EXHIBIT 9.2
VOTING TRUST AGREEMENT
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THIS VOTING TRUST AGREEMENT (this "Agreement") is made and entered into
as of this 17th day of December, 1997, by and among XXXXXX X. XXXXX, XX.
("Xxxxx"), XXXXX X. XXXXXXX ("Xxxxxxx") and XXXXXXX X. XXX ("Hay"), as voting
trustees (the "Voting Trustees" or, individually, a "Voting Trustee"), and XXXXX
MANAGEMENT CORP., a Kentucky corporation and a stockholder (the "Stockholder")
of NORTH ATLANTIC TRADING COMPANY, INC., a Delaware corporation (the "Company").
STATEMENT OF PURPOSE
WHEREAS, the Company has issued 276,300 shares of its Voting Common
Stock, par value $.01 per share (the "Common Stock"), to the Stockholder;
WHEREAS, the Stockholder deems it to be in the best interests of the
Company to secure continuity and stability of policy and management, to promote
the continuous and uninterrupted development of business policies and to vest
voting power of the shares of Common Stock in the Voting Trustees as provided
for herein;
WHEREAS, the Stockholder and each of the Voting Trustees desires to
enter into a voting trust pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE 1
DEFINITIONS
In addition to terms defined elsewhere herein, as used herein, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Agreement" means this Voting Trust Agreement, as amended, supplemented
or otherwise modified from time to time.
"Xxxxxxx" shall have the meaning set forth in the preamble hereof.
"Certificate Holder" shall mean the holder of a Voting Trust
Certificate.
"Common Stock" shall have the meaning set forth in the Statement of
Purpose hereof.
"Company" shall mean North Atlantic Trading Company, Inc., a Delaware
corporation, its successors, any surviving corporations into which it may be
merged, or any corporations resulting from its consolidation with any other
corporations and the successors of any such surviving or consolidated
corporations.
"Credit Facilities" shall collectively mean (i) the Credit Agreement
dated as of June 23, 1997 by and among the Company, certain guarantors, Gleacher
Natwest, Inc., National Westminster Bank plc and the financial institutions
named therein; (ii) the Indenture dated as of
June 25, 1997 by and among the Company, certain guarantors and United States
Trust Company of New York and (iii) the Certificate of Designation relating to
the Company's 12% Senior Payment-In-Kind Preferred Stock.
"Hay" shall have the meaning set forth in the preamble hereof.
"Xxxxx" shall have the meaning set forth in the preamble hereof.
"Securities" shall mean the Shares of the Company and all other forms
of cash, stocks, bonds or other property, if any, of the Stockholder held by the
Voting Trustees under this Agreement.
"Stockholders' Agreement" shall mean that certain Exchange and
Stockholders' Agreement dated as of June 25, 1997 by and among the Company and
the stockholders named therein, and any amendments and supplements thereto.
"Shares" or "Shares of the Company" shall mean the 276,300 shares of
Common Stock of the Company and any other shares of the Company owned by the
Stockholder having the right to vote for the election of directors of the
Company.
"Stockholder" shall have the meaning set forth in the preamble hereof.
"Voting Trust Certificate" shall mean a voting trust certificate issued
pursuant to the terms and provisions of this Agreement, as from time to time
amended or supplemented.
"Voting Trustee" or "Voting Trustees" shall have the respective
meanings set forth in the preamble hereof.
ARTICLE 2
DEPOSIT OF SHARES
Concurrently with the Stockholder's execution hereof, the Stockholder
shall deliver or cause to be delivered to the Voting Trustees the stock
certificate(s) representing all of its Shares of the Company, duly assigned to
the Voting Trustees. The Stockholder shall deliver to the Voting Trustees any
additional stock certificates representing Shares of the Company acquired by the
Stockholder at any time after its execution hereof, and shall duly assign said
certificates to the Voting Trustees. The Voting Trustees shall cause all such
Shares to be transferred on the books of the Company into the name of the Voting
Trustees, as Voting Trustees hereunder, and the Voting Trustees shall issue to
the Stockholder a Voting Trust Certificate for the number of Shares transferred
by the Stockholder to the Voting Trustees.
ARTICLE 3
VOTING TRUST CERTIFICATES
3.1 The Voting Trust Certificates to be issued by the Voting Trustees
shall be in the form attached hereto as Exhibit A.
3.2 The Voting Trust Certificates issued by the Voting Trustees may be
transferred on the books of the Voting Trustees upon surrender of such
certificates, properly endorsed by
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the record owner thereof in person, or by its attorney duly authorized, in
accordance with the terms of the Stockholders' Agreement and rules established
by the Voting Trustees. Until so transferred, the Voting Trustees may treat the
record holder of Voting Trust Certificates as the owner thereof for all purposes
whatsoever. The Voting Trustees shall not be required to deliver any Securities
held hereunder without the surrender of the Voting Trust Certificates
representing such Securities. The transfer books for Voting Trust Certificates
may be closed by the Voting Trustees at any time prior to the payment or
distribution of dividends, or for any other purpose, or the Voting Trustees may
fix a record date in lieu of closing the transfer books.
