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EXHIBIT 12
VOTING TRUST AGREEMENT
This Voting Trust Agreement (the "Voting Trust Agreement") dated as of
this 6th day of October, 1995, by and among Xxxxxx X. Xxxx (the "Beneficiary"),
Dart Group Corporation, a Delaware corporation ("Dart"), and Xxxxx X. Xxxxxxxx
and Xxxxxx X. Xxxxxxxxx, as the initial voting trustees.
WITNESSETH:
WHEREAS, the Beneficiary and Dart are parties to that certain
Settlement Agreement, of even date herewith (the "Settlement Agreement"), which
provides for the execution and delivery of this Voting Trust Agreement;
WHEREAS, this Voting Trust Agreement is consistent with the
authorization provided by Section 218 of the Delaware General Corporation Law;
WHEREAS, Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx are serving as the
initial voting trustees under this Voting Trust Agreement, and it is
contemplated that one or more other persons may be appointed as additional or
substitute voting trustees (the person or persons at any time serving in the
capacity of voting trustee under this Voting Trust Agreement are hereinafter
referred to collectively as the "Voting Trustees");
WHEREAS, it is anticipated that the Voting Trustees will use their
authority hereunder to serve the best interests of Dart and all of its
shareholders as a single class, as determined by the Voting Trustees, and,
without limiting the generality of the foregoing, to facilitate an orderly
transition of the corporate
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governance of Dart from domination by the previous holders of Dart's Class B
Common Stock or their affiliates;
WHEREAS, it is also anticipated that the Voting Trustees will act to
protect and implement Dart's and the Beneficiary's rights under the
Buy/Sell/Offering Agreement, of even date herewith, by and between Dart and the
Beneficiary (the "Buy/Sell/Offering Agreement"), as directed by Dart or the
Beneficiary, as the case may be, in accordance with the terms thereof and (in
their capacity as collateral agents under the Stock and Trust Certificate
Pledge Agreement (as defined in Section 1(c) hereof)) to protect Dart's
security interest in the Trust Shares (as defined in Section 1(a) hereof),
which are collateral for certain promissory notes executed on the date hereof
by the Beneficiary in favor of Dart.
NOW THEREFORE, for and in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto agree as follows:
1. Registration and Holding of Shares.
(a) The Beneficiary shall, immediately upon the execution and
delivery of this Voting Trust Agreement, deliver to Dart stock certificates
representing a total of two hundred twenty-two thousand two hundred ninety-four
(222,294) shares of Dart Class B Common Stock and 86,173 shares of Dart Class A
Common Stock (collectively, together with all other shares, securities, rights
and money deemed to be part of the "Trust Shares" under the terms of this
Voting Trust Agreement, the
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"Trust Shares"), duly endorsed for transfer to the Voting Trustees, and Dart
shall register the transfer of the Trust Shares from the Beneficiary to the
Voting Trustees in its stock transfer records and cause new stock certificates
representing the Trust Shares to be issued in the name of and delivered to the
Voting Trustees.
(b) The Beneficiary shall, as and when required by
Section 5.1 of the Settlement Agreement, deliver to Dart stock certificates
representing an additional thirty-three thousand three hundred thirty-three
(33,333) shares of Dart Class A Common Stock (the "RSH Pledged Class A Shares")
duly endorsed for transfer to the Voting Trustees, and Dart shall register the
transfer of the RSH Pledged Class A Shares from the Beneficiary to the Voting
Trustees in its stock transfer records and cause new stock certificate(s)
representing the RSH Pledged Class A Shares to be issued in the name of and
delivered to the Voting Trustees. From and after the transfer of the RSH
Pledged Class A Shares from the Beneficiary to the Voting Trustees in
accordance with the preceding sentence, the RSH Pledged Class A Shares shall be
deemed to be part of the Trust Shares.
(c) If any shares of Dart stock other than those
referenced in paragraphs (a) and (b) of this Section 1 are at any time
delivered to the Voting Trustees pursuant to that certain Stock and Trust
Certificate Pledge Agreement, of even date herewith, executed by the
Beneficiary for the benefit of Dart and Xxxxx-Xxxxxx Real Estate Company, a
copy of which is attached
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hereto as Exhibit C (the "Stock and Trust Certificate Pledge Agreement"), then
such shares shall be deemed to be part of the Trust Shares.
