Contract
Exhibit 99.4
EXECUTION COPY
VOTING TRUST AGREEMENT
Relating to Shares of
REPUBLIC COMPANIES GROUP, INC.
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and
entered into as of August 8, 2005 by and among Banc of America
Capital Investors SBIC, L.P., a Delaware limited partnership,
Xxxxx Fargo Bank, N.A., as voting trustee (together with its
successors in such capacity, the "Trustee") and Republic
Companies Group, Inc., a Delaware corporation (the "Corporation").
WHEREAS, the parties hereto desire to record their
arrangements with respect to certain shares of common stock, par
value $0.01 per share ("Common Stock"), of Republic Companies
Group, Inc., a Delaware corporation, the principal executive
offices of which are presently located at 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1 . Certain Definitions. In this Agreement (a) "BACI"
means Banc of America Capital Investors SBIC, L.P., a Delaware
limited partnership, and its successors.
(b) "BACI Affiliate" means any person or entity who is a Control
Affiliate, Employee Affiliate or Other Affiliate.
(c) "BACI Parent" means Bank of America, N.A., a national
banking association, and its successors.
(d) "BAS" means Banc of America Securities LLC, a Delaware
limited liability corporation, and its successors.
(e) "Capital Stock" of any person means any and all shares,
interests (including partnership interests), rights to purchase,
warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, but
excluding debt securities convertible into such equity.
(f) "Control Affiliate" means any person or entity controlling,
controlled by or under common control with, directly or
indirectly, BACI.
(g) "Employee Affiliate" means any person employed by (or who is
the spouse, relative or relative of a spouse, in each case
residing in the home of a person employed by) a Control Affiliate.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Excluded Capital Stock" means shares of Capital Stock of
the Corporation that BACI or any BACI Affiliate owns (or has the
right to acquire within 60 days) that are not subject to this
Agreement.
(j) "Holder" means from time to time, any person or entity for
whom Shares are held hereunder by the Trustee, as reflected in
the records of the Trustee (including BACI and any BACI
Affiliate).
(k) "Lockup Agreement" means the agreement between BACI and the
Representatives, dated as of July 15, 2005.
(l) "Other Affiliate" means any person or entity which has a
substantial business relationship with a Control Affiliate and
which is not itself a Control Affiliate.
(m) "person" means any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any
other entity.
(n) 'Preferred Stock" means the outstanding preferred stock of
the Corporation.
(o) "Registration Rights Agreement" means the Registration
Rights Agreement among the Corporation and the investors party
thereto, dated as of May 9, 2003, and as amended and restated as
of August 8, 2005.
(p) "Representatives" means BAS and X.X. Xxxxxx Securities Inc.,
as representatives of the several underwriters in the initial
public offering of the Common Stock.
(q) "Securities Act" means the Securities Act of 1933, as
amended.
(r) "Share" means a share of Common Stock or a Share Equivalent.
(s) "Share Equivalent" means at any time any security
convertible into, exchangeable for, or carrying the right to
acquire Common Stock or subscriptions, warrants, options, rights
or other arrangements obligating the Corporation to issue or
dispose of any shares of Common Stock, regardless of whether such
security is convertible, exchangeable or exercisable at such time.
(t) "Voting Stock" of a person means all classes of Capital
Stock of such person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof.
Section 2. Deposit. (a) BACI hereby duly assigns and delivers
or has caused to be duly assigned and delivered to the Trustee to
be held pursuant to this Agreement the number of Shares set forth
opposite its name on Schedule A attached hereto (the "Initial
Deposit"). BACI shall assign and deliver all Shares from time to
time owned by BACI such that the Excluded Capital Stock owned by
BACI and, subject to Section 2(b) below, BACI Affiliates does not
represent nine percent (9%) or more in the aggregate of the total
voting power of the Voting Stock of the Corporation outstanding
at such time. Subject to the provisions of Section 2(b) below,
BACI shall from time to time deliver or cause to be delivered to
the Trustee all Shares owned by any BACI Affiliate or acquired by
any BACI Affiliate such that Excluded Capital Stock owned by BACI
and BACI Affiliates does not represent nine percent (9%) or more
in the aggregate of the total voting power of the Voting Stock of
the Corporation outstanding at such time.
(b) For purposes of determining whether nine percent (9%) or
more in the aggregate of the total number of shares of the Voting
Stock of the Corporation at any time outstanding are owned by
BACI and BACI Affiliates, there shall be excluded, and no deposit
of Shares shall be required hereunder as a consequence of, any
Shares:
(i) held by BAS or any other Control Affiliate that is
registered as a broker-dealer under the Exchange Act, if
such shares are held in connection with its normal trading
activities as a broker-dealer; provided, however, that BACI
Parent shall cause BAS or such other Control Affiliate to
agree that it will not vote such shares,
(ii) held by BAS or any other Control Affiliate that is a
registered broker-dealer under the Exchange Act, if such
shares are held in a syndicate or trading account and were
acquired by it in its capacity as an underwriter or
placement agent, whether in an offering registered under the
Securities Act or otherwise; provided, however, that BACI
Parent shall cause BAS or such other Control Affiliate to
agree that it will not vote such shares,
(iii) held by BAS for the account of any person other than a
Control Affiliate or Employee Affiliate or in the name of a
customer account, which customer is a person other than a
Control Affiliate or Employee Affiliate; provided, however,
that BAS may vote the shares only when instructed by the
beneficial owner thereof or as otherwise permitted under the
rules of the primary national securities exchange on which
the Shares are listed, if any,
(iv) held in an investment advisory account as to which a Control
Affiliate is an investment advisor, the assets of which
account are not owned by a Control Affiliate, or
(v) held by an Employee Affiliate other than a person holding
the position of Managing Director or above (or performing
the comparable function) of BAS or any of its subsidiaries
or held by an Other Affiliate, unless in either case a
contract or other arrangement (other than this Agreement)
regarding the voting of such Shares exists between such
Employee Affiliate or Other Affiliate and any Control
Affiliate.
(c) From time to time after the date hereof, any Holder, BACI or
any BACI Affiliate may deposit additional Shares to be held
pursuant to this Agreement by assigning and delivering such
Shares to the Trustee.
(d) The Trustee hereby acknowledges that the Shares deposited in
the Initial Deposit are subject to the Lockup Agreement and the
Registration Rights Agreement. Subject to such agreements, any
Holder may at any time enter into any swap or any other agreement
or transaction that transfers, in whole or in part, directly or
indirectly, the economic consequences of ownership of the Shares,
whether any such swap or transaction is settled by delivery of
the Shares, other securities, in cash or otherwise.
