EXHIBIT 9.1
VOTING TRUST AGREEMENT
NO CERTIFICATE IN THE VOTING TRUST ESTABLISHED HEREBY HAS BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAW OF ANY STATE, EACH SUCH
CERTIFICATE BEING ACQUIRED BY THE HOLDER THEREOF IN A TRANSACTION EXEMPT FROM
THE REGISTRATION PROVISIONS OF SUCH LAWS.
THIS VOTING TRUST AGREEMENT (the "Voting Trust Agreement") is made and
entered into as of this 7th day of January, 2003, by and among TMRC, L.L.P.
("Tracker"), ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇ ▇▇▇▇▇▇▇ Family Partners, LP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Echo Bay, Ltd., ▇▇▇▇▇▇ Investments, Ltd. and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (collectively, the
"Shareholders"), each a holder of "Shares" (as hereinafter defined) and, except
for Tracker, a holder of Shareholder Notes issued by ▇▇▇▇▇▇ BOAT & MOTORS, INC.,
a Texas corporation (the "Company") pursuant to that certain Subordinated Note
Purchase Agreement dated as of December 14, 2001 (the "Notes"), together with
such other present and/or future shareholders of the Company as may hereafter
become parties hereto or holders of Voting Trust Certificates (all of the
foregoing being hereinafter being individually referred to as a "Shareholder"
and collectively referred to as the "Shareholders"), on the one hand and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, an individual residing in ▇▇▇▇▇▇ County, Missouri, and any
successor or successors in trust (the "Trustee"), on the other hand.
WHEREAS, Tracker (in conjunction with separate bridge financing being
provided by the Company's senior lenders) is simultaneously herewith providing a
secured bridge loan (the "Bridge Loan") to the Company and its subsidiaries; and
WHEREAS, Tracker is willing to provide the Bridge Loan to the Company
if, among other things, (i) the Shares currently owned by each of Tracker,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ (each, an "Initial Depositor" and collectively, the "Initial
Depositors") are deposited with the Trustee to be held by the Trustee hereunder,
and (ii) the Shareholders (including the Initial Depositors) agree to deposit
any and all shares of ▇▇▇▇▇▇ common stock acquired by them on the conversion of
such Shareholder's Note(s) or, in the case of Tracker, its Shares acquired on
the conversion of its "Preferred Stock" (defined below) (collectively, the
"Underlying Stock") with the Trustee to be held by the Trustee hereunder; and
WHEREAS, the Shareholders each deems it necessary, advisable and in
such Shareholder's best interest to ensure the consummation of the Bridge Loan
by depositing and/or agreeing to deposit their certificates representing the
Shares or certificates which will represent shares of the Underlying Stock, if
and when issued, with the Trustee; and
WHEREAS, the Trustee has consented to act under this Voting Trust
Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Tracker to provide
the Bridge Loan to the Company, the parties hereto agree as follows:
1. Transfer of Stock to Trustee. The Shareholders do hereby acknowledge
the matters set forth on Exhibit A attached hereto, and: (a) with respect to the
Initial Depositors, have deposited shares of, in the case of Tracker, its ▇▇▇▇▇▇
6% Series A Cumulative Convertible Preferred Stock ("Preferred Stock") and, in
the case of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, their shares of common stock (such common and
preferred shares being collectively called, the "Shares") with the Trustee under
this Voting Trust Agreement as indicated on such Exhibit A, and shall
immediately deposit with the Trustee any and all certificates for shares of
Underlying Stock; and (b) with respect to those Shareholders other than the
Initial Depositors, each such Shareholder agrees to deposit with the Trustee any
and all shares of Underlying Stock acquired by such Shareholder upon the
conversion of his Note(s). All certificates for Shares, including shares of
Underlying Stock or other securities deposited hereunder (collectively, the
"Securities") shall be made out in the name of the Trustee, or so endorsed, or
accompanied by such instruments of transfer as to enable the Trustee to cause
such certificates to be transferred into the name of the Trustee, as hereinafter
provided. Upon receipt by the Trustee of the certificates for Securities and the
transfer of the same into the name of the Trustee, the Trustee shall hold such
Securities subject to the terms of this Voting Trust Agreement, and shall
thereupon issue and deliver to the Shareholders Voting Trust Certificates in
exchange for the Securities deposited by the Shareholders.
