EXHIBIT 9.1
ASSOCIATED HOLDINGS, INC.
VOTING TRUST AGREEMENT
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This Voting Trust Agreement (this "Agreement") is made and entered
into as of January 31, 1992, by and among Associated Holdings, Inc., a Delaware
corporation (the "Company"), the beneficial owners of shares of Common Stock
(the "Common Stock") of the Company, whose names are set forth on the signature
pages hereto (the "Beneficiaries"), and Gary G. Miller, Daniel J. Good, Thomas
W. Sturgess, Frederick B. Hegi, Jr., and James A. Johnson as the voting trustees
pursuant to this Agreement (the "Trustees").
WHEREAS, the Beneficiaries deem it in the best interest of the Company
and themselves to act together concerning the direction of the affairs of the
Company in order to secure continuity and stability of policy and management and
to promote the continuous and uninterrupted development of the business and, to
that end, to unite the voting power held by them and vest such voting power in
the Trustees as provided herein.
NOW THEREFORE, the Company, the Beneficiaries and the Trustees agree
as follows:
1. Parties. Any owner of, or person entitled to acquire, fully paid
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and nonassessable shares of the Class A Common Stock of the Corporation (the
"Common Stock") may become a party to this Agreement at any time by executing a
counterpart signature page to this Agreement and by depositing with the Trustees
the certificate or certificates representing his Common Stock, together with a
proper and sufficient instrument, duly executed, for the transfer to the
Trustees.
Each Beneficiary expressly covenants that upon his obtaining any
shares of the Common Stock, by virtue of the exercise of rights he now owns or
acquires in the future or upon obtaining such shares by any other means, he
promptly will transfer such stock to the Trustees as provided in this paragraph
1. The Company agrees that it will not, without the consent of the Trustees,
issue or sell any Common Stock or any options or other rights to acquire Common
Stock to any Beneficiary without first obtaining such Beneficiary's agreement to
deposit any such Common Stock (and any Common Stock obtained upon exercise or
conversion of any such options or rights) with the Trustees pursuant to this
Agreement.
2. Voting Trust Certificates. Upon deposit of the certificates as
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provided in paragraph 1, the Trustees shall deliver or cause to be delivered to
each Beneficiary a voting trust certificate of the same number of shares of
Common Stock as is represented by the certificate(s) so deposited, which voting
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trust certificate(s) shall be substantially in the following form, with such
appropriate omissions, variations and insertions as may be approved by the
Voting Trustees:
ASSOCIATED HOLDINGS, INC.
(a Delaware corporation)
No. ____________ _____________ Shares
This certifies that [stockholder] has deposited the number
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of shares set forth above of the Common Stock of the above-named
corporation with the Voting Trustees hereinafter named, under an
agreement among the corporation, Daniel J. Good, Frederick B. Hegi,
Jr., James A. Johnson, Gary M. Miller and Thomas W. Sturgess as Voting
Trustees, and certain beneficial owners of shares of Common Stock of
the corporation, dated as of January 31, 1992. This certificate and
the interest represented by it are transferable on the books of the
Voting Trustees and only upon the presentation and surrender hereof.
The holder of this certificate takes its subject to all of the terms
and conditions of the Voting Trust Agreement, and as a party to that
Agreement is entitled to the benefits thereof. This Voting Trust
Certificate is subject to certain restrictions on the transfer hereof
contained in that certain Stockholders Agreement dated as of January
31, 1992, as amended from time to time.
IN WITNESS WHEREOF, the Voting Trustees have caused this
certificate to be signed this ____ day of _________________, 19___.
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Gary G. Miller
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Daniel J. Good
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Thomas W. Sturgess
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Frederick B. Hegi, Jr.
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James A. Johnson
Voting Trustees
3. Powers of the Trustees. Shares of Common Stock, the certificates
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evidencing which shall have been deposited with the Trustees as provided in
paragraph 1, shall be vested in the Trustees and shall be transferred into the
names of the Trustees upon the Company's books. The Trustees shall, as to all
stock so held by them, possess and be entitled to exercise all rights of the
Beneficiaries of every kind, including the right to vote for election and/or
removal of directors and all such other matters as may be voted upon by the
Beneficiaries, except as otherwise provided by this Agreement and the
Stockholders Agreement dated as of January 31, 1992, among the Company and
certain beneficial owners of shares of Common Stock of the Company and warrants
for the purchase of Common Stock of the Company, as the same may be amended from
time to time (the "Stockholders' Agreement"). The Trustees may be directors of
the Company and may vote all shares of Common Stock deposited pursuant to this
Agreement in favor of their election as directors; provided, that all votes for
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the election of directors of the Company shall be cast as provided hereinbelow.
