EXECUTION COPY
VOTING TRUST I AGREEMENT
THIS VOTING TRUST I AGREEMENT (the "Agreement") is made and entered
into as of March 21, 2003 by and among UXT Holdings, LLC, a Delaware limited
liability company, and UXT Intermediary, LLC, a Delaware limited liability
company (together, the "Investors"), DLJ Merchant Banking III, Inc., a Delaware
corporation (and its successors, "DLJMB") and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.,
as trustee (together with its successors in such capacity, the "Trustee").
WHEREAS, the parties hereto desire to record their arrangements with
respect to shares of common stock, no par value ("Common Stock"), of TXU Corp.,
a Texas corporation (the "Corporation"), the principal executive offices of
which are presently located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. In this Agreement:
(a) "Administrative Period" means the period commencing on
the date of the initial assignment and delivery by a Holder or a DLJMB
Affiliate to the Trustee of Shares to be held pursuant to this
Agreement and ending on the earlier of (i) the termination of the
voting trust created hereby pursuant to Section 8 or (ii) the removal
or resignation of the Trustee pursuant to Section 13.
(b) "Control Affiliate" means DLJMB and any person or entity
controlling, controlled by or under common control with, directly or
indirectly, DLJMB.
(c) "DLJMB Affiliate" means any person or entity who is a
Control Affiliate, Employee Affiliate or Other Affiliate.
(d) "Employee Affiliate" means any person employed by (or
who is the spouse, relative or relative of a spouse, in each case
residing in the home of a person employed by) a Control Affiliate.
(e) "Holder" means from time to time, any person or entity
for whom Shares are held hereunder by the Trustee.
(f) "Other Affiliate" means any person or entity that has a
substantial business relationship with a Control Affiliate and which
is not itself a Control Affiliate.
(g) "Securities Act" means the Securities Act of 1933, as
amended.
(h) "Share" means a share of Common Stock or a Share
Equivalent.
(i) "Share Equivalent" means at any time any security
convertible into, exchangeable for, or carrying the right to acquire
Common Stock or subscriptions, warrants, options, rights or other
arrangements obligating the Corporation to issue or
dispose of any shares of Common Stock or any shares of any other
voting class or series of stock of the Corporation, regardless whether
such security is convertible, exchangeable or exercisable at such
time.
SECTION 2. Deposit. On or after the date hereof, any DLJMB Affiliate
may, from time to time, deposit Shares with the Trustee to be held pursuant to
this Agreement by assigning and delivering such Shares to the Trustee.
SECTION 3. Transfer on Books of Corporation. The Trustee shall, to the
extent applicable, cause all Shares transferred to and deposited with it in its
capacity as Trustee hereunder (such Shares, the "Trust Shares") to be
transferred to it as Trustee on the books of the Corporation and will issue and
deliver by first class mail to each Holder a voting trust certificate (a "Trust
I Certificate") for the number of Shares so transferred to the Trustee.
SECTION 4. Form. Trust I Certificates shall be in substantially the
form attached hereto as Schedule A (with such modifications as may be
appropriate if the applicable Trust I Certificate represents Share Equivalents).
SECTION 5. Additional Trust I Certificates. Any Holder may at any time
deposit with the Trustee additional certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares. Any DLJMB Affiliate
acquiring Shares may at any time become a Holder by (a) depositing, or causing
to be deposited, certificates (or the equivalent evidence of ownership in the
case of Share Equivalents) for Shares, duly endorsed for transfer, with the
Trustee and (b) accepting a Trust I Certificate in respect of such Shares.
SECTION 6. Voting; Powers. At all times prior to the termination of
the voting trust created hereby, the Trustee shall have the exclusive right to
vote the Trust Shares, or give written consent, in person or by proxy, at all
meetings of shareholders of the Corporation, and in all proceedings in which the
vote or consent, written or otherwise, of the holders of Shares may be required
or authorized by law.
