EXHIBIT 9.3
EMPRESS RIVER CASINO CORPORATION
FERRO BROTHERS
VOTING TRUST AGREEMENT
THIS AGREEMENT, dated this day, May 3, 1993, is made by and among Peter A.
Ferro, Jr., John T. Ferro, and James J. Ferro (the "Shareholders"), and Peter A.
Ferro, Jr., as Trustee, and his successors in Trust under this Agreement (the
"Trustee"). Peter A. Ferro, Jr., John T. Ferro and James A. Ferro sometimes are
referred to by their given names. The term "Shareholder" includes any person who
receives any Shares or other equity securities in the Corporation directly or
remotely from a Shareholder who is an original signatory.
RECITAL:
Each Shareholder is the owner and holder of Thirty-three and one-third
(33-1/3) common shares in Empress River Casino Corporation, an Illinois
corporation (the "Corporation", which term also shall apply to any corporation
that shall issue "Shares," as defined in paragraph 1 of this Agreement). John
and James acquired their Shares from Peter concurrently with the execution of
this Agreement. The Shareholders individually and collectively consider in their
best interests and that of the Corporation to grant the Trustee the voting power
held by them, respectively, as Shareholders, so that they may be represented as
a group by the Trustee in all matters relating to the Corporation. To that end,
they have agreed to deposit their shares with the Trustee upon the terms and
conditions stated in this Agreement, creating a voting trust to be known as the
Ferro Brothers Voting Trust. Peter is a party to this Agreement both as a
Shareholder and as the Trustee and intends to be bound in both capacities.
AGREEMENTS
1. Transfer of Shares to Trustee; Issuance of Certificate. Each
Shareholder deposits with the Trustee for the term of this Agreement the
certificates representing the shares described in the Recital, and in the future
will deposit for such term all certificates representing any other equity
securities in the Corporation hereafter owned by such Shareholder (collectively,
the "Shares", which term also shall apply to the shares owned by such
Shareholder in any corporation that immediately or remotely succeeds to all or
substantially all the business and properties of the Corporation by purchase,
merger, consolidation or otherwise). The Trustee delivers or will deliver to the
Shareholder in exchange therefor a certificate or certificates issued in the
form attached hereto as Exhibit 1. The Shares shall be registered on the books
of the Corporation in the name of the Trustee. However, the Trustee at all times
shall keep the Corporation advised as to the ownership of the certificates so
that the Corporation may file accurate reports with all governmental agencies.
The Trustee shall surrender to the Corporation for cancellation all certificates
for Shares delivered to or deposited with the Trustee pursuant to this
Agreement, and shall request the Corporation to issue new certificates therefor
in the name of the Trustee. The parties recognize that certificates for Shares
transferred to John and James by Peter concurrently with the execution of this
agreement may be registered directly in the name of the Trustee so that re-
registration and reissuance may be unnecessary. The Trustee is authorized and
empowered to cause to be made any further transfer of Shares that the Trustee
may deem advisable for any reason in accordance with the provisions of this
Agreement.
2. Rights of Trustee. The Trustee shall possess and be entitled to
exercise any and all rights as a shareholder of the Corporation, it being
understood, however, that the holder of the trust certificates shall be entitled
to receive payments equal to the cash dividends, if any, received by the Trustee
upon the Shares standing in his name, such payments to be made when and as
received by the Trustee. The Trustee shall in no event be under any duty to make
any cash payments to Shareholders, except out of cash received in respect of the
Shares. If any dividend or other property in respect of the Shares deposited
with the Trustee is paid other than in shares, Trustee shall distribute the
same. The Trustee, in his discretion, from time to time may authorize the
Corporation to make payment or delivery of dividends and distributions directly
to the Shareholders instead of receiving and distributing these dividends and
distributions himself. Any transferee of Shares deposited under this agreement
shall without further act become a party to this agreement. In addition, any
other present or future shareholder of the Corporation may become a party of
this agreement by depositing his or her shares with the trustee and subscribing
in writing delivered to the trustee all the terms and conditions of this
agreement. In any such event, the trustee shall notify the Shareholders of the
event.
3. Stock Dividends. In case the Trustee shall receive any shares or other
securities of the Corporation convertible or exercisable into or for shares
(which shall thereupon be deemed "Shares" under this Agreement), issued by way
of stock dividend or otherwise, in respect of Shares held by him under this
Agreement, he shall hold such Shares subject to the terms of this Agreement and
shall issue Trust Certificates representing such Shares to those entitled
thereto.