All certificates of Securities transferred and delivered to the Trustee
pursuant to this Voting Trust Agreement shall be surrendered by the Trustee to
the Company and cancelled, and new certificates therefor shall be issued to and
held by the Trustee in the name of "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Trustee under the
Voting Trust Agreement, dated January 7, 2003" and shall have the following
legend placed on the certificate therefor:
"The shares represented by this
certificate are subject to the terms of a
Voting Trust Agreement dated January 7, 2003,
as amended from time to time, a copy of which
is on file at the office of ▇▇▇▇▇▇ Boats and
Motors, Inc."
This legend shall be in addition to any other legends which are required by
federal or state laws (including, but not limited to any legend required by the
Securities Act of 1933 or the "blue sky" laws of any state, or any rule or
regulation thereunder) or as otherwise may be reasonably required by the
Trustee.
2. Voting Trust Certificates. The Voting Trust Certificates to be
issued and delivered by the Trustee in respect of the Securities deposited with
the Trustee ("Voting Trust Certificates") shall be in substantially the form of
Exhibit B attached hereto.
3. Transfer of Certificates. The Voting Trust Certificates shall be
transferable at the office of the Trustee, at the Sportsman's Park Complex, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other office as the
Trustee may designate by an instrument in writing signed by the Trustee and sent
by mail to the registered holders of Voting Trust Certificates), on the books of
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the Trustee, by the registered owner thereof, either in person or by his duly
authorized attorney, in accordance with the terms of this Voting Trust
Agreement, and according to the rules established for that purpose by the
Trustee and upon surrender of such Voting Trust Certificates. The Trustee may
treat the registered holder as owner thereof for all purposes whatsoever, but
the Trustee shall not be required to deliver certificates of Securities
hereunder without the surrender of such Voting Trust Certificates. The Trustee
shall not be required to recognize any transfer of a Voting Trust Certificate
not made in accordance with the provisions hereof.
If a Voting Trust Certificate is lost, stolen, mutilated or destroyed,
the Trustee, in the Trustee's discretion, may issue a duplicate of such
certificate upon receipt of: (a) evidence of such fact satisfactory to the
Trustee; (b) indemnity satisfactory to the Trustee; (c) the existing
certificate, if mutilated; and (d) reasonable fees and expenses in connection
with the issuance of a new trust certificate.
4. Restrictions. No Shareholder shall sell, assign, give, pledge,
encumber, dispose or otherwise transfer ownership of any right, title or
interest to all or any portion of his Securities or Voting Trust Certificates in
the Company, by operation of law or otherwise, except in accordance with and as
provided by this Voting Trust Agreement and except in compliance with all
applicable Federal and state securities laws, rules and regulations.
5. Restrictions on Transfers. Voting Trust Certificates issued
hereunder shall be freely transferable by the holders thereof without
restriction other than compliance with all federal and state securities laws and
all other applicable laws, rules and regulations. Certificates for the
Securities deposited hereunder in the name of the Trustee shall not be
transferable at any time during the term hereof. Accordingly, during the term
hereof, no such Securities may be transferred, conveyed, assigned, encumbered or
hypothecated in any manner whatsoever by the Trustee or the holder of the
related Voting Trust Certificate.
6. Agreement. A copy of this Voting Trust Agreement, and of every
agreement extending, supplementing or amending this Voting Trust Agreement,
shall be filed in the principal office of the Company and shall be open to the
inspection of any Shareholder or any beneficiary of the trust established under
this Voting Trust Agreement. All Voting Trust Certificates issued under this
Voting Trust Agreement shall be issued, received and held subject to the terms
of this Voting Trust Agreement. Every person, firm, or corporation entitled to
receive Voting Trust Certificates representing Securities, and their transferees
and assigns, upon accepting the Voting Trust Certificates issued hereunder,
shall be bound by the provisions of this Voting Trust Agreement and shall be
considered a Shareholder for purposes of this Voting Trust Agreement. This
Voting Trust Agreement shall be governed under the laws of the State of Texas.
7. Termination of Agreement. Except as otherwise provided in this
Voting Trust Agreement, the Trust created by this Voting Trust Agreement is
hereby expressly declared to be irrevocable. Unless earlier terminated pursuant
to this Section 7, this Voting Trust Agreement shall terminate and be of no
further force and effect on January 7, 2008. This Voting Trust Agreement may be
terminated at any time by the affirmative vote of holders of Voting Trust
Certificates then representing a majority of the voting power of the Securities
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deposited hereunder, however any extension of the expiration date shall require
the affirmative vote of all holders of Voting Trust Certificates.
