1
EXHIBIT 9.1
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT (the "Agreement") is made between ROBERT E.
MEAD ("Husband") and JUDITH F. MEAD ("Wife") to create a Voting Trust of their
shares of SILVERLEAF RESORTS, INC, a Texas corporation (the "Company.")
ARTICLE 1
CONSIDERATION, PURPOSE OF TRUST AND SHARES
Section 1.01. Consideration. Husband and Wife enter into this Voting
Trust Agreement in consideration of their mutual promises.
Section 1.02. Purpose of Trust. Husband and Wife enter into this Voting
Trust Agreement for the purpose of ensuring the concentration of the vote of the
shares represented under this Agreement into a clear and definite policy of
management under the discretion of the Voting Trustee. Husband and Wife agree
that such concentration is in their respective best interests.
Section 1.03. Shares. The initial shares of the Company that shall be
held in this Voting Trust consist of 7,250,100 shares of the Company's common
stock, as represented by those certificates or accounts more particularly
described in Exhibit "A" attached hereto (the "Shares"). Any reference herein to
Shares of the Company shall also be deemed to include any additional shares of
the Company that become subject to this Agreement and to any shares of any
successor company to the Company.
ARTICLE II
TRUSTEE
Section 2.01. Trustee. The initial Trustee of this Voting Trust shall
be Husband. In the event Husband fails, refuses or ceases to serve as Trustee,
Husband and Wife appoint JAMES B. FRANCIS, JR. as the successor Trustee of this
Voting Trust. In the further event that JAMES B. FRANCIS, JR. or any subsequent
successor Trustee fails, refuses or ceases to serve as Trustee, a successor
Trustee(s) shall be elected by a majority vote of the Voting Trust Certificate
Holders.
Section 2.02. Death of Trustee. The rights and duties of any Trustee
shall terminate on the Trustee's death, and no interest in any of the property
owned or held by the Voting Trust nor any of the rights or duties of the Trustee
may be transferred by will, devise, succession, or in any manner except as
provided in this Agreement. The heirs, administrators, and executors of the
Trustee shall, however, have the right and duty to convey any property held by
the Trustee to the successor Trustee(s).
Section 2.03. Resignation. Any Trustee may resign as Trustee of the
Voting Trust by giving written notice of the Trustee's resignation to the
remaining Trustees, if any, or if none, to
2
the Voting Trust Certificate Holders. When a Trustee resigns, the successor
Trustee(s) may settle any account or transaction with the resigning Trustee.
Section 2.04. Removal. Any Trustee may be removed only by a vote or the
written consent of two-thirds (2/3rds) in interest of the Voting Trust
Certificate Holders. A Voting Trust Certificate Holder shall be entitled to vote
even though the Voting Trust Certificate Holder may also be the Trustee who is
the subject of the vote or consent proposing removal.
ARTICLE III
POSSESSION AND TRANSFER OF SHARES
ISSUANCE AND TRANSFER OF
VOTING TRUST CERTIFICATES
Section 3.01. Possession of Shares. On the execution of this Agreement,
Husband and Wife shall take all steps necessary to transfer record title to the
Shares of the Company owned by Husband and Wife into the name of Husband, as
Trustee. All Shares shall remain in the actual or constructive possession of the
Trustee during the term of this Voting Trust.
Section 3.02. Transfer of Shares to Trustee. All existing certificates
or accounts representing Shares of the Company shall be surrendered to the
Company's transfer agent and cancelled. New certificates shall be issued in the
name of the Trustee. The new share certificates representing Shares shall state
that they are issued pursuant to this Agreement. That fact shall also be noted
by the transfer agent in the Company's stock transfer records in the entry of
the Trustee's ownership of the shares.
Section 3.03. Transfer of Shares to Successor Trustee. Notwithstanding
any changes in the identity of the Trustee, the certificates for Shares standing
in the name of the Trustee may be endorsed and transferred by any successor
Trustee or Trustees with the same effect as if endorsed and transferred by the
Trustee who has ceased to act. The Trustee is authorized and empowered to cause
any further transfer of the Shares that may be necessary because of any change
of persons holding the office of Trustee.
