AMENDMENT
TO
XXXXX FAMILY VOTING TRUST AGREEMENT--1991
AMENDMENT dated as of the 17th day of October, 1997 by and among
Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxxx, as trustees (together, the "Trustees")
under the Xxxxx Family Voting Trust Agreement--1991, as amended (the "Voting
Trust Agreement"), Xxxxxxxx X. Xxxxx as trustee of the Xxxxx X. Xxxxx
Trust--1976 (the "Stockholder"), and Xxxxx Industries, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Company, the Trustees and the Stockholder, as the
registered holder of all of the voting trust certificates outstanding under the
Voting Trust Agreement, desire to amend the Voting Trust Agreement to provide
that voting trust certificates may not be transferred without the written
consent of all of the Trustees.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. The second paragraph of Section 1 of the Voting Trust Agreement is
hereby amended and restated in its entirety to read as follows:
"Any registered holder of voting trust certificates hereunder
may from time to time withdraw shares represented thereby pursuant to
this Agreement in the manner provided below in this Section 1, and such
shares, when so withdrawn, shall be free of any restrictions imposed by
this Agreement, but shall remain subject to any and all restrictions
imposed by other agreements or by law. Such withdrawal shall be
effected only by a written amendment to this Agreement in the form of
Exhibit A hereto executed by all of the Trustees then serving hereunder
(acting together or, if all such Trustees do not agree, by the Trustee,
if any, having the Determination Power with respect to such withdrawal
under Section 10 hereof), and, if neither XXXXXXX X. XXXXX nor XXXXXXXX
X. XXXXX is then serving as a Trustee hereunder, also by the holders of
a majority in interest of the voting trust certificates hereunder then
outstanding; provided, however, that in the event XXXXXXX X. XXXXX for
any reason ceases to serve as a Trustee hereunder, any successor
Trustee appointed pursuant to the second paragraph of Section 11 hereof
(or any co-Trustee appointed pursuant to the sixth sentence of the
first paragraph of Section 11) shall have the sole power to consent to
and authorize (without any required consent or approval of any other
Trustee or any holder of voting trust certificates) the withdrawal of
any shares of Class B Common Stock deposited by XXXXXXX X. XXXXX at the
date hereof or hereafter, or capital stock otherwise represented by
voting trust certificates held by XXXXXXX X. XXXXX as of the date he
ceases to serve as a Trustee hereunder or held by him thereafter
(collectively, "TPH Shares"). Upon the surrender of the voting trust
certificate or certificates designated in such amendment by such
holder, the Trustees are authorized to deliver or cause to be delivered
to such holder a certificate or certificates for the shares of the
capital stock of the Company so withdrawn, with any appropriate
restrictive legends, and a voting trust certificate in respect of the
remaining shares, if any. Nothing in this Section 1 or in any such
amendment shall modify, amend, limit or terminate any other
restrictions contained in, or be construed as a consent to any transfer
of shares subject to this Agreement under, any other agreement or
instrument, unless such amendment specifically refers to such other
agreement or instrument and satisfies all requirements for amendment or
waiver thereof (including execution and delivery by appropriate
parties)."
2. The first paragraph of Section 4 of the Voting Trust Agreement is
hereby amended and restated in its entirety to read as follows:
"4. Transfer of Certificates; Restrictions. The transfer of
any voting trust certificate (including without limitation any sale,
assignment, donation, pledge, encumbrance, grant of a security
interest, hypothecation or other transfer or disposition) (a) shall be
effected only with the written consent of all of the Trustees then
serving hereunder (acting together, or, if all such Trustees do not
agree, by the Trustee, if any, having the Determination Power with
respect to such transfer under Section 10 hereof) and (b) shall be
subject to any restrictions, conditions and other provisions applicable
to it or to the stock which it represents, whether imposed by law,
specified on the relevant certificate or specified in the Restated
Certificate of Incorporation of the Company, as amended (the "Restated
Certificate") (provided that any transfer of voting trust certificates
without a transfer of the underlying stock held in this voting trust
shall in no way affect the voting rights of such underlying stock,
consistent with the terms of the Restated Certificate), this Agreement
or any other agreement, including without limitation the Stock
Restriction Agreement dated as of August 28, 1986, as the same may have
been or may hereafter be amended and/or restated, among parties hereto.
Any attempted transfer in violation of such restrictions, conditions
and other provisions shall be void ab initio and the Trustees shall not
register such transfer or recognize the intended transferee as the
holder of the voting trust certificate for any purpose. To the extent
permitted by law, voting trust certificates shall not be subject to
attachment, garnishment, judicial order, levy, execution or similar
process, however instituted, for satisfaction of a judgment or
otherwise."