Notwithstanding the foregoing, this Voting Trust Agreement will terminate at
such time as Tracker (and its affiliates) has held shares, whether directly or
indirectly through Voting Trust Certificates, representing, on a fully diluted,
as if converted basis, at least fifty-five percent (55%) of the then outstanding
capital stock of ▇▇▇▇▇▇ having general voting power (the "Voting Capital
Stock"), for a continuous period of thirty consecutive days.
If, on or after March 31, 2003, the number of Shares held of record by
the Trustee hereunder exceeds fifty-five percent (55%) of the then outstanding
Voting Capital Stock (such excess number of shares being called the "Excess
Share Amount"), then the Trustee shall distribute to the Initial Depositors
other than Tracker, pro rata based upon the number of Shares of common stock
deposited hereunder by such Initial Depositors, that number of Shares of common
stock equal to the Excess Share Amount so as to reduce the amount of Shares
being held by the Trustee hereunder to fifty-five percent (55%) of the then
outstanding Voting Capital Stock (rounding downward to the nearest whole share).
Such distribution shall be made promptly by the Trustee to an Initial Depositor
upon the surrender by such Initial Depositor of his Initial Depositor's Voting
Trust Certificate in exchange for a certificate representing the number of
Shares of common stock being distributed to such Initial Depositor, together
with a new Voting Trust Certificate representing the remaining Shares deposited
by such Initial Depositor being held by the Trustee hereunder.
8. Termination Procedure. Upon the termination of this Voting Trust
Agreement as provided in paragraph 7 hereof, the Trustee, at such time as the
Trustee may choose during the period commencing twenty (20) days before and
ending twenty (20) days after such termination, shall mail written notice of
such termination to the registered owners of the Voting Trust Certificates, at
the addresses appearing on the transfer books of the Trustee. From the date
specified in any such notice (which date shall be fixed by the Trustee), the
Voting Trust Certificates shall cease to have any effect, and the holders of
such Voting Trust Certificates shall have no further rights under this Voting
Trust Agreement other than to receive certificates for the Securities or other
property to the extent distributable under the terms of this Voting Trust
Agreement.
Within thirty (30) days after the termination of this Voting Trust
Agreement, the Trustee shall deliver to the registered holders of all Voting
Trust Certificates, certificates for the number of shares of the Securities
represented thereby or other property as specified under the terms hereof, upon
the surrender of such Voting Trust Certificates properly endorsed, such delivery
to be made in each case at the designated office of the Trustee.
At any time subsequent to thirty (30) days after the termination of
this Voting Trust Agreement, the Trustee may deposit Securities with the Company
equal to the number of Securities represented by the Voting Trust Certificates
then outstanding, with authority in writing to the Company to deliver the
Securities in exchange for such Voting Trust Certificates. Upon such deposit,
all further liability of the Trustee for the delivery of the Securities and the
delivery or payment of dividends upon surrender of the Voting Trust Certificates
shall cease, and the Trustee shall not be required to take any further action
hereunder.
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9. Dividends and Other Distributions. Prior to the termination of this
Voting Trust Agreement, the holder of each Voting Trust Certificate shall be
entitled to receive payments equal to the cash dividends and other
distributions, if any, received by the Trustee upon a like number and class of
shares of the Securities deposited by such holder hereunder is called for by
each such Voting Trust Certificate. If any dividend or other distribution in
respect of the Securities deposited with the Trustee is paid, in whole or in
part, in stock having general voting powers, the Trustee shall likewise hold,
subject to the terms of this Voting Trust Agreement, the Securities which are
received by the Trustee on account of such dividend or other distribution, and
the holder of each Voting Trust Certificate representing Securities on which
such stock dividend has been paid shall be entitled to receive a Voting Trust
Certificate issued under this Voting Trust Agreement for the number of shares
and class of stock which constitutes such dividend or distribution. Holders
entitled to receive the dividends or distributions described hereinabove shall
be persons registered as such on the transfer books of the Trustee at the close
of business on the day fixed by the Company for the taking of a record to
determine those holders of its stock entitled to receive such dividends or
distributions, or if the Trustee has fixed a date, as hereinafter in this
paragraph provided, for the purpose of determining the holders of Voting Trust
Certificates entitled to receive such payment or distribution, then persons
registered as such at the close of business on the date so fixed by the Trustee
shall be entitled to receive the dividends or distributions referred to herein.
