EXHIBIT 9
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT ("Agreement") is entered into as of April 15,
1996, by and among XXXXXX X. XXXX, XXXXX X. XXXX, XX., XXXXX X. XXXX, XX. AND F.
XXXXXX XXXXXXX, as the voting trustees (each of whom, in such capacity and with
his successor(s) being hereinafter referred to as a "Voting Trustee"), and the
stockholders of LSAI HOLDING CORP., a Delaware corporation (the "Company") who
are parties hereto (hereinafter referred to individually as a "Stockholder" and
collectively as the "Stockholders"), as identified and listed on a certificate
attested to by the Secretary of the Company and maintained with the permanent
records of the Company on behalf of the Voting Trustees (the "Certificate").
RECITALS
WHEREAS, upon the consummation (the "Closing") of the transactions
contemplated by the Stock Subscription Agreement dated as of January 25, 1996
between each of the Stockholders and the Company (each, a "Stock Subscription
Agreement" and collectively, the "Stock Subscription Agreements") the
Stockholders will be the record and beneficial owners of shares of common stock,
par value $0.01 per share, of the Company (the "Common Stock"), with the number
of shares of Common Stock held by each Stockholder being set forth on the
Certificate;
WHEREAS, LSAI Acquisition Corp., a Delaware corporation and a direct wholly
owned subsidiary of the Company ("Acquisition"), the Company, and Levi Xxxxxxx
Associates Inc., a Delaware corporation ("LSAI"), have entered into an Agreement
and Plan of Merger, dated as of February 8, 1996 (the "Merger Agreement"),
providing, among other things, for the merger (the "Merger") of Acquisition with
and into LSAI; and
WHEREAS, the Voting Trustees and the Stockholders believe it advisable, in
order to provide for the long-term, stable and consistent ownership and
governance of the Company, to deposit the shares of Common Stock to be issued to
the Stockholders under the Stock Subscription Agreements with the Voting
Trustees, creating a Voting Trust (the "Trust") on the terms and conditions
hereinafter set forth, and for the initial and successor Voting Trustees to
share a common vision of the Company, to represent and reflect the financial and
other interests of the Stockholders and to bring a balance of perspectives to
the Voting Trustees as a whole (the term "Shares", as used in this Agreement,
shall include, in addition to the shares of Common Stock originally deposited
with the Voting Trustees pursuant to Article II hereof, all additional shares of
Common Stock and other securities of the Company or any successor or successors
of the Company deposited with the Voting Trustees pursuant to Section 3.3 or
Article VIII hereof or retained by the Voting Trustees pursuant to Article X
hereof).
NOW THEREFORE, in consideration of the premises and of the representations,
warranties and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
FILING; INSPECTION
1.1. Filing of Agreement with the Company; Availability for Inspection by
Stockholders. Copies of counterparts of this Agreement, signed by each of the
Stockholders, and of every
agreement supplemental to this Agreement or amending this Agreement, shall be
filed in the principal office of the Company, which immediately following the
effective time of the Merger shall be located at Levi's Plaza, 0000 Xxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and in the registered office of the
Company in the State of Delaware, and shall be open to reasonable inspection by
any Stockholder. The "Voting Trust Certificates" (as defined in Section 3.1)
issued as provided in this Agreement shall be issued, received and held subject
to all of the terms of this Agreement, the respective Stock Subscription
Agreements executed by the Stockholders pursuant to which such Stockholders
acquired their Shares and a Stockholders' Agreement dated of even date herewith
executed by the Company and the Stockholders (the "Stockholders' Agreement").
ARTICLE II
TRANSFER OF SHARES TO VOTING TRUST
2. 1. Transfer of Shares. Effective as of the Closing, each of the
Stockholders hereby directs Xxxxxx X. Xxxxx and Xxxxxx Xxxxxxxx, as their
agents, to deposit with the Voting Trustees (or with a national bank or other
bank with capital of at least $100,000,000 designated by the Voting Trustees
from time to time (the "Custodian")) such Stockholder's Shares, by causing the
Company to deliver to the Voting Trustees (or Custodian, if any) a certificate
(or certificates) representing the Shares purchased by, and issued in the name
of, such Stockholder under the applicable Stock Subscription Agreement, together
with appropriate stock powers transferring such certificate(s) to the Voting
Trustees, with any requisite stock transfer stamps annexed thereto. The
Stockholders and the Voting Trustees (or Custodian, if any) shall take (or shall
cause the Company to take) such action as is necessary to effect the transfer of
the Shares to, and in the name of, the Voting Trustees on the books of the
Company, including the immediate filing of this Agreement with the Secretary of
the Company. The certificate(s) for Shares so transferred and delivered to the
Voting Trustees pursuant to this Agreement shall be surrendered by the Voting
Trustees to the Company's Secretary or transfer agent, if any, and cancelled,
and a new certificate (or certificates) therefor shall be issued to and held by
the Voting Trustees in the names of "Xxxxxx X. Xxxx, Xxxxx X. Xxxx, Xx., Xxxxx
X. Xxxx, Xx. and F. Xxxxxx Xxxxxxx, as Voting Trustees". Upon receipt by the
Voting Trustees of the certificate(s) for Shares and upon the transfer of the
Shares into the name of the Voting Trustees, the Voting Trustees shall hold the
Shares, as stockholders of record, subject to the terms and conditions of this
Agreement.
2.2. Custodian May Administrate. The Voting Trustees may designate a
Custodian to assist the Voting Trustees in connection with the administration of
transfer and voting procedures for Shares and Voting Trust Certificates under
this Agreement. If a Custodian is designated by the Voting Trustees, such person
shall have no power to make voting or investment decisions with respect to the
Shares, but shall only be empowered, at the direction of the Voting Trustees, to
make necessary arrangements for the voting or transfer of Shares and Voting
Trust Certificates in a manner consistent with this Agreement.
ARTICLE III
ISSUANCE AND TRANSFER OF
VOTING TRUST CERTIFICATES
3.1. Issuance of Certificates. Promptly after the Closing, the Voting
Trustees shall issue (or cause to be issued by the Custodian, if any) to each
Stockholder, in exchange for the Shares delivered by such Stockholder or such
Stockholder's agent on his or her behalf pursuant to this Agreement, a Voting
Trust Certificate(s) substantially in the form annexed as Exhibit A hereto (the
"Voting Trust Certificate(s)"), representing in the aggregate the number of
Shares purchased by the respective Stockholder pursuant to the applicable Stock
Subscription Agreement. Except as otherwise specifically provided in this
Agreement (including, without limitation, Articles IV, VIII and X), all options,
rights of purchase, and other powers, privileges and limitations thereof
affecting the Shares represented by the Voting Trust Certificates (including,
without limitation, those provided for in the Stockholders' Agreement relating
to, among other things, restrictions upon transfers of Shares) shall attach to
the Voting Trust Certificates.