(d) The Trust Shares shall be held and applied by the
Voting Trustees for the purpose of and in accordance with this Voting Trust
Agreement, and none of the Trust Shares, nor any interest therein, shall be
sold, transferred, pledged, assigned or otherwise encumbered by the Voting
Trustees, except (i) upon the direction of Dart or the Beneficiary, as the case
may be, pursuant to the terms of the Buy/Sell/Offering Agreement (a copy of
which is attached hereto as Exhibit B), (ii) as provided in the Stock and Trust
Certificate Pledge Agreement or (iii) as agreed to in writing by the Voting
Trustees and the Beneficiary.
2. Issuance of Voting Trust Certificates. The Voting Trustees shall,
immediately upon the execution and delivery of this Voting Trust Agreement,
issue to the Beneficiary voting trust certificates in the form of Exhibit A
hereto ("Voting Trust Certificates") representing the Beneficiary's beneficial
ownership of the Trust Shares transferred and delivered to the Voting Trustees
pursuant to Section 1 of this Voting Trust Agreement. Each Voting Trust
Certificate shall be manually signed by each of the Voting Trustees at the time
it is issued. This Voting Trust Agreement shall remain in full force and
effect and be enforceable against any donee, transferee or assignee of any
Voting Trust Certificate or the Beneficiary's interest in the
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Trust Shares, or any part thereof or any direct or indirect interest therein.
3. Distributions on or Exchanges of Trust Shares.
(a) The Voting Trustees shall be entitled from time to time
to receive, and shall pay over to the Beneficiary or otherwise apply in
accordance with this Voting Trust Agreement, all dividends or distributions
paid upon or in respect of the Trust Shares. Without limiting the generality
of the foregoing, if the Voting Trustees shall receive any dividend or
distribution (i) of Securities (as hereinafter defined) or (ii) of rights to
purchase, or securities convertible into, Securities, the Voting Trustees shall
hold such Securities or rights subject to this Voting Trust Agreement. Except
as otherwise provided in paragraph (d) of this Section 3, any cash payments,
Securities or rights so received by the Voting Trustees as a dividend or
distribution upon or in respect of the Trust Shares shall be deemed to be part
of the Trust Shares hereunder, and each then outstanding Voting Trust
Certificate shall, without any further action, be deemed to be adjusted as may
be appropriate to reflect such cash payments, Securities or rights received by
the Voting Trustees in respect of the Trust Shares represented by such Voting
Trust Certificates. As used herein, the term "Securities" shall mean any
shares of capital stock of Dart or any other corporation.
(b) Upon any split, increase, reduction or reclassification
of any Securities then held as part of the Trust
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Shares hereunder, or upon any merger, consolidation, reorganization or
dissolution of Dart or any other corporation whose Securities are then part of
the Trust Shares, the Voting Trustees are authorized to make such surrender of
the affected Trust Shares as may be proper or expedient and to receive under
this Voting Trust Agreement, and either to hold or to distribute as would be
required by paragraph (a) of this Section 3 if it were a dividend or
distribution, any Securities or other property issued in exchange for such
surrendered Trust Shares, and each then outstanding Voting Trust Certificate
shall, without any further action, be deemed to be adjusted as may be
appropriate to reflect the effect of such split, increase, reduction,
reclassification, merger, consolidation, reorganization or dissolution on the
Trust Shares represented by such Voting Trust Certificate.
(c) If any of the Trust Shares at any time include any rights
to purchase, or securities convertible into, Securities, then the Beneficiary
shall have the right to direct the Voting Trustees, by written notice and
payment of any related charges of the Voting Trustees and any consideration
required to be paid to Dart upon exercise or conversion, to convert such
securities convertible into Securities or exercise such rights to purchase
Securities; provided, however, that the Voting Trustees shall be under no
responsibility to convert such securities or to exercise such rights in the
absence of compliance by the Beneficiary with this paragraph (c). Any
Securities received upon such exercise
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or conversion shall be deemed to be part of the Trust Shares hereunder, and
each then outstanding Voting Trust Certificate that represents the Trust Shares
with respect to which such exercise or conversion takes place shall, without
any further action, be deemed to be adjusted as may be appropriate to reflect
such additional Securities.