Section 3. Transfer on Books of Corporation. The Trustee
shall, to the extent applicable, cause all Shares transferred to
or deposited with it in its capacity as Trustee hereunder to be
registered in its name as Trustee on the books of the Corporation
and will issue and deliver to each Holder (at the address of such
Holder provided in writing to the Trustee) a Voting Trust
Certificate (a "Trust Certificate") for the number of Shares so
transferred to or deposited with the Trustee and held by the
Trustee for such Holder.
Section 4. Form. Trust Certificates shall be in substantially
the following form (with such modifications as may be appropriate
if the applicable Trust Certificate represents Share Equivalents):
"THE TRANSFER OF THIS VOTING TRUST
CERTIFICATE IS SUBJECT TO TERMS AND
CONDITIONS SET FORTH IN THE VOTING TRUST
AGREEMENT DATED AS OF AUGUST 8, 2005, A COPY
OF WHICH HAS BEEN FILED IN THE REGISTERED
OFFICE IN THE STATE OF DELAWARE OF REPUBLIC
COMPANIES GROUP, INC., A DELAWARE CORPORATION
(THE "CORPORATION"). SUCH COPY IS OPEN TO
INSPECTION DAILY DURING BUSINESS HOURS BY ANY
STOCKHOLDER OF THE CORPORATION OR ANY
BENEFICIARY OF THE VOTING TRUST CREATED
PURSUANT TO SUCH VOTING TRUST AGREEMENT.
REPUBLIC COMPANIES GROUP, INC.
VOTING TRUST CERTIFICATE
Certificate No. ____ No. of Shares ______
This certifies that ____________ ("Holder") has transferred
to the undersigned Trustee or is otherwise the beneficial owner
of the above-stated number of voting shares of Common Stock, par
value $0.01 per share (or shares of Preferred Stock convertible
into such number of shares), of Republic Companies Group, Inc., a
Delaware corporation (the "Corporation"), to be held by the
Trustee pursuant to the terms of the Voting Trust Agreement dated
as of August 8, 2005 (the "Voting Trust Agreement"), a copy of
which agreement has been delivered to the above-named Holder and
filed in the registered office of the Corporation in the State of
Delaware. The Holder, or his registered assigns, will be
entitled (i) to receive payments equal to any and all cash
dividends collected by the Trustee on the above-stated number of
shares, (ii) to receive all other dividends or distributions in
respect of such shares received by the Trustee except to the
extent that property received is required to be deposited in the
trust created by the Voting Trust Agreement, and (iii) to the
delivery of a certificate or certificates for that number of
shares on the termination of the Voting Trust Agreement, in
accordance with its provisions. At all times prior to the
termination of the Voting Trust, the Trustee has the exclusive
right to vote the above-stated number of shares, or give written
consent, in person or by proxy, at all meetings of stockholders
of the Corporation, and in all proceedings in which the vote or
consent, written or otherwise, of the holders of securities of
the Corporation may be required or authorized by law. Other than
the rights expressly provided to the Trustee pursuant to the
preceding sentence, all rights and benefits related to ownership
of such shares of Common Stock are vested solely and exclusively
in the Holder.
This Voting Trust Certificate is transferable on the books
maintained by the Trustee at the principal corporate trust office
of the Trustee by the Holder hereof, in person or by duly
authorized attorney, and upon surrender hereof; and until so
transferred the Trustee may treat the registered Holder hereof as
the absolute owner hereof for all purposes.
The Holder, by the acceptance of this Voting Trust
Certificate, agrees to be bound by all of the provisions of the
Voting Trust Agreement as fully as if its terms were set forth in
this Voting Trust Certificate.
EXECUTED as of the __ day of ________, ____.
Xxxxx Fargo Bank, N.A., not
in its individual capacity
but solely as Trustee
under the Voting Trust
Agreement
By:
--------------------------
Name:
Title:
[Form of Assignment for Reverse of Voting Trust Certificate]
For value received, ___________ hereby sells, assigns, and
transfers unto ____________ the within Voting Trust Certificate
and all rights and interests represented thereby, and does hereby
irrevocably constitute and appoint _______ attorney to transfer
such Voting Trust Certificate on the books of the within-named
Trustee with full power of substitution in the premises.
Date: ________________________.
Signed: *.
*Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in STAMP or such
other "signature guarantee program" as may be determined by the
Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
Section 5. Additional Trust Certificates. Any Holder may at
any time deposit with the Trustee additional certificates (or the
equivalent evidence of ownership in the case of Share
Equivalents) for Shares. Any BACI Affiliate acquiring Shares may
at any time become a Holder by (a) depositing, or causing to be
deposited, certificates (or the equivalent evidence of ownership
in the case of Share Equivalents) for Shares, duly endorsed for
transfer, with the Trustee and (b) accepting a Voting Trust
Certificate in respect of such Shares.
Section 6. Voting; Powers. (a) At all times prior to the
termination of the voting trust created herein, the Trustee shall
have the exclusive right to vote the Shares deposited with it
hereunder (the "Deposited Shares"), or give written consent, in
person or by proxy, at all meetings of stockholders of the
Corporation, and in all proceedings in which the vote or consent,
written or otherwise, of the holders of Shares may be required or
authorized by law.