Section 3.04. No Sale of Shares. Despite the provisions of Section
3.01, the Trustee has no authority to sell or otherwise dispose of or encumber
any of the Shares deposited pursuant to the provisions of this Agreement, except
as provided in Section 4.01.
Section 3.05. Voting Trust Certificates. When the Trustee receives
title to the Shares, the Trustee shall hold the Shares subject to the terms of
this Agreement, and the Trustee shall also issue and deliver Voting Trust
Certificates to Husband, in substantially the form of Exhibit B, attached to
this Agreement. Any subsequent Voting Trust Certificates issued by the Trustee
shall also be substantially in the same form.
Section 3.06. Fractional Trust Certificates. If an interest in this
Voting Trust that is owned by any Voting Trust Certificate Holder cannot be
fully represented by Whole Voting Trust Certificates, the Trustee may issue
Fractional Share Voting Trust Certificates, scrip, or
2
3
other evidence of ownership of the fractional part of one Trust Certificate that
in the Trustee's discretion properly indicates ownership of the fractional
interest. When such an issue is made, the fractional interest shall not under
any circumstances have any greater rights or lesser liabilities than any other
Trust Certificate.
Section 3.07. Transfer of Voting Trust Certificates. The Voting Trust
Certificates shall be transferable only as provided in the Certificates and in
this Agreement, and on payment of any charges payable at the time of transfer.
All transfers shall be recorded in the Certificate Record Book maintained by the
Trustee. Any transfer made of any Voting Trust Certificate shall vest in the
transferee all rights of the transferor and shall subject the transferee to the
same limitations as those imposed on the transferor by the terms of the Voting
Trust Certificate and by this Agreement. The Trustee shall deliver Voting Trust
Certificates to the transferee for the number of shares represented by the
Voting Trust Certificate so transferred.
Section 3.08. Proof of Ownership. The Trustee shall not be required to
recognize any transfer of a Voting Trust Certificate not made in accordance with
the provisions of this Agreement unless the persons claiming ownership have
produced indicia of title satisfactory to the Trustee, and shall have deposited
with the Trustee indemnity satisfactory to the Trustee.
Section 3.09. Holder of Certificate as Owner. The Trustee may treat the
Voting Trust Certificate Holders as the absolute owners and holders of the
Voting Trust Certificates and as having all of the rights and interests
represented by them for all purposes, and the Trustee shall not be bound or
affected by any notice to the contrary.
Section 3.10. Replacement of Certificates. If a Voting Trust
Certificate becomes mutilated or is destroyed, stolen, or lost, the Trustee, in
the Trustee's discretion, may issue a new Voting Trust Certificate of like tenor
and denomination in exchange and substitution for and on cancellation of the
mutilated Voting Trust Certificate, or in substitution for the Certificate so
destroyed, stolen, or lost. The applicant for a substituted Voting Trust
Certificate shall furnish to the Trustee evidence of the destruction, theft, or
loss of the Certificate satisfactory to the Trustee in the Trustee's discretion.
The applicant shall also furnish indemnity satisfactory to the Trustee.
ARTICLE IV
VOTING AND ACTION BY TRUSTEE
Section 4.01. Voting of Shares and Distributions. While the Trustee
holds shares pursuant to the provisions of this Agreement, the Trustee shall
possess and in the Trustee's unrestricted discretion shall be entitled to
exercise in person or by the Trustee's nominees, agents, attorneys-in-fact, or
proxies all rights and powers of an absolute owner, and to sell or pledge all or
any part of the Shares upon such terms and conditions as the Trustee shall
determine in the Trustee's discretion and to distribute the sales proceeds or
any proceeds from any loan secured by the Shares to the Voting Trust Certificate
Holders, and to vote, assent, or consent with respect to those rights and powers
and to take part in and consent to any corporate or shareholders' actions,
including but not limited to any vote in favor of the sale, mortgage, or pledge
of all or substantially all of the assets of the Company or for any change in
the capital
3
4
structure or the powers of the Company or in connection with a merger,
consolidation, reorganization, or dissolution. No person other than the Trustee
shall have any voting rights in respect to the shares so long as this Agreement
is in effect and the shares are registered in the name of the Trustee.
Additionally, the Trustee shall be entitled to receive dividends and other
distributions on the shares, subject to the provisions of Section 5.01 of this
Agreement.
