, the
then senior Judge of the Probate Court of Xxxxxxxxxx County, Ohio shall
appoint such one or more individuals, financial institutions or trust
companies as successor Voting Trustee. Such successor shall, upon
acceptance of the trust, serve as the Voting Trustee. The Judge
appointing such successor Voting Trustee shall be acting as an
individual and not in a judicial capacity.
C. Resignation. Any Voting Trustee may resign at any time by
delivering a written notice of such resignation prior to the effective
date thereof to the Shareholders and to the Board of Directors of Xxx
Xxxx-Xxxxxx, Inc.
Section 11. Restriction on Shares.
A. Definitions. For purposes of this Section, the following
terms shall have the following meanings:
(1) "Permitted Transferee" means (i) a trust of which
a Shareholder is the grantor and the owner of the entire trust
corpus thereof by virtue of the application of Sections 676
and 677 of the Internal Revenue Code of 1986, as amended
("Code"), or (ii) a member of the Shareholders family (as
defined in Section 318(a)(1) of the Code), or a trust for
their benefit; provided such transferee agrees to be subject
to and bound by all of the terms of this Agreement as if such
transferee were an original Shareholder.
(2) "Personal Representative" means the personal
representative, executor, administrator or other legal
representative of a Shareholder's estate.
(3) "Transfer" means the gift, bequest, sale,
assignment, exchange, transfer, pledge of or otherwise
encumbrance, whether voluntarily or by operation of law, of
any Shares or Trust Certificates.
(4) "Transfer Notice" means a written notice to VDC
at least 60 days prior to such Transferring Shareholder's
intent to Transfer, designating the number of Shares or Trust
Certificates involved, all of the terms and conditions of the
proposed Transfer and the name and address of each prospective
transferee or encumbrancee.
(5) "Transferring Shareholder" means a Shareholder or
a Personal Representative of a Shareholder desiring to
Transfer any of such Shareholder's Shares or Trust
Certificates.
(6) "VDC" means Xxx Xxxx-Xxxxxx, Inc.
B. Five Year Restriction. Anything in this Agreement to the
contrary notwithstanding, during the five year period after the date of
this Agreement, no Shareholder other than VDC or a Shareholder's
Personal Representative may sell, assign, exchange, transfer, pledge or
otherwise encumber, whether voluntarily or by operation of law, any
Shares.
C. Restrictions on Transfer. During the term of this
Agreement, other than VDC, no Shareholder or a Shareholder's Personal
Representative shall Transfer any of such Shareholder's Shares or the
Trust Certificates for such Shares to anyone other than VDC or a
Permitted Transferee without the written consent of VDC or, in the
absence of such written consent, without first providing VDC with a
Transfer Notice.
D. Written Notice of Transfer Without Consent and Meeting. If
VDC fails to provide the Transferring Shareholder the written consent
required in paragraph C above within 30 days of the written request for
such, then the Transferring Shareholder shall provide VDC a Transfer
Notice. Within the 60 days of the Transfer Notice, a meeting of the
Transferring Shareholder and VDC shall be called by VDC upon not less
than 7 days' nor more than 30 days' prior written notice. Such meeting
shall be held at the principal office of FASI or such other location in
the State of Florida set forth in such notice.
E. Option to VDC. At the meeting ("Closing"), all (and not
less than all) of the Transferring Shareholder's Shares or rights
therein shall be offered for sale and shall be subject to an option to
purchase on the part of VDC, which option shall be exercised, if at
all, at the Closing.
F. Purchase Price. The purchase price for each Share purchased
pursuant to this Section shall be at the price which is the per Share
price, if any, stated in the Transfer Notice.
G. Payment of Price. Upon the purchase of Shares by VDC
pursuant to the provisions of this Section, the purchase price for such
Shares shall be paid at the election of the purchaser:
(i) If the purchase price is the price stated in the
Transfer Notice, pursuant to the terms, if any, stated in the
Transfer Notice, or
(ii) In cash at the Closing.