The Trustee shall vote all Deposited Shares in accordance
with this Agreement. The Trustee shall have full power and
authority, and it is hereby empowered and authorized, to vote the
Deposited Shares, and to do any and all other things and take any
and all other actions as fully as any stockholder of the
Corporation might do if personally present at a meeting of the
stockholders of the Corporation. To effect the foregoing (and to
avoid any potential timing problems that might otherwise be
caused if the Trustee were required to wait until all votes are
tallied before voting the Deposited Shares), the Trustee may give
instructions to the Corporation to the effect that the Deposited
Shares are being voted on such matter "as per the majority vote
of all other shares actually cast" or "on a pro rata basis
proportionate to all other votes actually cast." The Trustee
shall vote all Deposited Shares with the majority vote of all
shares, other than the Deposited Shares and Excluded Capital
Stock, actually cast on the particular matter, except:
(i) with respect to the election of members of the board of
directors of the Corporation, the Deposited Shares shall be
voted on a pro rata basis proportionate to all other votes
actually cast in such election, excluding votes cast by the
holders of Excluded Capital Stock;
(ii) with respect to matters subject to the provisions of Section
203 of the DGCL requiring approval by a specified percentage
of disinterested shareholders, or the equivalent section of
any successor statute, the Trustee shall abstain from voting
the Deposited Shares;
(iii) with respect to any matters that under current or future
Delaware law or under the Certificate of Incorporation or
By-laws of the Corporation require approval by a
supermajority of shareholder votes actually cast, a
majority or supermajority of all outstanding shares, or a
majority or supermajority of all outstanding shares of a
particular class which class includes the Deposited Shares,
the Deposited Shares shall be voted on a pro rata basis
proportionate to all other votes actually cast, excluding
votes cast by the holders of Excluded Capital Stock; and
(iv) with respect to any other matters not covered by (A), (B) or
(C) above that under current or future Delaware law require
approval by a class of outstanding shares of the
Corporation, which class includes the Deposited Shares, the
Deposited Shares shall be voted with the majority of all
shares of such class, other than Deposited Shares and
Excluded Capital Stock actually voted on the particular
matter.
The Trustee shall use its best efforts to ensure that the
Deposited Shares are represented at all shareholder meetings of
the Corporation such that the Deposited Shares are counted as
present for purposes of determining the existence of a quorum at
such meeting under the DGCL and the Corporation's Certificate of
Incorporation and By-laws, provided however that this clause (b)
shall not obligate the Trustee to vote on any matter.
(c) Each Holder agrees that it will not communicate with the
Trustee in connection with any proceeding in which the vote or consent of
the holders of Shares may be required or authorized by law or
otherwise seek to influence the Trustee in the exercise of its
right to vote or consent in any such proceedings. Notwithstanding
anything herein to the contrary, the Trustee shall vote the
Deposited Shares (and use its power or right, if any, to
designate or remove directors of the Corporation) to prevent the
election of more than one BACI Affiliate as a director of the
Corporation. The duties of the Trustee under this Agreement shall
include exercising reasonable effort under this Agreement in a
manner that ensures that neither BACI nor any BACI Affiliate
exercises control over the Corporation. BACI and any BACI
Affiliate shall promptly provide to the Trustee from time to
time, upon request, such information as is reasonably necessary
(including certificates or other documents) in order to enable
the Trustee to carry out the foregoing obligations. The Trustee
shall not be held responsible for identifying a person as a BACI
Affiliate unless it has actual knowledge that such person is a
BACI Affiliate.
Section 7. Dividends; Other Rights. If the Corporation pays or
issues dividends or makes other distributions on the Deposited
Shares, the Trustee shall accept and receive such dividends and
distributions. Upon receipt of dividends and distributions the
same shall be prorated among the Holders that have a beneficial
interest hereunder in the Deposited Shares with respect to which
such dividend or other distribution was made in accordance with
their interests and, subject to the next sentence, the amount
shall be distributed promptly pursuant to transfer instructions
set forth on Schedule B attached hereto. If the dividend or
distribution is paid or made in the form of Shares, such Shares
shall be held by the Trustee under the voting trust created
herein and new Trust Certificates representing the Shares
received shall be issued to the applicable Holders. Holders
entitled to receive such dividends or distributions, or Trust
Certificates in respect thereof, described in this Section 7
shall be those Holders registered as such on the transfer books
of the Trustee at the close of business on the day fixed by the
Corporation for the taking of a record to determine those holders
of its stock entitled to receive such dividends or
distributions. In the performance of its duties to deliver
dividends or distributions received by it under this Agreement,
the Trustee shall not be obligated to risk its own funds and will
not be personally liable for taxes or other charges related to
the delivery of such dividends or distributions. Except for the
voting rights provided to the Trustee under this Agreement, all
rights and benefits related to the Deposited Shares are vested
solely and exclusively in the Holders.
Section 8. Retention of Registration Rights. Each Holder, if
such Holder is a party to the Registration Rights Agreement,
retains, after depositing any Shares with the Trustee pursuant to
this Agreement, the rights granted to such Holder in such
agreement, and shall retain the right to agree, in respect of
Shares subject to such agreement, to any amendments to such
agreement.
Section 9. Termination. The voting trust created herein and
this Agreement shall terminate on the earlier to occur of:
(a) The written election of BACI or the Holder(s) of Trust
Certificates representing the beneficial interest in fifty
percent (50%) or more of the Deposited Shares (notice of which
shall be provided to all parties hereto and all other Holders),
but only if prior to the time such notice is given:
(i) BACI delivers (or such Holders deliver) to the Trustee and
BAS an opinion of independent nationally recognized counsel,
satisfactory to BACI, who are experts in matters involving
the federal securities law, that, immediately after such
termination, neither BACI, a BACI Affiliate nor BAS should
be an "affiliate" of the Corporation within the meaning of
Rule 144 under the Securities Act; and
(ii) The Trustee shall have received a certificate of an officer
of BACI to the effect that clause (i) above has been
satisfied, together with a copy of the opinion called for
thereby; or
(b) the written election of BACI if the Deposited Shares and
Excluded Capital Stock then owned by BACI and BACI Affiliates do
not represent nine and nine-tenths percent (9.9%) or more in the
aggregate of the total voting power of the Voting Stock of the
Corporation outstanding at such time (notice of which shall be
provided to all parties hereto and all other Holders); or
(c) transfer of all of the Deposited Shares in accordance with
Section 10.
Subject to BACI's acceptance of the opinion of counsel
described in Section 9(a)(i) above, an election pursuant to
Section 9(a) shall be effective upon delivery of notice thereof
to the Trustee.
Upon the termination of the voting trust herein created, the
Holders shall surrender their Trust Certificates to the Trustee,
and the Trustee shall deliver (or cause to be delivered) to the
Holders certificates (or the equivalent evidence of ownership in
the case of Share Equivalents or non-certificated Shares) for
Shares, properly endorsed for transfer (to the extent necessary),
equivalent to the number and type of Shares the beneficial
interest in which was represented by the respective Trust
Certificates surrendered.
Section 10. Transfers of Deposited Shares.
