EXHIBIT 9.1
VOTING TRUST AGREEMENT
This Voting Trust Agreement is made and entered into by Lawrence D.
Crouse, Trustee under the three Gerdin Educational Trusts created by trust
instrument dated August 11, 1986, for the benefit of, respectively, Michael
Gerdin, Julie Gerdin and Angela Gerdin (collectively the "Educational
Trusts"), as Trustor, and Lawrence D. Crouse, as Trustee.
PRELIMINARY STATEMENT
The Educational Trusts collectively own 645,119 shares of the
issued and outstanding common stock of Heartland Express, Inc., a Nevada
corporation ("Heartland"). Trustor believes that it is in the best
interests of the beneficiaries of the Educational Trusts to place
Educational Trusts' shares in a voting trust. For that reason, Trustor has
established this Voting Trust and shall transfer the Educational Trusts'
shares to this Voting Trust, to be voted under the terms and conditions set
forth in this Voting Trust Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Definitions.
A. The Trust created by this Voting Trust Agreement be named
the "Gerdin Educational Trust Voting Trust", and may be referred to in this
Voting Trust Agreement as the "Voting Trust".
B. The term "Trustor" as used in this Voting Trust Agreement
shall refer to Lawrence D. Crouse, Trustee of the Educational Trusts.
C. The term "Trustee" as used in this Voting Trust Agreement
shall refer initially to Lawrence D. Crouse in his capacity as Trustee of
this Voting Trust, and to any other person or entity acting as Trustee,
Trustees or Successor Trustee. The term "Trustee" may be construed in the
singular or plural, and as masculine, feminine or neuter, as the context or
circumstances may require.
D. The term "Trust Stock" shall refer to the 645,119 shares of
Heartland voting common stock owned by the Educational Trusts, and to any
new, substitute or additional shares or securities with voting rights, or
which may be converted to shares with voting rights, resulting from any
dividend, reclassification, readjustment or other change in the capital
structure of Heartland.
E. "Voting Shares" of Heartland Express shall refer to voting
shares of Heartland voting common stock, and any securities of Heartland
that have voting rights or are convertible into or give the right to
acquire voting shares of Heartland.
2. Agreement. A duplicate copy of this Voting Trust Agreement,
and of every supplemental or amendatory agreement, shall be filed in
Heartland's registered office. All voting trust certificates issued as
hereinafter provided shall be issued, received, and held subject to all the
terms of this Voting Trust Agreement. Every person or entity entitled to
receive voting trust certificates representing shares of capital stock of
Heartland, and their transferees and assigns, upon accepting the voting
trust certificates issued hereunder, shall be bound by the provisions of
this Voting Trust Agreement.
3. Transfer to Trustee. The Educational Trusts shares of common
stock of Heartland shall be transferred and delivered to Trustee. All
certificates for stock of Heartland transferred and delivered to the
Trustee pursuant to this Agreement shall be surrendered by the Trustee and
canceled, and new certificates herefor shall be issued to and held by the
Trustee in the name of "Lawrence D. Crouse as Voting Trustee." Trustee
shall hold the Trust Stock subject to the terms of this Voting Trust
Agreement, and shall issue and deliver to the Stockholders voting trust
certificates for the shares so deposited.
4. Voting Trust Certificates. The voting trust certificates
shall be in the following form:
Gerdin Educational Trust Voting Trust
Trust Certificate
No. ________ ________ Shares
Lawrence D. Crouse, voting trustee of the shares of Heartland Express,
Inc., under an agreement dated ___________, 1997, having received
certain shares of the Corporation, pursuant to such agreement, which
agreement the holder hereof by accepting this certificate ratifies and
adopts, hereby certifies that the __________ Gerdin Educational Trust will
be entitled to receive a certificate for _________ fully paid common shares
of Heartland Express, Inc., of the par value of $.01 each, on the
expiration of the voting trust agreement, and in the meantime shall be
entitled to receive payments equal to any cash dividends or dividends
payable in property other than voting shares of Heartland that may be
collected by the undersigned trustee upon a like number of such shares held
by it under the terms of the voting trust agreement.
This certificate is transferable only on the books of the
undersigned trustee by the registered holder in person or by his duly
authorized attorney, and the holder hereof, by accepting this certificate,
manifests his consent that the undersigned trustee may treat the registered
holder hereof as the true owner for all purposes, except the delivery of
share certificates, which delivery shall not be made without the surrender
hereof.
In witness whereof Lawrence D. Crouse has executed this certificate
this ____ day of ____________, 1997.