Section 4.02. Voting in Interest of Company. In voting the Shares or in
doing any act regarding the control or management of the Company or its affairs,
as holder of Shares deposited pursuant to this Agreement, the Trustee shall
exercise the Trustee's best judgment in the interest of the Company to the end
that its affairs shall be properly managed, but the Trustee assumes no
responsibility regarding management or any action taken by them or taken by the
Company in pursuance of the Trustee's consent to it as a shareholder or in
pursuance of the Trustee's vote so cast.
Section 4.03. Majority Action of Trustee. If more than one Trustee is
serving under this Agreement, all action to be taken on any question arising
between the Trustees, except as otherwise expressly provided in this Agreement,
shall from time to time be determined by the vote or agreement of the majority
of the Trustees then in office, either at a meeting of the Trustees or, with or
without a meeting, by a writing signed by the majority. The Trustees may provide
for the authentication of evidence of any action taken by them. Any Trustee may
vote in person or by proxy given to any other Trustee.
Section 4.04. Meeting With Certificate Holders. If any question arises
on which the Trustee desires the opinion of the Voting Trust Certificate
Holders, the Trustee may call a meeting for this purpose. At the meeting, the
owners of two-thirds ( 2/3rds ), or more, in interest of the Voting Trust
Certificates may determine by vote or their written consent the manner in which
they desire the Trustee to act, and the Trustee shall be bound to act in the
manner designated. The Trustee shall not be called upon or expected to take any
action as a result of this meeting unless and until the Trustee has been fully
indemnified against all loss, damage, claim, or injury to which the Trustee
might be subjected, either by reason of the Trustee's action or by reason of the
Trustee's position as Trustee under this Agreement.
Section 4.05. Trustee's Relationship With Company. Any Trustee, the
Trustee's employees or agents, and any firm, corporation, trust, or association
of which the Trustee may be a trustee, stockholder, director, officer, member,
agent, or employee may contract with or be or become pecuniary interested,
directly or indirectly, in any matter or transaction to which the Company or any
subsidiary or controlled or affiliated corporation may be a party or in which it
may be concerned, as fully and freely as though the Trustee were not a Trustee
pursuant to this Agreement. The Trustee, the Trustee's employees or agents may
act as directors, officers or employees of the Company or of any subsidiary or
controlled or affiliated corporation.
Section 4.06. Compensation of Trustees. Husband shall serve as Trustee
without compensation. Any successor Trustee(s) shall be entitled to reasonable
compensation, taking into account the nature and extent of their duties.
4
5
Section 4.07. Expenses. The Trustee is expressly authorized to incur
and pay those reasonable charges and expenses that the Trustee may deem
necessary and proper for administering this Agreement. The Voting Trust
Certificate Holders agree to reimburse and indemnify the Trustee for all claims,
expenses, and liabilities incurred by the Trustee in connection with the
discharge of the Trustee's duties under this Agreement. Any such claims,
expenses, or liabilities shall be charged to the Voting Trust Certificate
Holders in proportion to the number of shares represented by the Voting Trust
Certificates held by each and may be deducted from dividends or other
distributions to them, or may be made a charge payable as a condition to the
delivery of shares in exchange for Voting Trust Certificates, and the Trustee
shall be entitled to a lien for this charge on the shares, funds, or other
property in the Trustee's possession.
Section 4.08. Trustee's Liability. No Trustee shall be liable for acts
or defaults of any other Trustee or for acts or defaults of an agent of any
other Trustee. The Trustee shall be free from liability in acting upon any
paper, document, or signature believed by Trustee to be genuine and to have been
signed by the proper party. The Trustee shall not be liable for any error of
judgment nor for any act done or omitted, nor for any mistake of fact or law,
nor for anything that the Trustee may do or refrain from doing in good faith,
nor generally shall the Trustee have any accountability pursuant to this
Agreement, except that the Trustee shall be liable for the Trustee's own willful
default or gross negligence. The Trustee may be advised by legal counsel, and
any action under this Agreement taken or suffered in good faith by Trustee in
accordance with the opinion of counsel shall be conclusive on the parties to
this Agreement, and the Trustee shall be fully protected and be subject to no
liability in respect to any action taken or suffered under this Agreement.