(a) Except as provided in Sections 9, 11 and 13 and in
subsections (a), (b) and (c) of this Section 10, certificates (or
the equivalent evidence of ownership in the case of Share
Equivalents or non-certificated Shares) for Deposited Shares may
not be delivered to a Holder, a Holder's designee or any other
person. A Holder may notify the Trustee in writing that the
Holder desires to cause a certificate or certificates (or the
equivalent evidence of ownership in the case of Share
Equivalents) for Deposited Shares in which the Holder has a
beneficial interest hereunder to be distributed or transferred to
any person, including such Holder, only if such transfer is an
Eligible Transfer, which is defined as any transfer meeting the
requirements set forth in clause (a)(i), (a)(ii) or (a)(iii)
below. Any person that acquires Deposited Shares pursuant to an
Eligible Transfer is hereinafter referred to as an "Eligible
Transferee."
(i) Transfer of Deposited Shares to any Control Affiliate or any
Employee Affiliate holding the Position of Managing Director
or Above. An "Eligible Transfer" for purposes of this
clause (i) means any distribution or transfer of Deposited
Shares to any Control Affiliate or any Employee Affiliate
holding the position of Managing Director or above (or
performing the comparable function) of any Control Affiliate
(including by way of a distribution by a Holder to its
limited partners); provided that either (A) (x) a contract
or other arrangement (other than this Agreement) regarding
the voting of such Deposited Shares does not exist between
any BACI Affiliate or BACI and such transferee and (y)
immediately after giving effect to such distribution or
transfer, BACI and BACI Affiliates will not own in the
aggregate Excluded Capital Stock amounting to nine percent
(9%) or more of the total voting power of the Voting Stock
of the Corporation then outstanding or (B) the Deposited
Shares distributed or transferred to such Control Affiliate
or Employee Affiliate shall be subject to this Agreement and
shall be automatically deposited with the Trustee in
accordance with Section 2 hereof. In connection with any
distribution or transfer pursuant to this clause (i), BACI
shall deliver a certificate of an officer of BACI certifying
that, immediately after giving effect to such transfer, the
conditions of either clause (i) (A) or (i) (B) are satisfied.
(ii) Transfer of Deposited Shares to any Employee Affiliate not
holding the Position of Managing Director or Above. An
"Eligible Transfer" for purposes of this clause (a)(ii)
means any distribution or transfer of Deposited Shares to
any Employee Affiliate not holding the position of Managing
Director or above of any Control Affiliate (including by way
of a distribution by a Holder to its limited partners);
provided that (A) a contract or other arrangement (other
than this Agreement) regarding the voting of such Deposited
Shares does not exist between any BACI Affiliate or BACI and
such transferee and (B) any proposed distribution or
transfer will not be an Eligible Transfer if, immediately
after giving effect to such distribution or transfer, the
proposed distributee or transferee, together with its
affiliates, would be an affiliate of the Corporation within
the meaning of Rule 144 of the Securities Act. In
connection with any distribution or transfer pursuant to
this clause (a)(ii), BACI shall deliver a certificate of an
officer of BACI certifying that, immediately after giving
effect to such transfer, the conditions of clause (a)(ii)(A)
and (B) are satisfied.
(iii) Transfer of Deposited Shares to Other Affiliates and Third
Parties Not Affiliated with BACI. An "Eligible Transfer"
for purposes of this clause (a)(iii) means any distribution
or transfer of Deposited Shares to any Other Affiliate or
any third party not affiliated with BACI (including by way
of a distribution by a Holder to its limited partners);
provided that (A) a contract or other arrangement (other
than this Agreement) regarding the voting of such Deposited
Shares does not exist between any BACI Affiliate or BACI and
such transferee and (B) any proposed distribution or
transfer will not be an Eligible Transfer if, immediately
after giving effect to such distribution or transfer, the
proposed distributee or transferee, together with its
affiliates, would be an affiliate of the Corporation within
the meaning of Rule 144 of the Securities Act. In
connection with any distribution or transfer pursuant to
this clause (a)(iii), (x) in the case of a distribution or
transfer to an Other Affiliate, BACI shall deliver a
certificate of an officer of BACI certifying that,
immediately after giving effect to such distribution or
transfer, the conditions of clause (a)(iii)(A) and (B) are
satisfied and (y) in the case of a distribution or transfer
to a third party not affiliated with BACI, BACI or such
distributee or transferee shall deliver a certification
that, immediately after giving effect to such transfer, such
distributee or transferee, together with its affiliates,
should not be an affiliate of the Corporation within the
meaning of Rule 144 of the Securities Act; provided,
however, that in the case of any distribution of Deposited
Shares under this clause (a)(iii) by any Holder that is a
limited partnership (a "Limited Partnership") to its limited
partners so long as the distribution is in proportion to
such limited partners' interests in the Limited Partnership
and, the Limited Partnership will be fully divested of
dispositive and voting power over such Deposited Shares
being distributed after such distribution, BACI shall
deliver a certificate of an officer of BACI certifying that,
immediately after giving effect to such distribution, each
such limited partner, together with its affiliates, should
not be an affiliate of the Corporation within the meaning of
Rule 144 of the Securities Act.
(iv) Notwithstanding the foregoing, if a tender offer to purchase
all the outstanding shares of Common Stock has been made in
accordance with Section 14(d) and Regulation 14D of the
Exchange Act, then a Holder may notify the Trustee in
writing that the Holder desires to cause a certificate or
certificates for Deposited Shares in which the Holder has a
beneficial interest hereunder to be tendered in such tender
offer pursuant to the procedures set forth in the applicable
Schedule TO (or any successor form). The Trustee shall
tender Deposited Shares in accordance with such Holder's
written instructions; provided that after such Deposited
Shares have been tendered and prior to consummation of the
tender offer, such Deposited Shares shall remain subject to
this Agreement. If the tender offer is not consummated,
such tendered Deposited Shares shall be delivered to the
Trustee and shall be subject to this Agreement.
(b) The notice delivered pursuant to Section 10(a) shall name
such Eligible Transferee and shall state
(i) its mailing address;
(ii) the proposed transfer date (which date shall be not less
than two days after the Trustee's receipt of such notice);
(iii) the number and type of Shares to be transferred; and
(iv) the consideration, if any, to be paid by such Eligible
Transferee therefor.