3.2. Shares and Voting Trust Certificates Transferred as a Unit. Shares and
Voting Trust Certificates are necessarily linked and cannot be transferred
separately. Any transfer of Voting Trust Certificates shall be deemed to effect
a transfer of the underlying Shares, and any transfer of Shares with respect to
which Voting Trust Certificates have been issued shall be deemed to effect a
transfer of such Voting Trust Certificates.
3.3. Transfer Restrictions. No sale, assignment, gift, pledge or other
encumbrance, or other transfer or similar transaction (collectively "Transfer")
of Voting Trust Certificates or the related Shares, will be effective,
recognized by the Company or the Voting Trustees or recorded on the books and
records of the Company and on the Certificate unless (a) the intended transferee
in such Transfer first becomes a party to this Agreement and (b) the provisions
of the Stockholders' Agreement relating to Transfers are duly complied with. All
Stockholders agree to be bound by this Agreement with respect to any Voting
Trust Certificates or the related Shares acquired after the date hereof, and all
Stockholders further agree to transfer any shares of Common Stock acquired after
the date hereof to the Voting Trustees in exchange for Voting Trust Certificates
and to be bound by this Agreement with respect thereto. In the case of (i)
Transfers of Voting Trust Certificates or the related Shares by Stockholders or
(ii) issuances of shares of Common Stock by the Company, in each case to persons
who are not Stockholders (and hence at such time are not parties to this
Agreement), such Transfers or issuances will be recognized and recorded on the
books and records of the Company and on the Certificate only after appropriate
documentation in a form satisfactory to the Voting Trustees has been executed
and the transferee has thereby agreed to become bound by this Agreement (it
being understood that without such documentation the Company and the Voting
Trustees shall recognize only the original transferor as the beneficial owner
and/or record holder, as the case may be, of any Voting Trust Certificates and
related Shares affected by such purported Transfer). It is intention of the
Voting Trustees that the Company will issue no shares of Common Stock subsequent
to the Closing unless such shares are subject to this Agreement or this
Agreement is amended pursuant to Section 14.4 hereof by the vote of holders of
Voting Trust Certificates representing at least two-thirds of the then
outstanding Shares to accommodate the existence of shares of Common Stock
outside the Voting Trust Agreement.
ARTICLE IV
AUTHORITY OF VOTING TRUSTEES TO VOTE
THE SHARES; POWERS RESERVED FOR STOCKHOLDERS
4.1. General. The Voting Trustees shall hold the Shares transferred to
them pursuant to Articles II, III, VIII and X and Section 14.1 of this Agreement
under the terms and conditions set forth in this Agreement. Except as expressly
provided by this Agreement (including Sections 4.2 and 4.3 hereof), for as long
as any of the Shares are subject to this Agreement, and until the actual
delivery by the Voting Trustees (or Custodian, if any), to the Stockholders
owning such Shares, of stock certificates in exchange for Voting Trust
Certificates pursuant to Section 13.3 of this Agreement, the Voting Trustees
shall have full power and authority, and are hereby fully and exclusively
empowered and authorized, to vote in person or by proxy the Shares deposited
pursuant to this Agreement and transferred to them (including any changed or
additional Shares, as provided in Article III, VIII or X hereof) at all meetings
of the stockholders of the Company or to give written consents in lieu of voting
such Shares in respect of any and all matters on which Shares are entitled to
vote.
4.2. Certain Powers Reserved for Holders of Voting Trust Certificates. (a)
Notwithstanding the provisions of Section 4.1 hereof, the holders of Voting
Trust Certificates, and not the Voting Trustees, shall have the exclusive right
to direct the Voting Trustees with respect to the voting of, and the exercise of
appraisal rights (if the Voting Trustees would, under applicable law, be
entitled as record holders to such appraisal rights in the event they were to
vote against the proposed matter) or rights to consent with respect to, the
Shares underlying such Voting Trust Certificates, on the following matters
("Pass-Through Voting Matters") and the Voting Trustees shall be absolutely
required to vote or not vote, such Shares in accordance with such instructions
on all such Pass-Through Voting Matters:
(i) any merger transaction in connection with which, in the absence
of this Agreement, the holders of shares of Common Stock, as the Company's
stockholders, would be entitled to vote under the Delaware General
Corporation Law as then in effect (it being understood that this provision
shall not require the Company or the Voting Trustees to structure any such
transaction in such a way that stockholders would be entitled to vote);
(ii) any sale by the Company of all or substantially all of its
assets in connection with which in the absence of this Agreement, the
holders of shares of Common Stock, as the Company's stockholders, would be
entitled to vote under the Delaware General Corporation Law as then in
effect (it being understood that this provision shall not require the
Company or the Voting Trustees to structure any such transaction in such a
way that stockholders would be entitled to vote);
(iii) any liquidation, dissolution or winding-up of the affairs of the
Company in connection with which in the absence of this Agreement, the
holders of shares of Common Stock, as the Company's stockholders, would be
entitled to vote under the Delaware General Corporation Law as then in
effect (it being understood that this provision shall not require the
Company or the Voting Trustees to structure any such transaction in such a
way that stockholders would be entitled to vote); and
(iv) any amendment to the Company's Certificate of Incorporation
which alters or changes the powers, preferences or rights of the shares of
Common Stock so as to affect the holders thereof adversely (it being
understood that the "holders" for this purpose shall include the holders of
Voting Trust Certificates).
(b) In addition, notwithstanding the provisions of Section 4.1 hereof, the
holders of Voting Trust Certificates, and not the Voting Trustees, shall have
the exclusive right, in their capacity as such, to approve or disapprove the
following matters (the "Holder Approval Matters-): the matters specified in
Sections 6.1, 7.3, 13.1(c), 13.1(d), 13.2 and 14.4 hereof as matters requiring
the approval by the holders of Voting Trust Certificates representing at least
two-thirds of the outstanding Shares.
(c) The Stockholders, and not the Voting Trustees, shall, subject to the
provisions of the Stockholders' Agreement, the Company's Certificate of
Incorporation and Bylaws and any other applicable law, regulation or agreement,
have the sole power to Transfer their Shares, including, without limitation, to
the Company under the Company's estate tax policies or otherwise.
4.3. Procedures for Voting Directions, and Voting, by Holders of Voting
Trust Certificates.
(a) (i) The rights of holders of Voting Trust Certificates to direct the
Voting Trustees with respect to the voting of, and the exercise of
appraisal rights with respect to, the Shares underlying their Voting Trust
Certificates in connection with Pass-Through Voting Matters, shall be
exercised at a meeting of holders of Voting Trust Certificates called for
such purpose or by written consent in lieu of such a meeting. Such meeting
of, or action by written consent of, holders of Voting Trust Certificates,
shall also constitute a meeting of, or action by written consent of,
stockholders of the Company, as provided in this Section 4.3. At each
meeting at which a Pass-Through Voting Matter is to be acted upon, the
presence in person or by proxy of the holders of record of Voting Trust
Certificates shall be deemed to be the presence in person or by proxy of
the Voting Trustees with respect to the number of Shares represented by
such Voting Trust Certificates for purposes of holding a meeting of, and
conducting a vote of, stockholders of the Company. The quorum, meeting
conduct and voting requirements for action at a meeting of stockholders on
a Pass-Through Voting Matter shall be as specified in the Company's
Certificate of Incorporation and Bylaws, and as required by law for
meetings of stockholders generally, except as provided in Section
4.3(a)(iii) hereof. In the event such a vote occurs by written consent in
lieu of a meeting, consents of the Voting Trustees executed at the
direction of holders of Voting Trust Certificates representing the
percentage of the then outstanding shares of Common Stock necessary for the
taking of such action under applicable law and the Company's Certificate of
Incorporation and Bylaws shall be required.