(d) Notwithstanding any other provision of this Voting Trust
Agreement:
(i) To the extent that the cash dividends or
distributions, if any, paid upon or in respect of the Trust Shares in
any calendar year during the term of this Voting Trust Agreement total
Thirty Cents ($0.30) or less per Trust Share, subject to appropriate
reduction to reflect any stock split or appropriate increase to
reflect any combination of shares ("Ordinary Cash Dividends"), they
shall be paid over on a current basis by the Voting Trustees to the
Beneficiary as beneficial owner of the Trust Shares;
(ii) To the extent that in any calendar year during
the term of this Voting Trust Agreement there are cash dividends or
distributions paid upon or in respect of the Trust Shares in excess of
the amount of Ordinary Cash Dividends ("Extraordinary Cash
Dividends"), then (x) one-half (1/2) of the amount of such
Extraordinary Cash Dividends shall be paid over on a current basis by
the Voting Trustees to the Beneficiary as beneficial owner of the
Trust Shares and (y) one-half (1/2) of the amount of such
Extraordinary
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Cash Dividends shall be applied by the Voting Trustees as follows:
(aa) First, to pay and/or to reimburse Dart for the
fees and expenses (including counsel fees and expenses) of the
Voting Trustees in connection with the administration of the
trust hereunder and the compensation of the Voting Trustees in
accordance with Section 8(a) of this Voting Trust Agreement;
and
(bb) Second, to be deposited by the Voting Trustees
in one or more interest-bearing deposit accounts (the "Trust
Accounts") established by the Voting Trustees with a national
bank having total assets in excess of Five Billion Dollars
($5,000,000,000).
The amounts at any time on deposit in the Trust Accounts shall be deemed to be
part of the Trust Shares hereunder.
4. Voting of Trust Shares.
(a) The Voting Trustees shall be entitled to vote all of the
Trust Shares, to the full extent the Trust Shares are entitled to be voted, (i)
in person or by proxy, on all matters submitted to Dart's stockholders at each
duly constituted meeting thereof, or (ii) by written consent of majority
stockholder in lieu of a meeting pursuant to Section 228 of the Delaware
General Corporation Law. The Voting Trustees shall be entitled to exercise
their power to vote the Trust Shares in such manner as the Voting Trustees
shall deem, in their sole and absolute
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discretion, to be in the best interests of Dart and all of its shareholders as
a single class. Without limiting the generality of the foregoing, the Voting
Trustees shall have authority to vote the Trust Shares to approve at any time
any amendment of the Certificate of Incorporation of Dart that they shall deem,
in their sole and absolute discretion, to be in the best interests of Dart and
all of its shareholders as a single class.
(b) At any time when there are two (2) or more Voting
Trustees in office, they shall vote the Trust Shares on any matter in the
manner a majority of them determine, in their sole and absolute discretion, to
be appropriate.
5. Sale or Other Disposition of Trust Shares.
(a) At the closing of the Simultaneous Purchase, Put
Option or Call Option (each as defined in the Buy/Sell/Offering Agreement), the
Voting Trustees shall deliver to Dart the stock certificate(s) representing
the Trust Shares being purchased by Dart, duly endorsed or accompanied by stock
powers together with such other instruments as shall be requested by Dart to
transfer to Dart all right, title and interest in and to the Trust Shares. All
such certificates, stock powers and instruments shall be in form and content
reasonably satisfactory to Dart and its counsel.
(b) Any time after the Voting Trustees receive an
Offering/Put Exercise Notice (as defined in the Buy/Sell/Offering Agreement)
from the Beneficiary notifying Dart and the Voting Trustees that the
Beneficiary has elected the Public Offering Option (as defined in the
Buy/Sell/Offering Agreement), the
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Voting Trustees shall execute and deliver all documents and instruments as may
be requested by Dart in order to effect an exchange of the 222,294 shares of
Class B Common Stock constituting part of the Trust Shares for the Public
Offering Class A Shares (as defined in the Buy/Sell/Offering Agreement). At
the closing of the Public Offering (as defined in the Buy/Sell/Offering
Agreement), the Voting Trustees shall deliver the stock certificate(s)
representing the Public Offering Class A Shares, duly endorsed or accompanied
by stock powers together with such other instruments as shall be requested by
the Beneficiary to transfer to the underwriters of the Public Offering all
right, title and interest in and to the Public Offering Class A Shares. All
such certificates, stock powers and instruments shall be in form and content
reasonably satisfactory to the Beneficiary and his counsel.