The holders of voting trust certificates shall not have any right with respect
to any such stock held by the Trustees to vote, take part in or consent to any
corporate or stockholders' action of the Company, except as provided herein.
The Trustees shall vote on matters which may come before them at any
meeting of the Company's stockholders, and shall vote for directors of the
Company as specified herein. The Trustees may vote all shares of Common Stock
held pursuant to this Agreement in person or by such person or persons as they
shall select as their proxy.
The Trustees shall vote all of the Common Stock held by them in order
to:
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(i) elect to the Board of Directors of the Company:
a. at least one representative designated by Good Capital
Co., Inc.;
b. at least one representative designated by ASI Partners,
L.P.;
c. such number of directors that shall constitute at least a
majority of the directors of the Company at all times as
designated by Wingate Partners, L.P.; and
d. one representative designated by the Key Executives (as
defined below) for so long as such Key Executives retain the
right to designate such representative. As used herein, the term
"Key Executives" shall mean, collectively, Michael D. Rowsey,
Robert D. Eberspacher, Daniel J. Schleppe, and Lawrence E.
Miller.
(ii) Remove as a director (with or without cause) any representative so
designated, upon, and only upon, the written request of the entity, group
or individual set forth above as designating such representative (the
"Appointing Principal").
(iii) Fix the authorized number of directors on the Company's Board of
Directors at not less than seven directors (provided that a greater number
may from time to time be set by the board in order to give effect fully to
the provisions of this paragraph).
(iv) On any other matter on which shares of Common Stock deposited
pursuant to this Agreement shall be voted or shall have the right to give
or withhold consent, the Trustee shall vote (or refrain from voting) in
accordance with the written directions from the holders of Voting Trust
Certificates representing not less than 66-2/3% of the shares of Common
Stock held in trust pursuant to this Agreement, or in the absence of such
written direction, as the Trustees may determine in their sole discretion.
4. Liability of Trustees. No Trustee shall be liable for any error
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of judgment or mistakes of law, or other mistake, or for anything including in
connection with his voting of the Common Stock, save only his own willful
misconduct or gross negligence. It is expressly understood and agreed that the
Trustees shall be indemnified and held harmless by the Company from any and all
expenses, costs, damages or other liabilities in voting the Common Stock and
otherwise acting as Trustees hereunder.
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5. Decisions by the Trustees. The decision or act of a majority of
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the Trustees, whether at a meeting or by writing, with or without a meeting,
shall for all purposes of this Agreement, including but not limited to the
exercise of the voting power of the shares of Common Stock held in trust
hereunder, be required for any decision or act of the Trustees pursuant to this
Agreement. The Trustees may, in their discretion, establish rules of action,
consistent with the provisions of this Agreement, that govern their actions
pursuant to this Agreement.
6. Reimbursement and Indemnity of Trustee. The Trustees shall be
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reimbursed by the Company for any reasonable expenses and indemnified by the
Company for all liabilities incurred by them in connection with their duties
under this Agreement, including the disbursement and reasonable compensation of
their agents, attorneys, employees, and officers whom they may employ in
carrying out the terms and provisions of this Agreement.
7. Replacement of the Trustees. Any of the Trustees may resign at
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any time by delivering to the other Trustees his resignation in writing. Any of
the Trustees may be removed at any time (with or without cause) by the
Appointing Principal for such Trustee by written notice to the Trustees. In the
case of death, disability, resignation or removal of any Trustee, the resulting
vacancy shall be filled by the appointment of a successor by the Appointing
Principal. Each such successor shall become a Trustee by executing a
counterpart of this Voting Trust Agreement, as then in effect. Upon becoming a
Trustee, a successor shall have all title, rights and powers of a Trustee named
in this Agreement. The Appointing Principals are:
(a) Wingate Partners, L.P. - As to Thomas W. Sturgess, Frederick
B. Hegi, Jr., and James A. Johnson
(b) ASI Partners, L.P. - As to Gary G. Miller.