3.3 Subject to Article 4 hereof, no voting right or power with respect
to the Shares of the Company or other Securities held in trust hereunder shall
pass to the Certificate Holder by or under this Agreement or any other
agreement, whether by implication or otherwise, while such Shares of the Company
or other such Securities are held in trust hereunder.
ARTICLE 4
POWERS OF THE VOTING TRUSTEES
4.1 Until the termination of this Agreement as provided in Article 7
and in accordance with Section 4.6 hereof, the Voting Trustees are hereby
irrevocably authorized and empowered to exercise, in their sole discretion, the
following powers with respect to the Shares of the Company or any other
Securities held by them under this Agreement:
(a) To vote or fail to vote for the election of directors;
(b) Acting upon the written direction of the Certificate
Holder, to vote, or fail to vote, for any other act or purpose any and
all the Securities held by them hereunder having voting rights or to
consent, or fail to consent, on behalf of said Securities to any act or
proposal, including, without limitation, the following:
(i) the increase, reduction or change of any Shares
or the issuance of any different Shares or other Securities;
(ii) the waiver of preemptive rights, if any, of the
Stockholders or Voting Trust Certificate holders to subscribe
for additional Shares or Securities;
(iii) the classification or reclassification of
Shares of the Company or other Securities into any preferred,
common or other Shares, with or without par value, or into
other Securities or partly into Shares and partly into other
Securities;
(iv) the modification, elimination or waiver of the
rights, preferences, privileges, priorities or par or stated
value of any class of Shares of the Company or other
Securities;
(v) the amendment of the Certificate of Incorporation
or Bylaws of the Company or any other corporation, including
but not limited to an increase or decrease of authorized
Shares or of stated capital;
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(vi) the sale, mortgage, hypothecation or lease of
all or any part of the assets of the Company or any other
corporation;
(vii) the authorization of indebtedness, secured or
unsecured;
(viii) the authorization of the merger or
consolidation of the Company or any other corporation into or
with other corporations, or of the dissolution, reorganization
or recapitalization of the Company or any other corporation;
and
(ix) the authorization, ratification or approval of
any other corporate act or other act (or nonaction) of any
nature whatsoever as fully as if the Voting Trustees were the
absolute owners of the Securities held hereunder.
(c) To receive dividends or distributions on all Securities
held hereunder.
(d) Acting upon the written direction of the Certificate
Holder, to exchange Securities held hereunder, in whole or in part, for
other Securities, upon such terms as the Voting Trustees in their sole
discretion may deem advisable, including the surrender and exchange of
Securities held hereunder, in a merger, consolidation, reorganization
or recapitalization, or the sale or exchange of all or part of the
assets of the Company for Securities of another corporation, firm,
person, partnership, trust, association or other entity. All Securities
received in any such exchange shall be held by the Voting Trustees in
lieu of the Securities theretofore held hereunder.
(e) Acting upon the written direction of the Certificate
Holder, to sell all or any part of the Shares of the Company or other
Securities held hereunder for such consideration and upon such terms as
the Voting Trustees in their sole discretion may deem advisable.
4.2 The Voting Trustees shall have power to appoint such agents from
time to time with such powers, duties and functions as the Voting Trustees may
deem advisable. All such appointments shall be made by instrument in writing and
shall specify the authority and duties of the agent, and all such appointments
may be revoked by the Voting Trustees at any time by instrument in writing. Such
instruments shall become effective upon filing an executed copy thereof with the
secretary of the Company, and any agent so appointed may resign by filing his
written notice of resignation with the Voting Trustees and a copy thereof with
the secretary of the Company at least 30 days prior to the date of resignation
specified therein.
4.3 The Voting Trustees are authorized and empowered to participate in,
to intervene in, to become a party to or to defend any actions of any character,
suits or legal proceedings relating to or affecting this Agreement, Securities
held hereunder or the rights of the parties hereto.
4.4 (a) Each of the Voting Trustees may at any time resign by
delivering his resignation in writing to the Certificate Holder and the
other Voting Trustees.
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(b) The Certificate Holder shall have the right to remove at
any time any of the Voting Trustees and replace any of them with a
successor Voting Trustee by a written instrument signed by the
Certificate Holder delivered to the Voting Trustees and the Company;
provided, however, that so long as the Company is subject to the
provisions of any of the outstanding Credit Facilities, any Voting
Trustee must be a member of senior management of the Company.