The Trustee shall vote all Trust Shares in accordance with this
Agreement. The Trustee shall have full power and authority, and it is hereby
empowered and authorized, to vote the Trust Shares as in its sole judgment it
believes to be in the best interest of the shareholders of the Corporation
generally, it being understood that the Trustee will exercise its independent
judgment in determining the best interests of the shareholders of the
Corporation, and to do any and all other things and take any and all other
actions as fully as any shareholder of the Corporation might do if personally
present at a meeting of the shareholders of the Corporation. Each Holder agrees
that it will not communicate with the Trustee in connection with any proceeding
in which the vote or consent of the holders of Shares may be required or
authorized by law or otherwise seek to influence the Trustee in the exercise of
its right to vote or consent in any such proceedings. Notwithstanding anything
herein to the contrary, the Trustee shall vote the Trust Shares (and use its
power or right, if any, to designate or remove directors of the Corporation) to
prevent the election of more than one DLJMB Affiliate as a director of the
Corporation. The duties of the Trustee under this Agreement shall include
exercising reasonable effort under this Agreement in a manner that ensures that
no DLJMB Affiliate exercises control over the Corporation. DLJMB shall promptly
provide to the Trustee from time to time such
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information as is reasonably necessary (including certificates and/or other
documents) in order to enable the Trustee to carry out the foregoing
obligations; provided, however, that the Trustee shall not be held responsible
for identifying an entity as a DLJMB Affiliate unless it has actual knowledge
that such entity is a DLJMB Affiliate.
SECTION 7. Dividends. If the Corporation pays or issues dividends or
makes other distributions on the Trust Shares, the Trustee shall accept and
receive such dividends and distributions. Upon receipt of dividends and
distributions the same shall be prorated among the Holders that have a
beneficial interest hereunder in the Trust Shares with respect to which such
dividend or other distribution was made in accordance with their interests and,
subject to the next sentence, the amount shall be distributed promptly pursuant
to transfer instructions set forth on Schedule C attached hereto. If the
dividend or distribution is in Shares, such Shares shall be held by the Trustee
under the voting trust created hereby and new Trust I Certificates representing
the Shares received shall be issued to the applicable Holders. Holders entitled
to receive such dividends or distributions, or Trust I Certificates in respect
thereof, described in this Section 7 shall be those Holders registered as such
on the transfer books of the Trustee at the close of business on the day fixed
by the Corporation for the taking of a record to determine those holders of its
stock entitled to receive such dividends or distributions. In the performance of
its duties to deliver cash dividends under this Agreement, the Trustee shall not
be obligated to risk its own funds and will not be liable for taxes or other
charges related to the delivery of such dividends or distributions.
SECTION 8. Termination. The voting trust created hereby shall
terminate on the earliest to occur of:
(a) ten years from the date hereof;
(b) the written election of DLJMB or the Holders of Trust I
Certificates representing fifty percent (50%) or more of the Trust
Shares thereby; provided, however, that (1) immediately after giving
effect to such termination, all DLJMB Affiliates will in the aggregate
beneficially own (through record ownership, contract or otherwise), as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, not more than 4.9% of the total fully diluted number of
shares of Common Stock then outstanding; the Trustee will be entitled
to rely conclusively on a certificate of an officer of DLJMB to the
effect of the foregoing proviso; and (2) DLJMB delivers to the Trustee
an opinion of independent, nationally recognized counsel who are
experts in matters involving the federal securities law, that,
immediately after giving effect to such termination, DLJMB should not
be an "affiliate" of the Corporation within the meaning of Rule 144
under the Securities Act; and
(c) transfer of all of the Trust Shares in accordance with
Section 9.
Subject to DLJMB's delivery of the officer's certificate and the
opinion of counsel described in Section 8(b) above, an election pursuant to
Section 8(b) shall be effective upon delivery of notice thereof to the Trustee.
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Upon the termination of the voting trust hereby created, the Holders
shall surrender their Trust I Certificates to the Trustee, and the Trustee shall
deliver by first class mail to the Holders certificates (or the equivalent
evidence of ownership in the case of Share Equivalents) for Shares, properly
endorsed for transfer (to the extent possible), equivalent to the number and
type of Shares represented by the respective Trust I Certificates surrendered.