4. Power to Vote. The rights and powers granted to the Trustee shall
include all rights and powers to vote, consent or otherwise act in his sole
discretion in respect to all Shares deposited hereunder and in respect of any
Shares that may be received by him in exchange therefor or in addition thereto
and
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to take part in or consent to any corporate or shareholder action of any kind
whatsoever, including, but not limited to: the increase or diminution of the
number of shares of said Corporation; election of directors; the acquisition of
any property by the Corporation, or the sale or other disposal of any property
by it, including property constituting all or substantially all of its business
and properties; the merger or consolidation of the Corporation or with any other
Corporation upon such terms as he deems advisable, and in connection with any
such merger or consolidation, to accept for deposit hereunder any shares in the
resulting Corporation issued in lieu of or in exchange for the shares of said
Corporation held hereunder; the liquidation of the business and assets, with or
without the dissolution, of the Corporation; and the pledge, mortgage or sale of
any or all stock or assets of the Corporation. The enumeration in this Agreement
of the particular powers shall not be construed to limit or exclude any powers
which the Trustee otherwise would have hereunder or be entitled to exercise as
the absolute owner of the deposited Shares. The Trustee as holder of the Shares
assumes no liability as a shareholder. In voting the shares held by him, the
Trustee shall exercise his best judgment from time to time, to the end that the
affairs of the Corporation shall be properly managed and the interests of the
shareholders safeguarded, and in voting and acting on such matters, whether at
shareholders' meetings or otherwise, likewise will exercise his best judgment,
but he assumes no responsibility in respect of such management, or in respect of
any action taken by him hereunder or by directors of the Corporation elected by
him, or taken in pursuance of his consent thereto, and no individual Trustee
shall incur any responsibility or liability by reason of any error of law or of
any matter or thing done or suffered or omitted to be done under this Agreement,
except for his own gross negligence or willful misconduct.
5. Shareholder as Conclusive Owner. The Trustee, for all purposes,
including payment of sums equal to cash dividends, may treat the person in whose
name any trust certificate stands upon his books as the owner thereof, and shall
not be affected by any notice to the contrary. Trust certificates may be
transferred only in the manner therein stated and in accordance with the terms
of the certificate and this Agreement.
6. Trustee as Nominee. The Trustee shall have full power from time to
time and at any time to cause all Shares held hereunder to be transferred into
his own name or into the names of his nominees.
7. Discretionary Notification. The Trustee, in his sole discretion, may
notify certificate holders in regard to any proposed exercise by the Trustee of
any of the rights, powers or
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privileges vested in him. The Trustee shall not be bound to follow or act upon
any request of the certificate holders or to submit any matters to the
certificate holders.
8. Successor Trustee. The Trustee at any time may resign by mailing to
the registered holders of trust certificates a written resignation, to take
effect ten days thereafter or upon prior acceptance thereof. If at any time
Peter is not the beneficial owner of a number of Shares in the Corporation that
is at least twenty-five percent (25%) of the number of Shares held by
Shareholders other than himself under this Agreement, he shall be considered to
have resigned as Trustee. For purposes of the next preceding sentence, Peter
shall be considered the owner of any Shares owned by his wife, children or more
remote descendants or trusts for their benefit. Upon the death, resignation or
incapacity, of the original or any successor Trustee, he shall be succeeded as
Trustee by such individual or corporation as he shall have designated in a
written instrument delivered to the Shareholders not later than the date the
vacancy shall have occurred, and in the absence of such designation, as the
owners and holders of trust certificates representing sixty-six and two-thirds
percent (66-2/3%) of the voting power of the Shares deposited under this
Agreement shall designate by written instrument delivered to the predecessor so
designated and to the certificate holders, if any, not joining in the
designation. In the event of a vacancy in the office of Trustee, lasting more
than sixty (60) days, any court of competent jurisdiction, on the petition of
any Shareholder, may appoint a successor Trustee. 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 originally had 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 plural number. Notwithstanding any contrary provision of this
paragraph, the naming of any successor shall be subject to the approval, if
required, of the Illinois Gaming Board.