4.5 Each of the successor Voting Trustees appointed in accordance with
the Section 4.4 hereof shall, from the time of such appointment, be deemed one
of the Voting Trustees hereunder, and shall have all the title, rights and
powers of a Voting Trustee hereunder, and all acts and instruments shall be done
or executed which shall be necessary or reasonably requested for the purpose of
effecting such succession and of making each of the successor Voting Trustees
one of the owners of record of the Shares and other Securities held pursuant to
this Agreement.
4.6 For purposes of this Article 4, all instruments, notices or
directions to be provided by the Certificate Holder to the Voting Trustee shall
be in writing and effective at the date and time specified therein. Copies of
all instructions, notices and directions shall also be concurrently delivered to
the secretary of the Company.
4.7 As Voting Trustees hereunder, Xxxxx, Hay and Xxxxxxx shall be
entitled to three votes, one vote and one vote, respectively. Any successor
Voting Trustee appointed to take the place of Xxxxx, Hay or Xxxxxxx shall be
entitled to only one vote. Except as expressly authorized in this Agreement, all
actions taken by the Voting Trustees shall require the approval or consent of a
majority of the votes of the Voting Trustees.
ARTICLE 5
LIABILITY AND INDEMNIFICATION
5.1 The Voting Trustees shall not be responsible as a trustee, a
stockholder of the Company or otherwise by reason of any matter or thing done or
omitted to be done by him, his agents or attorneys or by the management of the
Company, except for his own willful misconduct. Each of the Voting Trustees
shall under no circumstances incur any liability whatsoever as a result of any
action under this trust agreement authorized, taken or permitted to be taken by
such Voting Trustee in good faith (a) upon advice of counsel or (b) with consent
of the holders of Voting Trust Certificates representing a majority of the
Shares of the Company then held hereunder.
5.2 No agent appointed by the Voting Trustees shall be liable or
responsible for any action taken or permitted to be taken upon and in accordance
with the written instructions or with the written approval of the Voting
Trustees.
ARTICLE 6
DIVIDENDS AND DISTRIBUTIONS
6.1 Within a reasonable time after receipt thereof, the Voting Trustees
shall pay over to the holder of each Voting Trust Certificate the cash
dividends, if any, collected by the Voting Trustees upon the Shares of the
Company or other Securities then held hereunder represented by such Voting Trust
Certificate.
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6.2 In the event that any dividend or other distribution paid in Shares
of the Company shall be received by the Voting Trustees, each holder of a Voting
Trust Certificate shall be entitled to receive an additional Voting Trust
Certificate representing such portion of the Shares so received by the Voting
Trustees as the Shares of the Company represented by his Voting Trust
Certificate or certificates bear to the total number of Shares of the Company in
the voting trust prior to the receipt of such distribution. In the event any
dividend or other distribution other than cash or Shares of the Company is
received by the Voting Trustees, the Voting Trustees shall promptly distribute
the same.
ARTICLE 7
TERMINATION
7.1 Unless terminated earlier as provided in this Article 7, this
Agreement and the irrevocable voting trust hereby created shall terminate upon
the expiration of 15 years following the date of this Agreement.
7.2 The Certificate Holder may (a) terminate this Agreement and the
voting trust hereby created or (b) direct the release from trust of a portion of
the Shares, in either case at any time by giving written notice of the
termination or release to the Voting Trustees; provided, however, that the
Certificate Holder may not terminate this Agreement or direct the release from
trust of any Shares if such termination or release causes or results in a
default under any of the outstanding Credit Facilities.
7.3 Upon termination of this Agreement, the Voting Trustees shall call
upon and require the Certificate Holder to surrender said certificates, and upon
presentation of said certificates, the Certificate Holder shall be entitled to
receive, in exchange therefor, the Securities then held hereunder represented by
said Voting Trust Certificates.
ARTICLE 8
MISCELLANEOUS
8.1 Amendment. This Agreement may be amended in any and all respects by
an agreement in writing signed by all of the Voting Trustees and the Certificate
Holder.
8.2 Agreement Available at Registered Office. A copy of this Agreement
shall be filed at The Corporation Trust Company in Wilmington, Delaware, which
is the registered office of the Company in Delaware, and shall be open to the
inspection of the Certificate Holder or any of the Voting Trustees of the
Company during business hours.
8.3 Consent or Approval. Whenever under the terms of this Agreement the
consent or approval of the Certificate Holder is required or shall be desired to
be obtained, the same may be evidenced by instruments of approval or consent
signed by the Certificate Holder or its attorneys or agents.
8.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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8.5 Severability. In the event any provision of this Agreement is held
to be illegal, invalid or unenforceable to any extent, the legality, validity
and enforceability of the remainder of this Agreement shall not be affected
thereby and shall remain in full force and effect and shall be enforced to the
greatest extent permitted by law.
