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EXHIBIT 9.1
AMENDED AND RESTATED VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT (this "Agreement") is
made as of May 4, 1994, among Ronald T. Larizza (the "Voting Trustee"), Larizza
Industries, Inc., an Ohio corporation (the "Depositary") and the shareholders
of the Depositary set forth on the signature pages of this Agreement
(individually, a "Beneficial Owner", and collectively, the "Beneficial
Owners").
RECITALS
The parties hereto acknowledge the truth and accuracy of the following
recitals and incorporate them as a part of this Agreement:
A. The Beneficial Owners collectively hold of record or beneficially
own 3,272,177 shares of Common Stock, no par value, of the Depositary. Such
shares are collectively referred to herein as the "Shares".
B. It is a condition precedent to effecting a transfer of Shares held
by Edward L. Sawyer, Jr. and subject to the predecessor to this Agreement, that
the Beneficial Owners, including transferees from Mr. Sawyer, transfer voting
control of the Shares to the Voting Trustee.
C. For such reasons and in order to ensure the continuity of management
and policy of the Depositary, it is deemed to be in the best interests of
Beneficial Owners and the Depositary to vest the voting power of Beneficial
Owners in the Voting Trustee. Accordingly, Beneficial Owners desire to deposit
the Shares with the Depositary as agent for the Voting Trustee. The parties
acknowledge that the Shares covered by this Agreement, when added to the number
of shares of Common Stock of the Depositary held of record or beneficially
owned by the Voting Trustee from time to time, will enable the Voting Trustee
to elect a majority of the members of the Board of Directors of the Depositary.
THEREFORE, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, desiring to create a trust in
the manner herein provided and intending to be legally bound, agree as follows:
1. Promptly after the execution and delivery of this Agreement, each
Beneficial Owner will deposit with and deliver to the Depositary (as agent of
the Voting Trustee and Beneficial Owners) such Beneficial Owner's stock
certificate(s) evidencing all of such Beneficial Owner's Shares, accompanied by
a stock power duly endorsed in blank, in transferable form and further endorsed
so as to make ownership or transferability subject to this Agreement, together
with all other documents reasonably requested by the Voting Trustee or the
Depositary. If the Voting Trustee so elects, any or all of the Shares may be
registered in the name of "Voting Trustee of Common Stock of Larizza
Industries, Inc. under Voting Trust Agreement dated as of May 4, 1994."
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2. The certificate(s) for the Shares delivered to the Depositary
pursuant to the terms of this Agreement, or any certificate(s) issued in
replacement thereof, shall be held at all times while this Agreement is in
force by the Depositary for the sole and exclusive benefit of:
(a) Beneficial Owners or their successors as herein provided; and
(b) the person(s) entitled by this Agreement to exercise the
voting rights herein granted.
3. During the term that this Agreement is in effect, none of the
Shares, nor any interest of any Beneficial Owner therein, may be sold,
transferred, pledged or otherwise disposed of or encumbered in any manner,
voluntarily or involuntarily by such Beneficial Owner, without the prior
written consent of the Voting Trustee.
4. At the Voting Trustee's request, the certificates(s) representing
any or all of the Shares deposited by any Beneficial Owner hereunder may be
surrendered to and cancelled by the Depositary, in which case new
certificate(s) for such Shares shall be issued by the Depositary in the name of
the Voting Trustee, as specified in a writing signed by the Voting Trustee and
delivered to the Depositary. Such new certificates shall be delivered to the
Voting Trustee or the Depositary, as the trustees may direct, and shall bear
the following legend:
"The shares of stock represented by this certificate are restricted
as to transfer in accordance with, and are otherwise subject to the terms
of, a Voting Trust Agreement dated as of May 4, 1994, among various
shareholders of Larizza Industries, Inc., Ronald T. Larizza and Larizza
Industries, Inc., a copy of which is on file at the office of Larizza
Industries, Inc."
If new certificates are so issued in accordance with the foregoing, this fact
shall be noted in the proper books and records of the Depositary.
5. Each Beneficial Owner does hereby irrevocably make, constitute and
appoint the Voting Trustee as his, her or its true and lawful attorney and
proxy to appear for, represent and vote the Shares for him, her or it at all
meetings of the shareholders of the Depositary, or to take action by written
consent without a meeting, in such manner and upon such issues and matters as
the Voting Trustee may, in his sole discretion determine, and on which such
Beneficial Owner is entitled to vote.
6. In the event that the Voting Trustee, or any successor Voting
Trustee, shall fail to continue to serve as Voting Trustee, then the
Depositary's Board of Directors shall appoint a person to serve as a successor
Voting Trustee. A successor Voting Trustee shall have and exercise all of the
powers and privileges of his predecessor pursuant to this Agreement without
limitation. The appointment of a successor Voting
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Trustee shall be conclusively deemed to have been effected at the time
when the Board of Directors of the Depositary adopts a resolution of such
appointment.
7. Unless otherwise agreed among the parties hereto, this Agreement
shall terminate on December 31, 1998. In the event of any such termination,
the Voting Trustee and the Depositary will transfer and/or redeliver as soon as
practicable after being requested to do so by a Beneficial Owner or his or its
successor, the certificate(s) for the Shares of such Beneficial Owner then held
by the Depositary. It is acknowledged and agreed by all parties hereto that
the voting rights herein granted by Beneficial Owners to the Voting Trustee are
granted in connection with the transfer of shares formerly held by Edward L.