______________________________
Lawrence D. Crouse, Trustee
5. Transfer of Certificates. The voting trust certificates
shall be transferable at the Trustee's principal office at 2906 South 102nd
Street, Omaha, Nebraska 68124 (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 of their voting trust certificate and execution
of an irrevocable Assignment in a form acceptable to Trustee. The Trustee
may treat the registered holder as owner thereof for all purposes, but he
shall not be required to deliver stock certificates hereunder without the
surrender of such voting trust certificates.
6. Sale of Shares. The registered holder of any Voting Trust
Certificate may, at any time, make a bona fide sale of shares represented
by the Certificate to a non-affiliated third party. Upon written notice of
any such sale, the Trustee shall promptly deliver shares of this Trust in
accordance with the written direction of the registered holder. The
registered holder shall be entitled to the entire proceeds from the sale of
any shares represented by the holder's Voting Trust Certificates.
7. 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 twenty (20) days before and ending twenty (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 shares of Heartland's stock or other property distributable under the
terms hereof and upon the surrender of such voting trust certificates.
(b) Within thirty (30)days after the termination of this
Agreement, the Trustee shall accomplish the transfer, to the registered
holders of all voting trust certificates, of the number of shares of
Heartland's capital stock, represented by voting trust certificates, upon
the surrender thereof properly endorsed, such delivery to be made in each
case at the Trustee's office.
(c) This Voting Trust Agreement may be terminated at any time by
the Trustor, upon his determination that the termination of this Voting
Trust Agreement will not result in inclusion of the Heartland shares in the
estates of Russell A. Gerdin or Ann S. Gerdin for federal estate tax
purposes, under Section 2036(b) of the Internal Revenue Code of 1986 as
amended or corresponding provisions of any future internal revenue law.
8. Dividends.
(a) The holder of each voting trust certificate shall be entitled
to receive payments equal to the cash dividends, if any, received by the
Trustee upon a like number and class of shares of Heartland's capital stock
as is called for by each such voting trust certificate. If any dividend in
respect of the stock deposited with the Trustee is paid, in whole or in
part, in Heartland's voting shares, the Trustee shall likewise hold,
subject to the terms of this Agreement, the certificates for securities
which are received by him on account of such dividend. The holder of each
voting trust certificate representing stock on which such dividend has been
paid shall be entitled to receive a voting trust certificate issued under
this Agreement for the number of shares and class of stock 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 Heartland for the taking of a record
to determine those holders of its stock entitled to receive such dividends.
(b) If any dividend in respect of the stock deposited with the
Trustee is paid other than in cash or in voting shares of Heartland, then
the Trustee shall distribute the same among the holders of voting trust
certificates registered as such at the close of business on the day fixed
by Heartland for taking a record to determine the holders of shares
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) In lieu of receiving cash dividends upon the capital stock
of Heartland and paying the same to holders of voting trust certificates
pursuant to the provisions of this Agreement, the Trustee may instruct
Heartland in writing to pay such dividends to the holders of the voting
trust certificates. Upon receipt of such written instructions and
acceptance by Heartland, and until revoked by the Trustee, all liability
of the Trustee with respect to such dividends shall cease. The Trustee may
at any time revoke such instructions and by written notice to Heartland
direct it to make dividend payments to the Trustee.
9. Subscription Rights. If any stock or other securities of
Heartland are offered for subscription to the holder of its capital stock
deposited hereunder, the Trustee, promptly upon receipt of notice of such
offer, shall mail a copy thereof to each holder of the voting trust
certificates. Upon receipt by the Trustee, at least five (5) days prior to
the last day fixed by Heartland 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 certificate holder), the Trustee shall make such subscription and
payment. Upon receiving from Heartland the certificates for shares or
securities so subscribed for, the Trustee shall issue to such holder a
voting trust certificate in respect thereof if the shares or securities
received are voting shares. If, however, the shares or securities are not
voting shares, the Trustee shall mail or deliver such securities to the
certificate holder in whose behalf the subscription was made, or may
instruct Heartland to make delivery directly to the certificate holder
entitled thereto.
10. Dissolution of Heartland. In the event of the dissolution
or total or partial liquidation of Heartland, whether voluntary or
involuntary, the Trustee shall receive the moneys, securities, rights, or
property to which the holders of Heartland's capital stock 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
federally insured bank or trust company doing business in Iowa City, Iowa,
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.
11. Reorganization of Heartland. In the event of any merger,
consolidation, exchange, sale of assets, or other business combination in
which the Heartland stockholders receive securities of another entity, then
in connection with such transfer the term "Heartland" for all purposes of
this Agreement shall be deemed to include such successor entity, and the
Trustee shall receive and hold under this Agreement any of such successor's
securities having voting power of that are convertible into or give the
holder the right to acquire voting securities, received on account of the
ownership of the securities held hereunder prior to such business
combination. Voting trust certificates issued and outstanding under this
Agreement at the time of such business combination 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", "capital stock" and "securities" as used herein shall be
taken to include any securities having voting power of that are convertible
into or give the holder the right to acquire voting securities, which may
be received by the Trustee in lieu of all or any part of Heartland's
capital stock.
