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EXHIBIT 10.8
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT executed at Fort Mill, South Carolina, by and
among American Aircarriers Support, Incorporated, a Delaware corporation (the
"Company"), Xxxxxx X. Xxxxx, Xx., an individual residing in Lake Xxxxx, South
Carolina (the "Stockholder"), and Xxxxx X. Xxxx and his successors in trust
(the "Trustee").
WHEREAS, the Stockholder owns a total of 1,025,000 shares of Common
Stock of the Company, and
WHEREAS, in order to secure continuity and stability of the Company's
policies and management, the Stockholder deems it advisable and has agreed to
enter into this Agreement pursuant to which the Stockholder will deposit all of
the 1,025,000 shares he currently owns and all other shares of the Common Stock
or other voting securities of the Company hereafter acquired, of record or
beneficially, by the Stockholder (collectively, the "Shares") with the Trustee
and the Trustee will obtain voting control with respect to the Shares, and
WHEREAS, the Stockholder has agreed that the Trustee shall take and hold
for the period which is hereinafter stated the legal title to the Shares, to be
held by him and to act under the terms of this Agreement, and
WHEREAS, the Trustee has consented to act under this Agreement for the
purposes herein provided,
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, it is hereby agreed:
1. Agreement. Copies of this Agreement, and of every supplemental or
amendatory agreement, shall be filed in the Company's principal office in Fort
Mill, South Carolina. All such copies shall be open to the inspection of the
Company's stockholders daily during business hours. All Voting Trust
Certificates (defined below) issued as hereinafter provided shall be issued,
received, and held subject to all the terms of this Agreement.
2. Transfer of Common Stock to Trustee. (a) The Stockholder shall
deposit with the Trustee certificates evidencing his Shares. Should the
Stockholder acquire additional Shares after the date hereof by exercise of
options, the Stockholder shall deposit additional certificates for the
Company's Common Stock so acquired with the Trustee within 10 days of such
acquisition. No stock shall be deposited hereunder except stock having general
voting powers, as provided in the Company's Certificate of Incorporation. All
such stock certificates shall be endorsed, or accompanied by such executed
instruments of transfer as to enable the Trustee to cause such certificates to
be transferred into the name of the Trustee, as hereinafter provided. On
receipt by the Trustee of the certificates for any Shares and their transfer
into the name of the Trustee, the Trustee shall hold them subject to the terms
of this Agreement, and shall thereupon issue and deliver to the Stockholder
Voting Trust Certificates (defined below) for the Shares so deposited.
Stockholder represents and warrants that, upon his transfer of the Shares to
the Trustee, he will not be a "control person" as such term is defined under
Federal and state securities laws.
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(b) All certificates for Shares of the Company transferred and
delivered to the Trustee pursuant to this Agreement shall be surrendered by the
Trustee to the Company and cancelled, and new certificates therefor shall be
issued to and held by the Trustee in the name of "Xxxxx X. Xxxx, as Voting
Trustee u/t/a dated February 20, 1998, for Xxxxxx X. Xxxxx."
3. Voting Trust Certificates. The voting trust certificates shall be
substantially in the form set forth in Exhibit A hereto (the "Voting Trust
Certificates").
4. Transfer of Certificates and Shares.
(a) During the term of this Agreement, the Shares may be sold,
transferred, assigned, pledged, hypothecated or otherwise transferred by the
Stockholder, subject to compliance by the Stockholder with the terms of this
Agreement.
(b) If the Stockholder determines to sell any or all of the Shares
by means of a sale (a "Sale"), the Stockholder shall so notify the Trustee of
such determination by a written notice (a "Notice of Sale"), which Notice of
Sale shall state the number of Shares sold. If the Shares are sold in public
market transactions, in no event shall the number of Shares set forth in a
Notice of Sale exceed the number of Shares that the Stockholder would be
permitted to sell pursuant to Rule 144 or Rule 144(k), as applicable,
promulgated under the Securities Act of 1933, as amended, or pursuant to any
lock-up agreement with any investment banking firm. Upon receipt of a Notice
of Sale by the Trustee, the Shares subject to the Notice of Sale shall be
transferred into the name of the purchaser (or into the name of a registered
broker or dealer designated by the purchaser) on the stock transfer records of
the Company and such Shares shall no longer be subject to this Agreement.
(c) Notwithstanding any of the other provisions of this Agreement,
the Stockholder shall have the absolute right to transfer, pledge or
hypothecate any or all Voting Trust Certificates owned by the Stockholder;
provided, however, any such transfer, pledge or hypothecation shall be subject
to this Agreement and any foreclosure of a pledge or hypothecation shall be
deemed a Transfer of the Voting Trust Certificates and the party seeking to
foreclose such pledge or hypothecation shall execute an agreement to become a
party and subject to this Agreement with the same force and effect as if such
transferee had executed this original Agreement, and shall be considered to be
within the meaning of the term Stockholder whenever used herein.
(d) Upon the death of any registered holder of Voting Trust
Certificates subject to this Agreement, the Trustee shall, upon surrender to
the Trustee of the Voting Trust Certificate(s) which were registered in the
decedent's name duly endorsed for surrender and cancellation, and delivery of
such other documents as the Trustee may reasonably require, cause said Voting
Trust Certificate(s) to be cancelled and the Trustee shall thereafter promptly
surrender the certificates representing the Shares subject to such Voting Trust
Certificates to the Company for cancellation and reissuance in the name(s) of
the Stockholder's heirs or legal representatives.
(e) During the term of this Agreement, the Trustee, in his
capacity as Trustee pursuant to this Agreement, shall not have the power to
sell the Shares without the written authorization of the Stockholder. Any
sales shall be made in compliance with all applicable State and Federal
securities laws and any lock-up agreement with any investment banking firm. If
a sale of the Shares by the
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Trustee in his capacity as Trustee pursuant to this Agreement occurs at any
time, the proceeds shall be distributed by the Trustee to and among the holder
or holders of the Voting Trust Certificates upon the surrender of said Voting
Trust Certificates.
(f) The Voting Trust Certificates shall be transferable at the
Trustee's principal office in Gastonia, North Carolina (and at such other
office as the Trustee may designate by an instrument signed by him and sent by
mail to the registered holders of Voting Trust Certificates), on the books of
the Trustee, by the registered owner thereof, either in person or by attorney
thereto duly authorized, upon surrender thereof, according to the rules
established for that purpose by the Trustee. The Trustee may treat the
registered holder as owner thereof for all purposes, but he shall not be
required to deliver certificates representing the Shares hereunder without the
surrender of such Voting Trust Certificates.
(g) If a Voting Trust Certificate is lost, stolen, mutilated, or
destroyed, the Trustee, in his discretion, may issue a duplicate of such
certificate upon receipt of: (1) evidence of such fact satisfactory to him;
(2) indemnity reasonably satisfactory to him; and (3) the existing certificate,
if mutilated. The Trustee shall not be required to recognize any transfer of a
Voting Trust Certificate not made in accordance with the provisions hereof,
unless the person claiming such ownership has produced indicia of title
satisfactory to the Trustee, and has in addition deposited with the Trustee
indemnity reasonably satisfactory to him.
5. Termination Procedure. (a) Upon the termination of this Agreement
at any time, as hereinafter provided, the Trustee, at such time as he may
choose during the period commencing 20 days before and ending 20 days after
such termination, shall mail written notice of such termination to the
registered owners of the Voting Trust Certificates, at the addresses appearing
on the Trustee's transfer books. After the date specified in any such notice
(which date shall be fixed by the Trustee), the Voting Trust Certificates shall
cease to have any effect, and their holders shall have no further rights under
this Agreement other than to receive certificates for the Shares or other
property distributable under the terms hereof and upon the surrender of such
Voting Trust Certificates.
(b) Within 30 days after the termination of this Agreement, the
Trustee shall deliver, to the registered holders of all Voting Trust
Certificates, certificates for the number of Shares represented thereby, upon
the surrender thereof properly endorsed, such delivery to be made in each case
at the Trustee's office.
(c) At any time subsequent to 30 days after the termination of this
Agreement, the Trustee may deposit with the Company stock certificates
representing the number of Shares represented by the Voting Trust Certificates
then outstanding, with authority in writing to the Company to deliver such
stock certificates in exchange for Voting Trust Certificates representing a
like number of Shares of the Company. Upon such deposit all further liability
of the Trustee for the delivery of such stock certificates and the delivery or
payment of dividends upon surrender of the Voting Trust Certificates shall
cease, and the Trustee shall not be required to take any further action
hereunder.
6. Dividends. (a) Prior to the termination of this Agreement, the
Stockholder (or his transferees) shall be entitled to receive payments equal to
the cash dividends, if any, received by the Trustee upon a like number of
shares of the Company's Common Stock as is called for by each such
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Voting Trust Certificate. If any dividend in respect of the Shares deposited
with the Trustee is paid, in whole or in part, in the Company's stock having
general voting powers, the Trustee shall likewise hold, subject to the terms of
this Agreement, the certificates for Shares which are received by him on
account of such dividend. The Stockholder (or his transferees) holding Shares
on which such stock dividend has been paid shall be entitled to receive a
Voting Trust Certificate issued under this Agreement for the number of Shares
received as such dividend with respect to the Shares represented by such Voting
Trust Certificate. Holders entitled to receive the dividends described above
shall be those registered as such on the Trustee's transfer books at the close
of business on the day fixed by the Company for the taking of a record to
determine those holders of its Common Stock entitled to receive such dividends,
or if the Trustee has fixed a date, as hereinafter in this paragraph provided,
for the purpose of determining the holders of Voting Trust Certificates
entitled to receive such payment or distribution, then registered as such at
the close of business on the date so fixed by the Trustee.
(b) If any dividend in respect of the Shares deposited with the
Trustee is paid other than in cash or in capital stock having general voting
powers, then the Trustee shall distribute the same to the Stockholder (or his
transferees) at the close of business on the day fixed by the Trustee for
taking a record to determine the holders of Voting Trust Certificates entitled
to receive such distribution. Such distribution shall be made to such holders
of Voting Trust Certificates ratably, in accordance with the number of Shares
represented by their respective Voting Trust Certificates.
(c) The Trustee may temporarily close the transfer books for a
period not exceeding 20 days preceding the date fixed for the payment or
distribution of dividends or the distribution of assets or rights, or at any
other time in the Trustee's discretion. In lieu of providing for the closing
of the books against the transfer of Voting Trust Certificates, the Trustee may
fix a date not exceeding 20 days preceding any date fixed by the Company for
the payment or distribution of dividends, or for the distribution of assets or
rights, as a record date for the determination of the holders of Voting Trust
Certificates entitled to receive such payment or distribution. The holders of
Voting Trust Certificates of record at the close of business on such date shall
exclusively be entitled to participate in such payments or distribution.
(d) In lieu of receiving cash dividends upon the Shares and paying
the same to the holders of Voting Trust Certificates pursuant to the provisions
of this Agreement, the Trustee may instruct the Company in writing to pay such
cash dividends to the holders of the Voting Trust Certificates. Upon receipt
of such written instructions, the Company shall pay such cash dividends
directly to the holders of the Voting Trust Certificates. Upon such
instructions being given by the Trustee to the Company, and until revoked by
the Trustee, all liability of the Trustee with respect to such cash dividends
shall cease. The Trustee may at any time revoke such instructions.
7. Subscription Rights. If any stock or other securities of the
Company are offered for subscription to the holders of the Shares, the Trustee,
promptly upon receipt of notice of such offer, shall mail a copy thereof to the
Stockholder and his transferees. Upon receipt by the Trustee, at least five
days prior to the last day fixed by the Company for subscription and payment,
of a request from any such registered holder of Voting Trust Certificates to
subscribe in his behalf, accompanied with the sum of money required to pay for
such stock or securities (not in excess of the amount subject to subscription
in respect of the Shares represented by the Voting Trust Certificate held by
such
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certificate holder), the Trustee shall make such subscription and payment.
Upon receiving from the Company the certificates for Shares or securities so
subscribed for, the Trustee shall issue to such holder a Voting Trust
Certificate in respect hereof if the Shares or securities received have general
voting powers. If, however, the Shares or securities do not have general
voting powers, the Trustee shall mail or deliver such securities to the
certificate holder in whose behalf the subscription was made, or may instruct
the Company to make delivery directly to the certificate holder entitled
thereto.
8. Dissolution of the Company. In the event of the dissolution or
total or partial liquidation of the Company, whether voluntary or involuntary,
the Trustee shall receive the moneys, securities, rights, or property to which
the holders of the Shares deposited hereunder are entitled, and shall
distribute the same among the registered holders of Voting Trust Certificates
in proportion to their interests, as shown by the books of the Trustee.
Alternatively, the Trustee may in his discretion deposit such moneys,
securities, rights, or property with any bank or trust company doing business
in Fort Mill, South Carolina, with authority and instructions to distribute the
same as above provided, and upon such deposit all further obligations or
liabilities of the Trustee in respect of such moneys, securities, rights or
property so deposited shall cease.
9. Reorganization of the Company. If the Company is merged into or
consolidates with another corporation, or all or substantially all of its
assets are transferred to another corporation, then in connection with such
transfer the term "Company" for all purposes of this Agreement shall be deemed
to include such successor corporation, and the Trustee shall receive and hold
under this Agreement any stock of such successor corporation received on
account of the ownership, as Trustee hereunder, of the stock held hereunder
prior to such merger, consolidation, and transfer. Voting Trust Certificates
issued and outstanding under this Agreement at the time of such merger,
consolidation, or transfer may remain outstanding, or the Trustee, may, in his
discretion, substitute for such Voting Trust Certificates new Voting Trust
Certificates in appropriate form, and the terms "stock" and "capital stock" as
used herein shall be taken to include any stock which may be received by the
Trustee in lieu of all or any part of the Shares.
10. Rights of Trustee. (a) Until the actual delivery to the holders
of Voting Trust Certificates issued hereunder of stock certificates in exchange
therefor, and until the surrender of the Voting Trust Certificates for
cancellation, the Trustee shall have the exclusive right, subject to the
provisions of this paragraph hereinafter set forth, to exercise, in person or
by his nominees or proxies, all of the Stockholder's voting rights and powers
in respect of all Shares deposited hereunder, and to take part in or consent to
any corporate or stockholders' action of any kind whatsoever. The Stockholder
shall have no right to vote the Shares. The right to vote shall include the
right to vote for the election of directors, and in favor of or against any
resolution or proposed action of any character whatsoever, which may be
presented at any meeting or require the consent of the Company's stockholders.
Without limiting such general right, it is understood that such action or
proceeding may include, upon terms satisfactory to the Trustee or to his
nominees or proxies thereto appointed by him, mortgaging, creating a security
interest in, and pledging of all or any part of the Company's property, the
lease or sale of all or any part of its property, for cash, securities or other
property, and the dissolution of the Company, or its consolidation, merger,
reorganization or recapitalization.
(b) In voting the Shares held by him hereunder either in person or
by his nominees or proxies, the Trustee shall exercise his best judgment to
select suitable directors of the Company, and
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shall otherwise, insofar as he may as a stockholder of the Company, take such
part or action in respect to the management of its affairs as he may deem
necessary so as to be kept advised on the affairs of the Company and its
management. In voting upon any matter that may come before him at any
stockholders' meeting, the Trustee shall exercise like judgment. The Trustee,
however, shall not be personally liable for any action taken pursuant to his
vote or any act committed or omitted to be done under this Agreement, provided
that such commission or omission does not amount to willful misconduct on his
part and that he at all times exercises good faith in such matters.
11. Trustees. (a) The Trustee (and any successor Trustee) may at any
time resign by mailing to the registered holders of Voting Trust Certificates a
written resignation, to take effect ten days thereafter or upon its prior
acceptance. Upon the death or disability of Xxxxx X. Xxxx, or upon his
resignation as Trustee, Xxxx X. Xxxxx shall be the successor Trustee during the
remainder of this Agreement. Such designation of a successor trustee may be
made by filing in the Company's principal office, in Fort Mill, South Carolina,
a deed of appointment of such successor Trustee, duly executed by him, under
seal, and acknowledged as deeds for the conveyance of real estate are required
to be acknowledged under the laws of South Carolina then in force. Any
designation by Xxxxx X. Xxxx of the successor Trustee may be revoked in whole
or in part by him at any time, without notice, by filing a deed of revocation
in the same form as the deed of appointment hereinabove provided for and in the
same places. Upon the death, disability or resignation of Xxxxx X. Xxxx, the
Trustee designated by him, as hereinabove provided, shall become the successor
Trustee hereunder. Upon his death or resignation without having appointed a
Trustee to succeed him (or if he has appointed such Trustee but has revoked the
appointment or such Trustee has died, become disabled or resigned and Xxxxx X.
Xxxx has failed to appoint a successor), and upon the death, disability or
resignation of any successor Trustee acting hereunder, further Trustees under
this Agreement shall be designated by the registered holders of Voting Trust
Certificates issued and outstanding under this Agreement representing a
majority of the Shares standing in the name of the Trustee hereunder.
(b) The rights, powers, and privileges of the Trustee named
hereunder shall be possessed by successor Trustees, with the same effect as
though such successors had originally been parties to this Agreement. The word
"Trustee," as used in this Agreement, means the Trustee or any successor
Trustees acting hereunder, and shall include both the single and the plural
number. The words "he," "him," and "his", as used in this Agreement in
reference to the Trustee shall mean "they," "them," and "their," respectively,
when more than one Trustee is acting hereunder.
12. Term. This Agreement shall be effective as of the date hereof and
shall continue in effect until the tenth anniversary of the date hereof, but
shall terminate automatically if any of the following events occur: (1) the
execution and acknowledgement (as deeds for the conveyance of real estate are
required to be acknowledged under the laws of South Carolina then in effect) by
the Trustee hereunder of a deed of termination of this Agreement, duly filed in
the Company's office in Fort Mill, South Carolina, which deed shall state that
the Stockholder or his assigns has sold the Shares and, accordingly, this
Agreement shall expire upon the filing of the deed of termination; or (2) the
death of the Stockholder. This Agreement shall automatically renew for an
additional term of ten years if the Stockholder continues to own Shares upon
expiration of the initial term hereof.
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13. Compensation and Reimbursement of Trustee. The Trustee shall serve
without compensation. The Trustee shall have the right to incur and pay such
reasonable expenses and charges, and to employ and pay such agents, attorneys,
and counsel as he may deem necessary and proper to effectuate this Agreement.
All such expenses or charges incurred by and due to the Trustee may be deducted
from the dividends or other moneys or property received by him on the Shares
deposited hereunder. Nothing herein contained shall disqualify the Trustee or
successor Trustees, or incapacitate him or them from serving the Company or any
of its subsidiaries as officer or director, or in any other capacity, and in
any such capacity receiving compensation.
14. Notice. (a) Unless otherwise specifically provided herein, any
notice to or communication with the holders of the Voting Trust Certificates
hereunder shall be deemed to be sufficiently given if sent by registered or
certified mail, postage prepaid, addressed to such holders at their respective
addresses appearing on the Trustee's transfer books. The addresses of the
holders of Voting Trust Certificates, as shown on the Trustee's transfer books,
shall in all cases be deemed to be the addresses of Voting Trust Certificate
holders for all purposes under this Agreement, without regard to what other or
different addresses the Trustee may have for any Voting Trust Certificate
holder on any other books or records of the Trustee. Every notice so given
shall be effective, whether or not received, and the date of mailing shall be
the date such notice is deemed given for all purposes.
(b) Any notice to the Company hereunder shall be sufficient if
mailed to the Company at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxx Xxxxxxxx
00000, or to such other address as the Company may designate by notice in
writing to the Trustee.
(c) Any notice to the Trustee hereunder shall be sent by registered
or certified mail, postage prepaid, to the Trustee, addressed to him at such
addresses as he may from time to time furnish in writing to the Company, and if
no such address has been so furnished by the Trustee, then to him in care of
the Company.
(d) All distributions of cash, securities or other property
hereunder by the Trustee to the holders of Voting Trust Certificates may be
made, in the Trustee's discretion, by mail (regular or registered mail, as the
Trustee may deem advisable), in the same manner as hereinabove provided for the
giving of notices to the holders of Voting Trust Certificates.
15. Entire Agreement. This Agreement supersedes all agreements
previously made between the parties relating to its subject matter. There are
no other understandings or agreements between them.
16. Non-Waiver. No delay or failure by a party to exercise any right
under this Agreement, and no partial or single exercise of that right shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
17. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
18. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
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19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
20. Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of each of the parties and their respective legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the Company and the Trustee have executed this
Agreement, and the Stockholder has executed this Agreement and has stated the
number of Shares of the Company deposited by him.
AMERICAN AIRCARRIERS SUPPORT, INCORPORATED
Attest:
By: /s/ XXXX X. XXXXX
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/s/ XXXXX X. XXXX Xxxx X. Xxxxx, President
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Assistant Secretary
/s/ XXXXX X. XXXX
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Xxxxx X. Xxxx, Trustee
STOCKHOLDER:
/s/ XXXXXX X. XXXXX, XX.
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Xxxxxx X. Xxxxx, Xx.
Number of Shares Deposited: 1,025,000
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