(c) The Voting Trustees hereby acknowledge that any
purchase price for the sale of the Trust Shares pursuant to this Section 5
shall be paid directly to the Beneficiary by Dart, in the event Dart purchases
all or part of the Trust Shares, or by the underwriters of the Public Offering,
in the event such underwriters purchase the Public Offering Class A Shares
(except the underwriters shall pay to Dart an amount equal to the outstanding
principal sum and accrued interest on the $27.4 Million Note (as defined in the
Settlement Agreement)).
(d) (i) The parties hereto acknowledge that Xxxxxxx X.
Xxxx ("HHH") has filed a lawsuit captioned Xxxxxxx X. Xxxx
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v. Xxxxxx X. Xxxx, Civ. A. No. 94CA9883 (D.C. Super. Ct. July 17,
1995), and a counterclaim in the lawsuit captioned Xxxxxx X. Xxxx v.
Xxxxxxx X. Xxxx, Civ. A. Xx. 00000 (Xxx. Xx. filed July 18, 1995),
seeking relief that includes rescission of his July 1993 sale of one
hundred seventy-two thousand seven hundred thirty (172,730) shares of
Class B Common Stock (the "Redemption Class B Shares") to the
Beneficiary (collectively, the "Rescission Action").
(ii) In the event that a court of competent jurisdiction
enters a final order or grants equitable relief, in the Rescission
Action or otherwise, the effect of which is that HHH's sale of the
Redemption Class B Shares to the Beneficiary is or has been rescinded,
that Dart has not received a valid and effective assignment and
transfer of the Redemption Class B Shares from the Beneficiary to Dart
as of the date of the Settlement Agreement or that the Redemption
Class B Shares (or shares substituted therefor) must be returned or
delivered to HHH or the Beneficiary, then (subject to subparagraph
(iii) of this paragraph (d)) immediately upon written notice from Dart
to the Beneficiary and the Voting Trustees, (x) the Beneficiary shall
deliver to Dart the Voting Trust Certificate representing beneficial
ownership of the New Class A Shares (as defined in the Settlement
Agreement) (to the extent Dart does not already hold such certificate
pursuant to the Stock and Trust Certificate Pledge Agreement), duly
endorsed or accompanied
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by stock powers together with such other instruments as shall be
requested by Dart to transfer to Dart all right, title and interest in
and to such Voting Trust Certificate, and (y) the Voting Trustees
shall deliver to Dart stock certificates representing the New Class A
Shares, duly endorsed or accompanied by stock powers together with
such other instruments as shall be requested by Dart to transfer to
Dart all right, title and interest in and to such shares and any
remaining cash held by the Voting Trustees in the Trust Accounts from
dividends and distributions made upon the New Class A Shares,
including any interest in fact earned thereon.
(iii) Notwithstanding the provisions of subparagraph (ii) of
this paragraph (d), in the event that a court of competent
jurisdiction enters an order the effect of which is that the
Beneficiary may not assign and transfer the Redemption Class B Shares
to Dart during HHH's lifetime (or until the termination of the proxy
granted by the Beneficiary to HHH in July 1993 to vote the Redemption
Class B Shares), and prior to the consummation of a valid and
effective assignment and transfer of the Redemption Class B Shares
from the Beneficiary to Dart any event (for example, the Beneficiary's
legal incapacity or the Beneficiary's testamentary transfer of the
Redemption Class B Shares to HHH) shall occur that renders the
Beneficiary unable to consummate such assignment or transfer, or the
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Beneficiary shall grant or suffer to exist any lien, charge, security
interest, restriction, claim or encumbrance of any kind (other than
the proxy granted to HHH in July 1993) in, against or with respect to
any of the Redemption Class B Shares, then immediately upon written
notice from Dart to the Beneficiary and the Voting Trustees, (x) the
Beneficiary shall deliver to Dart the Voting Trust Certificate
representing beneficial ownership of the New Class A Shares (to the
extent Dart does not already hold such certificate pursuant to the
Stock and Trust Certificate Pledge Agreement), duly endorsed or
accompanied by stock powers together with such other instruments as
shall be requested by Dart to transfer to Dart all right, title and
interest in and to such Voting Trust Certificate, and (y) the Voting
Trustees shall deliver to Dart stock certificates representing the New
Class A Shares, duly endorsed or accompanied by stock powers together
with such other instruments as shall be requested by Dart to transfer
to Dart all right, title and interest in and to such shares and any
remaining cash held by the Voting Trustees in the Trust Accounts from
dividends and distributions made upon the New Class A Shares,
including any interest in fact earned thereon.