(ii) The rights of holders of Voting Trust Certificates to approve or
disapprove the Holder Approval Matters shall be exercised at a meeting of
holders of Voting Trust Certificates called for such purpose or by written
consent in lieu of a meeting. In connection with any such meeting or action
by written consent, the presence in person or by proxy, or the written
consent of, holders of record of Voting Trust Certificates representing
two-thirds of the Shares then outstanding shall be necessary for approval
of such Holder Approval Matters.
(iii) Notwithstanding the foregoing, nothing in this Section 4.3 or
otherwise in this Agreement shall mean that there will be annual or other
periodic meetings of holders of Voting Trust Certificates. Any such
meetings shall be called (A) only when there is a Pass-Through Voting
Matter or a Holder Approval Matter which will not be acted upon by written
consent in lieu of a meeting and (B) only by the Voting Trustees unless, in
accordance with Section 4.3(c) or 4.3(e) of this Agreement, the Voting
Trustees have failed to call a meeting and the holders of Voting Trust
Certificates have been specifically granted the right to request such a
meeting. The business to be conducted at any such meeting shall be limited
to one or more Pass-Through Voting Matters or Holder Approval Matters and
no holder of a Voting Trust Certificate shall have a right to raise other
business or submit other proposals for action by stockholders or by holders
of Voting Trust Certificates.
(b) For the taking of any action as provided in this Section 4.3 by the
holders of Voting Trust Certificates, whether with respect to Pass-Through
Voting Matters or Holder Approval Matters, each such holder shall have one vote
for each share of Common Stock represented by a Voting Trust Certificate
standing in his or her name in the Certificate as of any record date fixed by
the Board of Directors of the Company for such purpose or, if no such date be
fixed, at the close of business on the business day next preceding the day on
which notice of a meeting is given, or if notice is waived or no meeting is
held, at the close of business on the business day next preceding the day on
which the meeting is held or the consents are to become effective.
(c) In conjunction with any action to be taken by holders of Voting Trust
Certificates as provided in this Section 4.3, whether with respect to Pass-
Through Voting Matters or Holder Approval Matters (other than pursuant to
Section 13.1(d) which is covered by Section 4.3(e) hereof), the Voting Trustees
shall, as promptly as practicable, call a meeting or arrange for action by
written consent of the holders of Voting Trust Certificates. If no notice of
such meeting has been given, or no such arrangements are made, within 30 days of
the date of the event or circumstance giving rise to such action, any holder of
a Voting Trust Certificate may request, by written notice to the Voting
Trustees, that a meeting be called or arrangements be made for action by written
consent without a meeting. Upon receipt of such request, the Voting Trustees
shall promptly call a meeting or make such arrangements.
(d) (i) In conjunction with any action to be taken by holders of Voting
Trust Certificates as provided in this Section 4.3 with respect to Pass-
Through Voting Matters, the Voting Trustees shall use reasonable efforts to
cause the Company to deliver to each holder such notices and information as
would be furnished to such holders if they were the record holders of
Shares in respect of the exercise of voting rights, together with forms by
which the holder of record of a Voting Trust Certificate may instruct the
Voting Trustees, or revoke such instruction, with respect to the voting of
and, if applicable, the exercise of appraisal rights relating to, the
Shares represented by such Voting Trust Certificate. Upon timely receipt of
directions, the Voting Trustees shall (A) vote on each matter the number of
Shares as directed by the holder of the related Voting Trust Certificate or
not vote if so directed by a holder of a Voting Trust Certificate and (B)
exercise any applicable appraisal rights as directed by a holder of a
Voting Trust Certificate. The Voting Trustees shall vote, or not vote, all
Shares as to which no instructions have been received from the holder of
the related Voting Trust Certificate in the same proportion as those Shares
for which the Voting Trustees have received proper direction on such
matter.
(ii) In conjunction with any action to be taken by holders of Voting
Trust Certificates as provided in this Section 4.3 with respect to Holder
Approval Matters, the Voting Trustees shall use reasonable efforts to cause
the Company to deliver to each
holder appropriate information relating to such matter, together with forms
by which the holder may indicate approval or disapproval of such matter.
(e) In the event there shall be no Voting Trustees in office as
contemplated by Section 13.1(d), any holder of a Voting Trust Certificate may
request, by written notice to the Company, that a meeting be called for purposes
of determining whether the holders of Voting Trust Certificates wish to continue
this Agreement and, if so, to designate one or more successor Voting Trustees.
The Company shall use reasonable efforts, within 30 days of receipt of such
written notice, to give written notice ("Company Notice") to all holders of
Voting Trust Certificates of a meeting to be held no later than 30 days after
such Company Notice for such purpose. Any holder or group of holders of record
of Voting Trust Certificates representing at least five percent of the then
outstanding Shares shall, by written notice to the Company within 10 days of the
Company Notice, be entitled to nominate one or more successor Voting Trustees.
If more than four potential successor Voting Trustees are nominated, each holder
of record of a Voting Trust Certificate shall be entitled to vote for up to four
successor Voting Trustees, but no more. Election of any given successor Voting
Trustee shall require the vote of holders of Voting Trust Certificates
representing at least two-thirds of the then outstanding Shares. In the event
that more than four potential successor Voting Trustees each receive the
affirmative vote of holders of Voting Trust Certificates representing at least
two-thirds of the then outstanding Shares, the four nominees who receive the
highest total number of votes shall be deemed elected. There shall be no
cumulative voting or similar practice in connection with any such vote. This
Agreement shall be continued only if (A) holders of Voting Trust Certificates
representing at least two-thirds of the then outstanding Shares vote in favor of
such continuance and (13) one or more successor Voting Trustees nominated in
accordance with the foregoing requirements are approved by the required vote. In
the event this Agreement is so continued, the Voting Trustee(s) so elected shall
have, as contemplated by Section 7.4, all of the rights, powers, and obligations
provided hereunder to Voting Trustees, including the right to elect additional
Voting Trustees, subject to the terms of this Agreement.
4.4. Trustees' Powers Irrevocable. Subject to Sections 4.2 and 4.3 hereof,
the Voting Trustees' power to vote the Shares held by them and give consents in
respect thereof pursuant to this Agreement shall be irrevocable for the term of
this Agreement. Subject to Sections 4.2 and 4.3 hereof, the Voting Trustees
shall have the right to waive notice of any meeting of stockholders of the
Company in respect of such Shares. The Voting Trustees may exercise any power or
perform any act pursuant to this Agreement by an agent or attorney duly
authorized and appointed by them.