The notice to the Trustee shall also contain a
representation that such distributee or transferee is an Eligible
Transferee and shall be accompanied by a Trust Certificate or
Certificates of the Holder, duly endorsed for transfer,
representing not less than the number of Shares of the type to be
transferred to the Eligible Transferee. On the date specified in
such notice, and upon receipt by the Trustee from such Eligible
Transferee of the specified consideration, if any, the Trustee
shall deliver: (i) to the Eligible Transferee, a certificate (or
the equivalent evidence of ownership in the case of Share
Equivalents) for the number of Shares of the type specified in
such notice, registered in the name of the Trustee and duly
endorsed for transfer, and (ii) to the Holder, (A) a Trust
Certificate representing a number of Shares, if any, equal to the
number of Shares of the type represented by the surrendered Trust
Certificate less the number of Shares of the type transferred to
such Eligible Transferee, and (B) the consideration, if any,
received from such Eligible Transferee. Such consideration shall
be distributed promptly to such Holder pursuant to the transfer
instructions set forth on Schedule B attached hereto.
(c) A Holder may at any time direct the Trustee by notice in
writing to transfer a certificate or certificates (or the
equivalent evidence of ownership in the case of Share
Equivalents) for Shares in which the Holder has a beneficial
interest hereunder (i) to an underwriter (including BAS) in
connection with a public offering of the Shares registered under
the Securities Act or (ii) in connection with sales made pursuant
to Rule 144 under the Securities Act through a broker-dealer
(including BAS). Such notice shall state (A) the underwriter's
or broker dealer's mailing address, (B) the proposed transfer
date (which date shall not be less than two days after the
Trustee's receipt of such notice), (C) the number and type of
Shares to be transferred, and (D) the consideration, if any, to
be paid. The notice shall also be accompanied by a certificate
of an officer of the Holder certifying that such request is being
made solely for sales made in connection with a public offering
of the Shares registered under the Securities Act or sales made
pursuant to Rule 144 under the Securities Act and a Trust
Certificate or Certificates of the Holder, duly endorsed for
transfer, representing not less than the number of Shares of the
type to be transferred. The Trustee shall be entitled to
conclusively rely upon such certificate. On the date specified
in such notice, and upon receipt by the Trustee from such
underwriter or such other transferee of the specified
consideration, if any, the Trustee shall deliver: (x) to the
underwriter or such other transferee, a certificate (or the
equivalent evidence of ownership in the case of Share
Equivalents) for the number of Shares of the type specified in
such notice, registered in the name of the Trustee and duly
endorsed for transfer, and (y) to the Holder, a Trust Certificate
representing a number of Shares, if any, equal to the number of
Shares represented by the surrendered Trust Certificate less the
number of Shares transferred to such underwriter or such other
transferee, and (z) to the Holder, the consideration, if any,
received from such underwriter or such other transferee. Such
consideration shall be distributed promptly to the Holder
pursuant to the transfer instructions set forth on Schedule B
attached hereto.
Notwithstanding the foregoing, if the Holder intends to
transfer Shares pursuant to the exercise of the over-allotment
option granted to the underwriters in connection with a public
offering of Shares, the transfer date in the notice may be less
than five but shall not be less than two days after the Trustee's
receipt of such notice; provided that if the transfer date in the
notice is less than five days after the Trustee's receipt of the
notice, the Trustee shall only be obligated to use its reasonable
best efforts to effect the transfer of such Shares by such
transfer date.
Nothing in this Section 10 or elsewhere in this Agreement
shall prohibit a Holder from transferring Trust Certificates in
accordance with the terms of the Trust Certificates.
Section 11 . Requests for Shares. A Holder (hereinafter referred
to as a "Requesting Party" for the purpose of this Section 11)
may request of the Trustee in writing that the Trustee transfer
to such Requesting Party a certificate or certificates (or the
equivalent evidence of ownership in the case of Share
Equivalents) for Shares in which the Requesting Party has a
beneficial interest hereunder, which Shares shall not be subject
to this Agreement; provided, however, that (a) the Trustee shall
not honor such request if immediately after giving effect thereto
BACI and BACI Affiliates will own in the aggregate Excluded
Capital Stock amounting to nine percent (9%) or more of the total
voting power of the Voting Stock of the Corporation then
outstanding; (b) the Trustee shall not honor such request if
immediately after giving effect thereto, the Requesting Party,
together with its affiliates, will be an affiliate of the
Corporation within the meaning of Rule 144 of the Securities Act;
and (c) if the Requesting Party is not BACI, the Trustee shall
not honor such request unless BACI consents in writing to such
request. Such written request shall name such Requesting Party
and shall state (i) the proposed transfer date (which date shall
be not less than five days after the Trustee's receipt of such
request) and (ii) the number and type of Shares to be
transferred. The notice to the Trustee shall also be accompanied
by (A) a Trust Certificate or Certificates of the Requesting
Party, duly endorsed for transfer, representing not less than the
number of Shares of the type to be transferred to the Requesting
Party, (B) a certificate of an officer of BACI certifying that
immediately after giving effect to such request BACI and all BACI
Affiliates will own in the aggregate Excluded Capital Stock
amounting to less than nine percent (9%) of the total voting
power of the Voting Stock of the Corporation then outstanding and
(C) if the Requesting Party is not BACI or a BACI Affiliate, a
certification that, immediately after giving effect to such
request, such Requesting Party, together with its affiliates,
should not be an affiliate of the Corporation within the meaning
of Rule 144 of the Securities Act. The Trustee shall be entitled
to conclusively rely upon such certificate. On the date
specified in such request, and upon receipt by the Trustee from
the Requesting Party of such certificates, as applicable, the
Trustee shall deliver to the Requesting Party a certificate (or
the equivalent evidence of ownership in the case of Share
Equivalents or non-certificated Shares) for the number of Shares
of the type specified in such notice, registered in the name of
the Trustee and duly endorsed for transfer.
Section 12 . Sale, Distribution or Transfer of Shares in
Accordance with the Agreement. To the extent that any Holder
wishes to sell, distribute or otherwise transfer any Shares, so
long as the terms and conditions of this Agreement are otherwise
satisfied, such Holder shall be free to sell, distribute or
transfer Deposited Shares or Excluded Capital Stock as it deems
appropriate and there shall be no requirement that Excluded
Capital Stock be sold, distributed or transferred in advance of
Deposited Shares or vice versa.