Sawyer and subject to the predecessor to this Agreement. Accordingly, such
rights are coupled with an interest in the Shares to which such rights relate
and are irrevocable by Beneficial Owners so long as this Agreement remains in
force.
8. The entire beneficial interest in the Shares, and all rights in the
Shares not specifically granted to the Voting Trustee or the Depositary by the
terms of this Agreement, are retained by Beneficial Owners.
9. The Voting Trustee and the Depositary shall incur no responsibility
as shareholder, trustee, or otherwise, by reason of any error of judgment or
mistake of law or other mistake, for any misconstruction of this Agreement, or
for any action of any nature taken or omitted hereunder or believed by either
of them to be in accordance with the provisions and intent hereof or otherwise,
except for the willful misconduct of such party. If so requested by the Voting
Trustee, the Depositary shall indemnify the Voting Trustee and hold him
harmless from and against all losses, claims, liabilities and demands,
including, without limitation, any such losses, claims, liabilities and demands
in connection with or growing out of the administration of the trust created by
this Agreement, except that the Voting Trustee shall not be entitled to such
indemnification if any such loss, claim, liability or demand shall arise from
his willful misconduct. The Voting Trustee shall not be required to give a
bond or security for the discharge of his duties under this Agreement.
10. The following provisions shall be used in interpreting this
Agreement:
(a) This Agreement shall be binding upon and inure to the benefit
of the heirs, executors, administrators and permitted successors and
assigns of the parties hereto.
(b) This Agreement may be executed simultaneously 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.
(c) This Agreement shall become effective when it shall be signed
by the Voting Trustee and Beneficial Owners.
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(d) The validity of this Agreement, or any part thereof, and
interpretations of all provisions hereof, shall be governed by the laws
of the State of Ohio.
(e) The invalidity of any term or provision of this Agreement
shall not affect the validity of the remainder of this Agreement.
(f) An executed counterpart of this Agreement may, but shall not
be required to, be filed with the Secretary of the Depositary, and upon
such filing shall be open to inspection by any shareholder of the
Depositary at the executive offices of the Depositary at all reasonable
times.
(g) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
BENEFICIAL OWNERS:
/s/ EDWARD L. SAWYER, JR.
Edward L. Sawyer, Jr.
/s/ DOROTHY M. SAWYER
Dorothy M. Sawyer
THE ALEXANDER SAWYER TRUST UNDER
IRREVOCABLE TRUST AGREEMENT
DATED JULY 21, 1987
By: /s/ ROBERT H. JACKSON
Robert H. Jackson, Trustee
/s/ EDWARD W. WELLS /s/ ANGELA WELLS
Edward W. & Angela Wells
/s/ TERENCE C. SEIKEL
Terence C. Seikel, Trustee of the
Revocable Trust Dated Feb 15, 1993
(Signatures continued)
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PRUDENTIAL SECURITIES, CUSTODIAN FOR
TERENCE C. SEIKEL, I.R.A.
By: /s/ THOMAS WARDELL
Its: Assistant Vice President
/s/ VINCENT L. DONOVAN
Vincent L. Donovan
/s/ WILLIAM H. KETT /s/ GAIL KETT
William H. & Gail Kett
/s/ LARRY PHILLIPS
Larry Phillips
/s/ SHEILA J. PHILLIPS
Sheila J. Phillips
/s/ MICHAEL JAMES PROKOPETZ /s/ NICOLE PROKOPETZ
Michael James & Nicole Prokopetz
/s/ P. BALLANTYNE
P. Ballantyne
/s/ MARY JANE VICARY /s/ MICHAEL S. VICARY
Mary Jane & Michael S. Vicary
/s/ SANDRA A. COSTILL
Sandra A. Costill
/s/ NORMAN K. KROL /s/ LINDA KROL
Norman K. and Linda Krol
(Signatures continued)
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PRUDENTIAL SECURITIES, INC. to be
deposited in Norman K. Krol I.R.A.
Rollover Account #013-R40616
By: /s/ THOMAS WARDELL
Its: Assistant Vice President
/s/ HOSSEIN REZA NIKOUI
Hossein Reza Nikoui
/s/ JOHN C. TAYLOR
John C. Taylor
/s/ MICHAEL LIETERT /s/ LISA LIETERT
Michael & Lisa Lietert
/s/ JAMES L. CURTIS
James L. Curtis
/s/ RICHARD J. LORIA
Richard J. Loria
/s/ JOHN R. PALMER
John R. Palmer
/s/ ROBERT T. HOWELL /s/ MICHELE HOWELL
Robert T. & Michele Howell
/s/ JEFF HORTON /s/ DONNA HORTON
Jeff & Donna Horton
VOTING TRUSTEE:
/s/ RONALD T. LARIZZA
Ronald T. Larizza
(Signatures continued)
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DEPOSITARY:
LARIZZA INDUSTRIES, INC., an
Ohio corporation
By: /s/ TERENCE C. SEIKEL
Its: Chief Financial Officer
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