H. Release from Restrictions. If any of the Shares of the
Transferring Shareholder are not purchased by VDC in accordance with
the provisions of this Section, then the Transferring Shareholder may
make a bona fide transfer or encumbrance of such Shares to the party
named in the Transfer Notice, with the Transfer to be made only in
strict accordance with the
terms and conditions stated in the Transfer Notice; provided, however,
that such Transfer may be made free from the restrictions of this
Section only within a period of 30 days following the date of the
meeting called pursuant to paragraph D above, and if not made within
that time, such Shares shall thereafter be subject to all of the
restrictions imposed by this Section.
Further, the Shares shall no longer be subject to the
restrictions of this Section 12 if VDC no longer owns at least 800,000
of the Shares purchased from Xxxxx Xxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx
X. Xxxxxx effective December 20,1999.
Section 12. Liability of Voting Trustee; Accounting. In voting
or otherwise acting under this Agreement with respect to the Shares, the Voting
Trustee shall exercise the Voting Trustee's best judgment, but except for the
Voting Trustee's own individual willful misconduct, the Voting Trustee shall not
incur any responsibility or liability by reason of any action, error of law or
of anything else done or omitted to be done as the Voting Trustee. The Voting
Trustee shall not be required to give any bond or other security for the
discharge of the Voting Trustee's duties under this Agreement.
The Voting Trustee shall not be required to make any returns
or render any accounting to any court while acting under this Agreement, nor to
secure any orders therefrom or file any appraisals or inventories therewith, but
shall, as the Voting Trustee may deem advisable, render an accounting with
respect to such trust (covering the period from the date of the next preceding
accounting) to the Shareholders (or to the legal guardian or other legal
representative of a Shareholder if incompetent).
Section 13. Compensation of the Voting Trustee. The Voting
Trustee shall not be compensated for the Voting Trustee's services under this
Agreement. The Voting Trustee may employ legal counsel and such other assistance
as the Voting Trustee may deem necessary or advisable in the performance of the
Voting Trustee's duties under this Agreement. The Shareholders shall reimburse
the Voting Trustee and indemnify, defend and hold the Voting Trustee harmless
for and against any and all claims, expenses and liabilities incurred by or
asserted against the Voting Trustee with respect to this Agreement. If any such
claims, expenses or liabilities are not voluntary paid by the Shareholders, they
may be deducted from dividends or other distributions to the Shareholders or may
be made a charge payable as a condition to the delivery of Shares to the
Shareholders upon termination of this Agreement; the Voting Trustee shall
accordingly be entitled to a lien therefor upon the Shares, funds or other
property in the Voting Trustee's possession.
Section 14. Termination of this Agreement; Amendment. This
Agreement and all the rights and obligations under this Agreement shall
terminate ten years from the date of this Agreement. Upon such termination, the
Voting Trustee shall deliver to each Shareholder a certificate or certificates
representing the Shares deposited by such Shareholder as provided in Section 6,
but subject to the provisions of Section 13. This Agreement may be amended at
any time by a writing which refers to this Agreement and is executed by the
Shareholders and the Voting Trustee.
Section 15. Notice. All notices, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given (i) when delivered personally,
(ii) on the third business day after being deposited in the U.S. mail,
certified, postage prepaid, return receipt requested, or (iii) on the first
business day after being sent by a nationally recognized overnight express
courier service, to a party addressed as follows:
If to a Shareholder: Xxxxxx Xxxxxx
000 XX 000xx Xxxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Xxxxx Xxxxxx, Custodian for
Xxxxxx Xxxxxx
000 XX 000xx Xxxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Xxxxx Xxxxxx, Custodian for
Xxxxxx Xxxxxx
000 XX 000xx Xxxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxx
00000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx, President
Xxx Xxxx-Xxxxxx, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
If to the Voting Trustee: Xxxxxx X. Xxxxxx
c/o Xxx Xxxx-Xxxxxx, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Any party may change the names and addresses to which such
communications are to be directed by giving notice to the other party of such
change in the manner provided above.