3. Clause (iii) of the fourth paragraph of Section 10 of the Voting
Trust Agreement is hereby amended and restated in its entirety to read as
follows:
"(iii) If at any time XXXXXXXX X. XXXXX shall cease to serve
as a Trustee hereunder while XXXXXXX X. XXXXX is serving as a Trustee
hereunder, the concurrence of both XXXXXXX X. XXXXX and any successor
Trustee appointed in accordance with the second paragraph of Section 11
shall be required in connection with any vote involving the election or
removal of a Director or Directors of the Company as provided in clause
(ii) above, but in all other respects XXXXXXX X. XXXXX (for so long as
he continues to serve as a Trustee hereunder) shall have the
Determination Power."
4. The first paragraph of Section 11 of the Voting Trust Agreement is
hereby amended by deleting the following text in its entirety:
"At least one Trustee shall serve hereunder at all times.
Trustees shall in no event be subject to removal for any reason and any
Trustee hereunder shall serve until his or her resignation, refusal to
act, death, permanent disability or incapacity (as hereinafter defined)
to act. Any Trustee hereunder may resign by a signed instrument
delivered to the remaining Trustee or Trustees, if any, or otherwise to
the registered holders of the outstanding voting trust certificates.
The following provisions shall govern the succession of Trustees
hereunder. In the event that XXXXXXXX X. XXXXX shall cease to serve as
a Trustee hereunder while XXXXXXX X. XXXXX is serving as a Trustee
hereunder, then XXXXXXX X. XXXXX and any individual designated pursuant
to the following paragraph of this Section 11 shall serve as
co-Trustees hereunder; provided, however, that XXXXXXX X. XXXXX shall
have the Determination Power for so long as he serves as a Trustee
hereunder in such circumstances to the extent provided in Section 10;
and provided further, however, that (i) if no designation of a
successor Trustee pursuant to the following paragraph of this Section
11 shall be in effect at the time XXXXXXXX X. XXXXX ceases to serve as
a Trustee hereunder, or (ii) if all successor Trustees designated
pursuant to the following paragraph of this Section 11 at the time
XXXXXXXX X. XXXXX ceases to serve as a Trustee hereunder have failed to
serve as Trustees hereunder or have served as Trustees hereunder and
thereafter ceased to so serve, an individual who shall be designated by
XXXXXXX X. XXXXX shall become and serve as a co-Trustee with XXXXXXX X.
XXXXX (and should such individual cease to serve, XXXXXXX X. XXXXX
shall designate in the same manner such successive individuals to
serve) for the sole purposes of voting with XXXXXXX X. XXXXX and making
any withdrawal decisions for so long (and only so long) as XXXXXXX X.
XXXXX shall serve as a Trustee hereunder. In the event XXXXXXX X. XXXXX
shall cease to serve as a Trustee hereunder while XXXXXXXX X. XXXXX is
serving as a Trustee hereunder, then XXXXXXXX X. XXXXX and any
individual designated pursuant to the following paragraph of this
Section 11 shall serve as co-Trustees hereunder; provided, however,
that XXXXXXXX X. XXXXX shall have the Determination Power for so long
as he serves as a Trustee hereunder in such circumstances to the extent
provided in Section 10; and provided further, however, that (i) if no
designation of a successor Trustee pursuant to the following paragraph
of this Section 11 shall be in effect at the time XXXXXXX X. XXXXX
ceases to serve as a Trustee hereunder, or (ii) if all successor
Trustees designated pursuant to the following paragraph of this Section
11 at the time XXXXXXX X. XXXXX ceases to serve as a Trustee hereunder
have failed to serve as Trustees hereunder or have served as Trustees
hereunder and thereafter ceased to so serve, an individual who shall be
designated by XXXXXXXX X. XXXXX (and who is named as an executor under
the will of XXXXXXX X. XXXXX to the extent any such executor is living
and willing and able to serve), shall become and serve as a co-Trustee
with XXXXXXXX X. XXXXX (and should such individual cease to serve,
XXXXXXXX X. XXXXX shall designate in the same manner such successive
individuals to serve) for the sole purposes of voting with XXXXXXXX X.
XXXXX and making any withdrawal decisions, in each case with respect to
TPH Shares as contemplated in subclauses (B) and (C) of clause (iv) of
Section 10, for so long (and only so long) as XXXXXXXX X. XXXXX shall
serve as a Trustee hereunder. In the event that both XXXXXXX X. XXXXX
and XXXXXXXX X. XXXXX cease to serve as Trustees hereunder, then first
any individual designated as the Primary Designee (as defined below)
and then (in the event the Primary Designee shall fail or cease to
serve as a Trustee hereunder) any person designated as the Secondary
Designee (as defined below) pursuant to the following paragraph of this
Section 11 shall continue serving as or shall become (as applicable)
the sole Trustee hereunder. In the event any Primary Designee named
pursuant to the following paragraph shall fail or cease to serve as a
Trustee hereunder, then any Secondary Designee named pursuant to the
following paragraph shall become a Trustee hereunder, serving as a
co-Trustee as provided herein (subject to the provisions of clauses
(ii), (iii) and (iv) of Section 10) in the event the Primary Designee
fails or ceases to serve as a Trustee hereunder while XXXXXXXX X. XXXXX
or XXXXXXX X. XXXXX (as applicable) is also serving as a Trustee
hereunder and otherwise serving as the sole Trustee hereunder. After
each of XXXXXXX X. XXXXX, XXXXXXXX X. XXXXX and all individuals
designated pursuant to the following paragraph of this Section 11 shall
cease to serve as Trustees hereunder, or if for any other reason there
are no Trustees serving hereunder, then (and only then) a successor
Trustee or Trustees shall be promptly appointed by registered holders
of a majority in interest of the voting trust certificates then
outstanding. Persons designated as Trustees hereunder may be granted
and may hold the Determination Power only in accordance with Section 10
hereof."
5. The second paragraph of Section 11 of the Voting Trust Agreement is
hereby amended and restated in its entirety to read as follows:
"At any time XXXXXX X. XXXXX and XXXXXXX X. XXXXX, if then
living and not then subject to any incapacity (as hereinafter defined),
may, by written instrument signed by each of them and filed with the
registered office of the Company in Delaware, designate (i) an
individual to serve as co-Trustee with XXXXXXX X. XXXXX and/or to
succeed XXXXXXX X. XXXXX as sole Trustee hereunder should XXXXXXX X.
XXXXX cease to serve as a Trustee hereunder, in each case as
contemplated by Section 10 and the preceding paragraph (the "Primary
Designee"), and (ii) if they so elect, an additional individual to
succeed the Primary Designee in performing the foregoing functions as
Trustee hereunder (the "Secondary Designee") in the event that the
Primary Designee shall fail or cease to serve as a Trustee hereunder.
Any such designation shall also be revocable by a written instrument
signed by each of XXXXXX X. XXXXX and XXXXXXX X. XXXXX (if then living
and not then subject to any incapacity (as hereinafter defined)) and
filed with the registered office of the Company in Delaware at any time
prior to the time at which a designated successor becomes a Trustee
hereunder. It is understood that the provisions of this Section 11 are
intended to permit the designation of two individuals to act as
co-Trustees with XXXXXXX X. XXXXX under certain circumstances and to
follow XXXXXXX X. XXXXX successively in the line of succession as
Trustees hereunder, and while designations of particular individuals
may be revoked (such as in the case of a designee's death, for
example), no more than two individuals may become Trustees hereunder
pursuant to a designation as a Primary or Secondary Designee absent an
amendment to this Agreement, it being understood that in the event a
Secondary Designee becomes a Trustee hereunder because a Primary
Designee shall have failed to serve as a Trustee hereunder, then the
individuals so empowered in this paragraph may thereafter name a new
Secondary Designee in accordance with the terms hereof. In the event
either XXXXXX X. XXXXX or XXXXXXX X. XXXXX dies or becomes subject to
any incapacity (as hereinafter defined), then the power to appoint or
revoke the appointment of Primary and/or Secondary Designees may be
exercised by such of these individuals who are then living and not then
subject to any incapacity (as hereinafter defined). The power
designated in this paragraph is personal to, and may be exercised only
by, the individuals named in this paragraph in accordance with the
terms hereof. The provisions of this paragraph are intended to be
permissive and shall authorize, but not require, the appointment of a
Primary or Secondary Designee."
6. The effective date of this Amendment shall be the date first set
forth above.
7. As amended by this Amendment, the Voting Trust Agreement is in all
respects ratified and confirmed, and as so amended by this Amendment the Voting
Trust Agreement shall be read, taken and construed as one and the same
instrument.
8. This Amendment may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which so executed shall be
deemed to be an original, but all of such counterparts shall together constitute
but one and the same instrument.
9. This Amendment shall be governed in accordance with the laws of the
State of Delaware without regard to principles of conflicts of law.
[END OF TEXT]
The parties hereto have executed this Amendment to the Voting Trust
Agreement in one or more counterparts under seal as of the date first set forth
above.
XXXXX INDUSTRIES, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Chairman
/s/Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, as Trustee
/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, as Trustee
/s/Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx, as Trustee of the
Xxxxx X. Xxxxx Xxxxx--0000