If any dividend or distribution in respect of any of the Securities
deposited with the Trustee is paid other than in cash or in stock having general
voting powers, the Trustee shall distribute the same among the registered
holders of the related Voting Trust Certificates at the close of business on the
day fixed by the Trustee for taking a record to determine the holders of Voting
Trust Certificates entitled to receive such distribution. Such distribution
shall be made to such holders of Voting Trust Certificates ratably, in
accordance with the number of shares represented by their respective Voting
Trust Certificates.
The transfer books of the Trustee may be closed temporarily by the
Trustee for a period not exceeding twenty (20) days preceding the date fixed for
the payment of dividends or like distributions, or the distribution of assets or
rights, or at any other time in the discretion of the Trustee. In lieu of
providing for the closing of the books against the transfer of Voting Trust
Certificates, the Trustee may fix a date not exceeding twenty (20) days
preceding any date fixed by the Company for the payment of dividends or other
distributions, or for the distribution of assets or rights, as a record date for
the determination of the holders of Voting Trust Certificates entitled to
receive such dividends or distributions, and the holders of Voting Trust
Certificates of record at the close of business on such date shall exclusively
be entitled to participate in such dividends or distributions.
In lieu of receiving cash dividends or other distributions upon the
Securities and paying the same to the holders of Voting Trust Certificates
pursuant to the provisions of this Voting Trust Agreement, the Trustee may
instruct the Company in writing to pay such dividends or distributions directly
to the holders of the Voting Trust Certificates. The Trustee may at any time
revoke such instructions, and by written notice to the Company, may direct it to
pay dividends or other distributions to the Trustee. Upon such instructions
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being given by the Trustee to the Company, and until revoked by the Trustee, all
liability of the Trustee with respect to such dividends or distributions paid by
the Company directly to the holders of the Voting Trust Certificates, or not
paid by the Company to the Trustee, shall cease.
10. Dissolution of Company. In the event of the dissolution or total or
partial liquidation of the Company, whether voluntary or involuntary, the
Trustee shall receive the monies, securities, rights or property to which the
holders of the Securities deposited hereunder are entitled, and shall distribute
the same among the registered holders of Voting Trust Certificates in proportion
to their interests, as shown by the books of the Trustee, or the Trustee may, in
the Trustee's discretion, deposit such monies, securities, rights or property
with any bank or trust company as the Trustee shall determine, with authority
and instructions to distribute the same as above provided, and all further
obligations or liabilities of the Trustee in respect of such monies, securities,
rights or property so distributed shall cease.
11. Reorganization of the Company. In case the Company is merged into
or consolidated with another corporation, or all or substantially all of the
assets of the Company are transferred to another corporation, then in connection
with such transfer, the term "Company," for all purposes of this Voting Trust
Agreement, shall be taken to include such successor corporation, and the Trustee
shall receive and hold under this Voting Trust Agreement any stock of such
successor corporation received on account of the ownership, as Trustee
hereunder, of the Securities held hereunder prior to such merger, consolidation
or transfer. Voting Trust Certificates issued and outstanding under this Voting
Trust Agreement at the time of such merger, consolidation or transfer may remain
outstanding, or the Trustee may, in the Trustee's discretion, substitute for
such Voting Trust Certificates new Voting Trust Certificates in appropriate
form, and the term "Stock" as used herein shall be taken to include any stock
which may be received by the Trustee in lieu of all or any part of the stock of
the Company.