Section 16. Severability. Each Section, subsection and lesser
provision of this Agreement constitutes a separate and distinct undertaking and
covenant. In the event that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall be limited by construction in
scope and effect to the minimum extent necessary to render the same lawful and
if such a limiting construction is not possible, such provision shall be deemed
severed from this Agreement, but in any event every other provision of this
Agreement shall remain in full force and effect.
Section 17. Specific Performance. The parties agree that
damages would be an adequate remedy for a breach of the provisions of this
Agreement and that this Agreement may be enforced by injunctive or other
equitable relief.
Section 18. Successors. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by and against, the successors,
assigns and legal representatives of the parties, including, without limitation,
any assignee of the interest of a Shareholder in Shares.
Section 19. Complete Agreement. This Agreement sets forth the
entire understanding of the parties concerning the subject matter of this
Agreement and supersedes all prior contracts, arrangements, communications,
discussions, representations and warranties, whether oral or written, between
the parties relating to the subject matter of this Agreement.
Section 20. Captions. The captions in this Agreement are
intended solely for convenience of reference and shall not be given any effect
in the construction or interpretation of this Agreement.
Section 21. Governing Law. This Agreement shall be construed
in accordance with, and the legal relations between the parties shall be
governed by, the laws of the State of Ohio as applicable to agreements executed
and fully performed in the State of Ohio.
IN WITNESS WHEREOF, the Shareholders and the Voting Trustee
have executed this Agreement as of the day and year first above written.
"Shareholders" "Voting Trustee"
------------------------------- ------------------------------
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxx
-------------------------------
Xxxxx Xxxxxx, Custodian for
Xxxxxx Xxxxxx under the Florida
Uniform Gifts to Minors Act
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Xxxxx Xxxxxx, Custodian for
Xxxxxx Xxxxxx under the Florida
Uniform Gifts to Minors Act
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Xxxxxx X. Xxxxxxx
XXX XXXX-XXXXXX, INC.
By ____________________________
Xxxxxx X. Xxxxxx, President
EXHIBIT A
TRUST CERTIFICATE
No. _______ _________ Shares
The undersigned, the Voting Trustee under a Voting Trust Agreement
dated _______________, 1999 (the "Agreement"), having received ______________
(____) shares of the voting common stock of FIRST AID SELECT, INC., a Florida
corporation ("FASI"), hereby certifies that _______________________________
("Holder") will be entitled to receive a certificate for such number of shares
of FASI upon the termination of the Agreement, and in the interval shall,
subject to the terms of the Agreement, be entitled to receive payments equal to
the cash dividends or distributions, if any, that may be received by the Voting
Trustee upon such number of shares held by the Voting Trustee under the
Agreement.
This certificate is transferable only upon the books of the Voting
Trustee by the Holder or his or her duly authorized attorney, and the Holder, by
accepting this certificate, agrees that the undersigned Voting Trustee may treat
the Holder as the true owner for all purposes, except the delivery of share
certificates, which delivery will be made only upon the surrender in accordance
with the terms of the Agreement.
Every transferee of this certificate (other than FASI), by acceptance
of this certificate, shall become a party to such Agreement as a Shareholder
with like effect as though an original party the Agreement.
The securities represented by this certificate have not been registered
under the Securities Act of 1933 or the securities laws of any state, and may
not be sold, hypothecated, assigned or otherwise transferred other than pursuant
to an appropriate and effective registration statement, unless the Voting
Trustee has received an opinion of counsel reasonably satisfactory to the Voting
Trustee that such sale or other disposition may be effected without such
registration.
IN WITNESS WHEREOF, the Voting Trustee has executed this certificate,
this ____ day of _______________, 1999.
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Voting Trustee