ARTICLE V
ELIGIBILITY OF TRUSTEES
5.1. Stock Ownership or Familial Relationship Not Required. Voting Trustees
need not be holders of the Company's capital stock or members of the families
descended from Levi Xxxxxxx or Xxxxxx X. Xxxxxxxx, Xx.
5.2. Permitted Activities. No Voting Trustee or successor Voting Trustee
shall be disqualified from serving as such if the Voting Trustee does any of the
following, nor shall anyone serving in such trustee capacity be incapacitated
from doing any of the following: (a) dealing or contracting with the Company or
any of its affiliates, either as a vendor, purchaser, advisor, or otherwise, nor
shall any transaction or contract be affected or invalidated by reason of the
fact that a Voting Trustee or any firm or corporation affiliated with a Voting
Trustee is in any way interested in such transaction or contract; nor shall a
Voting Trustee be liable to account to the Company or to any stockholder thereof
for any profits realized by, from or through any transaction or contract by
reason of the fact that a Voting Trustee or any firm or corporation affiliated
with a Voting Trustee is interested in such transaction or contract, or (b)
serving the Company or any of its affiliates as an officer or director, or
employee or in any other capacity, and receiving compensation therefor.
ARTICLE VI
NUMBER OF TRUSTEES; ACTION BY TRUSTEES
6.1. Increase or Decrease in Number of Trustees. The number of Voting
Trustees shall initially be set at four. Any increase or decrease in the number
of Voting Trustees specified under this Agreement shall require the approval of
the holders of Voting Trust Certificates representing at least two-thirds of the
outstanding Shares.
6.2. Quorum for Action Regarding Voting of Shares; Notice of Trustee
Meetings.
(a) Action by the Voting Trustees regarding the voting of Shares (or
regarding action by written consent with respect thereto) shall require (i) a
quorum of three Voting Trustees if there are four Voting Trustees then in
office, (ii) a quorum of two Voting Trustees if there are three Voting Trustees
then in office, (iii) a quorum of two Voting Trustees if there are two Voting
Trustees then in office and (iv) a quorum of one Voting Trustee if there is one
Voting Trustee then in office. On any such matter, each Voting Trustee shall
have one vote, regardless of the number of Shares legally or beneficially owned
by such Voting Trustee or by members of his or her family.
(b) Any Voting Trustee may call a meeting of the Voting Trustees by giving
written notice to the other Voting Trustees then in office. Any such notice must
be delivered at least five days before the date of any such meeting, and the
Voting Trustee calling such meeting shall make reasonable arrangements to ensure
that such meeting shall take place at a time and in a location where any Voting
Trustee desiring to participate in such meeting in person or by telephone may do
so. Voting Trustees shall have the right to waive notice of any meeting.
6.3. Required Vote for Action Regarding Voting of Shares. Except as
expressly provided by this Agreement, all actions by the Voting Trustees
regarding the voting of Shares (or regarding action by written consent with
respect thereto) shall require the affirmative vote of a majority of a quorum of
the Voting Trustees.
6.4. Instructions From Stockholders. Voting Trustees shall have the right
(but shall not be required, except as expressly provided by this Agreement) to
seek and follow instructions from the holders of Voting Trust Certificates on
matters requiring a vote of the Voting Trustees which are not specifically
reserved for action by the holders of Voting Trust Certificates. The decision to
seek and/or follow such instructions shall require the affirmative vote of a
majority of a quorum of the Voting Trustees.
6.5. Deadlock on Actions Relating to the Voting of Shares.
(a) In the event that a majority of a quorum of the Voting Trustees are
unable to agree upon the voting of Shares (or action by written consent with
respect thereto) to elect or remove one or more members of the Company's Board
of Directors within 30 days of the date the Voting Trustees first hold a vote to
determine such matter, all votes of the Voting Trustees shall be deemed
automatically to have been cast in favor of voting the Shares for the incumbent
slate of directors, or against removal of directors, as the case may be.
(b) In the event that a majority of a quorum of the Voting Trustees are
unable to agree upon the voting of Shares (or action by written consent with
respect thereto) with respect to any matter subject to a vote of the
stockholders (other than the election or removal of directors) within 30 days of
the date the Voting Trustees first hold a vote to determine such matter, all
votes of the Voting Trustees will be deemed to have been cast to vote the Shares
against the matter.
6.6. Actions Requiring a Unanimous Vote. The unanimous vote of all Voting
Trustees then serving shall be required for trustee action not relating to the
voting of Shares (or action by written consent with respect thereto), as
follows: (a) the election of any successor Voting Trustee shall require a
unanimous vote of the Voting Trustees then in office, (b) the removal of any
Voting Trustee from his or her position as such shall require a unanimous vote
of three Voting Trustees other than the Voting Trustee to be removed (so that if
there are fewer than four Voting Trustees, any vacancy must be filled before
removal can occur) and (c) termination of the trust created by this Agreement
and of this Agreement shall require a unanimous vote of the Voting Trustees then
in office (it being understood that the holders of Voting Trust Certificates may
terminate the Voting Trust pursuant to Section 13.1(c) hereof without action by
the Voting Trustees).
ARTICLE VII
TERM OF TRUSTEES; VACANCIES;
REMOVAL; SUCCESSOR TRUSTEES
7.1. Term of Trustees. Voting Trustees shall serve until their death,
resignation or removal as Voting Trustees.
7.2. Vacancies. Except for vacancies created by the departure of Xxxxxx X.
Xxxx or Xxxxx X. Xxxx, Xx. as Voting Trustees, the remaining Voting Trustee or
Trustees shall fill all vacancies by a unanimous vote of the Voting Trustees
then in office. If Xxxxxx X. Xxxx ceases to be a Voting Trustee for any reason,
then, prior to the filling of the resulting vacancy by the remaining Voting
Trustees, the question of whether to continue the Voting Trust shall be put to a
vote of the holders of Voting Trust Certificates as set forth in Section 13.2 of
this Agreement. If Xxxxx X. Xxxx, Xx. ceases to be a Voting Trustee for any
reason, and at such time is married to Xxxxxx X. Xxxx, then his successor shall
be his wife, Xxxxxx X. Xxxx. If Xxxxxx X. Xxxx subsequently ceases to be a
Voting Trustee, or predeceases Xxxxx X. Xxxx, Xx.'s departure from trusteeship,
then the successor to Xxxxx X. Xxxx, Xx. shall be chosen in the manner described
above. In the event there are no Voting Trustees in office, the Voting Trust
will terminate in accordance with Section 13.1(d) hereof unless the holders of
Voting Trust Certificates representing at least two-thirds of the Shares vote to
continue the Voting Trust and designate new Trustees pursuant to Section 4.3(c)
hereof.