SECTION 9. Transfer. Except as provided in Sections 8 and 10 and in
subsections (a), (b) and (c) of this Section 9, certificates (or the equivalent
evidence of ownership in the case of Share Equivalents) for Trust Shares may not
be delivered to a Holder, a Holder's designee or any other third party prior to
the termination of the voting trust created hereby.
(a) A Holder may notify the Trustee in writing that the Holder desires
to cause a certificate or certificates (or the equivalent evidence of ownership
in the case of Share Equivalents) for Trust Shares in which the Holder has a
beneficial interest hereunder to be transferred to any person or entity,
including such Holder, only if such transfer is an Eligible Transfer as defined
herein. Any person or entity that acquires Trust Shares pursuant to an Eligible
Transfer is hereinafter referred to as an "Eligible Transferee".
For purposes of this Section 9, an "Eligible Transfer" is defined as
any transfer of Trust Shares to a person who is not at the time of such transfer
a DLJMB Affiliate.
Such notice shall name such Eligible Transferee and shall state (i)
its mailing address, (ii) the proposed transfer date (which date shall be not
less than five days after the Trustee's receipt of such notice), (iii) the
number and type of Shares to be transferred and (iv) the consideration, if any,
to be paid by such Eligible Transferee therefor. The notice to the Trustee shall
also contain a representation that such transferee is an Eligible Transferee and
shall be accompanied by a Trust I Certificate or Certificates of the Holder,
duly endorsed for transfer, representing not less than the number of Shares of
the type to be transferred to the Eligible Transferee. On the date specified in
such notice, and upon receipt by the Trustee from such Eligible Transferee of
the specified consideration, if any, the Trustee shall deliver: (i) to the
Eligible Transferee, a certificate (or the equivalent evidence of ownership in
the case of Share Equivalents) for the number of Shares of the type specified in
such notice, registered in the name of the Trustee and duly endorsed for
transfer, and (ii) to the Holder, (x) a Trust I Certificate representing a
number of Shares, if any, equal to the number of Shares of the type represented
by the surrendered Trust I Certificate less the number of Shares of the type
transferred to such Eligible Transferee, and (y) the consideration, if any,
received from such Eligible Transferee. Such consideration shall be distributed
promptly to such Holder pursuant to the transfer instructions set forth on
Schedule B attached hereto.
(b) A Holder (hereinafter referred to as a "Requesting Party" for the
purpose of this Section 9(b)) may request of the Trustee in writing that the
Trustee transfer to such Requesting Party a certificate or certificates (or the
equivalent evidence of ownership in the case of Share Equivalents) for Shares in
which the Requesting Party has a beneficial interest hereunder; provided,
however, that the Trustee shall not honor such request if immediately after
giving effect thereto DLJMB Affiliates will own in the aggregate more than 4.9%
of the total number of shares of Common Stock then outstanding, and, provided
further, that if the Requesting Party is not DLJMB, the Trustee shall not honor
such request, unless DLJMB
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consents in writing to such request. In determining, for purposes of this
Section 9(b) only, whether DLJMB Affiliates will own in the aggregate more than
4.9% of the total number of shares of Common Stock then outstanding, (x) shares
of Common Stock underlying Share Equivalents owned by a DLJMB Affiliate shall be
deemed to be outstanding and owned by such DLJMB Affiliate and (y) Shares held
pursuant to this Agreement shall be excluded. Such written request shall name
such Requesting Party and shall state (i) the proposed transfer date (which date
shall be not less than four business days after the Trustee's receipt of such
request) and (ii) the number and type of Shares to be transferred. The notice to
the Trustee shall also be accompanied by (i) a Trust I Certificate or
Certificates of the Requesting Party, duly endorsed for transfer, representing
not less than the number of Shares of the type to be transferred to the
Requesting Party and (ii) a certificate of an officer of DLJMB certifying that
immediately after giving effect to such request all DLJMB Affiliates will own in
the aggregate not more than 4.9% of the total number of shares of Common Stock
then outstanding. The Trustee shall be entitled to conclusively rely upon such
certificate. On the date specified in such request, and upon receipt by the
Trustee from the Requesting Party of such certificates, the Trustee shall
deliver to the Requesting Party a certificate (or the equivalent evidence of
ownership in the case of Share Equivalents) for the number of Shares of the type
specified in such notice, registered in the name of the Trustee and duly
endorsed for transfer.