12. Rights and Duties of Trustee. Until the actual delivery to the
holders of Voting Trust Certificates issued hereunder of the Securities in
exchange therefor, and until the surrender of the Voting Trust Certificates for
cancellation, no Shareholder shall have the right to vote the Securities held
hereunder. The Trustee shall have the exclusive right to exercise all of the
Shareholders' voting rights and powers in respect of such shares deposited
hereunder, as if the Trustee was the absolute owner thereof. Without limiting
the generality of the foregoing, the Trustee shall have the right to exercise,
in person or by the Trustee's nominees or proxies, all Shareholders' rights and
powers in respect of all the Securities deposited hereunder, including the right
to vote and to take part in or consent to any corporate or Shareholders' action
of any kind whatsoever. The right to vote shall include, without limitation, the
right and duty to vote for any election or removal of directors (including,
without limitation, a person who is an officer, director, employee or in any
manner affiliated with Tracker or any of its affiliates), and in favor of or
against any resolution or proposed action of any character whatsoever, which may
be presented at any meeting, or require the consent of the shareholders of the
Company, including, without limitation, the dissolution or liquidation of the
Company.
In voting the Securities held by the Trustee under this Voting Trust
Agreement, the Trustee shall vote to take such part or action in respect to the
management of the Company's affairs as the Trustee may deem necessary, to the
end that the Trustee may be advised of the affairs of the Company and the
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management thereof; and in voting upon any matters that may come before the
Trustee at any shareholders' meeting, the Trustee shall exercise the Trustee's
best judgment, but the Trustee shall not be personally liable with respect to
any action taken pursuant to the Trustee's votes so cast in any matter or act
committed or omitted to be done under this Voting Trust Agreement, provided such
commission or omission does not amount to willful misconduct on the Trustee's
part.
13. Initial and Successor Trustee. The initial Trustee hereunder is
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. At any time and from time to time, holders of Voting Trust
Certificates then representing a majority of the voting power of the Securities
deposited hereunder, may remove the Trustee with or without cause, and/or
designate in writing as a new Trustee, Co-Trustee or a successor Trustee, one or
more individuals or a bank or trust company having trust powers and trust assets
under management of at least One Hundred Million Dollars ($100,000,000.00), or
any combination thereof, and such written designation may provide for a series
of successor Trustees, and may terminate the services of any Trustee designated
by him. If a Trustee is unable to serve and there is no named or designated
Trustee who is able and willing to serve, then the holders of Voting Trust
Certificates then representing a majority of the voting power of the Securities
deposited hereunder shall designate one or more persons, bank or trust companies
meeting the qualifications described above to serve as successor trustee(s) or
co-trustees. Such written designation may be amended or revoked at any time and
such designation may provide for a series of successor Trustees. If there is
more than one Trustee hereunder, then a majority vote of such Trustees shall be
required for any action of the Trustees hereunder.
14. Reimbursement of Trustee Expenses; Liability of Trustee. The
Trustee shall not be paid compensation for the Trustee's services. The Trustee
shall have the right to incur and pay such reasonable expenses and charges, and
to employ and pay such agents, attorneys and counsel as the Trustee may deem
necessary and proper for carrying this Voting Trust Agreement into effect. Any
such expenses or charges incurred by or due to the Trustee may be deducted from
the dividends or other monies or property received by the Trustee on the shares
of ▇▇▇▇▇▇ Common Stock deposited hereunder, or the Trustee may render statements
directly to the registered holders of all the Voting Trust Certificates
outstanding under this Voting Trust Agreement for payment of such expenses on a
pro rata basis. Nothing herein shall disqualify the Trustee or incapacitate the
Trustee from serving the Company or one or more of the holders of the Voting
Trust Certificates in any capacity, and from receiving compensation for such
service.
The Trustee shall incur no responsibility or liability by reason of any
error of law or with respect to anything done or suffered or omitted, except for
the Trustee's own individual willful misconduct or failure to exercise good
faith in connection with or arising out of this Voting Trust Agreement or the
discharge by the Trustee of the Trustee's duties hereunder. The Shareholders
agree to indemnify and save harmless the Trustee from and against any and all
claims, expenses and liabilities incurred by the Trustee or asserted against the
Trustee in connection with or arising out of this Voting Trust Agreement or the
discharge by the Trustee of the Trustee's duties hereunder, except for a
Trustee's willful misconduct or failure to exercise good faith in such matters,
which agreement to indemnify and hold the Trustee harmless shall be subject to
contribution by the Shareholders in proportion to their interest in the
Securities entrusted with the Trustee hereunder at the time of the initial
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assertion of a claim by any Trustee to be so indemnified or held harmless. No
Trustee shall be required to give any bond or other security for the discharge
of the Trustee's duties.
