Exhibit 10.41
AMENDED AND
RESTATED
VOTING TRUST
AGREEMENT
AMENDED AND RESTATED VOTING TRUST
AGREEMENT made at Newtown, Pennsylvania, as of April 1, 2004, among
ICT Group Inc., a Pennsylvania corporation (hereinafter called the
“Company”) and John J. Brennan (“JBrennan”)
and Donald P. Brennan (“DBrennan”) and any other
Shareholders of the Company who now or hereafter become parties
hereto (hereinafter called the “Shareholders”), with
JBrennan and DBrennan in such persons’ capacity as voting
trustees hereunder, together with any additional or successor
trustees (hereinafter being collectively called the
“Trustees”).
W I T N E S
S E T H :
WHEREAS, the Shareholders and the
Company are parties to a Shareholders’ Agreement dated as of
October 16, 2000 (the “Shareholders’ Agreement”);
and
WHEREAS, JBrennan and DBrennan, as
Trustees and as the only Shareholders who as of the date hereof are
beneficial owners hereunder, and the Company, as the sole parties
hereto, believe it is desirable to further amend and restate the
Voting Trust Agreement dated February 2, 1996, as previously
amended and restated as of October 16, 2000, in the manner set
forth herein; and
WHEREAS the Trustees have consented
to continue to act under this Agreement as so amended and restated
for the purposes herein provided,
NOW THEREFORE, in consideration of
the foregoing premises and of the mutual covenants and agreements
contained in this Agreement, the parties hereto, intending to be
legally bound, hereby amend and restate this Voting Trust Agreement
as follows:
1. Voting Trust Agreement .
Copies of this Agreement, and of every agreement supplemental
hereto or amendatory hereof, shall be kept on file in the principal
office of the Company and shall be open to the inspection of any
stockholder of the Company, daily during business hours. All voting
trust certificates issued as hereinafter provided shall be issued,
received, and held subject to all the terms of this Agreement.
Every person, firm, corporation or other entity entitled to receive
voting trust certificates representing shares of the
Company’s voting stock, and their transferees and assigns,
upon accepting the voting trust certificates issued hereunder,
shall be bound by the provisions of this Agreement.
2. Transfer of Shares to
Trustees .
(a) The Trustees shall hold shares
of the Company transferred to them as Trustees hereunder and shall
be vested, as Trustees of an active trust, with the right to vote
and act and to exercise other rights pertaining to such shares, as
and to the extent, and upon the terms and conditions and for the
period set forth in this Agreement. Additional voting shares of the
Company or shares of voting stock of another corporation may be
transferred to the Trustees from time to time in accordance with
the provisions of the Shareholders’ Agreement or
otherwise,
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and the Trustees shall accept and hold any such
shares so transferred in accordance with the provisions hereof. No
shares shall be deposited hereunder except shares having general
voting powers, as provided in the Articles of Incorporation of the
Company or such other corporation the stock of which is held
hereunder. All such share certificates shall be endorsed, or
accompanied by such instruments of transfer, as to enable the
Trustees to cause such shares to be transferred into the name of
the Trustees, as hereinafter provided. On receipt by the Trustees
of the certificates for any such shares and the transfer of the
same into the names of the Trustees, the Trustees shall hold the
same subject to the terms of this Agreement, and shall thereupon
issue and deliver to the Shareholder voting trust certificates for
the shares so deposited. Except as hereinafter provided, any shares
transferred to the Trustees to be held hereunder shall be held and
administered hereunder until the termination of the Voting Trust
pursuant to paragraph 12 hereof or the execution of a deed of
termination with respect to any such shares pursuant to
subparagraph 12(a)(1) hereof. If the Trustees receive and hold
shares of a corporation other than the Company, the Trustees shall
issue a separate class of voting trust certificates to represent
the beneficial ownership of such shares and the rights of the
holders of such class of certificates shall, with respect to the
shares represented by such certificates, be the same as those of
holders of certificates representing shares of the Company, except
to the extent the rights of holders of certificates representing
shares of the Company are affected by the Shareholders’
Agreement. At any time the Trustees hold stock of
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a corporation other than the Company pursuant to
the provisions hereof, the term “Company” herein shall
also be deemed to refer to such other corporation, considered as a
separate entity.
(b) All certificates for shares of
the Company or of another corporation transferred and delivered to
the Trustees pursuant to this Agreement shall be surrendered by the
Trustees to the Company or such other corporation and cancelled,
and new certificates therefor shall be issued to and held by the
Trustees in the names of “John J. Brennan and Donald P.