(c) A Holder may at any time direct the Trustee by notice in writing
to transfer a certificate or certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares in which the Holder has a
beneficial interest hereunder (i) to an underwriter (including DLJMB) in
connection with a public offering of the Shares registered under the Securities
Act or (ii) in connection with sales made pursuant to Rule 144 (other than
subsection (k) thereof) under the Securities Act through a broker-dealer
(including DLJMB). Such notice shall state (a) the underwriter's or broker
dealer's mailing address, (b) the proposed transfer date (which date shall not
be less than five days after the Trustee's receipt of such notice), (c) the
number and type of Shares to be transferred, and (d) the consideration, if any,
to be paid. The notice shall also be accompanied by a certificate of an officer
of the Holder certifying that such request is being made solely for sales made
in connection with a public offering of the Shares registered under the
Securities Act or sales made pursuant to Rule 144 (other than subsection (k)
thereof) under the Securities Act and a Trust I Certificate or Certificates of
the Holder, duly endorsed for transfer, representing not less than the number of
Shares of the type to be transferred. The Trustee shall be entitled to
conclusively rely upon such certificate. On the date specified in such notice,
and upon receipt by the Trustee from such underwriter or such other transferee
of the specified consideration, if any, the Trustee shall deliver: (x) to the
underwriter or such other transferee, a certificate (or the equivalent evidence
of ownership in the case of Share Equivalents) for the number of Shares of the
type specified in such notice, registered in the name of the Trustee and duly
endorsed for transfer, and (y) to the Holder, a Trust I Certificate representing
the number of Shares, if any, equal to the number of Shares represented by the
surrendered Trust I Certificate less the number of Shares transferred to such
underwriter or such other transferee, and (z) to the Holder, the consideration,
if any, received from such underwriter or such other transferee. Such
consideration shall be distributed promptly to the Holder pursuant to the
transfer instructions set forth on Schedule B attached hereto.
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Notwithstanding the foregoing, if the Holder intends to transfer
Shares pursuant to the exercise of the over-allotment option granted to the
underwriters in connection with a public offering of shares of Common Stock of
the Corporation, the transfer date in the notice may be less than four, but
shall not be less than two, business days after the Trustee's receipt of such
notice; provided, however, that if the transfer date in the notice is less than
four business days after the Trustee's receipt of the notice, the Trustee shall
only be obligated to use its reasonable best efforts to effect the transfer of
such Shares by such transfer date.
Nothing in this Section 9 or elsewhere in this Agreement shall
prohibit a Holder from transferring Trust I Certificates in accordance with the
terms of the Trust I Certificates.
SECTION 10. Exercise, Conversion, Exchange or Cancellation of Shares.