(e) The parties hereto acknowledge that Xxxxx X. Xxxx and
Xxxxxx X. Xxxx have filed a lawsuit against the Beneficiary captioned Xxxxx X.
Xxxx and Xxxxxx X. Xxxx v. Xxxxxx X. Xxxx,
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Civ. A. No. 0002994-95 (D.C. Super. Ct., 1995), seeking relief that includes
specific performance directing the Beneficiary to transfer to Xxxxx X. Xxxx and
Xxxxxx X. Xxxx fifty-eight thousand twenty-nine (58,029) shares of Class A
Common Stock (the "Contested Class A Shares") and enjoining the Beneficiary
from selling such shares to any third party (the "Contested Class A Lawsuit").
In the event that a court of competent jurisdiction enters a final order or
equitable relief, in the Contested Class A Lawsuit or otherwise, that Xxxxx X.
Xxxx, Xxxxxx X. Xxxx or HHH, or any of their respective heirs, executors,
successors or assigns, are entitled to ownership of any or all of the Contested
Class A Shares, then immediately upon written notice from the Beneficiary or
Dart to the Voting Trustees: (i) the Voting Trustees, to the extent they hold
the stock certificate(s) representing such Contested Class A Shares, shall
deliver such certificate(s) as ordered by such court; (ii) the Voting Trust
Certificate representing the Contested Class A Shares shall automatically be
deemed not to represent such Contested Class A Shares and, if all of the
Contested Class A Shares are so determined not to be owned by the Beneficiary,
then such Voting Trust Certificate shall be cancelled.
6. Termination of Voting Trust Agreement.
(a) The term of this Voting Trust Agreement shall expire on:
(i) the closing of Dart's purchase of all of the Trust Shares pursuant to the
Buy/Sell/Offering Agreement; (ii) the closing of the sale of all of the Public
Offering Class
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A Shares pursuant to the Public Offering and the sale of all remaining Trust
Shares to Dart in a Simultaneous Purchase under the Buy/Sell/Offering
Agreement; (iii) August 1, 2000, if neither a Call Exercise Notice, nor an
Offering/Put Exercise Notice (each as defined in the Buy/Sell/Offering
Agreement) shall have theretofore been delivered in the manner specified in the
Buy/Sell/Offering Agreement; (iv) December 31, 2002, if a Call Exercise Notice
or an Offering/Put Exercise Notice shall have been timely delivered in the
manner specified in the Buy/Sell/Offering Agreement but the closing of Dart's
purchase or the closing of the Public Offering, as the case may be, of the
Trust Shares pursuant to the Buy/Sell/Offering Agreement shall not have
occurred because of an order of a court of competent jurisdiction enjoining
such closing; (v) the consummation of the transactions specified in clause (i)
of Section 1.3 of the Settlement Agreement; (vi) the consummation of a
Revocation Closing pursuant to Section 1.5 of the Settlement Agreement; or
(vii) the mutual written agreement of the Beneficiary and Dart.
(b) Upon the expiration of the term of this Voting Trust
Agreement pursuant to clause (i) of the immediately preceding paragraph (a),
the Voting Trust Certificates shall be of no further force or effect, and the
Voting Trustees shall immediately deliver to Dart the certificate(s)
representing the Trust Shares, duly endorsed for transfer, and any amounts on
deposit in the Trust Accounts. Upon the expiration of the term of this Voting
Trust Agreement pursuant to clause (ii), clause
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(iii) or clause (iv) of the immediately preceding paragraph (a), the Voting
Trustees shall, upon surrender to them of each Voting Trust Certificate,
immediately deliver to the Beneficiary the stock certificate(s) representing
the Trust Shares to which such Voting Trust Certificate relates, duly endorsed
for transfer, and any remaining cash held by the Voting Trustees in the Trust
Accounts from dividends and distributions made upon the Trust Shares, including
any interest in fact earned thereon. Upon the expiration of the term of this
Voting Trust Agreement pursuant to clause (v) of the immediately preceding
paragraph (a), the Voting Trustees shall, upon surrender to them of each Voting
Trust Certificate, (w) immediately deliver to Dart the stock certificate(s)
representing the Option Shares (as defined in the Settlement Agreement), duly
endorsed for transfer, and any remaining cash held by the Voting Trustees in
the Trust Accounts from dividends and distributions made upon the Option
Shares, including any interest in fact earned thereon, and (x) immediately
deliver to the Beneficiary the stock certificate(s) representing all of the
other Trust Shares, duly endorsed for transfer, and any remaining cash held by
the Voting Trustees in the Trust Accounts from dividends and distributions made
upon such other Trust Shares, including any interest in fact earned thereon.