7.3. Removal. A Voting Trustee may be removed, with or without cause, under
either of the following circumstances: (a) if the other three Voting Trustees
unanimously vote for his or her removal (so that if there is a vacancy at the
time of the vote, it must be filled before removal can occur), or (b) if holders
of Voting Trust Certificates representing at least two-thirds of the outstanding
Shares (including all Shares beneficially owned by the subject Voting Trustee
and other Voting Trustees) vote for his or her removal. Voting Trustees shall
not be removable under any other circumstances.
7.4. Successor Trustees. All successors chosen to fill vacant Voting
Trustee positions shall be chosen in accordance with Section 7.2 or, as the case
may be, Section 4.3(e). The rights, powers, privileges and obligations of the
Voting Trustees acting as such pursuant to this Agreement shall be possessed by
any successor Voting Trustees with the same effect as though such successor had
originally been a party to this Agreement. The words "Voting Trustees" as used
in this Agreement mean the Voting Trustees or any successor Voting Trustees
acting under this Agreement.
ARTICLE VIII
EXTRAORDINARY TRANSACTIONS;
RECEIPT OF ADDITIONAL SECURITIES
8.1. Receipt of Additional Securities. If the Voting Trustees shall
receive any securities of the Company or any successor or successors of the
Company issued by way of dividend, split-up, recapitalization, reorganization,
merger, consolidation, or any other change or adjustment in respect of the
Shares held by them pursuant to this Agreement, the Voting Trustees (or
Custodian, if any) shall hold the certificates representing such additional or
changed securities, to the extent that such securities have voting rights
(including voting rights contingent upon the occurrence of specified events),
subject to the terms of this Agreement and shall issue, or cause to be issued by
the Custodian, if any, Voting Trust Certificates representing such changed or
additional securities to the respective holders of the then outstanding Voting
Trust Certificates entitled thereto. Any securities of the Company or any
successor or successors of the Company issued to the Voting Trustees with
respect to the then outstanding Shares which do not have any such voting rights
shall be delivered to the respective registered
holders of the then outstanding Voting Trust Certificates in proportion to the
number of Shares represented by the Voting Trust Certificates.
ARTICLE IX
DIVIDENDS AND DISTRIBUTIONS
9.1. Distributions to be Paid to Beneficial Holders. Except as otherwise
provided in Article VIII, if the Company shall pay dividends or any distribution
on or in respect of the Shares, the Voting Trustees shall be deemed to have
directed the Company to distribute, and the Company shall promptly distribute,
or cause the distribution to be made by the Custodian (if any) of, the same,
proportionately among the holders of record of the then outstanding Voting Trust
Certificates in relation to the number of underlying Shares in respect of which
the dividends are paid, or distribution is made.
ARTICLE X
SUBSCRIPTION FOR SECURITIES OF THE COMPANY
10.1. Procedures for Subscription. In case any shares or other securities
of the Company are offered for subscription to the holders of the Shares, the
Voting Trustees (or Custodian, if any), promptly upon receipt of notice of such
offer. shall mail a copy thereof to each holder of Voting Trust Certificates.
Upon actual receipt (any deemed receipt in accordance with Section 14.2
notwithstanding) by the Voting Trustees, prior to the last day fixed by the
Company for subscription and payment, of a request so to subscribe from such
holder accompanied by the requisite sum of money or other consideration and
appropriate documentation required to subscribe for such shares or securities,
the Voting Trustees shall make, or cause to be made, such subscription and
payment. If the shares or other securities so subscribed for are voting
securities of the Company, the certificates therefor shall be issued and held by
the Voting Trustees (or Custodian, if any), as stockholder of record, subject to
the terms and conditions of this Agreement and the Voting Trustees shall issue
or cause to be issued by the Custodian, if any, to the subscribing holder a
Voting Trust Certificate in respect thereof. If the shares or other securities
so subscribed for are non-voting securities of the Company, the certificates
therefor shall be issued to the subscribing holder and the Voting Trustees shall
mail or deliver such certificates or, cause them to be mailed and delivered by
the Custodian, if any, to such holder.
ARTICLE XI
COMPENSATION; EXPENSES
11.1. Payment of Compensation and Reimbursement for Expenses. Voting
Trustees who are also beneficial owners of one percent or more of the
outstanding shares of Common Stock shall serve without compensation. Voting
Trustees who are beneficial owners of less than one percent of the outstanding
shares of Common Stock of the Company may receive compensation from the Trust,
upon approval of a majority of the other Voting Trustees then in office, for
performance of their duties as Voting Trustees. All Voting Trustees shall be
entitled to reimbursement from the Trust as set forth in this Agreement for
reasonable expenses and charges which may be incurred as Voting Trustees,
including, without limitation, the employment of the Custodian, if any, and such
agents, attorneys and counsel as the Voting Trustees may
deem necessary and proper for the carrying out of this Agreement (it being
understood that each Voting Trustee shall be entitled to retain and be
reimbursed for the reasonable expenses and charges of separate counsel if such
Voting Trustee believes such separate representation to be advisable), and all
taxes or other governmental charges paid or incurred as a result of the transfer
or issuance of any Shares or Voting Trust Certificates or in respect of the
ownership of the Shares held as trustee or in respect of any dividends,
distributions or other rights in respect of such stock. Any such charges or
expenses incurred shall be promptly reimbursed to the Voting Trustees by the
Trust.
ARTICLE XII
INDEMNIFICATION
12.1. Exculpation; Indemnification of Voting Trustees. No Voting Trustee
shall be liable to the Company, to any holder of a Voting Trust Certificate or
to any other person, under this Agreement or applicable law, by reason of any
matter arising out of or in relation to this Agreement (including, without
limitation, any action taken, or omitted to be taken by him or her in reliance
upon and in conformity with, the advice of counsel, or by reason of any error of
judgment or mistake of law or other mistake, or any act or omission of any agent
or attorney, or any misconstruction of this Agreement, or any action of any sort
taken or omitted thereunder or believed by such Voting Trustee to be in
accordance with the provisions and intents hereof or otherwise), except, in each
case, for such loss or damage as the holders of Voting Trust Certificates may
suffer by reason of such Voting Trustee's willful misconduct. Each holder of
Voting Trust Certificates, by entering into this Agreement, hereby waives any
right to bring or pursue any action, directly or derivatively, on his or her own
behalf or on behalf of the Company, against the Voting Trustees, except with
respect to loss or damage caused by any such willful misconduct. Each Voting
Trustee shall be indemnified and held harmless by the Trust from and against any
and all of such Voting Trustee's actions pursuant to this Agreement, including
any expenses incurred by a Voting Trustee in defending any proceeding or action
brought against such Voting Trustee for actions taken in his or her capacity as
a Voting Trustee, except for such Voting Trustee's willful misconduct. No Voting
Trustee shall be required to give a bond or other security for the faithful
performance of his or her duties as such. Each Voting Trustee shall be entitled
to receive prompt payments in respect of the indemnification provided by this
Agreement in advance of the final adjudication of any disputes relating thereto.
The rights to indemnification and reimbursement of expenses set forth in this
Section 12.1 shall not be deemed exclusive and shall be in addition to any such
rights a Voting Trustee may have, including but not limited to rights of such
Voting Trustee, in his or her capacity as an officer, director, employee or
agent of the Company.
ARTICLE XIII
TERMINATION
13.1. Termination Events. The Voting Trust created by this Agreement and
this Agreement shall be effective and remain in force until the occurrence of
the earliest of the following events:
(a) the fifteenth anniversary of the date of this Agreement;
(b) the unanimous vote by all of the Voting Trustees then in office to
terminate this Agreement, effected by written notice given to the holders of
Voting Trust Certificates, at any time after the date of this Agreement;
(c) the election by the holders of Voting Trust Certificates representing
at least two-thirds of the outstanding Shares to terminate this Agreement, at
any time after the date of this Agreement; or
(d) if there shall be no Voting Trustees in office, the failure of the
holders of Voting Trust Certificates representing at least two-thirds of the
outstanding Shares to vote to continue the Trust and to designate one or more
successor Voting Trustees within 90 days of the death, resignation or removal of
the last remaining Voting Trustee, as contemplated by Section 4.3(e) hereof.
13.2. Termination Upon Failure of Xxxxxx X. Xxxx to Continue Serving as
Voting Trustee. If Xxxxxx X. Xxxx ceases to be a Voting Trustee for any reason,
then the remaining Voting Trustees shall seek instructions from the holders of
Voting Trust Certificates with respect to the issue of continuing the Trust. The
vote shall be conducted in accordance with the procedures set forth in Sections
4.3(a)-(d) hereof. Unless holders of Voting Trust Certificates representing at
least two-thirds of the outstanding Shares vote against continuation of the
Voting Trust, the Voting Trust shall continue, and the vacancy shall be filled
by the Voting Trustees as described in Article VII hereof.
13.3. Surrender of Certificates. Upon the termination of the Voting Trust,
the Voting Trustees, or the Custodian, if any, shall in exchange for, and upon
the surrender of, the Voting Trust Certificates representing such Shares,
deliver or cause to be delivered stock certificates to the holders of such
Voting Trust Certificates representing the number of Shares set forth on the
Certificate. No person or entity purporting to be a holder of Voting Trust
Certificates shall receive any stock certificates pursuant to this provision
unless such holder is listed on the Certificate and, if not the original holder
thereof, receives Voting Trust Certificates in a Transfer made in accordance
with the provisions of Article III of this Agreement.
13.4. Consequences of Bankruptcy, Etc. If, in the event of the bankruptcy,
receivership, dissolution or total or partial liquidation of the Company,
whether voluntary or involuntary (each a "Bankruptcy Event"), the Voting
Trustees shall receive any monies, securities or property to which the
respective registered holders of the then outstanding Voting Trust Certificates
shall be entitled, the Voting Trustees shall distribute or cause the
distribution to be made by the Custodian, if any, of such monies, securities or
property to the respective registered holders of the then outstanding Voting
Trust Certificates, in proportion to the number of Shares respectively
represented by their Voting Trust Certificates. Such a Bankruptcy Event shall
not cause termination of or otherwise affect this Agreement.
13.5. No Termination Upon Death, Etc. The death, disability or incompetency
of any Voting Trustee or any holder of a Voting Trust Certificate during the
term of this Agreement shall in no way affect the validity or enforceability of
this Agreement or the Voting Trust Certificates issued pursuant to this
Agreement, which shall remain in full force and effect in accordance with its
terms.
13.6. Certificates Held by Company. If the Company shall acquire any Voting
Trust Certificates, the Company may thereupon, at its option, deliver such
Voting Trust Certificates to the Voting Trustees (or Custodian, if any) and
shall receive in exchange the Shares or other securities represented by such
Voting Trust Certificates. Upon such exchange, the Voting Trust Certificates so
delivered shall be cancelled. Any Voting Trust Certificates held by the Company
shall not be deemed to be outstanding.
13.7. Exclusive Means of Termination. The circumstances set forth in this
Article XIII represent the only circumstances under which the Voting Trust
created by this Agreement may be terminated. It is the intention of the parties
hereto that no statute or regulation, no governmental, judicial or
administrative authority, no other provision of this Agreement or any other
agreement, and no event or other development affecting the Company, shall
operate or be effective to terminate the Voting Trust created hereby.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1. Additional Parties. If any person who is not, as of the date of this
Agreement, a Stockholder, shall acquire Shares or Voting Trust Certificates (or
other voting securities of the Company which by the terms of their issuance are
governed by this Agreement) from a Stockholder, or who otherwise is required as
a condition to the acquisition of shares of Common Stock to enter into and
become a party to this Agreement, such person, upon execution of a counterpart
to this Agreement, shall become a party to this Agreement and be deemed to be a
Stockholder for all purposes of this Agreement as if such person had originally
executed this Agreement, and the Voting Trust herein created shall continue to
remain in effect.
14.2. Notices. All notices given pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given if sent by registered or
certified mail, return receipt requested, by messenger or by a nationally
recognized overnight delivery company, to the party or parties to be given such
notice at the address set forth below. Notices to the holders of Voting Trust
Certificates shall be sent to the respective addresses specified by such parties
in the Certificate, or in such other manner as such holders may have
communicated in writing to the Company or the Voting Trustees. Notices to the
Voting Trustees shall be addressed to:
Xxxxxx X. Xxxx,
as Voting Trustee
x/x Xxxx Xxxxxxx & Xx.
Xxxx'x Xxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
or to such other address as the Voting Trustees may have communicated in writing
to the parties to this Agreement. If a Custodian has been appointed and is
serving, and the holders of Voting Trust Certificates have been so notified,
then a copy is to be sent to the Custodian at the address provided in such
notice. Notices to be sent to a successor Voting Trustees shall be sent to the
person and at the address designated by notice served in the manner herein
provided.
14.3. Maintenance of Certificate. The Voting Trustees shall, or shall make
arrangements with the Company to, make such amendments from time to time to the
Certificate as shall be necessary by reason of share transfers, stock splits or
otherwise.
14.4. Amendment. This Agreement (including, without limitation, an
amendment extending the duration of the Voting Trust) may be amended at any time
upon the vote of the holders of Voting Trust Certificates representing two-
thirds of the outstanding Shares; no approval by the Voting Trustees shall be
required in order to effect such amendments. Notwithstanding the foregoing, this
Agreement may be amended solely for the purpose of effecting ministerial changes
hereto, without the vote of holders of Voting Trust Certificates, upon the
affirmative vote of a majority of a quorum of Voting Trustees as contemplated by
Article IV and Article VII. All amendments to this Agreement must be in writing,
and any such writing must recite that it is an amendment to this Agreement.
14.5. Voting: "Outstanding" Shares. On any matter requiring a vote of
holders of Voting Trust Certificates representing a specified number or
proportion of the "outstanding" Shares, the Voting Trust Certificates held by
Voting Trustees shall be included for the purposes of determining the result of
such vote.