Section 13 . Exercise, Conversion, Exchange or Cancellation of
Shares. The Trustee shall, upon written instruction of a Holder,
submit to the Corporation for exercise, conversion, exchange or
cancellation any Share in which such Holder has a beneficial
interest hereunder. Such instruction shall state (a) whether
such Shares are to be exercised, converted, exchanged or
cancelled and the basis for such action, (b) the date on which a
certificate or certificates representing such Shares are to be
submitted to the Corporation (which date shall not be less than
five days after the Trustee's receipt of such instruction), (c)
the number and type of Shares to be submitted to the Corporation
and (d) the consideration, if any, to be received upon such
exercise, conversion, exchange or cancellation from the
Corporation. The instruction shall be accompanied by (x) a Trust
Certificate or Certificates of the Holder, duly endorsed for
transfer, representing the beneficial interest in not less than
the number of Shares of the type to be submitted to the
Corporation and (y) any exercise price or other payment and any
agreement, certificate or other documentation required in
connection with such exercise, conversion, exchange or
cancellation. On the date specified in such instruction, and
against receipt from the Corporation of the specified
consideration, if any, the Trustee shall deliver: (i) to the
Corporation, (x) a certificate or certificates for the number of
Shares of the type specified in such instruction, issued in the
name of the Trustee and duly endorsed for transfer (or, if the
Shares are not certificated, the Trustee shall deliver the number
of Shares of the type specified in such notice by causing a
book-entry transfer of such number and type of Shares to be
reflected on the records of the Corporation) and (y) any exercise
price or other payment and any agreement, certificate or other
documentation delivered to the Trustee by such Holder with such
instruction and (ii) to the Holder, (x) a Trust Certificate
representing the beneficial interest in a number of Shares equal
to the number of Shares represented by the surrendered Trust
Certificate or Certificates less the number of Shares submitted
to the Corporation and (y) upon receipt, the consideration, if
any, received by the Trustee pursuant to such exercise,
conversion, exchange or cancellation; provided that if such
consideration includes Shares, such Shares shall be held by the
Trustee pursuant to this Agreement and new Trust Certificates
representing the beneficial interest in such Shares shall be
issued to such Holder.
Section 14 . Increase or Decrease in Number of Shares. In the
event of an increase in the number of outstanding Shares by
virtue of a stock split or the decrease in the number of
outstanding Shares because of a contraction of shares or a change
in the number of outstanding Shares as a result of some other
recapitalization in which the Corporation receives no
consideration for the issuance of the additional or reduced
number of Shares, the new additional or changed number of Shares
shall be held by the Trustee under this Agreement, the Trust
Certificates outstanding immediately prior to such increase,
decrease, or change in the number of outstanding Shares shall
thereupon represent the beneficial interest in the number of
Shares to which the Holders are entitled as a result of such
increase, decrease, or change, and new Trust Certificates
representing the beneficial interest in the appropriate changed
number of Shares shall be issued to Holders upon surrender of the
then existing Trust Certificates.
Section 15 . Successor Trustee. There shall initially be one
Trustee of the voting trust created herein. Upon the
liquidation, dissolution, winding-up, suspension, incapacity,
resignation or removal (in accordance with Section 16 below) of
the initial Trustee, BACI or the Holders of Trust Certificates
representing the beneficial interest in fifty percent (50%) or
more of the Deposited Shares shall appoint a successor Trustee by
written notice to the other parties and the other Holders;
provided, however, that such successor Trustee shall not be a
BACI Affiliate. In the event a successor Trustee shall not have
been appointed within 30 days of such liquidation, dissolution,
winding-up, suspension, incapacity, resignation or removal, the
Trustee may petition a court of competent jurisdiction to appoint
such a successor. In the event that the Trustee consolidates
with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another entity that is a
bank or trust company, the resulting, surviving or transferee
entity (unless it is a BACI Affiliate) shall become the successor
Trustee upon notice to the signatories hereto but without further
action by the signatories or any Holder.
Section 16. Removal / Resignation Of Trustee. A Trustee may be
removed by BACI or the Holders of Trust Certificates representing
the beneficial interest in fifty percent (50%) or more of the
Deposited Shares by written notice to the other parties and the
other Holders:
(i) if it is determined by a court of competent jurisdiction
that either (A) the Trustee has willfully and materially
violated the terms of this Agreement, or (B) the Trustee has
been guilty of malfeasance, misfeasance or dereliction of
duty hereunder;
(ii) if the Trustee shall have commenced a voluntary case or
other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect, or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall have
consented to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall have
made a general assignment for the benefit of creditors, or
shall have failed generally to pay its debts as they become
due, or shall have taken any corporate action to authorize
any of the foregoing; or
(iii) if an involuntary case or other proceeding shall have been
commenced against the Trustee seeking liquidation,
reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and
such involuntary case or other proceeding shall have
remained undismissed and unstayed for a period of 60 days;
or an order for relief shall have been entered against the
Trustee under the federal bankruptcy laws as now or
hereafter in effect.
(b) If BACI or the Holders of Trust Certificates representing
the beneficial interest in fifty percent (50%) or more of the
Shares then deposited hereunder determine that a basis exists for
removal of the Trustee under Section 16(a) above, they shall
deliver written notice of such determination to the Trustee
stating the basis for such removal.
(c) The Trustee may resign its position as such (i) upon ten
days' written notice to BACI, but only if a successor Trustee,
appointed as provided for in Section 15 above, has agreed to
serve as such effective upon the effectiveness of the resignation
of the Trustee then acting, or (ii) in any event upon thirty
days' written notice to BACI.
Section 17. Trustee May Own Shares. Nothing in this Agreement
shall prevent the Trustee from owning Shares or options to
purchase Shares in its individual capacity or in any capacity
other than as trustee hereunder or for BACI or any BACI Affiliate.
Section 18. Trustee Not an Affiliate. The Trustee represents
that it is a bank or trust company that is not a BACI Affiliate.
Section 19. Compensation; Expenses. The Trustee in its
individual capacity shall receive a fee from BACI of $1,500 for
its services in connection with the establishment of the voting
trust, and BACI will reimburse the Trustee in its individual
capacity in respect of the Trustee's reasonable expenses
(including, without limitation, reasonable attorney's fees)
lawfully incurred in connection therewith. During the period of
its services hereunder, the Trustee in its individual capacity
shall receive a fee from BACI of $2,500 per year. Reasonable
expenses (including, without limitation, reasonable attorney's
fees) lawfully incurred in the administration or performance of
the Trustee's duties or the exercise of the Trustee's rights,
powers and authority hereunder shall be reimbursed to it in its
individual capacity by BACI on behalf of the Holders. The
provisions of the preceding sentence of this Section 19 shall
survive the termination of this Agreement and the resignation,
removal or other cessation of service of the Trustee.