The Trustee may consult with legal counsel and the Trustee shall be
fully protected and be subject to no liability for any action under this Voting
Trust Agreement taken or suffered in good faith by the Trustee in accordance
with the opinion of such counsel; the Shareholders shall pay the costs of such
legal counsel.
15. Shareholder Representations and Agreements. Each Shareholder
represents, warrants and agrees as follows:
(a) that Exhibit A annexed hereto sets forth the shares of
Securities of ▇▇▇▇▇▇ of which such Shareholder is the record and
beneficial owner and that with respect to the Notes, the number of
shares of ▇▇▇▇▇▇ Common Stock into which such Notes are convertible;
(b) that such Shareholder is on the date hereof the lawful
owner of the number of shares of Securities and the Notes set forth
therein, free and clear of all liens, security interests, encumbrances,
voting agreements and commitments of every kind, except as disclosed in
such Exhibit A;
(c) except as set forth in Exhibit A, such Shareholder does
not own or hold any rights to acquire any additional shares of
Securities of ▇▇▇▇▇▇ (by exercise of stock options or otherwise) or any
interest therein or any voting rights with respect to any additional
shares of Securities;
(d) such Shareholder has all necessary power and authority to
enter into this Voting Trust Agreement, and that this Voting Trust
Agreement is the legal, valid and binding agreement of the Shareholder,
and is enforceable against such Shareholder in accordance with its
terms;
(e) such Shareholder agrees that monetary damages would be an
inadequate remedy for the breach by such Shareholder of any term or
condition of the Voting Trust Agreement, and that the Trustee shall be
entitled to a temporary restraining order and preliminary and permanent
injunctive relief in order to enforce the agreements of such
Shareholder set forth herein, without the posting of a bond or other
security; and
(f) with respect to the Notes, each Noteholder hereby
acknowledges and agrees that an appropriate legend will be placed on
his or her Note to indicate that any transferee or assignee thereof
will be subject to the terms of this Voting Trust Agreement with
respect to any shares of Underlying Stock resulting from the conversion
thereof, and that such transferee or assignee shall be required to
recognize and acknowledge such understanding in writing for the benefit
of the Trustee as a condition precedent to the transfer or assignment
of such Note(s).
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16. All notices and other communications required or permitted
hereunder shall be in writing and shall conclusively deem to have been duly
given: (a) when hand delivered to the receiving party; (b) when received when
sent by facsimile at the applicable address and the numbers set forth below or
shown on the transfer books of Trustee; (c) three business days after deposit in
the U.S. Mail with first class or certified mail receipt requested postage
prepaid and addressed to the applicable party as set forth below or in the
transfer books of Trustee; or (d) the next business day after deposit with a
national overnight delivery service, postage prepaid, addressed to the
applicable party as set forth below or in the transfer books of Trustee with
next business day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider.
To the Trustee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
c/o Tracker Marine L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Gallop, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Company: ▇▇▇▇▇▇ Boats and Motors, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Jenkens & ▇▇▇▇▇▇▇▇▇, PC
2200 One American Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Every notice so given shall be effective, whether or not received, and the date
of mailing shall be the date such notice is deemed given for all purposes. The
addresses of the holders of Voting Trust Certificates, as shown on the transfer
books of the Trustee, shall in all cases be deemed to be the addresses of Voting
Trust Certificate holders for all purposes under this Voting Trust Agreement,
without regard to what other or different addresses the Trustee may have for any
Voting Trust Certificate holder on any other books or records of the Trustee.
All distributions of cash, securities or other property hereunder by
the Trustee to the holders of Voting Trust Certificates may be made, in the
discretion of the Trustee, by registered mail in the same manner as hereinabove
provided for the giving of notices to the holders of Voting Trust Certificates.
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17. Securities Act Restrictions. The Shareholders acknowledge their
recognition and understanding that neither their Voting Trust Certificate(s) nor
any interest of the Shareholders created by the terms of this Voting Trust
Agreement is or will be registered under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder or under any state
securities law (collectively, the "Securities Acts"), in reliance upon
exemptions contained in the Securities Acts. In addition, the Shareholders
understand and agree that: (a) all of the Voting Trust Certificates, and all of
the interest of the Shareholders created by this Voting Trust Agreement, have
been or are being acquired by the Shareholders for their own accounts and not
with a view to, or for resale in connection with, any distribution of such
shares or interest within the meaning of the Securities Acts; and (b) neither
such Voting Trust Certificates nor such interest created by this Voting Trust
Agreement have been registered under any of the Securities Acts, and each must
be held indefinitely unless they are subsequently registered under the
Securities Acts or an exemption from such registration is available. The
Shareholders acknowledge and agree that the Trustee has no obligation to cause
the Voting Trust Certificates or any such interested created by the terms of
this Voting Trust Agreement to be registered under any of the Securities Act,
nor does the Trustee have the obligation to comply with any exemption under the
Securities Acts which would permit the same to be transferred without
registration.