14.6. Entire Agreement. This Agreement contains all of the terms and
conditions agreed upon by the parties relating to its subject matter, represents
the final, complete and exclusive statement of the parties, and supersedes any
and all prior agreements, negotiations, correspondence, understandings and
communications of the parties, whether oral or written, including the 1991 Class
L Stockholders' Agreement by and among LSAI and certain of its stockholders
which is terminated pursuant to the Stockholders' Agreement; provided that this
Agreement does not supersede, and should be enforced in conjunction with, the
Stockholders' Agreement, the Stock Subscription Agreements, the Merger Agreement
and the Voting Trust Support Agreement of even date herewith between the Voting
Trustees and the Company. No modification, amendment or waiver of any provision
of this Agreement shall be valid unless in writing and approved in the manner
set forth in Section 14.4.
14.7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
heirs, executors, administrators and permitted successors and assigns. This
Agreement shall apply to, and all of the foregoing parties, heirs, executors,
administrators and permitted successors and assigns shall be bound by this
Agreement with respect to, any securities issued in respect of (or in exchange
for) Shares or Voting Trust Certificates in connection with any transaction to
the extent set forth in Article VIII. Without limiting the foregoing, the
parties intend for the rights and obligations under this Agreement to survive
the death of any party or other person, including any Voting Trustee or any
holder of a Voting Trust Certificate and the related Shares, and to be
specifically enforceable against any deceased party's heirs, executors,
administrators, representatives, successors or assigns to the fullest extent
permitted by law (including, without limitation, California Probate Code Section
9680).
14.8. Governing Law; Jurisdiction. This Agreement creates a voting trust
under Section 218 of the General Corporation Law of the State of Delaware
applicable to the shares of a Delaware corporation. Regardless of the place of
execution of this Agreement, the domicile or residence of any Stockholder or
Voting Trustee, the location of the principal executive office of the Company,
or any other fact or circumstance, this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without regard
to conflicts of laws principles). EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE COURTS OF THE
STATE OF DELAWARE AND THE FEDERAL COURTS LOCATED IN THE STATE OF DELAWARE IN ANY
ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT ONLY IN SUCH COURTS
(AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS OR ANY OTHER OBJECTION
TO VENUE THEREIN); PROVIDED, HOWEVER, THAT SUCH CONSENT TO JURISDICTION IS
SOLELY FOR THE PURPOSE REFERRED TO IN THIS PARAGRAPH AND SHALL NOT BE DEEMED TO
BE A GENERAL SUBMISSION TO THE JURISDICTION OF SUCH COURTS OR IN THE STATE OF
DELAWARE OTHER THAN FOR SUCH PURPOSE. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
Service of process on a Stockholder or Stockholders in any action arising out of
or relating to this Agreement shall be effective if delivered to such
Stockholder or Stockholders in accordance with Section 14.2. These provisions
reflect the overall objective of this Agreement to provide for the long-term,
stable and consistent ownership and governance of the Company.
14.9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Any Voting Trustee may execute this
Agreement, any Voting Trust Certificate, and any amendment, waiver or consent
relating thereto by use of an appropriate facsimile signature, provided that
such Voting Trustee provides adequate assurances to the Company that such
facsimile signature is an accurate representation of such Voting Trustee's
actual signature.
14.10. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
VOTING TRUSTEES:
________________________________
XXXXXX X. XXXX
________________________________
XXXXX X. XXXX, XX.
________________________________
XXXXX X. XXXX, XX.
________________________________
F. XXXXXX XXXXXXX
STOCKHOLDERS:
________________________________
(signature)
________________________________
(type or print name)
EXHIBIT A
Voting Trust Certificate
FOR SHARES OF COMMON STOCK,
PAR VALUE $0.01 PER SHARE,
OF
LSAI HOLDING CORP.,
a Delaware corporation
No. of Shares Certificate No.
THIS IS TO CERTIFY THAT, on 2011, or
upon the prior termination of a certain Voting Trust Agreement, dated April 15,
1996 (the "Voting Trust Agreement"), by and among Xxxxxx X. Xxxx, Xxxxx X. Xxxx,
Xx., Xxxxx X. Xxxx, Xx. and F. Xxxxxx Xxxxxxx, as Voting Trustees and certain
stockholders of LSAI Holding Corp. (the "Company"), pursuant to which agreement
this Certificate has been issued,
will be entitled to receive certificates for the number of fully-paid and non-
assessable shares hereinabove specified (the "Shares") and for the duration of
such Voting Trust Agreement, to receive distributions equal to the cash or
property or nonvoting security distributions, if any, collected by the Voting
Trustees (or Custodian, if any) upon a like number of the Shares standing in the
name of the Voting Trustees. Prior to the actual delivery of such certificates,
the Voting Trustees (or Custodian, if any), with respect to any and all of the
Shares shall possess and be entitled to exercise, in the manner and to the
extent provided in the aforesaid Voting Trust Agreement, all of the rights of
every kind of the holder of this Certificate, including the right to vote and
take part in, or to consent to any corporate or stockholders' action, it being
expressly stipulated that except as specifically provided in the Voting Trust
Agreement, no right to vote, or take part in, or to consent to any corporate or
stockholders' action, shall pass by, or under, this Certificate.
THE SALE, ASSIGNMENT, GIFT, PLEDGE OR OTHER ENCUMBRANCE, OR OTHER TRANSFER
("TRANSFER") OF THIS VOTING TRUST CERTIFICATE OR THE SHARES (OR ANY INTEREST
THEREIN) REPRESENTED HEREBY IS SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS
SET FORTH IN THE COMPANY'S CERTIFICATE OF INCORPORATION AND IN THE VOTING TRUST
AGREEMENT DESCRIBED IN THIS CERTIFICATE AND PURSUANT TO WHICH THIS CERTIFICATE
IS ISSUED, TO A STOCK SUBSCRIPTION AGREEMENT DATED AS OF JANUARY 25, 1996, AND
TO A STOCKHOLDERS' AGREEMENT AMONG THE COMPANY AND ITS STOCKHOLDERS DATED AS OF
APRIL 15, 1996. COPIES OF SUCH STOCKHOLDERS' AGREEMENT AND VOTING TRUST
AGREEMENT ARE ON FILE IN THE OFFICE OF THE SECRETARY OF THE COMPANY. NO TRANSFER
OF THIS CERTIFICATE, OR THE SHARES REPRESENTED BY THIS CERTIFICATE, MAY BE
EFFECTED, EXCEPT PURSUANT TO THE TERMS OF SUCH CERTIFICATE OF INCORPORATION,
VOTING TRUST AGREEMENT AND STOCKHOLDERS' AGREEMENT. NO SUCH TRANSFER SHALL BE
VALID UNLESS MADE TOGETHER WITH THE UNDERLYING SHARES.