(c) Good Capital Co., Inc. - As to Daniel J. Good.
8. Transfer of Voting Trust Certificates. During the term of this
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Agreement, each Beneficiary agrees that the sale, transfer, assignment, pledge
or other disposition of his or her interests in any voting trust certificate (a
"Transfer") shall be subject to any limitations and restrictions on transfer
noted on the voting trust certificate, including those limitations and
restrictions contained in the Stockholders Agreement.
9. Dividends and Other Rights. The holder of each voting trust
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certificate shall be entitled to receive all dividends, distributions, and sales
proceeds, if any, collected by the Trustees upon the like number of shares of
Common Stock of
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the Company as specified in the voting trust certificate; provided, that any
dividends or distributions consisting of shares of Common Stock or other voting
securities of the Company shall be retained by the Trustees pursuant to this
Agreement.
10. Filing of Agreement. A copy of this Agreement shall be filed by
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the Trustees in the registered office of the Company within the State of
Delaware, and shall be open to the inspection of any stockholder of the Company
or any beneficiary of the trust created under this Agreement daily during
business hours.
11. Amendment. (a) If at any time the Trustees shall deem it
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advisable to amend this Agreement, they shall, by resolution adopted or signed
by all of the Trustees, declare such amendment advisable, and shall submit such
amendment to the holders of the voting trust certificates for their approval at
a meeting called for that purpose, or for approval by written consent in lieu of
a meeting. Notice of such meeting shall be given in the manner provided for
stockholders' meetings in the bylaws of the Company.
(b) Subject to the last sentence of this subsection (b), if the
proposed amendment shall be approved by the vote, in person or by proxy, of the
holders of voting trust certificates for 66-2/3% of the shares of Common Stock
held in trust, a certificate to that effect shall be made and verified by the
chairman and secretary of the meeting and filed in the Company's registered
office in Delaware. Upon such filing, the proposed amendment shall become a
part of this Agreement, with the same force and effect as it originally set
forth herein. No amendment to this Agreement that materially and adversely
affects the rights of a Beneficiary hereunder shall be enforceable against such
Beneficiary until such Beneficiary has consented in writing to such amendment;
provided that any amendment made for the purpose of adding an additional party
(including, without limitation, an additional Beneficiary) hereto shall not be
deemed to materially or adversely affect the rights of any other Beneficiary
hereto.
12. Termination. (a) This Agreement shall terminate upon the earlier
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of (i) ten years from the date hereof, unless extended as provided in Section
218 of the Delaware General Corporation Law, or (ii) the consummation of a
Qualified Public Offering. As used herein, the term Qualified Public Offering
shall mean the sale in an underwritten public offering or a series of public
offerings, registered under the Securities Act of 1933, as amended, of Common
Stock which results in public ownership of not less than 20% of the outstanding
Common Stock of the Company determined on a fully diluted basis, which shares of
Common Stock are listed upon the New York Stock Exchange, the American Stock
Exchange or are approved for quotation on the
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NASDAQ National Market System and which offerings shall have resulted in the
receipt by the Company and any selling stockholders of aggregate cash proceeds
(after deduction of underwriter discounts and the costs associated with the
offerings) of at least $37.5 million.
(b) Upon the termination of this Agreement, the holders of voting
trust certificates will be entitled, upon surrender for cancellation of such
certificates and upon payment of any transfer tax required by law, to receive
certificates for the number of shares of Common Stock represented by their
respective voting trust certificates. The Beneficiaries acknowledge and agree
that, upon termination of this Agreement, each Beneficiary, as a holder of
Common Stock, shall be subject to all obligations and entitled to all rights as
a stockholder of the Company and the assignee of the Trustees.
13. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision never had been contained herein.
14. Entire Agreement. Except as otherwise expressly set forth
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herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
15. Successors and Assigns. Except as otherwise provided herein,
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this Agreement will bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns, the Trustees and their respective
successors, and the Beneficiaries and any subsequent holders of voting trust
certificates and the respective successors and assigns of each of them, so long
as they hold voting trust certificates.