ARTICLE V
DIVIDEND, DISTRIBUTION, SUBSCRIPTION RIGHTS
OF CERTIFICATE HOLDERS
Section 5.01. Cash Dividends. Each Voting Trust Certificate Holder
shall be entitled to receive from time to time payments equal to the amount of
cash dividends, if any, collected or received by the Trustee on the shares in
regard to which Voting Trust Certificates were issued, less the deductions
provided for in Section 5.05. These payments shall be made as soon as
practicable after the receipt of the dividends to the Voting Trust Certificate
Holders at the close of business on the record date determined pursuant to the
provisions of Section 5.06. Instead of receiving cash dividends and paying them
to the Voting Trust Certificate Holders, the Trustee may instruct the Company in
writing to pay the dividends directly to the Voting Trust Certificate Holders.
When these instructions are given to the Company, all liability of the Trustee
with regard to the dividends shall cease, until the instructions are revoked.
The Trustee may at any time revoke the instructions and by written notice to the
Company direct it to make dividend payments to the Trustee.
Section 5.02. Share Dividends. If the Trustee receives as a dividend or
other distribution on any Shares held by the Trustee under this Agreement any
additional shares of the Company, the Trustee shall hold them subject to this
Agreement for the benefit of the Voting
5
6
Trust Certificate Holders in proportion to their respective interests, and the
shares shall become subject to all of the terms and conditions of this Agreement
to the same extent as if they were originally deposited under it. The Trustee
shall issue Voting Trust Certificates in respect of these shares to the Voting
Trust Certificate Holders of record at the close of business on the record date
determined pursuant to the provisions of Section 5.06.
Section 5.03. Distributions on Liquidation. In the event of the
dissolution or total or partial liquidation of the Company, the Trustee shall
receive the moneys, securities, rights, or property to which the Trustee as a
Shareholder of the Company is entitled, and shall distribute it among the Voting
Trust Certificate Holders in proportion to their interests, as shown by the
books of the Trustee.
Section 5.04. Other Distributions to Shareholders. If at any time
during the continuation of this Agreement the Trustee shall receive or collect
any moneys (other than in payment of cash dividends) through a distribution by
the Company to its shareholders or shall receive any property (other than shares
of stock of the Company) through a distribution by the Company to its
shareholders, the Trustee shall distribute the moneys or property to the Voting
Trust Certificate Holders registered as such at the close of business on the
record date determined pursuant to the provisions of Section 5.06. The Trustee
may withhold from the distribution the deductions provided for in Section 5.05.
Section 5.05. Deductions for Distributions. There shall be deducted and
withheld from every distribution of every kind under this Agreement any taxes,
assessments, or other charges that may be required by law to be deducted or
withheld, as well as expenses and charges incurred pursuant to Section 4.07, to
the extent that the expenses and charges remain unpaid or unreimbursed.
Section 5.06. Record Date for Distributions. The Trustee may, if the
Trustee deems it advisable, fix a date not exceeding twenty (20) days preceding
any date for the payment or distribution of dividends or for the distribution of
assets or rights as a record date for the determination of the Voting Trust
Certificate Holders entitled to receive the payment or distribution, and the
Voting Trust Certificate Holders of record on that date shall be exclusively
entitled to participate in the payments or distributions. If the Trustee fails
to fix a record date, the date three (3) days prior to the date of payment or
distribution of dividends or the distribution of assets or rights shall
constitute the record date for the determination of the Voting Trust Certificate
Holders entitled to receive the payment or distribution.
Section 5.07. Subscription Rights. If the Trustee shall receive notice
of an offer by the Company of additional securities for subscription, the
Trustee shall promptly mail a copy of the notice to the Voting Trust Certificate
Holders of record. On receipt by the Trustee, at least ten (10) days prior to
the last date fixed by the Company for subscription, of a request from a Voting
Trust Certificate Holder to be subscribed in his or her behalf, accompanied by
the sum of money required to be paid for the securities, the Trustee shall make
the subscription and payment on behalf of the Voting Trust Certificate Holder.
On receiving from the Company the certificate for the securities subscribed for,
the Trustee shall issue to the Voting Trust Certificate Holder a
6
7
Voting Trust Certificate in respect of those securities if the securities are
shares; if they are securities other than shares, the Trustee shall deliver them
to the Voting Trust Certificate Holder.