The Trustee shall, upon written instruction of a Holder, submit to the
Corporation for exercise, conversion, exchange or cancellation any Share in
which such Holder has a beneficial interest hereunder. Such notice shall state
(a) whether such Shares are to be exercised, converted, exchanged or cancelled,
(b) the date on which such Shares are to be submitted to the Corporation (which
date shall not be less than five days after the Trustee's receipt of such
notice), (c) the number and type of Shares to be submitted to the Corporation
and (d) the consideration, if any, to be received upon such exercise,
conversion, exchange or cancellation from the Corporation. The notice shall be
accompanied by (x) a Trust I Certificate or Certificates of the Holder, duly
endorsed for transfer, representing not less than the number of Shares of the
type to be submitted to the Corporation and (y) any exercise price or other
payment and any agreement, certificate or other documentation required in
connection with such exercise, conversion, exchange or cancellation. On the date
specified in such notice, and against receipt from the Corporation of the
specified consideration, if any, the Trustee shall deliver by first class mail:
(i) to the Corporation, (x) a certificate or certificates for the number of
Shares of the type specified in such notice, registered in the name of the
Trustee and duly endorsed for transfer and (y) any exercise price or other
payment and any agreement, certificate or other documentation delivered to the
Trustee by such Holder with such notice and (ii) to the Holder, (x) a Trust I
Certificate representing a number of Shares equal to the number of Shares
represented by the surrendered Trust I Certificate or Certificates less the
number of Shares submitted to the Corporation and (y) the consideration, if any,
received by the Trustee pursuant to such exercise, conversion, exchange or
cancellation; provided, however, that if such consideration includes Shares,
such Shares shall be held by the Trustee pursuant to this Agreement and new
Trust I Certificates representing such Shares shall be issued to such Holder.
SECTION 11. Increase or Decrease in Number of Shares. In the event of
an increase in the number of Shares by virtue of a stock split or the decrease
in the number of Shares because of a contraction of shares or a change in the
number of outstanding Shares as a result of some other recapitalization in which
the Corporation receives no consideration for the issuance of the additional or
reduced number of Shares, the new additional or changed number of Shares shall
be held by the Trustee and new Trust I Certificates representing the appropriate
changed number of Shares shall be issued to Holders upon surrender of the then
existing Trust I Certificates.
SECTION 12. Successor Trustee. There shall initially be one Trustee of
the voting trust created hereby. Upon the liquidation, dissolution, winding-up,
suspension,
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incapacity, resignation or removal (in accordance with Section 13 below) of the
initial Trustee, DLJMB or the Holders of Trust I Certificates representing fifty
percent (50%) or more of the Trust Shares shall appoint a successor Trustee;
provided, however, that such successor Trustee may not be a DLJMB Affiliate,
unless such Successor Trustee shall be an Other Affiliate that is a bank or
trust company. In the event a successor Trustee shall not have been appointed
within 30 days of such removal, the Trustee may petition a court of competent
jurisdiction to appoint such a successor. In the event that the Trustee
consolidates with, merges with or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation that is
a bank or trust company, the surviving or transferee corporation may become the
successor Trustee upon notice to the signatories hereto but without further
action by the signatories or any Holder.
SECTION 13. Removal/Resignation of Trustee. (a) A Trustee may be
removed by DLJMB or the Holders of Trust I Certificates representing fifty
percent (50%) or more of the Trust Shares:
(i) if it is determined by a court of competent jurisdiction
that either (A) the Trustee has willfully and materially violated the
terms of the trust created hereby, or (B) the Trustee has been guilty
of malfeasance, misfeasance or dereliction of duty hereunder;
(ii) if the Trustee shall have commenced a voluntary case or
other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect, or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall have consented to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall have made a general
assignment for the benefit of creditors, or shall have failed
generally to pay its debts as they become due, or shall have taken any
corporate action to authorize any of the foregoing; or
(iii) if an involuntary case or other proceeding shall have
been commenced against the Trustee seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect, or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall have remained
undismissed and unstayed for a period of 60 days, or an order for
relief shall have been entered against the Trustee under the federal
bankruptcy laws as now or hereafter in effect.
(b) If DLJMB or the Holders of Trust I Certificates representing fifty
percent (50%) or more of the Trust Shares then deposited hereunder determine
that a basis exists for removal of the Trustee under Section 13(a) above, they
shall deliver written notice of such determination to the Trustee stating the
basis for such removal.
(c) The Trustee may resign its position as such (i) upon ten days'
written notice to DLJMB, but only if a successor Trustee, appointed as provided
for in Section 12 above,
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has agreed to serve as such effective upon the effectiveness of the resignation
of the Trustee then acting, or (ii) in any event upon 30 days' written notice to
DLJMB.