Brennan [and the name of any Limited Voting Trustee or the names of
any successor Trustees], as Voting Trustees”.
3. Voting Trust Certificates
. The Trustees shall maintain a voting trust certificate register
in which each holder of a voting trust certificate issued under
this Agreement, and the number of shares represented by each voting
trust certificate will be identified. The voting trust certificates
shall be in the form attached hereto as Exhibit A (and shall
include any appropriate legends required by Section 14 of this
Agreement). Voting trust certificates previously issued pursuant to
the Voting Trust Agreement prior to this amendment and restatement
shall be deemed to comply with this paragraph provided that upon a
transfer of any such voting trust certificate, the new voting trust
certificate issued to the transferee pursuant to paragraph 4 below
shall be issued in the form attached hereto as Exhibit
A.
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4. Transfer of Certificates
.
(a) The voting trust certificates,
if and to the extent transferable under applicable securities law
or under any agreement restricting transferability including,
without limitation, the Shareholders’ Agreement, shall be
transferable at the principal office of the Company (and at such
other office as the Trustees may designate by an instrument in
writing signed by the Trustees and sent by mail to the registered
holders of voting trust certificates), on the books of the
Trustees, by the registered owner thereof, either in person or by
attorney thereto duly authorized, upon surrender thereof, according
to the rules established for that purpose by the Trustees, subject
to the provisions set forth in this Section below. If a transfer of
voting trust certificates is so permitted, the holder shall notify
the Trustees of the details of such transfer, including the name,
address and social security number of the transferee and number of
shares as to which the beneficial interest is being transferred,
and shall surrender to the Trustees the voting trust certificate or
certificates representing such shares, properly endorsed for
transfer, and the Trustees shall, upon receipt of such notice and
voting trust certificate(s), transfer the voting trust certificates
on the voting trust certificate registry and issue a new voting
trust certificate to the transferee. Until so transferred, the
Trustees may treat the record holders of voting trust certificates
as the owners of said voting trust certificates for all purposes
whatsoever. As a condition to making any transfer or delivery of
voting trust certificates, the Trustees may require compliance by
the transferee with any applicable federal or state
statute
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and the payment of a sum sufficient to pay for
any stamp tax or other governmental charge in connection therewith.
Except as provided in subparagraph 4(b) below, no transfer of
voting trust certificates shall cause the shares represented by
such certificate or certificates to be distributable to the
transferee by the Trustees or otherwise cause the provisions of
this Agreement to cease to apply to such shares. Any transferee, by
accepting a transfer of a voting trust certificate, does hereby
consent to be bound by the terms of this Agreement, and upon
becoming a holder of voting trust certificates shall be deemed to
be a party hereto as though an original signatory
hereto.
(b) After a transfer of a voting
trust certificate pursuant to the Shareholders’ Agreement to
any person other than an Original Shareholder, a Permitted Donee of
an Original Shareholder or the Company, the Trustees shall deliver
the shares represented by such voting trust certificate(s) to the
transferee upon surrender of such transferred voting trust
certificates:
(c) If a voting trust certificate is
lost, stolen, mutilated, or destroyed, the holder thereof shall
promptly notify the Trustees and the Trustees, in the
Trustees’ discretion, may issue to such holder a duplicate of
such certificate upon receipt of: (1) evidence of such fact
satisfactory to the Trustees; (2) indemnity satisfactory to the
Trustees (whether bond or otherwise in such form or amount and with
such surety as the Trustees may require to indemnify the Trustees
against loss or liability that might arise due to the issuance of
such new voting trust certificate); (3) the existing certificate,
if mutilated; and (4) the
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reasonable fees and expenses of the Trustees in
connection with the issuance of a new trust certificate. The
Trustees shall not be required to recognize any transfer of a
voting trust certificate not made in accordance with the provisions
hereof, unless the person claiming such ownership shall have
produced indicia of title satisfactory to the Trustees, and shall
in addition deposit with the Trustees indemnity satisfactory to the
Trustees.
5. Termination Procedure
.
(a) Subject to the provisions of
Section 12, upon the termination of this Agreement at any time, as
hereinafter provided, the Trustees, at such time as the Trustees
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 Trustees. After the date specified in any such notice
(which shall be no later than thirty (30) days after such
termination), 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 Agreement other than to receive
certificates for shares of the Company or other property
distributable under the terms hereof upon the surrender of such
voting trust certificates.