Section 20. Merger, Etc. Upon any merger, consolidation,
reorganization or dissolution of the Corporation or the sale of
all or substantially all of the assets of the Corporation
pursuant to which shares of capital stock or other voting
securities of another entity are to be issued in payment or
exchange for or upon conversion of Shares and other voting
securities, the shares or other voting securities of said other
entity shall, to the fullest extent permitted by law,
automatically be and become subject to the terms of this
Agreement and be held by the Trustee hereunder in the same manner
and upon the same terms as the Shares, and in such event the
Trustee shall issue to the Holders that have deposited Shares
with the Trustee new Trust Certificates in lieu of and upon
surrender of the old Trust Certificates for the appropriate
number of shares and other voting securities of such other
entity. At the request of any Holder, the Trustee may transfer,
sell or exchange or join with the Holder in a transfer, sale or
exchange of Shares and other voting securities in exchange for
shares and other voting securities of another entity, and in said
event the shares and other voting securities of the other entity
received by the transferor shall be and become subject to this
Agreement and be held by the Trustee hereunder in the same manner
as the Shares.
Section 21. Notices. All notices, reports, statements and other
written communications directed to the Trustee from the
Corporation shall be forwarded promptly by the Trustee to BACI
and each Holder. All notices, notices of election and other
communications required herein shall be given in writing by
overnight courier, telegram or facsimile transmission and shall
be addressed, or sent, to the appropriate addresses as set forth
beneath the signature of each party hereto, or at such other
address as to which notice is given in accordance with this
Section 21. Notices to BAS shall be sent to: Banc of America
Securities LLC, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Tel.:
(000) 000-0000, Fax: (000) 000-0000, Attention: Global Head of
Financial Institutions Group.
Section 22. Indemnity, Etc. The Trustee, as such and in its
individual capacity, and its directors, officers, employees and
agents, shall be indemnified, defended and held harmless by BACI
(on behalf of itself and the Holders) from and against any and
all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing for or defending
against any litigation, commenced or threatened, or any claims
whatsoever) (the "Indemnified Claims") arising out of, in
connection with, or based upon this Agreement or the actions or
failures to act of the Trustee hereunder or thereunder, except to
the extent such loss, liability, claim, damage or expense is
caused by or results from the Trustee's malfeasance (as
determined by a final and unappealable order of a court of
competent jurisdiction). BACI agrees on behalf of itself and the
Holders that it will indemnify, defend and hold harmless the
Trustee, as such and in its individual capacity, and its
directors, officers, employees and agents, from and against any
Indemnified Claims. BACI's obligation hereunder shall survive
the transfer of all or any portions of its respective shares and
interests, the termination of the voting trust created herein, or
the resignation, removal or other cessation of service of the
Trustee.
The Trustee, as such and in its individual capacity, shall
be entitled to the prompt reimbursement from BACI for its
out-of-pocket expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred in investigating,
preparing for or defending against any litigation, commenced or
threatened, arising out of or based upon this Agreement, or the
actions or failures to act of the Trustee hereunder or
thereunder, without regard to the outcome of such litigation;
provided, however, that the Trustee shall be obligated to return
such reimbursement insofar as it is subsequently determined by a
final and unappealable order of a court of competent jurisdiction
to have been incurred by the Trustee as a result of the Trustee's
malfeasance in the matter in question. Such expenses payable
under this Section 22 shall be prorated among the Holders in
accordance with their respective interests in the Shares then
deposited hereunder.
If a claim under this Section 22 is not paid in full within
30 days after a written claim has been submitted by the Trustee,
the Trustee may at any time thereafter bring suit to recover the
unpaid amount of the claim and, if successful in whole or in
part, the Trustee, as such and in its individual capacity, shall
be entitled to be paid also the expense of prosecuting such
claims, including reasonable attorney's fees.
The Trustee is authorized and empowered to construe this
Agreement and its construction of the same, made in good faith,
shall be final, conclusive, and binding upon all Holders and all
other parties interested. The Trustee may, in its discretion,
consult with counsel to be selected and employed by it, and the
reasonable fees and expenses of such counsel shall be an expense
for which the Trustee, as such and in its individual capacity, is
entitled to reimbursement under this Agreement.
The Trustee hereby accepts the voting trust created hereby
and agrees to perform its obligations expressly required
hereunder to be performed by the Trustee, but assumes no other
obligations and shall have no responsibility (and no personal
liability) for the management of the Corporation or for any
action taken by it, by any person elected as a director of the
Corporation or by the Corporation pursuant to any vote cast or
consent given by the Trustee. The Trustee, whether or not acting
upon the advice of counsel, shall incur no personal liability to
any person or entity because of any error of law or fact, mistake
of judgment or any matter or thing done or omitted under this
Agreement, except for its own malfeasance. Anything done or
suffered in good faith by the Trustee in accordance with the
advice of counsel chosen as indicated above or in good faith
reliance on the provisions of this Agreement shall be conclusive
in favor of the Trustee against the Holders and any other
interested party and shall give rise to no personal liability on
the part of the Trustee.
The Trustee shall not be personally liable in any event for
acts or defaults of any other trustee or trustees (under this or
any other voting trust of the Corporation's securities) or for
acts or defaults of any employee, agent, proxy or
attorney-in-fact of any other trustee or trustees. The Trustee
shall be fully protected and free from personal liability in
relying or acting upon any notice, request, consent, certificate,
declaration, guarantee, affidavit or other paper or document or
signature reasonably believed by it to be genuine and to have
been signed by the proper party or parties or by the party or
parties purporting to have signed the same.
No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 23. Certain Calculations. (a) For all purposes of this
Agreement, in determining whether BACI or BACI Affiliates will
own in the aggregate Capital Stock of the Corporation amounting
to nine percent (9%) or more of the total voting power of the
Voting Stock of the Corporation then outstanding, (i) shares of
Voting Stock underlying Share Equivalents owned by BACI and any
BACI Affiliate shall be deemed to be outstanding and owned by
BACI or such BACI Affiliate and (ii) Shares held pursuant to this
Agreement shall be excluded.
(b) For purposes of Sections 9, 15, 16 and 22, a Holder
owning a Trust Certificate representing the beneficial interest
in Share Equivalents shall, in respect of such ownership, be
deemed to be the Holder of a Trust Certificate representing the
beneficial interest in the number of shares of Common Stock that
the Trustee, acting on behalf of such Holder, may then acquire,
whether by exercise, conversion, subscription or otherwise,
pursuant to or by reason of ownership of such Share Equivalents.
Section 24. Further Assurances. Each of the parties to this
Agreement will execute any and all further documents, agreements
and instruments, and take all such further actions (including the
filing and recording of any other documents), which may be
required under any applicable law, or which the Trustee may
reasonably request, to give effect to the Initial Deposit, any
deposit of Shares after the Initial Deposit, the registration of
such Deposited Shares as transferred to the trust created herein,
the termination of the trust created herein pursuant to Section 9
of this Agreement and any transfer of Deposited Shares or Shares
pursuant to Section 10 or Section 11 of this Agreement.
Section 25. Counterparts. This Agreement may be executed in
multiple counterparts all of which counterparts together shall
constitute one agreement. Upon execution of this Agreement and
the establishment of the voting trust created herein, the Trustee
shall cause a copy of this Agreement to be filed in the
registered office of the Corporation in the State of Delaware and
the Agreement shall be open to inspection in the manner provided
for inspection under the laws of the State of Delaware.
Section 26. Choice of Law. This Agreement is intended by the
parties to be a voting trust agreement under Section 218 of the
General Corporation Law of the State of Delaware and shall be
governed and construed in accordance with the laws of the State
of Delaware.
Section 27. Bond. The Trustee shall not be required to provide
any bond to secure the performance of its duties hereunder.
Section 28. Reliance. Each Holder acknowledges that BACI will
rely on this Agreement in complying with the federal securities
laws. The Trustee acknowledges that BACI will rely on the
Trustee abiding by the terms of this Agreement, including,
without limitation, that (x) the Trustee will exercise
independent judgment in voting the Deposited Shares in accordance
with Section 6(a) and will not consult with BACI or any BACI
Affiliate regarding the voting of such Shares and (y) the Trustee
will not consent to any amendment or waiver of this Agreement
prohibited by Section 29 hereof whether or not such amendment or
waiver is approved by each of the parties hereto and all of the
Holders.
Section 29. Amendments and Waivers. This Agreement may not be
amended, supplemented or otherwise modified except in a writing
signed by or on behalf of the Trustee, BACI and the Holders of
Trust Certificates representing the beneficial interest in fifty
percent (50%) or more of the Shares then deposited hereunder and
the Corporation. This Agreement may not be amended or waived in
any material respect unless BACI shall have delivered to the
Trustee an opinion (in relying on which the Trustee shall be
fully protected) of independent nationally recognized counsel
(which opinion and counsel shall be satisfactory to BACI as
evidenced by BACI's delivery of such opinion to the Trustee), who
are experts in matters involving the federal securities law,
that, immediately after such amendment or waiver, BACI, together
with its affiliates, should not be an "affiliate" of the
Corporation within the meaning of Rule 144 under the Securities
Act. If this Agreement shall be amended, the Trustee shall file
a copy of the instrument effecting such amendment in the
principal office of the Corporation and shall send a copy to BAS.
Section 30. Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any
person or entity other than the parties hereto and their
successors and permitted assigns, any legal claim under any
covenant, condition or provision hereof, all the covenants,
conditions and provisions contained in this Agreement being for
the sole benefit of the parties hereto and their successors and
permitted assigns. No party may assign any of its rights or
obligations under this Agreement (except as provided in Section
15) without the written consent of all the other parties, which
consent may be withheld in the sole discretion of the party whose
consent is sought.
Section 31. Severability. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 32. Reasonable Best Efforts. If BACI or any BACI
Affiliate desires to sell or transfer any Capital Stock of the
Corporation, the Corporation and the Trustee shall, subject to
(a) the terms and conditions of this Agreement, the Lockup
Agreement and the Registration Rights Agreement and (b) the
provisions of applicable law, use their reasonable best efforts
to assist BACI or any such BACI Affiliate in satisfying the
administrative conditions associated with effecting any such sale
or transfer (e.g., causing restrictive legends to be removed from
stock certificates and causing stock certificates to be issued in
the name of BACI, such BACI Affiliates or their respective
transferees, all subject to the matters described in (a) and (b)
above). The Corporation shall similarly instruct its agents to
use their reasonable best efforts in assisting BACI or any such
BACI Affiliate in satisfying such administrative conditions
associated with effecting any such sale or transfer.
EXECUTED as of the date and year first above written.
Xxxxx Fargo Bank, N.A.,
Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name:Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxxx Xxxxxx,
Xxxxx 000
Attention:Corporate Trust
Services
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
BANC OF AMERICA CAPITAL
INVESTORS SBIC, L.P.
By: Banc of America
Capital Management
SBIC, LLC, its general
partner
By: Banc of America
Capital Management,
L.P., its sole member
By: BACM I GP,
LLC, its general
partner
By: /s/ Xxxxxx X. Xxxxxxxx
III
--------------------------
Name:Xxxxxx X. Xxxxxxxx
III
Title: Member
Address: Bank of America
Corporate Center
000 Xxxxx Xxxxx
Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX
00000-000
Attention:Xxxxxx X. Xxxxxxxx
III
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
Bank of America, National Association hereby agrees to the
provisions of Section 2(b) of this Agreement and solely for such
purpose has duly executed this agreement on the date first above
written.
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
III
--------------------------
Name:Xxxxxx X. Xxxxxxxx III
Title: Senior Vice
President
Address: 000 Xxxxx Xxxxx
Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(NY) 00000/000/XXXXXX.XXXXX/xxxxxx.xxxxx.xxx.xxx
Xxxxxxxx Companies Group, Inc. hereby agrees to the
provisions of Sections 3, 29, 30 and 32 of this Agreement and
solely for such purpose has duly executed this agreement on the
date first above written.
REPUBLIC COMPANIES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name:Xxxxxxx X. Xxxxx
Title: Vice President and
Secretary
Address: c/o Republic
Underwriters
Insurance Company
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx,
Vice President and
Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A-1
SCHEDULE A
(Initial Deposit)
Name Shares Deposited
Banc of America
Capital Investors
SBIC, L.P. 1,270,745 Common Stock
Total 1,270,745
-------------------------------------------------------------------
B-1
SCHEDULE B
TRANSFER INSTRUCTIONS
BANC OF AMERICA CAPITAL INVESTORS SBIC, L.P.
All payments shall be made by check mailed to:
Banc of America Capital Investors SBIC, L.P.
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