SECTION 14. Trustee May Own Shares. Nothing in this Agreement shall
prevent the Trustee from owning Shares or options to purchase Shares in its
individual capacity or in any capacity other than as trustee hereunder or for
any DLJMB Affiliate.
SECTION 15. Trustee Not an Affiliate. The Trustee represents that it
is a bank or trust company that is not a Control Affiliate or an Employee
Affiliate.
SECTION 16. Compensation; Expenses. Reasonable expenses lawfully
incurred in the administration of the Trustee's duties hereunder shall be
reimbursed to it by DLJMB on behalf of the Holders. In connection with its
services to be provided hereunder, the Trustee shall receive a fee from DLJMB as
follows: (a) an initial fee of $3,000 payable upon the execution by the parties
of this Agreement, (b) during the Administrative Period, a fee of $4,500 per
annum, payable quarterly in advance, and (c) thereafter, such fee as the parties
may from time to time agree. The provisions of this Section 16 shall survive the
termination of this Agreement.
SECTION 17. Merger, Etc. Upon any merger, consolidation,
reorganization or dissolution of the Corporation or the sale of all or
substantially all of the assets of the Corporation pursuant to which shares of
capital stock or other voting securities of another corporation are to be issued
in payment or exchange for or upon conversion of Shares and other voting
securities, the shares of said other corporation shall automatically be and
become subject to the terms of this Agreement and be held by the Trustee
hereunder in the same manner and upon the same terms as the Trust Shares, and in
such event the Trustee shall issue to the Holders that have deposited Shares
with the Trustee new Trust I Certificates in lieu of the old Trust I
Certificates for the appropriate number of shares and other voting securities of
such other corporation.
At the request of any Holder, the Trustee may transfer, sell or
exchange or join with the Holder in such transfer, sale or exchange of Shares
and other voting securities in exchange for shares of another corporation, and
in said event the shares and other voting securities of the other corporation
received by the transferor shall be and become subject to this Agreement and be
held by the Trustee hereunder in the same manner as the Trust Shares.
SECTION 18. Notices. All notices, reports, statements and other
communications directed to the Trustee from the Corporation, other than
communications pertaining to the voting of the Trust Shares, shall be forwarded
promptly by the Trustee to DLJMB and each Holder. All notices, notices of
election and other communications required hereby shall be given in writing by
overnight courier, telegram or facsimile transmission and shall be addressed, or
sent, to the appropriate addresses as set forth beneath the signature of each
party hereto, or at such other address as to which notice is given in accordance
with this Section 18.
SECTION 19. Indemnity, Etc. The Trustee shall be indemnified from and
against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending
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against any litigation, commenced or threatened, or any claims whatsoever) (the
"Indemnified Claims") arising out of or based upon this Agreement or the actions
or failures to act of the Trustee hereunder or thereunder, except to the extent
such loss, liability, claim, damage or expense is caused by or results from the
Trustee's gross negligence or willful misconduct (as determined by a final and
unappealable order of a court of competent jurisdiction). DLJMB agrees on behalf
of the Holders that it will indemnify and hold harmless the Trustee from and
against any Indemnified Claims. DLJMB's obligation hereunder shall survive the
transfer of all or any portions of its Shares and interests, the termination of
the voting trust created hereby, or the resignation or removal of the Trustee.
The Trustee shall be entitled to the prompt reimbursement for its
out-of-pocket expenses (including reasonable attorneys' fees and expenses)
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, arising out of or based upon this Agreement, or the
actions or failures to act of the Trustee hereunder or thereunder, without
regard to the outcome of such litigation; provided, however, that the Trustee
shall be obligated to return any such reimbursement if it is subsequently
determined by a final and unappealable order of a court of competent
jurisdiction that the Trustee was grossly negligent or engaged in willful
misconduct in the matter in question. Such expenses payable under this Section
19 shall be prorated among the Holders in accordance with their respective
interests in the Shares then deposited hereunder.
If a claim under this Section 19 is not paid in full within 30 days
after a written claim has been submitted by the Trustee, the Trustee may at any
time thereafter bring suit to recover the unpaid amount of the claim and, if
successful in whole or in part, the Trustee shall be entitled to be paid also
the expense of prosecuting such claims.