ARTICLE VI
BOOKS AND RECORDS
Section 6.01. Record of Shares. The Trustee shall maintain a record of
all share certificates of the Company that are transferred to the Trustee,
indicating the name in which the stock was held, the date of issuance of the
stock, the class and series of the stock, the number of shares, and the number
of the certificates representing those shares. The Trustee shall also maintain a
record of the date on which he or she received any shares or share certificates
and the date on which they were delivered to the Company for transfer to the
Trustee, and shall obtain a receipt for any certificates so delivered. The
Trustee shall receive and hold the new share certificates issued by the Company
in the name of the Trustee and shall maintain a record indicating the date of
issuance of the certificates, the date of receipt of the certificates, and the
place in which the Trustee is holding the certificates.
Section 6.02. Record of Trust Certificates. The Trustee shall maintain
a record showing the names and addresses of the Voting Trust Certificate
Holders. The record shall show the number of Certificates held by each person.
The record shall show the dates on which the Voting Trust Certificates were
issued, canceled, transferred, or replaced. The record shall be known as the
Certificate Record Book and shall be open to inspection by any of the parties to
this Agreement or their successors at any reasonable time. The first Voting
Trust Certificate Holders to appear in the Certificate Record Book shall be the
parties to this Agreement to whom Voting Trust Certificates are to be issued.
The record shall show any subsequent transfer, assignment, pledge, attachment,
execution, and any other matter affecting the title to the Voting Trust
Certificates that comes to the attention of the Trustee. Any documents
purporting to affect the title of the Voting Trust Certificates shall also be
kept in the Certificate Record Book, together with a sample copy of the Voting
Trust Certificate. The Certificate Record Book may be closed from time to time
by the Trustee for a period not to exceed twenty (20) days. Notice of the
closing shall be given to all parties to this Agreement at least five (5) days
prior to the closing. The closing of the Certificate Record Book shall not
affect the right to inspection.
Section 6.03. Books of Accounts. The Trustee shall maintain a Book of
Accounts. In addition to other matters that the Trustee may insert in the
record, the record shall show all sums of money received by the Trustee, all
disbursements made by the Trustee, and all obligations incurred by the Trustee
that are unpaid. Information concerning these accounts shall be posted at least
quarterly.
Section 6.04. Inspection of Records. The parties to this Agreement
shall deposit a counterpart of this Agreement with the Company at its registered
office, and the Agreement shall be subject to the same right of examination by a
Shareholder of the Company, in person or by agent or attorney, as are the books
and records of the Company.
7
8
ARTICLE VII
TERM OF TRUST
Section 7.01. Irrevocability of Trust. The trust created by this
Agreement is expressly declared to be irrevocable, except as otherwise provided
in Section 7.02 of this Agreement.
Section 7.02. Termination. This Agreement shall terminate only upon the
first to occur of the following: (i) the death of the survivor of Husband and
Wife; (ii) when the Voting Trust ceases to hold at least five percent (5%) of
the issued and outstanding shares of the Company or any successor company; and
(iii) the vote or written consent of two-thirds (2/3rds) in interest of the
Voting Trust Certificate Holders, without any other action by the Trustee or any
other parties.
Section 7.03. Return of Share Certificates After Termination. Within
thirty (30) days after the termination of this Agreement, the Trustee shall
deliver to the Voting Trust Certificate Holders, share certificates representing
the number of shares in respect of which the Voting Trust Certificates were
issued on the surrender of the Voting Trust Certificates properly endorsed and
on payment by the persons entitled to receive the share certificates of a sum
sufficient to cover any governmental charge on the transfer or delivery of the
share certificates.
Section 7.04. Final Accounting. Within ninety (90) days after
termination of this Trust, the Trustee shall render a final accounting to the
Voting Trust Certificate Holders and to the Company and shall distribute any
funds or other assets held by them to the parties entitled to them.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Place of Performance. This Agreement is made, executed,
and entered into in Dallas, Dallas County, Texas, and it is mutually agreed that
the performance of all parts of this Agreement shall be made in Dallas, Dallas
County, Texas.