9. Term. The trust created by this Agreement shall terminate on the tenth
anniversary of the date of this Agreement, or on such later date to which the
parties lawfully may extend the date of termination, or, if earlier, at any time
that (i) the Corporation, or any successor, shall have been dissolved, or (ii)
all Shares shall have been sold or exchanged for, or converted into, property
other than Shares, or (iii) in the event of the death, resignation as Trustee,
or incapacity, of Peter A. Ferro, Jr., the owners and holders of trust
certificates representing sixty-six and two-thirds percent (66-2/3%) of the
Shares deposited under this Agreement shall so decide by written agreement.
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10. Action at Termination. The Trustee is at termination authorized to
endorse the Share certificates in exchange for trust certificates representing
the same number of shares as are represented by the share certificates. Upon
termination the trust certificates shall cease to have any force and effect, and
the holders of same shall have no further rights under this Agreement other than
to receive certificates for Shares or other property distributable under the
terms hereof upon the surrender of such trust certificates. The Trustee shall
provide notice to the Corporation to deliver such Share certificates in exchange
for trust certificates representing a like number of Shares. Upon delivery of
the notice to the Corporation all further liability of the Trustee for the
delivery of such Share certificates shall cease, and the Trustee shall not be
required to take any further action hereunder.
11. Compensation. An individual Trustee who is related to Peter, John or
James shall not receive compensation for services as Trustee, but shall be
reimbursed by the Shareholders for any and all expenses and charges necessarily
incurred in the performance or discharge of any of the duties of the Trustee
under this Agreement, including reasonable attorney's fees. Any other Trustee
shall be entitled to receive reasonable compensation. The Trustee may act as,
and receive compensation as, a director, officer or agent of the corporation or
any member of any committee of board of directors of the corporation of any
controlled or subsidiary or affiliated company or be otherwise associated with
it.
12. Shareholders Agreement. The Shareholders confirm that the
Shareholders Agreement dated September 30, 1991 between the Corporation and its
then shareholders is binding on them, so that it controls their ownership and
disposition of the beneficial interest in the Shares.
13. Notices. All notices to be given to the trust certificate holders may
be given by ordinary mail, or may be delivered personally, to the registered
holders at the address appearing on the books kept by the Trustee. The date of
mailing shall be the date such notice is deemed given for all purposes.
14. Miscellaneous. This Agreement shall inure to the benefit of and shall
be binding upon, the parties hereto, their respective executors, administrators,
successors and assigns. A counterpart of this Agreement and of any amendment
hereto, shall be deposited with the Corporation at its registered office where
it may be examined by any Shareholder of the Corporation, in person or by agent
or attorney, at any reasonable time for any proper purpose.
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IN WITNESS WHEREOF, the parties have executed this Voting Trust Agreement
on the day and year first above written.
THE TRUSTEE: THE SHAREHOLDERS:
_____________________________________ ______________________________________
Peter A. Ferro, Jr., as Trustee Peter A. Ferro, Jr.
of the Ferro Brothers Voting Trust
______________________________________
John T. Ferro
___________________________________
James J. Ferro
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EXHIBIT 1
to
Voting Trust Agreement
FERRO BROTHERS VOTING TRUST
VOTING TRUST CERTIFICATE No. _________
THIS CERTIFICATE IS SUBJECT TO THE RESTRICTIONS AND PROVISIONS CONTAINED IN A
VOTING TRUST AGREEMENT DATED _______________, AND A SHAREHOLDERS AGREEMENT DATED
SEPTEMBER ___, 1991, COPIES OF BOTH OF WHICH AGREEMENTS ARE ON FILE IN THE
OFFICE OF THE CORPORATION.
This is to certify that _____________________ (the "Shareholder") has
deposited thirty three and one-third (33-1/3) common shares in Empress River
Casino Corporation (the "Corporation") with the undersigned Trustee under and
subject to the terms and conditions of an Agreement between the Shareholder and
the undersigned, therein referred to as Trustee (the "Agreement"), dated
____________________, 1993, and terminating on _____________________, 2003,
unless sooner terminated as provided in the Agreement, a counterpart of which
Agreement is on deposit with the Corporation.
This certificate is subject to all the terms and conditions of the
Agreement, and the holder hereof, whether a depositor under the said Agreement
or a successor in interest to any such depositor, by the acceptance hereof
becomes a party to the Agreement and is entitled to the benefits thereof with
the same effect as though he had duly executed and delivered the same.
The aforementioned Agreement is incorporated herein and made a part of this
Certificate for all purposes and governs the rights of the owner hereof.
IN WITNESS WHEREOF, the undersigned Trustee has executed this Certificate
___________.
_____________________________________
Peter A. Ferro, Jr., Trustee