1st. Amended & Restated Voting Trust Agreement

EXHIBIT 10.6


FIRST AMENDMENT TO THE
FIRST AMENDED AND RESTATED
VOTING TRUST AGREEMENT
REGARDING SHARES ISSUED TO DAVID J. SHIMMON


This FIRST AMENDMENT to the FIRST AMENDED AND RESTATED VOTING TRUST AGREEMENT ("AMENDMENT") is entered into as of December 1, 1996 ("EXECUTION DATE") by and among William A. Bianco, Jr. (the "VOTING TRUSTEE") and David J. Shimmon, an individual ("SHIMMON").


RECITALS


A. VOTING TRUSTEE, SHIMMON and others entered into a Voting Trust Agreement on June 30, 1994, an Extension Agreement on June 12, 1995 and a First Amended and Restated Voting Trust Agreement Regarding Shares Issued to David J. Shimmon effective as of April 1, 1996 (collectively, the "ORIGINAL AGREEMENT").


B. The KSI Group, Inc., a Delaware corporation (the "COMPANY") is contemplating the effectuation of a "QUALIFIED PUBLIC OFFERING" as defined in the Articles of Incorporation of the CORPORATION effective as of the EXECUTION DATE.


C. Section 7.7 of the ORIGINAL AGREEMENT grants VOTING TRUSTEE and the "BENEFICIAL OWNER" the right to amend the ORIGINAL AGREEMENT.


D. SHIMMON currently is the "BENEFICIAL OWNER" as defined in the ORIGINAL AGREEMENT.


E. The VOTING TRUSTEE and SHIMMON desire to amend the ORIGINAL AGREEMENT as set forth below effective as of the closing of the QUALIFIED PUBLIC OFFERING (the "CLOSING").


NOW, THEREFORE, THE ORIGINAL AGREEMENT is amended as set forth below:


1. Conditioned Upon Effectuation of the CLOSING. Effective as of the
-------------------------------------------- CLOSING, and only upon the CLOSING, the ORIGINAL AGREEMENT is amended as set forth below.


2. Amendments. Sections 2.5 and 3.2 of the ORIGINAL AGREEMENT shall be
---------- amended in their entirety as set forth below:


2.5 Transfer of BENEFICIAL CERTIFICATES. The BENEFICIAL CERTIFICATES
-----------------------------------
shall be transferable only as provided in (a) the BENEFICIAL CERTIFICATES
and (b) this AGREEMENT and upon payment of any charges in effect at the
time of transfer. All transfers shall be recorded in accordance with
Section 5.2 below. Any transfer made of any BENEFICIAL CERTIFICATE shall
vest in the transferee all rights of the transferor and shall subject the
transferee to the same


limitations as those imposed on the transferor by the terms of the
BENEFICIAL CERTIFICATE so transferred and this AGREEMENT. Upon such
transfer the VOTING TRUSTEE shall deliver a BENEFICIAL CERTIFICATE or
CERTIFICATES to the transferee for the number of shares represented by the
BENEFICIAL CERTIFICATE so transferred.


3.2 Rights of BENEFICIAL OWNER. Notwithstanding the provisions of
--------------------------
Section 3.1 above:


a. the BENEFICIAL OWNER shall have the exclusive right to make
the decisions required under (a) the First Amended and Restated Hoover/The
KSI Group, Inc. Rights Agreement dated April 1, 1996 and (b) the First
Amended and Restated Registration Rights Agreement dated April 1, 1996.


b. The decision whether to (i) sell the VOTING TRUST
CERTIFICATES or (ii) vote in favor of the proposed dissolution and
liquidation, merger or consolidation of the COMPANY or a sale of all or
substantially all of its assets shall require the consent of both the
VOTING TRUSTEE and the BENEFICIAL OWNER.


3. Full Effect. Except as modified above, the ORIGINAL AGREEMENT shall
----------- remain in full force and effect.


VOTING TRUSTEE:


/s/ William A. Bianco, Jr.
------------------------------
William A. Bianco, Jr.


SHIMMON:


/s/ David J. Shimmon
------------------------------
David J. Shimmon


FIRST AMENDED AND RESTATED
VOTING TRUST AGREEMENT
REGARDING SHARES ISSUED TO DAVID J. SHIMMON


This FIRST AMENDED AND RESTATED VOTING TRUST AGREEMENT ("AGREEMENT") is entered into effective as of April 1, 1996 ("EXECUTION DATE") by and among William A. Bianco, Jr. (the "VOTING TRUSTEE"), David J. Shimmon, an individual ("SHIMMON"), Kinetic Systems, Inc., a California corporation ("KSI CA"), The KSI Group, Inc., a Delaware corporation (the "COMPANY"), and Doty & Sundheim, a Professional Corporation (the "ESCROW HOLDER").


RECITALS


A. The parties entered into a Voting Trust Agreement on June 30, 1994 and an Extension Agreement on June 12, 1995 (collectively, the "ORIGINAL AGREEMENT"). The parties wish to amend and restate the ORIGINAL AGREEMENT in its entirety.


B. The parties have entered into this AGREEMENT to provide the VOTING TRUSTEE, the President of the COMPANY and, through The Bianco Family 1991 Trust (the "BIANCO FAMILY TRUST"), the controlling shareholder of the COMPANY, certain voting rights with respect to certain shares held by SHIMMON, as such shares are defined below.


THE PARTIES AGREE AS FOLLOWS:


1. VOTING TRUSTEE. There shall be one voting trustee of this voting
-------------- trust (the "VOTING TRUST"). Except as set forth in Section 6.7 below, the first and only voting trustee shall be William A. Bianco, Jr.