Upon the expiration of the term of this Voting Trust Agreement pursuant to
clause (vi) of the immediately preceding paragraph (a), the Voting Trustees
shall, upon surrender to them of each Voting Trust Certificate, (y) immediately
deliver to Dart
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the stock certificate(s) representing the Option Shares and the New Class A
Shares, duly endorsed for transfer, and any remaining cash held by the Voting
Trustees in the Trust Accounts from dividends and distributions made upon the
Option Shares and the New Class A Shares, including any interest in fact earned
thereon, and (z) immediately deliver to the Beneficiary the stock
certificate(s) representing all of the other Trust Shares, duly endorsed for
transfer, and any remaining cash held by the Voting Trustees in the Trust
Accounts from dividends and distributions made upon such other Trust Shares,
including any interest in fact earned thereon. Upon the expiration of the term
of this Voting Trust Agreement pursuant to clause (vii) of the immediately
preceding paragraph (a), the Voting Trust Certificates shall be of no further
force or effect, and the Voting Trustees shall immediately deliver, in
accordance with the joint written instructions of the Beneficiary and Dart, the
certificate(s) representing the Trust Shares, duly endorsed for transfer, and
any amounts on deposit in the Trust Accounts.
7. Interest of Voting Trustees.
(a) The Voting Trustees assume no liability as stockholders,
their interest hereunder being that of trustees only. The Voting Trustees
shall be entitled to vote the Trust Shares on all matters, but they shall have
no implied obligations and assume no responsibility in respect of any action
taken by them or taken in pursuance of their vote so cast, and the Voting
Trustees shall incur no responsibility as trustees or otherwise
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by reason of any error in law, mistake of judgment or of anything done,
suffered or omitted to be done under this Voting Trust Agreement, except for
their own individual gross negligence or willful misconduct. Each of the
Voting Trustees shall be entitled to rely and to act upon the advice of legal
counsel, which may be separate legal counsel for any or all of the Voting
Trustees or the same legal counsel that represents Dart or its Board of
Directors or any committee thereof in any matter. The Voting Trustees assume
no responsibility with respect to the validity or genuineness of any of the
stock certificates to be deposited hereunder, or any notice, request,
assignment, power of attorney, acknowledgment or other papers or documents, and
the Voting Trustees shall be entitled to assume that any such stock
certificates or other papers or documents are genuine and valid and what they
purport to be, and are signed by the proper parties, and the endorsements and
assignments thereof are genuine and legal.
(b) Any or each of the Voting Trustees may also act as a
director or officer of Dart and/or any subsidiary of Dart, and the Voting
Trustees may, in their absolute discretion, vote the Trust Shares to elect or
appoint themselves to such positions.
8. Expenses and Compensation of Voting Trustees.
(a) The reasonable fees and expenses (including counsel fees
and expenses) paid or incurred by the Voting Trustees in the administration of
the trust hereunder (the "Trust Expenses") shall be paid by the Voting Trustees
from funds, if
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any, available pursuant to Section 3(d)(ii)(aa) hereof or funds, if any, on
deposit from time to time in the Trust Accounts, and at all times when the
funds from such sources are insufficient for this purpose the Trust Expenses
shall, to the extent of the insufficiency, be borne and promptly paid by Dart
(subject to subsequent reimbursement if and to the extent funds are available
pursuant to Section 3(d)(ii)(aa) hereof). The Trust Expenses shall include
compensation to each of the Voting Trustees for their time reasonably spent in
rendering services hereunder at the rate of Two Hundred Seventy-Five Dollars
($275) per hour or at such other rate or rates as the Beneficiary, Dart and the
Voting Trustees shall agree in writing; provided, however, that any Voting
Trustee who also is a full-time employee of Dart or any of its affiliated
corporations shall not be entitled to receive compensation for his or her
service as a Voting Trustee; and provided further that Xxxxxx X. Xxxxxxxxx
hereby waives his right to receive compensation for his service as a Voting
Trustee and any other Voting Trustee may at any time waive his or her right to
receive compensation for his or her service as a Voting Trustee.
(b) Dart hereby acknowledges that the Voting Trustees are
acting in that capacity at its request and agrees that the Voting Trustees are
entitled to indemnification in accordance with Article Eleventh of Dart's
Certificate of Incorporation and Article VII of Dart's Bylaws.
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9. Appointment of Additional Voting Trustees; Resignation and Removal
of Voting Trustees.
(a) The parties acknowledge that Xxxxx X. Xxxxxxxx
("Xxxxxxxx") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") are serving as the Interim
Voting Trustees pursuant to this Voting Trust Agreement for a period not to
exceed ninety days and that Dart and the Beneficiary contemplate the
appointment of a permanent Voting Trustee who is otherwise unaffiliated with
Dart or the Beneficiary before the expiration of that ninety day period.
(b) If, within their period of service as Interim Voting
Trustees, Xxxxxxxx and Xxxxxxxxx are in disagreement as to any matter involving
the exercise of the voting rights of the shares in the Voting Trustee, or any
other matter involving the exercise of their fiduciary responsibilities as
trustees, Xxxxx X. Xxxxxxx, Esq. will advise and consult with the Interim
Voting Trustees and, in the event disagreement persists, shall be empowered to
decide the dispute.
(c) Within 90 days, the Interim Voting Trustees will, by
agreement, appoint a permanent Voting Trustee and resign from their positions
as Voting Trustees.
(d) If they are unable to reach agreement on a permanent
Voting Trustee, the Interim Voting Trustees will apply to the Delaware Court of
Chancery to appoint a permanent Trustee from a list of two nominees. Each of
the Interim Voting Trustees shall choose one name for submission to the Court.
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(e) Any Voting Trustee may resign at any time by
providing written notice of such resignation, stating the effective date
thereof, to the Beneficiary, the other Voting Trustees (if any) and Dart. Any
Voting Trustee may not be removed except for good cause by order of the
Delaware Court of Chancery upon application by the Beneficiary or Dart. A
Voting Trustee shall cease to be a Voting Trustee upon the death of such Voting
Trustee or a determination of a court of competent jurisdiction that such
Voting Trustee lacks the requisite physical or mental capacity to exercise the
powers under this Voting Trust Agreement. After the effective date of the
resignation or removal of any Voting Trustee, or the date any Voting Trustee
dies or is determined by a court of competent jurisdiction to be incapacitated,
the remaining Voting Trustees, if any, shall be entitled to exercise full
authority as Voting Trustees hereunder.
(f) In the event that the permanent Voting Trustee
appointed pursuant to the provisions of this agreement ceases to be a Trustee
for any reason, the parties to the Settlement Agreement shall agree to the
appointment of a replacement Trustee. In the event that the parties cannot
agree on a replacement Trustee, the parties will apply to the Delaware Court of
Chancery to appoint a replacement Trustee from a list of no more than three
nominees. Each of the parties shall be entitled to submit one nominee to the
Court.
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10. Mutilated or Lost Voting Trust Certificates. In case any Voting
Trust Certificate shall become mutilated or be destroyed, lost or stolen, the
Beneficiary may notify the Voting Trustees who shall issue and deliver to the
Beneficiary a new Voting Trust Certificate in exchange for and upon
cancellation of the Voting Trust Certificate so mutilated, or in substitution
for the Voting Trust Certificate so destroyed, lost or stolen, provided that
the Beneficiary shall have furnished proof reasonably satisfactory to the
Voting Trustees of such destruction, loss or theft, and upon request, shall
furnish indemnity reasonably satisfactory to the Voting Trustees and shall
comply with such other reasonable requirements as the Voting Trustees may
prescribe.
11. Notices. Any notices or consents required or permitted by
this Voting Trust Agreement shall be in writing and shall be deemed given if
delivered in person or if sent by certified mail, postage prepaid, return
receipt requested, or by facsimile as follows, unless any such address is
changed by notice to the other parties hereunder:
To Dart:
Dart Group Corporation
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: 000-000-0000
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Copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
To the Beneficiary:
Xxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: ______________
Copy to:
Xxxxxx X. Xxxxx, Esq.
Blank, Rome, Xxxxxxx & XxXxxxxx
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
To the Voting Trustees:
Xxxxx X. Xxxxxxxx
Voting Trustee, Dart Group Corporation
c/o Xxxxx X. Xxxxxxx, Xx., Esq.
Xxxxxxxx, Xxxxxx & Finger
10th & King
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Xxxxxx X. Xxxxxxxxx, Esq.
Voting Trustee, Dart Group Corporation
Xxxxxxxxx, Harnes & Harnes
14th Floor
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
12. Amendments. This Voting Trust Agreement may be amended from time
to time only by a written agreement executed by the Beneficiary and Dart;
provided, that any amendment of this Voting Trust Agreement that is not also
executed and delivered by all of the Voting Trustees shall not be effective
until the earlier of
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the written acceptance of such amendment by all of the Voting Trustees or ten
(10) days after written notice of such amendment is delivered to all of the
Voting Trustees.
13. Counterparts. This Voting Trust Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
14. Inspection. Until the termination of this Voting Trust
Agreement, one (1) original copy of each counterpart hereof and amendment
hereto shall be kept at the registered office of Dart in the State of Delaware,
and such documents shall be open to the inspection of the Beneficiary or any
stockholder of Dart or his or her attorney daily during business hours.
15. Further Assurances. It is the intention of the parties that this
Voting Trust Agreement be administered in compliance with Section 218 of the
Delaware General Corporation Law. Each party to this Voting Trust Agreement
shall give such further assurances and perform such acts (including, without
limitation, the preparation, execution and filing of appropriate documents with
appropriate governmental agencies) that will or may become necessary or
appropriate to effectuate and carry out the purposes or provisions of this
Voting Trust Agreement.
16. Acceptance of Trust. The Voting Trustees accept the trust
created hereby subject to all the terms and conditions herein contained and
agree that they will exercise the powers and perform their duties as Voting
Trustees as herein set forth
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according to the provisions of this Voting Trust Agreement; provided, however,
that each of the Voting Trustees may resign and be discharged from the trust
created hereby in the manner herein provided.
17. Governing Law. This Voting Trust Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
18. Cross-Default. This Voting Trust Agreement, the Settlement
Agreement, the Buy/Sell/Offering Agreement and other documents relating thereto
(collectively, the "Agreements") constitute one integrated whole. The
Beneficiary agrees that a material breach by the Beneficiary under any of the
Agreements shall constitute a material breach under each of the Agreements.
Dart agrees that a material breach by Dart under any of the Agreements shall
constitute a material breach under each of the Agreements.
19. Entire Agreement. This Voting Trust Agreement (including,
without limitation, the exhibits hereto), the other Agreements and the
documents and instruments executed and delivered pursuant hereto, set forth the
entire understanding of the parties hereto, and supersede all prior agreements
between them, with respect to the subject matter hereof.
20. Specific Performance. Dart and the Beneficiary each
acknowledge and agree that in the event of any breach of this Voting Trust
Agreement, the non-breaching party would be irreparably harmed and could not be
made whole by monetary
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damages. It is accordingly agreed that Dart and the Beneficiary, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Voting Trust Agreement in any
action instituted in the Delaware Court of Chancery or the United States
District Court for the District of Delaware, or, in the event neither of said
courts would have jurisdiction over such action, in any court of the United
States or any state having subject matter jurisdiction. Dart, the Beneficiary
and each of the Voting Trustees consent to personal jurisdiction in any such
action brought in the Delaware Court of Chancery or the United States District
Court for the District of Delaware.
21. Severability. If any one or more of the provisions contained in
this Voting Trust Agreement, or any agreement, document or instrument delivered
pursuant hereto, should be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of all remaining provisions
shall not in any way be affected or impaired.
22. Binding Effect. This Voting Trust Agreement, and the documents
and instruments delivered pursuant hereto, shall inure to the benefit of, and
shall be binding upon, the respective parties hereto, their heirs, executors,
administrators, successors and assigns.
23. Waiver. The waiver by any party hereto of any matter provided
for herein shall not be deemed to be a waiver of any other matter provided for
herein.
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24. Headings. The headings in this Voting Trust Agreement are solely
for convenience of reference and shall not be given any effect in the
construction or interpretation of this Voting Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Voting
Trust Agreement as of the day and year first above written.
/s/ Xxxxxx X. Xxxx
-------------------------------- ------------------------------------
Witness Xxxxxx X. Xxxx
DART GROUP CORPORATION
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Attest Title:
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
-------------------------------- ------------------------------------
Witness Xxxxx X. Xxxxxxxx,
as Voting Trustee
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ------------------------------------
Witness Xxxxxx X. Xxxxxxxxx,
as Voting Trustee
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