The Trustee is authorized and empowered to construe this Agreement and
its construction of the same, made in good faith, shall be final, conclusive,
and binding upon all Holders and all other parties interested. The Trustee may,
in its discretion, consult with counsel to be selected and employed by it, and
the reasonable fees and expenses of such counsel shall be an expense for which
the Trustee is entitled to indemnity hereunder.
The Trustee hereby accepts the trust created hereby and agrees to
carry out the terms and provisions hereof, but assumes no responsibility for the
management of the Corporation or for any action taken by it, by any person
elected as a director of the Corporation or by the Corporation pursuant to any
vote cast or consent given by the Trustee. The Trustee, whether or not acting
upon the advice of counsel, shall incur no liability because of any error of law
or fact, mistake of judgment or any matter or thing done or omitted under this
Agreement, except its own malfeasance. Anything done or suffered in good faith
by the Trustee in accordance with the advice of counsel chosen as indicated
above shall be conclusive in favor of the Trustee against the Holders and any
other interested party.
The Trustee shall not be liable in any event for acts or defaults of
any other trustee or trustees (under this or any other voting trust of the
Corporation's securities) or for acts or defaults of any employee, agent, proxy
or attorney-in-fact of any other trustee or trustees. The Trustee shall be
protected and free from liability in acting upon any notice, request, consent,
certificate, declaration, guarantee, affidavit or other paper or document or
signature reasonably
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believed by it to be genuine and to have been signed by the proper party or
parties or by the party or parties purporting to have signed the same.
No provision of this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 20. Certain Calculations. For purposes of Sections 9, 12, 13,
16 and 19, a Holder owning a Trust I Certificate representing Share Equivalents
shall, in respect of such ownership, be deemed to be the Holder of a Trust I
Certificate representing the number of shares of Common Stock that the Trustee,
acting on behalf of such Holder, may acquire, whether by exercise, conversion,
subscription or otherwise, pursuant to or by reason of ownership of such Shares.
SECTION 21. Counterparts. This Agreement may be executed in multiple
counterparts all of which counterparts together shall constitute one agreement.
Upon execution of this Agreement and the establishment of the voting trust
created hereby, the Trustee shall cause a copy of this Agreement to be filed in
the registered office of the Corporation in the State of Texas and the Agreement
shall be open to inspection in the manner provided for inspection under the laws
of the State of Texas.
SECTION 22. Choice of Law. This Agreement is intended by the parties
to be governed and construed in accordance with the laws of the State of Texas,
except that the Trustee's rights and obligations shall be governed and construed
in accordance with the laws of the State of New York.
SECTION 23. Bond. The Trustee shall not be required to provide any
bond to secure the performance of its duties hereunder. SECTION 24. Reliance.
Each Holder acknowledges that DLJMB will rely on this Agreement in complying
with the federal securities laws. The Trustee acknowledges that DLJMB will rely
on the Trustee abiding by the terms of this Agreement, including, without
limitation, that (x) the Trustee will exercise independent judgment in voting
the shares and will not consult with any DLJMB Affiliate regarding the voting of
such shares and (y) the Trustee will not consent to any amendment or waiver of
this Agreement prohibited by Section 25 hereof whether or not such amendment or
waiver is approved by each of the parties hereto and all of the Holders.
SECTION 25. Amendments and Waivers. This Agreement may not be amended
or waived in any material respect, unless an independent, nationally recognized
counsel, who are experts in matters involving the federal securities law,
provides to DLJMB an opinion (which opinion and counsel shall be satisfactory to
DLJMB) that, immediately after such amendment or waiver, DLJMB should not be an
"affiliate" of the Corporation within the meaning of Rule 144 under the
Securities Act.
