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EXHIBIT 1.6
VOTING TRUST AGREEMENT
This Agreement is made on the 28th day of August, 1997 at Austin, Travis
County, Texas, by and between John B. van der Hagen ("Shareholder"), the sole
shareholder of the issued and outstanding stock of Surrey, Inc. ("Surrey" or
the "Corporation"), a Texas corporation, and Saeger, Angenend & Augustine
("Trustee"), a Texas Professional Corporation, as Trustee.
WHEREAS, James K. Olson ("Olson") and wife, Louise K. Olson, have sold to
Surrey One Hundred Thousand (100,000) shares of common stock of Surrey,
representing all of the shares of common stock owned of record and beneficially
by Olson, and
WHEREAS, Surrey has issued a Promissory Note ("Note") in the amount of One
Million Two Hundred Fifty Thousand Dollars ($1,250,000) to Olson for payment of
the shares purchased from Olson, and
WHEREAS, all of the shares of stock of Surrey owned of record and
beneficially by Shareholder are encumbered by a lien granted by Shareholder
inuring to the benefit of Norwest Bank Texas, South Central, a Texas state bank
("Bank"), and
WHEREAS, it is contemplated that Surrey will raise money for the purposes
of its business by the sale of stock through an Initial Public Offering
("IPO"), a portion of which will be used to pay, in full, the obligation of the
Note.
IT IS THEREFORE AGREED:
1. Transfer of Shares to Trustee. Shareholder, simultaneously
with the execution of this Agreement, shall assign and deliver all his
share certificates evidencing all of his shares of stock of Surrey to the
Trustee, who shall cause the shares represented thereby to be transferred to
the Trustee, as voting trustee, on the books of Surrey. The Corporation shall
issue new share certificates (the "Reissued Certificates") in the name of the
Trustee, which certificates shall state they are issued pursuant to this
Agreement by a legend in the following form:
THIS CERTIFICATE IS ISSUED PURSUANT TO THE PROVISIONS OF A VOTING TRUST
AGREEMENT, A COPY OF WHICH IS AVAILABLE AT THE CORPORATION'S MAIN OFFICE.
THIS CERTIFICATE IS ENCUMBERED BY A LIEN GRANTED BY JOHN VAN DER HAGEN
INURING TO THE BENEFIT OF NORWEST BANK TEXAS, SOUTH CENTRAL.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
AGREEMENT DATED JUNE 27, 1988, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE CORPORATION AND SAID SHARES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF
EXCEPT IN STRICT ACCORDANCE WITH THE
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TERMS OF THIS AGREEMENT. A COPY OF SAID AGREEMENT WILL BE FURNISHED
WITHOUT CHARGE TO THE SHAREHOLDER UPON RECEIPT BY THE CORPORATION AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN REQUEST
FROM THE HOLDER REQUESTING SUCH A COPY.
and the Trustee immediately shall deliver the Reissued Certificates to Bank.
2. Pledge of Shares. Trustee and Shareholder each acknowledge
and agree that all of the shares of stock of Surrey owned of record or
beneficially by Shareholder and all of the shares of stock evidenced by such
new share certificates issued in the name of the Trustee are encumbered and
shall continue to be encumbered by a lien granted by Shareholder inuring to the
benefit of the Bank, and such shares constitute all of the issued and
outstanding stock of Surrey.
3. Voting Trust; Termination. The trust created hereby hives the
Trustee the exclusive right to vote such shares during the term of this
Agreement, subject to the provisions hereof. Except as to the matters
specifically set out below in this Section 3, upon any vote of the shareholders
of the Corporation during the term of this Agreement, the Trustee shall vote
Shareholder's shares as directed by Shareholder or Shareholder's successor or
successors in interest. In addition, in the event that the IPO is not closed
as of 5:00 p.m., Central Standard Time, on December 31, 1997, or such later
date as Shareholder and Olson shall agree in writing delivered to the Trustee,
Shareholder agrees to call a 5:05 p.m., Central Standard Time, December 31,
1997 meeting to vote on those Shareholder Resolutions which are attached hereto
as Exhibit A, hereby waives any notice of such meeting required by Texas law,
and hereby directs Trustee to vote Shareholder's shares to adopt such
Shareholder Resolutions. The Trust shall terminate upon the earlier of the
payment of the Note or immediately after the exercise by the trustee of its
right to vote the shares to approve the Shareholder Resolutions set forth in
Exhibit A.