16. Counterparts. This Agreement may be executed in separate
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counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
17. Remedies. The Trustees shall be entitled to enforce their rights
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under this Agreement specifically, to recover damages by reason of any breach of
any provision of this
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Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that the Trustees may in
their sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
18. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, or mailed registered or
certified (postage and registration or certification fees prepaid) or sent by
facsimile or reputable overnight courier service (charges prepaid) to the
recipient at the address indicated on the signature page hereto and to any
subsequent holder of voting trust certificates subject to this Agreement at such
address as indicated by the Trustees records, or at such address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices will be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail,
on the date of delivery by facsimile, and one day after deposit with a reputable
overnight courier service.
19. Legends. Voting Trust Certificates evidencing shares of Common
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Stock deposited in trust pursuant to the terms of this Agreement shall bear such
legend or legends as the Company shall reasonably deem necessary to protect the
parties hereto.
20. Governing Law. The Corporate law of the State of Delaware shall
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govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and any exhibits and schedules hereto shall be
governed by the internal law, and not the law of conflicts, of the State of
Illinois.
21. Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ISSUER:
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ASSOCIATED HOLDINGS, INC.,
a Delaware corporation
By:
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Its: Chairman of the Board and
Chief Executive Officer
Address: 1075 Hawthorne Drive
Itasca, IL 60143
Telecopy No.: 708-773-6491
BENEFICIARIES:
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WINGATE PARTNERS, L.P., a Delaware
limited partnership
By: Wingate Management Company,
L.P., a Delaware limited
partnership
By:
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Thomas W. Sturgess,
General Partner
Address: 750 North St. Paul
Suite 1200
Dallas, Texas 75201
Telecopy No.: 214-871-8799
CUMBERLAND CAPITAL CORPORATION,
a Delaware corporation
By:
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Gary G. Miller,
President
Address: 301 Commerce Street
Suite 3300
Fort Worth, Texas 76102
Telecopy No.: 817-870-2685
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ASI PARTNERS, L.P., a Delaware
limited partnership
By: CUMBERLAND CAPITAL CORPORATION,
a Delaware corporation,
its general partner
By:
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Gary G. Miller,
President
Address: 301 Commerce Street,
Suite 3300
Forth Worth, TX 76102
Telecopy No.: 817-870-2685
GOOD CAPITAL CO., INC., a Delaware
corporation
By:
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Daniel J. Good,
President
Address: 1211 Lake Road
Lake Forest, IL 60045
Telecopy No.: 708-234-8663
BOISE CASCADE CORPORATION, a
Delaware corporation
By:
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Carol Moerdyk,
Vice President
Address: One Jefferson Square
Boise, Idaho 83702
ATTN: General Counsel
Telecopy No.: 208-384-7945
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Michael D. Rowsey
Address: 2370 Sonnington Drive
Dublin, OH 43017
Telecopy No.: 614-876-4922
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Daniel J. Schleppe
Address: 20 The Landing
Atlanta, GA 30350
Telecopy No.:
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Robert D. Eberspacher
Address: 6907 Huntfield Drive
Charlotte, NC 28226
Telecopy No.:
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Lawrence E. Miller
Address: 415 Sterling Road
Kenilworth, IL 60043
Telecopy No.:
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VOTING TRUSTEES:
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Gary G. Miller
Address: c/o Cumberland
Capital Corporation
301 Commerce Street
Suite 3300
Fort Worth, Texas 76102
Telecopy No.: 817-870-2685
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Daniel J. Good
Address: 1211 Lake Road
Lake Forest, IL 60045
Telecopy No.: 708-234-8663
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Thomas W. Sturgess
Address: c/o Wingate Partners, L.P.
750 North St. Paul
Suite 1200
Dallas, TX 75201
Telecopy No.: 214-871-8799
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Frederick B. Hegi, Jr.
Address: c/o Wingate Partners, L.P.
750 North St. Paul
Suite 1200
Dallas, TX 75201
Telecopy No.: 214-871-8799
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James A. Johnson
Address: c/o Wingate Partners, L.P.
750 North St. Paul
Suite 1200
Dallas, TX 75201
Telecopy No.: 214-871-8799
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