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EXHIBIT 9.1
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (the "Agreement"), dated as of
June 29, 1995, is by and among Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, XXXXX I,
Ltd., A Texas limited partnership ("ATARA" and collectively the "JHC
Shareholders") and Cargill Financial Services Corporation, a Delaware
corporation ("CFSC").
RECITALS
WHEREAS, on or about October 31, 1992, First City Bancorporation
of Texas, Inc., a Delaware corporation (the "Corporation") filed a petition in
bankruptcy with the United States Bankruptcy Court for the Northern District of
Texas, Dallas Division, under Chapter 11 of the United States Bankruptcy Code;
WHEREAS, the Corporation has been or will be reorganized by the
merger of J-Hawk Corporation ("J-Hawk") with and into the Corporation (the
"Merger") pursuant to a Joint Plan of Reorganization by the Corporation, the
Official Committee of Equity Security Holders of the Corporation, and J-Hawk
with the participation of CFSC (the "Joint Plan");
WHEREAS, as of the date of this Agreement, CFSC has acquired
shares of common stock of J-Hawk from the JHC Shareholders pursuant to a Stock
Purchase Agreement of even date herewith;
WHEREAS, as of the date of this Agreement, CFSC has also
acquired, or anticipates acquiring, additional shares of common stock of J-Hawk
and anticipates that it will own, immediately prior to the consummation of the
Merger, a total number of shares of common stock of J-Hawk as set forth on
Exhibit A hereto;
WHEREAS, pursuant to the Joint Plan, on the Effective Date
J-Hawk's shareholders will exchange their shares in J-Hawk for approximately
49.9% of the newly issues shares of the reorganized Corporation;
WHEREAS, pursuant to the Joint Plan, on the Effective Date of the
Merger, the Board of Directors of the reorganized Corporation will consist of
not more than twelve members, of which three directors will be the JHC
Shareholders and CFSC, as a plan participant, will be entitled to designate one
director of the reorganized Corporation; and
WHEREAS, CFSC and the JHC Shareholders wish to enter into
certain agreements relating to (i) the nomination of persons to serve as
directors of the
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Corporation, and (ii) the voting of the shares of common stock of the
Corporation respectively owned by each of them with respect to the election of
such director nominees;
NOW THEREFORE, in consideration of the premises herein contained,
CFSC and the JHC Shareholders hereby agree as follows:
1. DEFINITIONS.
For purposes of this Agreement:
"Agreement" means this Shareholder Voting Agreement.
"Board of Directors" shall mean the Board of Directors of the
Corporation, as now or hereafter constituted.
"CFSC" means Cargill Financial Services Corporation, a Delaware
corporation.
"CFSC Director" shall mean a member of the Board of Directors
designated by CFSC and duly nominated and elected as a member of the Board of
Directors.
"Common Stock" shall mean all shares of common stock of the
Corporation issued and outstanding on the Effective Date and all shares of
common stock that may hereafter or thereafter be owned by CFSC and any JHC
Shareholder.
"Corporation" means First City Bancorporation of Texas, Inc., a
Delaware corporation, and any successor or surviving corporation after the
Effective Date of the Merger.
"Effective Date" shall mean that date defined as the Effective
Date in the Joint Plan.
"J-Hawk" means J-Hawk Corporation, a Texas corporation.
"JHC Directors" shall mean the members of the Board of Directors
designated by the JHC Shareholders and duly nominated and elected as a member
of the Board of Directors.
"JHC Shareholders" shall mean those persons identified as such
in the introductory paragraph of this Agreement.
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"Joint Plan" shall mean the plan identified as such in the second
recital of this Agreement.
"Merger" shall mean the corporate merger identified as such in
the second recital to this Agreement.
"Shareholders" shall mean the holders from time to time of the
Common Stock.
2. VOTING OF SHARES OF COMMON STOCK.
2.1 At any Shareholder meeting or in connection with
the solicitation by any party of the consent of all Shareholders of the
Corporation during the term of this Agreement, each JHC Shareholder agrees to
vote all shares of the Common Stock owned by him, directly or indirectly, in
accordance with the following provisions of this Section 2.1:
(a) The JHC Shareholders shall vote all of their shares
affirmatively to elect the CFSC Director nominee as a member of the Board of
Directors at each annual meeting or any other meeting of the Shareholders held
for the election of directors during this term of this Agreement. Each JHC
Shareholder shall in no event vote for or otherwise consent to the removal of
the CFSC Director as a director of the Corporation, except upon the occurrence
of any of the following events:
(i) any material act or omission constituting gross
negligence or willful misconduct by the CFSC Director in the exercise of his
rights or duties as a director of the Corporation; or
(ii) any assignment, voluntary or involuntary, for the
benefit of creditors of the CFSC Director, the commencement of any bankruptcy,
insolvency or other proceeding under any debtor relief laws by or against the
CFSC Director, which proceeding is not dismissed within ninety (90) days from
the commencement thereof, or the appointment of a receiver, trustee,
liquidator, conservator or similar person for all or substantially all of the
assets of the CFSC Director with or without the consent of the CFSC
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Director, which appointment is not revoked or otherwise terminated within 90
days thereof.
(b) CFSC (or its successor in interest), as the case may be,
shall have the right at any time to nominate a substitute director to replace
the CFSC Director in the event that the CFSC Director should die, become
disabled, resign or be removed as a director during the term of this Agreement,
and, upon such event, the JHC Shareholders shall vote to elect such nominee as
the replacement CFSC Director.
2.2 At any meeting or in connection with the
solicitation by any party of the consent of all Shareholders of the Corporation
during the term of this Agreement, CFSC agrees to vote all shares of the Common
Stock owned by it, directly or indirectly, in accordance with the following
provisions of this Section 2.2:
(a) CFSC shall vote all of its shares affirmatively to elect
one or more of the JHC Director nominees as members of the Board of Directors
at each annual meeting or any other meeting of the Shareholders held for the
election of directors during this term of this Agreement. CFSC shall in no
event vote for or otherwise consent to the removal of any JHC Director as a
director of the Corporation, except upon the occurrence of any of the following
events:
(i) any material act or omission constituting gross
negligence or willful misconduct by a JHC Director in the exercise of his
rights or duties as a director of the Corporation; or
(ii) any assignment, voluntary or involuntary, for the
benefit of creditors of a JHC Director, the commencement of any bankruptcy,
insolvency or other proceeding under any debtor relief laws by or against any
JHC Director, which proceeding is not dismissed within ninety (90) days from
the commencement thereof, or the appointment of a receiver, trustee,
liquidator, conservator or similar person for all or substantially all of the
assets of any JHC Director with or without the consent of the JHC Director,
which appointment is not revoked or otherwise terminated within 90 days
thereof.
(b) The JHC Shareholders shall have the right at any time to
nominate a substitute director to
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replace a JHC Director in the event that any JHC Director should die, become
disabled, resign or be removed as a director during the term of this Agreement,
and, upon such event, CFSC shall vote to elect such nominee as a replacement
JHC Director.
3. TERM.
This Agreement shall continue in full force and effect for a term
commencing on the date hereof and ending on (i) December 31, 2016, or (ii) when
this Agreement is terminated pursuant to Section 5(e) hereinafter, if sooner.
4. NOTICES.
Any notice, request, demand or other communication under this
Agreement shall be in writing and shall be deemed to have been duly given or
made if in writing and delivered, sent by registered mail, postage prepaid, or
telexed to the recipient at the address set forth for such person on Exhibit A
to this Agreement, or, in each case, to such other address as may hereafter
have been designated most recently in writing, with specific reference to this
Agreement, by the addressee to the addresser. Such notices shall be effective
when received, or if mailed, on the date of mailing if confirmed by telex or
telegram.
5. MISCELLANEOUS PROVISIONS.
(a) This Agreement shall be subject to and governed by the
laws of the State of Delaware without giving effect to the principles of
conflicts of laws.
(b) This Agreement shall be binding upon CFSC and the JHC
Shareholders.
(c) Wherever the context requires, the gender of all words
used herein shall include the masculine, feminine and neuter, and the number of
all words shall include the singular and plural.
(d) This Agreement may be amended from time to time by an
instrument in writing signed by CFSC and each of the JHC Shareholders or their
respective successors.
(e) This Agreement shall terminate automatically and without
prior notice to any of the parties hereto upon the bankruptcy or dissolution or
liquidation
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of the Corporation. This Agreement may also be terminated by an instrument in
writing signed by the CFSC and each of the JHC Shareholders.
(f) Each party hereto acknowledges that a remedy at law for
any breach or attempted breach of this Agreement shall be inadequate and agrees
that each other party hereto shall be entitled to specific performance and
injunctive and other equitable relief in case of any such breach or attempted
breach, and further agrees to waive any requirement for the securing or posting
or any bond in connection with the obtaining of any such injunctive or other
equitable relief.
(g) If any one or more of the terms or provisions contained
herein shall be held invalid, illegal or unenforceable in any respect by a
court, such invalidity, illegality or unenforceability shall be in no way and
to no degree affect the other terms or provisions stated herein; provided,
however, that the remaining provisions of this Agreement can be reasonably
construed together.
(h) Neither CFSC nor any of the undersigned JHC Shareholders
are or shall become a party to any other agreement (exclusive of the
Corporation's Articles of Incorporation and Bylaws) covering or otherwise
affecting voting of the Common Stock or additional shares of the Corporation's
common stock which may be hereinafter owned by them.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in multiple counterparts, each of which shall be deemed an original,
on the date and year first above written.
CFSC: Cargill Financial Services Corporation
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
JHC SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXXXX I, Ltd.,
by its general partner,
ATARA Corporation
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: President
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Exhibit A
Entity/Address Number of Shares of J-Hawk Stock*
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Cargill Financial Services Corporation 14,923
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxxXxxxxx
Value Investment Group
JHC Shareholder/Address Number Shares of J-Hawk Stock*
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Xxxxx X. Xxxxxxx 59,906
X.X. Xxx 0000
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000-0000
Xxxxx X. Xxxxxxx 22,923
X.X. Xxx 0000
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000-0000
ATARA I, Ltd. 22,923
c/o ATARA Corporation
ATTN: Xxxx X. Xxxxxxxxxx, President
P.O. Box 8216
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000-0000
* Number of shares of J-Hawk Corporation common stock owned by each of
the above entities/persons immediately prior to the Merger.
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