8.6 Binding Agreement. The provisions of this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns.
8.7 Headings. The headings of sections of this Agreement are for
convenience only and shall not be considered in construing or interpreting any
of the terms or provisions hereof.
8.8 Word Meanings. The words such as "herein", "hereinafter", "hereof",
and "hereunder" refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise requires.
The singular shall include the plural, and vice versa, unless the context
otherwise requires.
8.9 Entire Agreement. This Agreement, as effective on the date hereof,
contains the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior writings or agreements with
respect to such subject matter.
8.10 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. THIS AGREEMENT
SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE COURTS OF NEW YORK
COUNTY, NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND AGREE THAT THE PARTIES HERETO MAY, AT THEIR OPTION, ENFORCE
THEIR RESPECTIVE RIGHTS HEREUNDER IN SUCH COURTS.
8.11 Trust. Each of the Voting Trustees hereby accepts the trust herein
created.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have hereunto signed this
Agreement as of the date first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
TRUSTEES:
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxx
--------------------------
Name: Xxxxxxx X. Xxx
STOCKHOLDER:
XXXXX MANAGEMENT CORP.,
a Kentucky corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: President
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EXHIBIT A
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NO. 1
NORTH ATLANTIC TRADING COMPANY, INC.
(A DELAWARE CORPORATION)
VOTING TRUST CERTIFICATE
This is to certify that XXXXX MANAGEMENT CORP., a Kentucky corporation
(hereafter referred to as the "Owner" or "Record Holder" of this certificate)
has deposited with the undersigned as Voting Trustees under the Voting Trust
Agreement (as defined below) 276,300 shares of the Voting Common Stock, par
value $.01 per share (the "Shares"), of North Atlantic Trading Company, Inc., a
Delaware corporation (the "Company"), and that the Owner of this certificate, or
his/her assigns, is/are entitled to all the benefits and interests specified in
the Voting Trust Agreement arising from the deposit of the Shares, all as
provided in and subject to the terms of the Voting Trust Agreement, to which
reference is hereby made for a complete statement thereof.
Until the termination of the voting trust as provided in the Voting
Trust Agreement and delivery or deposit of the Securities (as defined in the
Voting Trust Agreement), the Owner of this certificate or its assigns is
entitled to receive its pro rata part of any cash dividends received by the
Voting Trustees upon the Shares represented by this certificate, subject to and
as provided in the Voting Trust Agreement; and the Voting Trustees shall possess
and shall be entitled to exercise the right to vote thereon and to execute
consents with respect thereto for every purpose, and with all those rights and
powers which are more specifically set out in the Voting Trust Agreement, it
being expressly stipulated that no voting right passes to the Owner of this
certificate or his/her assigns by or under Voting Trust Agreement or this
certificate or by or under any agreement, express or implied.
This certificate is issued under and pursuant to, and the rights of the
Owner of this certificate and his/her assigns are subject to and limited by, the
terms and conditions of a Voting Trust Agreement dated as of December , 1997
(the "Voting Trust Agreement"), a copy of which is filed with the Company.
Receipt of a copy of the Voting Trust Agreement is hereby acknowledged by the
Owner of this certificate, and the Owner of this certificate and its assigns
hereby assent to the terms and conditions thereof. This certificate is
transferable on the books of the undersigned Voting Trustees by the record
holder hereof in person, or by attorney or agent, duly authorized according to
the rules established for that purpose by the Voting Trustees, upon surrender of
this certificate properly endorsed, and until so transferred, the Voting
Trustees may treat the record holder as Owner hereof for all purposes
whatsoever, but shall not be required to deliver any Securities hereunder
without the surrender hereof.
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IN WITNESS WHEREOF, the undersigned Voting Trustees have executed this
certificate this day ___ of December, 1997.
VOTING TRUSTEES:
By: --------------------------
Name: Xxxxxx X. Xxxxx, Xx.
By: --------------------------
Name: Xxxxx X. Xxxxxxx
By: --------------------------
Name: Xxxxxxx X. Xxx
A-1
ASSIGNMENT FORM
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FOR VALUE RECEIVED, ___________________________________________________
hereby sells, assigns and transfers unto ________________________ all its rights
to the shares of common stock of North Atlantic Trading Company, Inc. (the
"Company") represented by this Voting Trust Certificate which shares are held in
the voting trust under the name of the Voting Trustees pursuant to the Voting
Trust Agreement dated as of December , 1997 (a copy of which is filed with the
Company), and does hereby irrevocably constitute and appoint such Voting
Trustees to transfer the same on the records of the voting trust, with full
power of substitution in the premises.
Date _______________ , 199
Signature _____________________________
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