4. Transfer at Termination. At the termination of the trust hereby
created, the Trustee shall deliver to Surrey and to Bank notification of the
termination of this Agreement.
5. Copies of Agreement. This Agreement may be executed in multiple
counterparts but shall not otherwise by severable or divisible. Upon execution
of this Agreement and the establishment of this trust, Trustee shall cause a
copy of this Agreement to be filed in the registered office of Surrey. This
Agreement shall be open to inspection in the manner provided for inspection
under the laws of the State of Texas.
6. Place of Performance. This Agreement is executed and entered
into at Austin, Travis County, Texas, and it is mutually agreed that
the performance of all parts of this contract shall be at Austin, Travis
County, Texas.
7. Governing Law. This Agreement is intended by the parties to be
governed and construed in accordance with the laws of the State of Texas.
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8. Severability of Provisions. This Agreement shall not be
severable or divisible in any way, but it is specifically agreed that,
if any provision should be invalid, the invalidity shall not effect the
validity of the remainder of the Agreement.
9. Construction by Trustee. The Trustee is authorized and
empowered to construe this Agreement. Trustee's reasonable
construction made in good faith shall be conclusive and binding on Shareholder
and on all parties to this Agreement.
10. Share Adjustment. The number of shares of common stock of
Surrey subject to this Agreement shall be subject to adjustment as a
result of any stock splits, combinations or dividends payable by Surrey in
shares of common stock. All such shares including any increase in the number
of shares, shall at all times, however, remain encumbered by the lien of Bank.
Executed on August 28, 1997.
SHAREHOLDER:
By: /s/ John B. van der Hagen
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John B. van der Hagen,
Shareholder
TRUSTEE:
Saegert, Angenend & Augustine,
A Professional Corporation, Trustee
By: /s/ Paul D. Angenend
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Paul D. Angenend, President
Acknowledged and Agreed:
/s/ James K. Olson
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James K. Olson
/s/ Louise K. Olson
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Lousie K. Olson
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EXHIBIT A
WRITTEN CONSENT OF THE SHAREHOLDER
OF SURREY, INC.
IN LIEU OF SPECIAL MEETING OF ____________, 1997
Article 9.10.A of the Texas Business Corporation Act provides that any
action required or permitted to be taken at a meeting of the shareholders of a
corporation may be taken without a meeting if a consent, in writing, setting
forth the action so taken is signed by all of the shareholders entitled to vote
with respect to the subject matter thereof, and such consent shall have the
same force and effect as a unanimous vote of shareholders. Accordingly,
pursuant to such statutory authority, the undersigned, being the voting trustee
for the sole shareholder of Surrey, Inc. (the ""Corporation"", hereby consents
to the adoption of the following resolutions as of the effective date of this
written consent:
ISSUANCE OF STOCK
RESOLVED, that (i) the Corporation shall issue to James K. Olson One
Hundred Thousand (100,000) shares of common stock, no par value, of the
Corporation (such number of shares subject to adjustment as a result of
any stock splits, combinations or dividends payable by the Corporation in
shares of common stock which have been authorized by the Corporation or
its Board of Directors or shareholders since August 1, 1997) and at such
time as James K. Olson executes security agreements (collectively the
"Security Documents") acceptable in form and substance to Norwest Bank
Texas, South Central (the "Bank") in the Bank's reasonable discretion,
granting to the Bank a security interest in, and lien upon, such shares
to secure all indebtedness of the Corporation to the Bank, and (ii)
deliver the Security Documents and the certificate or certificates for
such shares to Bank; such shares shall be issued in exchange for the
Corporation's Promissory Note in the amount of One Million Two Hundred
Fifty Thousand Dollars ($1,250,000) issued to James K. Olson, such number
of shares to represent one-half of the issued and outstanding shares of
the Corporation immediately after such issuance.
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ELECTION OF DIRECTORS
RESOLVED, that the following individuals are elected to serve as
directors of the Corporation until their successors are duly qualified
and elected
John B. van der Hagen
Mary A. van der Hagen
James K. Olson
Louise K. Olson
ELECTION OF OFFICERS
RESOLVED, that the following individuals are elected to the offices set
forth opposite their names, to serve until their successors are duly
qualified and elected:
James K. Olson Chief Executive Officer
John B. van der Hagen President
Martin J. van der Hagen Executive Vice President
Mary A. van der Hagen Vice President-Secretary
Louise K. Olson Vice President-Treasurer
Mark J. van der Hagen Vice President
COMPENSATION OF DIRECTORS AND OFFICERS
RESOLVED, that the compensation, including fringe benefits, of the
Directors and officers, be set at the level then effective on August 1,
1997.
AMENDMENT TO BYLAWS
RESOLVED, that the Bylaws of the Corporation be amended by adding a new
Section 3 to Article IV, Certificates for Shares and Their Transfer, as
follows:
Section 3. Certificates for Shares and Their Transfer. No
Shareholder shall sell or transfer any share or shares of stock
in this Corporation without notifying the Corporation in writing
of the name of the proposed purchaser or transferee and the
price at which the proposed sale or transfer is to be made. The
Corporation, acting through its Board of Directors, shall have
sixty (60) days after the receipt of such notification to either
purchase for itself or find a purchaser for such share or shares
at the price for which the Shareholder had received a bona fide
offer and which offer is in effect at the time the Corporation
is notified of the proposed sale. In the event the Corporation
does not purchase the stock or find a purchaser at the said
price within sixty (60) days from said notification, the
Shareholder shall be free to transfer,
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alienate or otherwise dispose of such share without any
restrictions whatsoever. The Corporation, acting through its
Board of Directors, may consent to such transfer prior to the
expiration of the sixty day (60) day period. It is the intent
that all restrictions hereby imposed upon sale or transfer of
shares shall apply to all shares, whensoever, howsoever or by
whomsoever acquired, the hands of all holders or owners, whether
original Shareholders or subsequent purchasers or transferees
and whether acquired through the voluntary or involuntary act of
the Shareholder or by operation of law, and whether a part of
the first authorized issue or any subsequent or increased
issued.
The following shall be imprinted on the face of each stock
certificate issued by the Corporation:
A Summary of the Bylaw restrictions on transferability of any
share represented by this certificate is on the back of this
certificate.
The following summary of restrictions on transferability
shall be imprinted on the back of each stock certificate
issued by the Corporation:
Summary of Restrictions on Transferability of Shares.
No Shareholder whether original Shareholder or subsequent
purchaser or transferee shall sell or transfer any share of
the Corporation without first giving the Corporation written
notice of such intention, following which the Corporation
will have sixty (60) days in which to purchase or find a
purchaser at the price for which the Shareholder has
received a bona fide offer. If the Corporation does not
purchase or find a purchaser within the sixty-day (60)
period at said price, the Shareholder shall be free to
transfer, alienate or otherwise dispose of such shares
without restriction whatsoever. (See Article IV, Section 3
of the Bylaws.)
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PAYMENT OF FEES AND EXPENSES
RESOLVED, that the Corporation pay all legal fees and other
expenses incurred by John B. van der Hagen, Mary A. van der Hagen,
James K. Olson, and Louise K. Olson relating to the sale of the
Corporation's stock from James K. Olson and Louise K. Olson to the
Corporation, and the subsequent reissue of such stock by the
Corporation to James K. Olson and Louise K. Olson as authorized
herein.
DATED: Effective _______________, 1997.
SAEGERT, ANGENEND & AUGUSTINE
A PROFESSIONAL CORPORATION, Trustee
By:____________________________________
Paul D. Angenend, President
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