Section 8.02. Governing Law. This Agreement is intended by the parties
to be governed and construed in accordance with the laws of the State of Texas.
Section 8.03. 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 affect the validity of the
remainder of the Agreement.
Section 8.04. Construction by Trustee. The Trustee is authorized and
empowered to construe this Agreement. The Trustee's reasonable construction made
in good faith shall be conclusive and binding on the Voting Trust Certificate
Holders and on all parties to this Agreement.
Section 8.05. Notice to Trustee. Any notice to be given to the Trustee
under this Agreement shall be sufficiently given if mailed to the Trustee at
1221 Riverbend, Suite 120,
8
9
Dallas, Texas 75247 or at such other address as the Trustee may from time to
time designate by written notice given to the Voting Trust Certificate Holders.
Section 8.06. Notice to Voting Trust Certificate Holders. Any notice to
be given to a Voting Trust Certificate Holder shall be sufficiently given if
mailed, postage prepaid, to him or her at the address of the Voting Trust
Certificate Holder appearing in the Certificate Book to be maintained by the
Trustee. Every notice so given shall be effective whether or not received, and
notice shall for all purposes be deemed to have been given on the date of its
mailing.
Section 8.07. Notice and Reports From Company. This Agreement does not
affect the Voting Trust Certificate Holder's right to:
(a) Receive from the Company, the Company's annual report.
(b) Receive from the Company notice of each annual and
special meeting of shareholders in the same manner and
at the same time as if the Voting Trust Certificate
Holder were a shareholder.
(c) Inspect the books and records of the Company at all
reasonable times.
Section 8.08. Meetings of Voting Trust Certificate Holders. A meeting
of the Voting Trust Certificate Holders may be called by the Trustee at any time
on seven (7) days' notice. The notice shall contain a statement of the matters
to be discussed at the meeting. At any meeting, a quorum, consisting of at least
fifty percent (50%) in interest of the Voting Trust Certificate Holders in this
Voting Trust, must be present before a vote shall be taken on any matter before
the meeting, unless otherwise expressly provided in this Agreement. Each Voting
Trust Certificate Holder may vote at any meeting in person or by proxy. Each
Voting Trust Certificate Holder shall have one vote for each share represented
by his or her Voting Trust Certificate. Action may be taken on any of the
matters covered in this Agreement by the written consent of all of the parties
who could have taken any action at a meeting.
Section 8.09. Execution of Counterparts. This Agreement and any
amendment may be executed in any number of counterparts, with the same effect as
if all parties had signed the same document
Section 8.10. Amendment of Agreement. If the Trustee deems it advisable
at any time to amend this Agreement, the Trustee shall call a special meeting of
Voting Trust Certificate Holders for that purpose. At the meeting, the Trustee
must submit the amendment to the Voting Trust Certificate Holders of the then
outstanding Voting Trust Certificates for their approval. Notice of the time and
place of the meeting shall be given in the manner provided in Section 8.08 and
shall contain a copy of the proposed amendment. If, at the meeting, the proposed
amendment is approved by the affirmative vote or written consent of Voting Trust
Certificate Holders representing two-thirds (2/3rds) of the shares held by the
Trust, the proposed amendment so approved shall become a part of this Agreement
as if originally incorporated in it.
9
10
Section 8.11. Advice of Counsel. Each of the parties agrees and
represents that he or she has been represented by his or her own counsel with
regard to the execution of this Agreement.
Section 8.12. Share Certificates. Each share certificate representing
shares held by the Trustee under this Agreement shall contain a statement that
the shares represented by the certificate are subject to the provisions of a
Voting Trust Agreement and shall contain a statement that a counterpart of the
Voting Trust Agreement has been deposited with the Company at its registered
office.
Section 8.13. Effective Date. This Agreement is executed on the dates
set opposite the signatures below, but shall be effective as of the
__1st________day of __November______, 1999.
November 1 ,1999 /s/ Robert E. Mead
- ----------------------------------- ----------------------------------
Robert E. Mead
November 1 ,1999 /s/ Judith F. Mead
- ----------------------------------- ----------------------------------
Judith F. Mead
Description of Exhibits:
Exhibit A--Description of Share Certificates or Accounts Representing Shares
Exhibit B--Form of Voting Trust Certificate
10