10
SECTION 26. Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any persons, firm or
corporation, other than the parties hereto and their successors and assigns, any
legal claim under any covenant, condition or provision hereof, all the
covenants, conditions and provisions contained in this Agreement being for the
sole benefit of the parties hereto and their successors and assigns. No party
may assign any of its rights or obligations under this Agreement without the
written consent of all the other parties, which consent may be withheld in the
sole discretion of the party whose consent is sought.
SECTION 27. Severability. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
11
EXECUTED COPY
EXECUTED as of the date and year first above written.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Trustee
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Trust Officer
Address: Corporate Trust Services
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UXT HOLDINGS, LLC
By:
-------------------------------------
Name:
Title:
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UXT INTERMEDIARY, LLC
By:
-------------------------------------
Name:
Title:
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MERCHANT BANKING III, INC.
By:
-------------------------------------
Name:
Title:
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EXECUTION COPY
SCHEDULE A
FORM OF TRUST I CERTIFICATE
"THE TRANSFER OF THIS TRUST I CERTIFICATE IS
SUBJECT TO TERMS AND CONDITIONS SET FORTH IN THE
VOTING TRUST I AGREEMENT (THE "AGREEMENT") DATED
AS OF MARCH 21, 2003, A COPY OF WHICH HAS BEEN
FILED IN THE REGISTERED OFFICE IN THE STATE OF
TEXAS OF TXU CORP., A TEXAS CORPORATION (THE
"CORPORATION"). SUCH COPY IS OPEN TO INSPECTION
DAILY DURING BUSINESS HOURS BY ANY SHAREHOLDER OF
THE CORPORATION OR ANY BENEFICIARY OF THE VOTING
TRUST CREATED PURSUANT TO THE AGREEMENT.
TXU Corp
TRUST I CERTIFICATE
Certificate No. No. of Shares
----- -----
This certifies that ____________ ("Holder") has transferred to the
undersigned Trustee the above-stated number of voting shares of common stock, no
par value, of TXU Corp., a Texas corporation (the "Corporation"), to be held by
the Trustee pursuant to the terms of the Agreement, a copy of which agreement
has been delivered to the above-named Holder and filed in the registered office
of the Corporation in the State of Texas. The Holder, or his registered assigns,
will be entitled (i) to receive payments equal to any and all cash dividends
collected by the Trustee on the above-stated number of shares, (ii) to receive
all other dividends or distributions except to the extent that property received
is required to be deposited in the trust created by the Agreement, and (iii) to
the delivery of a certificate or certificates for that number of shares on the
termination of the Agreement, in accordance with its provisions. At all times
prior to the termination of the trust created by the Agreement, the Trustee has
the exclusive right to vote the above-stated number of shares, or give written
consent, in person or by proxy, at all meetings of shareholders of the
Corporation, and in all proceedings in which the vote or consent, written or
otherwise, of the holders of Shares may be required or authorized by law.
Subject to the terms of the Agreement, this Trust I Certificate is
transferable on the books maintained by the Trustee at the principal corporate
trust office of the Trustee by the Holder hereof, in person or by duly
authorized attorney, and upon surrender hereof; and until so
transferred the Trustee may treat the registered Holder hereof as the absolute
owner hereof for all purposes.
The Holder, by the acceptance of this Trust I Certificate, agrees to
be bound by all of the provisions of the Agreement as fully as if its terms were
set forth in this Trust I Certificate.
EXECUTED this day of ,
--- ----------- ----
--------------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
[Form of Assignment for Reverse of Trust I Certificate]
For value received, ___________ hereby sells, assigns, and transfers
unto ____________ the within Trust I Certificate and all rights and interests
represented thereby, and does hereby irrevocably constitute and appoint _______
attorney to transfer such Trust I Certificate on the books of the within-named
Trustee with full power of substitution in the premises.
Date:
--------------------------
Signed: *"
-------------------
*Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
2
EXECUTION COPY
SCHEDULE B
TRANSFER INSTRUCTIONS
UXT Holdings, LLC
All payments shall be made by check mailed to:
UXT Holdings, LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, 13th Floor
UXT Intermediary, LLC
All payments shall be made by check mailed to:
UXT Intermediary, LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, 13th Floor