12. 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 right, subject to the provisions of this
paragraph hereinafter set forth, to exercise, in person or by his nominees
or proxies, all stockholders' voting rights and powers in respect of all
stock deposited hereunder, and to take part in or consent to any corporate
or stockholders' actions of any kind whatsoever. 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 Heartland's
stockholders. Without limiting such general right, it is understood that
such action or proceeding may include, upon terms satisfactory to the
Trustee or his nominees or proxies thereto appointed by him, mortgaging,
creating a security interest in, and pledging of all or any part of
Heartland's property, the lease or sale of all or any part of its property,
for cash, securities, or other property, and the dissolution of Heartland,
or its consolidation, merger, reorganization, or recapitalization.
(b) In voting the stock 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 Heartland, and shall otherwise, insofar as
he may as a stockholder of Heartland, 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 Heartland 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.
13. 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 (10) days thereafter or upon its
prior acceptance. In the event Lawrence D. Crouse should die, resign, or
for any reason become unable to serve, then that person or entity
designated by him in writing shall serve as Trustee hereunder. If Lawrence
D. Crouse shall fail to make such a designation or if his designation fails
or qualify, dies, resigns or otherwise becomes unable to serve, then
Richard Reiser of Omaha, Nebraska, shall serve as successor Trustee, and if
Richard Reiser is for any reason unable or unwilling to serve, then Hill
State Bank and Trust shall serve as the Trustee.
(b) The rights, powers, and privileges of the Trustee named
hereunder shall be possessed by the 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.
14. Term.
(a) This Agreement shall continue in effect until the fifteenth
anniversary of its execution (subject to extension as hereinafter set
forth). The voting trust is irrevocable and shall not be subject to
amendment or modification.
(b) At any time within two (2) years prior to the time
of expiration of the term hereof as theretofore extended, the holders of
all of the voting trust certificates hereunder may, by agreement in writing
and with the Trustee's written consent, extend the duration of this
Agreement for an additional period not exceeding fifteen (15) years. In
the event of such extension, the Trustee shall, prior to the time of
expiration as herein above provided, as originally fixed, or as theretofore
extended, as the case may be, file in Heartland's principal office, a copy
of such extension agreement, and of the consent thereto. Thereupon the
duration of this Voting Trust Agreement shall be extended for the period
fixed by such extension agreement, provided, however, that no such
extension agreement shall extend the term of this Agreement beyond the
maximum period then permitted by applicable law or affect the rights or
obligations of persons not parties thereto.
15. 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, 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 stock deposited hereunder. Nothing herein
contained shall disqualify the Trustee or successor Trustees, or
incapacitate him or them from serving Heartland or any of its subsidiaries
as officer or director, or in any other capacity, and in any such capacity
receiving compensation.
16. 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 or made if enclosed in
postpaid envelopes (regular not registered mail) addressed to such holders
at their respective addresses appearing on the Trustee's transfer books,
and deposited in any post office or post office box. 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 Trustee hereunder may be enclosed in a
postpaid envelope and sent by registered mail to the Trustee, addressed to
him at such addresses as he may from time to time furnish in writing to
Heartland, and if no such address had been so furnished by the Trustee,
then to him in care of Heartland.
(c) 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.
17. Entire Agreement. This Agreement supersedes all prior
agreements between the parties relating to its subject matter. There are
no other understandings or agreements between them concerning the subject
matter.
18. Nonwaiver. 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.
19. Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
20. Governing Law. This Agreement shall be construed
in accordance with the laws of the State of Nevada.
21. 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.
22. 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 Grantor and the Trustee have executed this
Voting Trust Agreement on the 6th day of June, 1997.
GERDIN EDUCATIONAL TRUST FOR THE
BENEFIT OF MICHAEL GERDIN
By: /s/ Lawrence D. Crouse
Lawrence D. Crouse, Trustee of the
Gerdin Educational Trust under
agreement dated August 11, 1986
GERDIN EDUCATIONAL TRUST FOR THE
BENEFIT OF JULIE GERDIN
By: /s/ Lawrence D. Crouse
Lawrence D. Crouse, Trustee of the
Gerdin Educational Trust under
agreement dated August 11, 1986
GERDIN EDUCATIONAL TRUST FOR
THE BENEFIT OF ANGELA GERDIN
By: /s/ Lawrence D. Crouse
Lawrence D. Crouse, Trustee of the
Gerdin Educational Trust under
agreement dated August 11, 1986
/s/ Lawrence D. Crouse
Lawrence D. Crouse, Trustee