IN ADDITION, THIS CERTIFICATE AND/OR THE SHARES REPRESENTED BY THIS
CERTIFICATE, AS THE CASE MAY BE, MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT (FOR THE INTEREST IN THE VOTING TRUST
REPRESENTED BY THIS CERTIFICATE AND SUCH SHARES REPRESENTED HEREBY, AS THE CASE
MAY BE) UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM REGISTRATION. IN CONNECTION WITH ANY PROPOSED SALE OR
TRANSFER OF THIS CERTIFICATE, OR THE SHARES REPRESENTED HEREBY, AS THE CASE MAY
BE, PURSUANT TO AN EXEMPTION FROM REGISTRATION, THE HOLDER OF THIS CERTIFICATE,
OR SHARES REPRESENTED BY THIS CERTIFICATE, AS THE CASE MAY BE, MAY BE REQUIRED
TO DELIVER TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, OR
THE COMPANY MAY REQUIRE THAT IT SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL,
THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED. IN ADDITION, THE RIGHT TO VOTE
THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN THE MANNER PROVIDED
IN THE VOTING TRUST AGREEMENT.
This Certificate is not valid unless signed by the Voting Trustees or the
appointed Custodian. The holder hereof, by accepting this Certificate, manifests
his or her consent that the undersigned Voting
Trustees may treat the registered holder hereof as the true owner for all
purposes, except the delivery of certificates for Shares which delivery shall
not be made without the surrender hereof.
IN WITNESS WHEREOF, the undersigned, the Voting Trustees, have caused this
Certificate to be signed as of the day of , .
VOTING TRUSTEES:
________________________________
XXXXXX X. XXXX
________________________________
XXXXX X. XXXX, XX.
________________________________
XXXXX X. XXXX, XX.
________________________________
F. XXXXXX XXXXXXX
ASSIGNMENT
FOR VALUE RECEIVED, does hereby sell, assign
and transfer unto all of the undersigned's right, title and interest in and to
this Voting Trust Certificate, and does hereby irrevocably constitute and
appoint to be the undersigned's
attorney to transfer this Voting Trust Certificate on the books of the within
named Voting Trustees, with full power of substitution in the premises.
Dated:
________________________________
Transferor's signature
IN PRESENCE OF__________________________________________________________________
Witness' signature
Print name of witness:
FORM OF
VOTING TRUST SUPPORT AGREEMENT
THIS VOTING TRUST SUPPORT AGREEMENT (this "Agreement") dated as of
, 1996, is among LSAI HOLDING CORP., a Delaware corporation (the "Company"), and
the voting trust (the "Voting Trust) created pursuant to the Voting Trust
Agreement, (the "Voting Trust Agreement") by and among Xxxxxx X. xxxx, Xxxxx X.
Xxxx, Xx., Xxxxx X. Xxxx, Xx., and F. Xxxxxx Xxxxxxx, as voting trustees (the
"Voting Trustees), and the stockholders of the Company who are parties thereto
(the "Stockholders"). Capitalized terms used herein without definition shall
have the meanings assigned thereto in the Voting Trust Agreement.
RECITALS
WHEREAS, the Voting Trustees and the Stockholders have entered into the
Voting Trust Agreement; and
WHEREAS, the Company recognizes that the efficient administration of the
Voting Trust is beneficial to the long-term, stable and consistent ownership and
governance of the Company; and
WHEREAS, the Company and the Voting Trustees believe it to be in the best
interests of the Company and the Voting Trust to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and agreements contained herein, and as contemplated
by the Voting Trust Agreement, the parties hereto agree as follows:
1. Maintenance of Certificate. The Company shall maintain the Certificate
in its permanent records. The Company shall initially create the Certificate,
and thereafter shall revise the Certificate from time to time, in each case upon
instruction from, and in the manner requested by, any one or more of the Voting
Trustees, as contemplated by the Voting Trust Agreement. The Company shall make
no changes to the Certificate other than as directed by the Voting Trustees.
2. Transfer Restrictions. The Company shall recognize, and shall record
on the Certificate and/or the books and records of the Company, only those
Transfers made in accordance with Section 3.3 of the Voting Trust Agreement.
3. Calling of Meetings. In the event that the Company receives written
notice, pursuant to Section 4.3(e) of the Voting Trust Agreement, requesting
that a meeting be called for purposes of determining whether the holders of
Voting Trust Certificates wish to continue the Voting Trust Agreement and to
designate one or more successor Voting Trustees, the Company shall abide by the
provisions of such Section 4.3(e) as though it were a party to the Voting Trust
Agreement and bound thereby.
4. Reimbursement of Voting Trust. In the event that the Voting Trust is
required to pay any sums of money to any Voting Trustee pursuant to Sections
11.1 or 12.1 of the Voting Trust Agreement, the Company shall, upon receipt of
written notice from the Voting Trustees, promptly reimburse the Voting Trust for
the amounts so paid.
5. Amendment. All amendments to this Agreement must be in writing and be
signed by the Company and by each Voting Trustee then in office, and any such
writing must recite that it is an amendment to this Agreement.
6. Third Party Beneficiaries. It is the express intention of the parties
hereto that each Voting Trustee shall be a third party beneficiary of the
agreements contained in Section 4 hereof, and that any Voting Trustee may
enforce the provisions of such Section 4 as though such Voting Trustee were a
party hereto.
7. Governing Law; Jurisdiction. Regardless of the place of execution of
this Agreement, the domicile or residence of any Stockholder or Voting Trustee,
the location of the principal executive office of the Company, or any other fact
or circumstance, this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without regard to conflicts of laws
principles). EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE COURTS OF THE STATE OF DELAWARE AND THE
FEDERAL COURTS LOCATED IN THE STATE OF DELAWARE IN ANY ACTION, SUIT OR
PROCEEDING ARISING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT ONLY IN SUCH COURTS (AND WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS OR ANY OTHER OBJECTION TO VENUE
THEREIN); PROVIDED, HOWEVER, THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE
PURPOSE REFERRED TO IN THIS PARAGRAPH AND SHALL NOT BE DEEMED TO BE A GENERAL
SUBMISSION TO THE JURISDICTION OF SUCH COURTS OR IN THE STATE OF DELAWARE OTHER
THAN FOR SUCH PURPOSE. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING. These provisions
reflect the overall objective of this Agreement to provide for the long-term,
stable and consistent ownership and governance of the Company.
8. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Any Voting Trustee may execute this
Agreement, any Voting Trust Certificate, and any amendment, waiver or consent
relating thereto by use of an appropriate facsimile signature, provided that
such Voting Trustee provides adequate assurances to the Company that such
facsimile signature is an accurate representation of such Voting Trustee's
actual signature.
9. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10. Further Assurance. Each of the parties hereto shall execute such
documents and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and of the other documents to be
executed by such person pursuant to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
LSAI HOLDING CORP:
By:________________________________
Xxxxxx X. Xxxx
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
Voting Trustees:
___________________________________
Xxxxxx X. Xxxx
___________________________________
Xxxxx X. Xxxx, Xx.
___________________________________
Xxxxx X. Xxxx, Xx.
___________________________________
F. Xxxxxx Xxxxxxx