2. DEPOSIT AND TRANSFER OF SHARES--ISSUANCE AND TRANSFER OF VOTING
--------------------------------------------------------------- TRUST CERTIFICATES. - ------------------


2.1 Deposit of Shares. Upon execution of this AGREEMENT, SHIMMON
----------------- shall deposit with the ESCROW HOLDER the certificates for all shares of the COMPANY which he owns (the "SHIMMON CERTIFICATES"). In the event SHIMMON is issued any additional shares by the COMPANY during the term of this AGREEMENT, such additional shares shall be deposited as set forth above and shall be included in the definition of "SHIMMON CERTIFICATES". The SHIMMON CERTIFICATES shall be endorsed in blank or to the VOTING TRUSTEE, and be accompanied by such instruments of transfer as to enable the COMPANY to cause such certificates to be transferred to the name of the VOTING TRUSTEE.


2.2 Transfer of VOTING TRUST CERTIFICATES to VOTING TRUSTEE. All
------------------------------------------------------- SHIMMON CERTIFICATES delivered to the ESCROW HOLDER shall be surrendered by the ESCROW HOLDER to the COMPANY and canceled. New share certificates shall be issued in the name of the VOTING TRUSTEE. The new share certificates shall state that they


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are issued pursuant to this AGREEMENT. This fact shall also be noted in the entry of ownership of the shares by the VOTING TRUSTEE in the stock transfer records of the COMPANY. (The certificates issued to the VOTING TRUSTEE under this Section hereafter shall be referred to as the "VOTING TRUST CERTIFICATES".)


2.3 BENEFICIAL CERTIFICATES. The VOTING TRUSTEE shall hold the VOTING
----------------------- TRUST CERTIFICATES subject to the terms of this AGREEMENT. The COMPANY shall thereupon issue and deliver to SHIMMON certificates representing SHIMMON'S beneficial interest in the COMPANY. The voting trust beneficial certificates shall be in substantially the form of Exhibit 2.3 attached hereto (the "BENEFICIAL CERTIFICATES"). (SHIMMON and any subsequent beneficial owner hereafter shall be referred to as the "BENEFICIAL OWNER".)


2.4 Fractional BENEFICIAL CERTIFICATES. In the event the interest in
---------------------------------- this VOTING TRUST which is owned by any holder cannot be fully represented by whole BENEFICIAL CERTIFICATES, the VOTING TRUSTEE may issue fractional share certificates, scrip, or other evidence of ownership of the fractional part of one BENEFICIAL CERTIFICATE which in their discretion properly indicates ownership of the fractional interest represented thereby. In the event of such issue, the fractional interest shall, under no circumstances, have any greater rights nor lesser liabilities than any other BENEFICIAL CERTIFICATE provided for herein.


2.5 Transfer of BENEFICIAL CERTIFICATES. The BENEFICIAL CERTIFICATES
----------------------------------- shall be transferable only as provided in (a) the BENEFICIAL CERTIFICATES, (b) this AGREEMENT, (c) the Kinetic Systems, Inc. 1996 Shareholder Agreement dated April 1, 1996 and any successor agreement or amendment thereto (the "SHAREHOLDER AGREEMENT") and upon payment of any charges in effect at the time of transfer. All transfers shall be recorded in accordance with Section 5. 2 below. Any transfer made of any BENEFICIAL CERTIFICATE shall vest in the transferee all rights of the transferor and shall subject the transferee to the same limitations as those imposed on the transferor by the terms of the BENEFICIAL CERTIFICATE so transferred, this AGREEMENT and the SHAREHOLDER AGREEMENT. Upon such transfer the VOTING TRUSTEE shall deliver a BENEFICIAL CERTIFICATE or CERTIFICATES to the transferee for the number of shares represented by the BENEFICIAL CERTIFICATE so transferred.


2.6 Proof of Ownership. The VOTING TRUSTEE shall not be required to
------------------ recognize any transfer of a BENEFICIAL CERTIFICATE not made in accordance with the provisions hereof unless the person or persons claiming such ownership shall have produced indicia of title satisfactory to the VOTING TRUSTEE, and shall have deposited with the VOTING TRUSTEE indemnity satisfactory to him.


2.7 Holder of BENEFICIAL CERTIFICATE as Owner. The VOTING TRUSTEE may
----------------------------------------- treat the registered holder, for the time being, of each BENEFICIAL CERTIFICATE (or when presented duly endorsed in blank for transfer, the bearer thereof) as the absolute owner and holder thereof and of all the rights and interests represented thereby for all purposes


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whatsoever. The VOTING TRUSTEE shall not be bound or affected by any notice to the contrary.


2.8 Replacement of BENEFICIAL CERTIFICATE. If a BENEFICIAL
------------------------------------- CERTIFICATE is lost, stolen, mutilated, or destroyed, the VOTING TRUSTEE, in his discretion, may issue a duplicate of the BENEFICIAL CERTIFICATE upon receipt of (a) evidence of such fact and (b) indemnification satisfactory to him.


3. VOTING AND ACTION BY VOTING TRUSTEE.
-----------------------------------


3.1 Voting of VOTING TRUST CERTIFICATES. Subject to the provisions
----------------------------------- of Section 3.2 below, so long as the VOTING TRUSTEE shall hold VOTING TRUST CERTIFICATES deposited pursuant to the provisions of this AGREEMENT, he shall possess and in his unrestricted discretion shall be entitled to exercise in person or by his attorneys-in-fact or proxies, all rights and powers of absolute owners and holders of the VOTING TRUST CERTIFICATES, including the full and unqualified right to vote, assent or consent with respect thereto and to take part in and consent to any corporate or shareholders' action of any kind whatsoever. No other person shall have any voting rights in respect to the VOTIN ...