(b) Within thirty (30) days after
the termination of this Agreement, the Trustees shall deliver, to
the registered holders of all voting trust certificates,
certificates for the number of shares represented thereby (and
other property then held hereunder), upon the surrender thereof
properly endorsed, such delivery to be made in each case at the
office of the Company.
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(c) At any time subsequent to the
termination of this Agreement and prior to thirty (30) days after
such termination, the Trustees may deposit with the Company share
certificates representing the number of shares (and other property)
represented by the voting trust certificates then outstanding, with
authority in writing to the Company to deliver such share
certificates (and other property) in exchange for voting trust
certificates representing a like number of shares and for the
Company to call upon and require all holders of voting trust
certificates to so surrender them; and upon such deposit all
further liability of the Trustees for the delivery of such share
certificates and the delivery or payment of dividends upon
surrender of the voting trust certificates shall cease, and the
Trustees shall not be required to take any further action
hereunder.
6. Dividends .
(a) Until the termination of this
Agreement pursuant to the terms of Section 12, the holder of each
voting trust certificate shall be entitled to receive from the
Trustees payments equal to the cash dividends, if any, received by
the Trustees upon the shares represented by each such voting trust
certificate registered in the name of such holder in the voting
trust certificate register. If any dividend in respect of the
shares deposited with the Trustees is paid, in whole or in part, in
voting shares of the Company, the Trustees shall likewise hold,
subject to the terms of this Agreement, the certificates for such
voting shares which are
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received by the Trustees on account of such
dividend, and the holder of each voting trust certificate
representing shares on which such stock dividend has been paid
shall be entitled to receive a voting trust certificate for the
number of shares received as such dividend. Holders entitled to
receive the dividends described above shall be those registered as
such on the transfer books of the Trustees at the close of business
on the day fixed by the Company for the taking of a record to
determine those holders of its shares of stock entitled to receive
such dividends.
(b) Except as otherwise provided in
Section 12, if any dividend in respect of the shares deposited with
the Trustees is paid other than in cash or in voting shares, then
the Trustees shall distribute the same among the holders of voting
trust certificates registered as such at the close of business on
the day fixed by the Trustees 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 in
respect of which such distribution was paid.
(c) In lieu of receiving dividends
upon the shares which are payable in cash and/or property other
than voting shares and paying the same to the holders of voting
trust certificates pursuant to the provisions of this Agreement,
the Trustees may instruct the Company in writing to pay such
dividends to the holders of the voting trust certificates. Upon
receipt of such written instructions, the Company shall pay such
dividends directly to the holders
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of the voting trust certificates. Upon such
instructions being given by the Trustees to the Company, and until
revoked by the Trustees, all liability of the Trustees with respect
to such dividends shall cease. The Trustees may at any time revoke
such instructions and by written notice to the Company direct it to
make such dividend payments to the Trustees.
7. Subscription Rights . In
case any stock or other securities of the Company are offered for
subscription to the holders of shares deposited hereunder, the
Trustees, promptly upon receipt of notice of such offer, shall mail
a copy thereof to each of the holders of the voting trust
certificates. Upon receipt by the Trustees, at least five (5) days
prior to the last day fixed by the Company for subscription and
payment, of a request from any such registered holder of voting
trust certificates to subscribe in such holder’s behalf,
accompanied with the sum of money required to pay for such stock or
securities (not in excess of the amount subject to subscription in
respect to the shares represented by the voting trust certificate
held by such certificate holder), the Trustees shall make such
subscription and payment, and upon receiving from the Company the
certificates for shares or securities so subscribed for, shall
issue to such holder a voting trust certificate in respect of
voting shares so received and shall mail or deliver such other
stock or securities to the certificate holder in whose behalf the
subscription was made, or may instruct the Company to make delivery
directly to the certificate holder entitled thereto. In case any
reduction of the voting shares of the Company shall have been duly
authorized, the Trustees are hereby authorized
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to make such surrender of shares of the Company
held by the Trustees hereunder, pro-rata on behalf of all holders
of voting trust certificates, as may be required under the terms
pursuant to which such reduction is to be effected, and to receive
and hold any and all voting shares of the Company issued in
exchange for such surrendered shares and to distribute any cash or
property other than voting shares received in exchange for such
surrendered shares to the certificate holders entitled thereto.
Following any such action, the voting trust certificates issued and
outstanding pursuant hereto shall be deemed to represent a
proportionately reduced number of shares.
8. Dissolution of Company .
In the event of the dissolution or total or partial liquidation of
the Company, whether voluntary or involuntary, the Trustees shall
receive the moneys, securities, rights, or property to which the
holders of shares deposited hereunder are entitled, and shall
timely distribute the same among the registered holders of voting
trust certificates in proportion to their interests, as shown by
the books of the Trustees, or the Trustees may in the
Trustees’ discretion deposit such moneys, securities, rights,
or property with any bank as the Trustees may select, with
authority and instructions to distribute the same as above,
provided that the Trustees shall continue-to hold the shares of any
corporation as to which the Trustees then hold hereunder (including
by reason of receipt from the Company upon such liquidation or
dissolution) more than fifty percent (50%) of the aggregate voting
stock in accordance with the provisions hereof as if such shares
were voting shares of the Company.
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9. Merger or Consolidation .
Except as otherwise provided in Section 12 hereof, in the event the
Company is merged into or consolidated with another corporation or
shares of the Company are exchanged for shares of another
corporation (including in connection with a reorganization of the
Company), the Trustees shall receive and hold, as Trustees
hereunder, any stock of such successor or other corporation
received on account of the ownership of shares of the Company held
hereunder prior to such merger, consolidation or exchange, provided
that the Trustees shall distribute to the certificate holders
entitled thereto the stock of the Company or of another corporation
at such time as the ownership by the Trustees hereunder of stock of
the Company or such other corporation is not greater than fifty
percent (50%) of the voting stock thereof.
10. Rights of Trustees
.
(a) Until the actual delivery to the
holders of voting trust certificates issued hereunder of stock
certificates in exchange therefor, and until the surrender of the
voting trust certificates for cancellation, the Trustees shall
possess and have the exclusive right, except as otherwise expressly
provided in this Agreement or the Shareholders’ Agreement, to
exercise, in person or by nominees or proxies of the Trustees, all
Shareholders’ voting rights and powers in respect to all
shares deposited hereunder, for any and every purpose, and to take
part in or consent to any corporate or stockholders’ action
of any kind whatsoever, as absolute owner of such shares. The
Shareholders have hereby assigned to Trustees all voting rights
that they otherwise might have had arising out of any
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ownership of the shares, whether by operation of
law or agreement. The right to vote shall include the right to vote
for or against or to abstain with respect to the election of
directors, and in favor of or against or to abstain with respect to
any resolution or proposed action of any character whatsoever,
which may be presented at any meeting or require the consent of
shareholders of the Company. Without limiting such general right,
it is understood that such action or proceeding may include, upon
terms satisfactory to the Trustees or to their nominees or proxies
thereto appointed by the Trustees, mortgaging, creating a security
interest in, and pledging of all or any part of the property of the
Company, the lease or sale of all or any part of the property of
the Company, for cash, securities, or other property, and the
dissolution of the Company, or the consolidation, merger,
reorganization, or recapitalization of the Company. It is further
understood that: (i) action by the Trustees in voting or not voting
stock deposited hereunder in instances where there are
shareholders’ statutory rights of appraisal may effectively
waive or terminate any such rights as to the shares represented
thereby, and (ii) the Trustees, in taking part in, or consenting
to, any corporate or stockholders’ action, as provided in
this subparagraph, may enter into any agreements and take such
actions which, in the determination of the Trustees, are
reasonable, including, but not limited to, agreements which provide
representations, warranties and covenants on behalf of Shareholders
who are subject to this Voting Trust and provisions relating to
indemnification for breach of such representations. Should there be
any such agreements or provisions of the
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type referred to in (ii) above, the term of this
Agreement shall be extended to cover whatever period of time is
necessary for the Voting Trustees to carry out the functions of the
Trustees (such as contesting or settling claims; receiving and
distributing proceeds and interest on behalf of the Shareholders,
and any others) arising therefrom.
(b) In voting the shares held by the
Trustees hereunder either in person or by nominees or proxies, each
Trustee shall exercise the Trustee’s best judgment to
exercise the vote of the Trustee with respect to suitable directors
and officers of the Company (which may include the Trustees), or to
the adequacy of any consideration to be received by the Company and
its shareholders, and shall otherwise, insofar as the Trustees may
be a shareholder of the Company, take such part or action in
respect to the management of its affairs as the Trustees may deem
necessary to the end that the Trustees may be advised on the
affairs of the Company and the management ther