*********
10
IN WITNESS WHEREOF, the Trustee has signed this Voting Trust Agreement,
and the Shareholders have signed this Voting Trust Agreement.
TMRC, L.L.P.
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
----------------------------------- --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- Echo Bay, Ltd.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
▇▇ ▇▇▇▇▇▇▇ Family Partners, LP -----------------------------
Name:
By: ---------------------------
-------------------------------- Title:
Name: ----------------------------
------------------------------
Title: ▇▇▇▇▇▇ Investments, Ltd.
-----------------------------
By:
-----------------------------
----------------------------------- Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ---------------------------
Title:
--------------------------
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
11
EXHIBIT A
Shareholder Notes
Shareholder Shares of Stock (as if converted)
----------- --------------- -----------------
Tracker 3,137,255*
▇▇▇▇ ▇. ▇▇▇▇▇▇ 334,200
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 60,990
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 292,866 121,981
▇▇ ▇▇▇▇▇▇▇ Family Partners, LP 121,981
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 60,990
▇.▇. ▇▇▇▇▇ 60,990
Echo Bay, Ltd. 40,660
▇▇▇▇▇▇ Investments, Ltd. 50,825
▇▇▇▇▇ ▇. ▇▇▇▇▇ 10,165
-------- -------
3,764,321 528,582
* Represents voting rights of the 6% Series A Cumulative Convertible Preferred
Stock of ▇▇▇▇▇▇.
EXHIBIT B
NO. ________ _________ SHARES
▇▇▇▇▇▇ BOATS & MOTORS, INC.
A TEXAS CORPORATION
VOTING TRUST CERTIFICATE FOR SECURITIES
This certifies that ___________________________ or permitted registered
assigns is entitled to all the benefits arising from the deposit with the
Trustee under the Voting Trust Agreement (defined below), of certificates for
__________ shares of the Securities of ▇▇▇▇▇▇ Boats & Motors, Inc., a Texas
corporation (the "Company"), as provided in such Voting Trust Agreement and
subject to the terms thereof. Capitalized terms not defined herein shall have
that meaning ascribed to such term in the Voting Trust Agreement.
This Certificate is issued, received and held under, and the rights of
the owner hereof are subject to, the terms of a Voting Trust Agreement dated
January 7, 2003, between TMRC, L.L.P., a Missouri limited liability partnership,
and certain holders of certificates issued thereunder (the "Voting Trust
Agreement"). A copy of the Voting Trust Agreement, and of every agreement
amending or supplementing the same, is on file in the principal office of the
Company. By acceptance hereof, the registered owner of this Certificate hereby
assents to, and agrees to be bound by, all of the terms and conditions of the
Voting Trust Agreement, whether or not said registered owner has executed the
Voting Trust Agreement.
Stock certificates for the number of shares of Securities then
represented by this Certificate, or the net proceeds in cash or property of such
shares, shall be due and deliverable hereunder upon the termination of the
Voting Trust Agreement, as provided therein.
The Voting Trust Agreement shall continue in full force and effect
until January 7, 2008, unless such date is extended or the Voting Trust
Agreement is terminated prior thereto, as provided in the Voting Trust
Agreement.
This Certificate is transferable only in compliance with Section 3 of
the Voting Trust Agreement, and permitted transfers only of this Certificate
shall be accomplished on the books of the Trustee upon surrender (by the
registered owner hereof or his duly authorized representative) of this
Certificate at the principal office of the Trustee, as aforesaid, in accordance
with rules to be established for that purpose by the Trustee, and upon
presentation to the Trustee of all necessary documentation to support such
permitted transfer.
This Certificate shall not be valid for any purpose until duly signed
by the Trustee.
IN WITNESS WHEREOF, the Trustee has signed this Certificate on this
7th day of January, 2003.
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee