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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
Gaylord Entertainment Company
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
367905106
- --------------------------------------------------------------------------------
(CUSIP Number)
Frederic T. Spindel, Esq.
Reed Smith Shaw & McClay
1301 K Street, N.W., Suite 1100-East Tower,
Washington, DC 20005;
telephone: (202) 414-9200
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
September 30, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
PAGE 1 OF 5 PAGES
2
SCHEDULE 13D
CUSIP NO. 367905106 PAGE 2 OF 11 PAGES
---------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Oklahoma Publishing Company Voting Trust
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Organized under Delaware law
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
12,575,974
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
12,575,974
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,575,974
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
38.71%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
3
SCHEDULE 13D
CUSIP NO. 367905106 PAGE 3 OF 11 PAGES
---------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward L. Gaylord
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
292,955
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
12,861,515
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
292,955
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
12,861,515
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,154,470
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.49%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
4
SCHEDULE 13D
CUSIP NO. 367905106 PAGE 4 OF 11 PAGES
---------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edith Gaylord Harper
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
396,934
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
12,575,974
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
396,934
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
12,575,974
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,972,908
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.93%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
5
This Schedule 13D is being filed jointly by The Oklahoma Publishing
Company Voting Trust (the "Voting Trust"), Edward L. Gaylord, Edward K.
Gaylord II, Edith Gaylord Harper, and Christine Gaylord Everest (hereinafter
collectively referred to as the "Reporting Persons" and, excluding the Voting
Trust, as the "individual Reporting Persons"), respecting the Common Stock,
$.01 par value ("Common Stock"), of Gaylord Entertainment Company (the
"Issuer").
ITEM 1. SECURITY AND ISSUER.
The class of equity securities is Common Stock, $.01 par value. The
issuer of the securities is Gaylord Entertainment Company, a Delaware
corporation. The address of the Issuer's principal executive offices is:
2802 Opryland Drive
Nashville, Tennessee 37214
ITEM 2. IDENTITY AND BACKGROUND.
The identity, business or residence address, and occupation (as
applicable) of the Reporting Persons are as follows:
The Oklahoma Publishing Company Voting Trust is a trust created under
Delaware law pursuant to an agreement made and entered into as of October 3,
1990, as amended effective October 23, 1991. The address for the Voting Trust
is:
The Oklahoma Publishing Company Voting Trust
c/o Edward L. Gaylord, Voting Trustee
9000 North Broadway
Oklahoma City, Oklahoma 73114
There are five Voting Trustees:
Edward L. Gaylord
Edward K. Gaylord II
Edith Gaylord Harper
Christine Gaylord Everest
Martin C. Dickinson
The Voting Trust holds securities deposited therein by the owners, or
securities resulting from dividends and other distributions on the securities
deposited. The Voting Trustees vote the shares held in the Voting Trust in
accordance with the decision of 60% of the Voting Trustees. Shares may be
withdrawn from the Voting Trust only with the consent of 60% of the Voting
Trustees.
The Voting Trust was originally created to vote shares of stock of The
Oklahoma Publishing Company ("OPUBCO"). The Voting Trust was later amended to
include securities of the original
6
Gaylord Entertainment Company ("Old GET"), the predecessor to the Issuer,
which were obtained by way of a dividend distribution to the shareholders of
OPUBCO. The transaction giving rise to the Issuer as successor to Old GET is
described below in Item 4.
Two of the five Voting Trustees, Edward L. Gaylord and Edith Gaylord
Harper, are the two individual Reporting Persons under this Schedule 13D,
described below. Two of the other Voting Trustees, Edward K. Gaylord II and
Christine Gaylord Everest, are principally employed as corporate officers of
OPUBCO. Their business address is:
The Oklahoma Publishing Company
9000 North Broadway
Oklahoma City, Oklahoma 73114
The fifth Voting Trustee, Martin C. Dickinson, is a director of various
companies, including the Issuer and OPUBCO. His residence address is:
P.O. Box 7078
Rancho Santa Fe, CA 92067
OPUBCO is a diversified company engaged in, among other things, publishing,
hospitality, oil and gas, real estate and investments.
The individual Reporting Persons are:
Edward L. Gaylord
Edith Gaylord Harper
Mr. Gaylord's principal employment is as a corporate officer of OPUBCO, and
Mrs. Harper's principal employment is as a director of OPUBCO. Their business
address is:
The Oklahoma Publishing Company
9000 North Broadway
Oklahoma City, Oklahoma 73114
None of the Reporting Persons nor, to their best knowledge, the Voting
Trustees who are not Reporting Persons has been convicted during the last five
years in a criminal proceeding (excluding traffic violations or similar
misdemeanors). Furthermore, none of the Reporting Persons nor, to their best
knowledge, the Voting Trustees who are not Reporting Persons has been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction leading to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
All of the individual Reporting Persons and the Voting Trustees who are
not Reporting Persons are U.S. citizens.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Persons acquired their shares of Common Stock through a
dividend distribution of the Issuer's shares made by Old GET effective
September 30, 1997. Prior to the effective date of the distribution, the
Issuer, formerly Gaylord Broadcasting Company, was a wholly-owned subsidiary of
Old GET.
7
Pursuant to the terms of the distribution agreement, holders of common stock of
Old GET, including the Reporting Persons, received one share of Common Stock
for each three shares of Old GET common stock held by them of record. See Item
4 for more information about the distribution transaction.
ITEM 4. PURPOSE OF TRANSACTION.
The distribution of shares of Common Stock to the Reporting Persons,
described in Item 3, was effected in connection with a merger between Old GET
and Westinghouse Electric Corporation ("Westinghouse"), whereby assets of Old
GET that were not included as part of the merger with Westinghouse were
transferred to the Issuer. The Reporting Persons acquired shares of the Issuer
in a dividend distribution to continue their investments in the businesses
associated with the non-included assets, which consisted of the hospitality,
attractions, music, television and radio businesses of Old GET, as well as an
international cable network and an option to acquire another such network.
Except as set forth in the next succeeding paragraph, the Reporting
Persons have no current plans or proposals that relate to or would result in
the acquisition or disposition of securities of the Issuer; any extraordinary
corporate transaction involving the Issuer or a subsidiary; a sale or transfer
of a material amount of assets of the Issuer or any subsidiary; any change in
the present board of directors or management of the Issuer, any material change
in the present capitalization or dividend policy of the Issuer; any other
material change in the Issuer's business or corporate structure; changes in the
Issuer's charter, bylaws or similar instruments that may impede the acquisition
of control of the Issuer by any other person; causing a class of securities of
the Issuer to be delisted from a national securities exchange; a class of
equity securities of the Issuer becoming eligible for termination of
registration under Section 12(g)(4) of the Securities Exchange Act of 1934; or
any similar action.
The Voting Trust, in which certain shares of the Issuer owned by the
individual Reporting Persons and others are held, exists for the purpose of
exercising voting power and control over the Issuer to continue the existing
management and policies of the Issuer. To the extent they have the power to
vote shares of the Issuer outside the Voting Trust, the individual Reporting
Persons may be expected to vote in a manner consistent with the manner in which
the Voting Trust shares are voted by them as the Voting Trustees of the Voting
Trust. There is, however, no formal contractual obligation or understanding to
do so. The individual Reporting Persons may directly or through affiliates
purchase additional shares of Common Stock or sell shares of Common Stock on
the open market or otherwise depending on an evaluation of market price, estate
planning or administration, or other considerations.
8
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The following information is as of September 30, 1997, the date that
the Reporting Persons acquired shares of the Common Stock of the issuer.
The Voting Trust beneficially owns 12,575,975 shares of Common Stock,
constituting 38.71% of total shares outstanding. Under the terms of the Voting
Trust Agreement, the Voting Trust has sole power to vote or direct the vote of,
and shared power to dispose or direct the disposition of, such shares. The
shared power over the disposition of the shares exists by virtue of the Voting
Trustees' authority over the withdrawal of such shares (described above in Item
2).
Edward L. Gaylord has the power to vote or direct the vote of, or to
dispose or direct the disposition of, 13,154,470 shares of Common Stock,
constituting 40.49% of total shares outstanding. This figure does not include
shares owned by Mr. Gaylord's wife Thelma F. Gaylord, his children Christine
Gaylord Everest, Edward K. Gaylord II, and Louise Gaylord Bennett, and his
sister Edith Gaylord Harper, as to which Mr. Gaylord disclaims beneficial
ownership. It does include 4,666,558 shares beneficially owned by Mr. Gaylord
as Trustee for the Edward L. Gaylord Revocable Trust (4,635,998 of which are
held in the Voting Trust); 848,646 shares beneficially owned by Mr. Gaylord as
Trustee for the Mary I. Gaylord Revocable Living Trust (all of which are held
in the Voting Trust); 128,625 shares beneficially owned by The Oklahoman
Foundation, a charitable trust of which Mr. Gaylord is a co-Trustee with
Christine Gaylord Everest and Edward K. Gaylord II; 262,395 shares beneficially
owned by Gayno, Inc., a corporation controlled by Mr. Gaylord; 143,583 shares
beneficially owned by the E.L. and Thelma Gaylord Foundation, a charitable
trust of which Mr. Gaylord is a co-Trustee with his wife Thelma F. Gaylord; and
13,333 shares beneficially owned by The Mary Gaylord Foundation, a charitable
foundation of which Mr. Gaylord is a co-Trustee with his daughter Mary I.
Gaylord. Because Mr. Gaylord is a Voting Trustee of the Voting Trust with
shared voting power over the shares in the Voting Trust, the figure also
includes the shares held in the Voting Trust that are owned by persons other
than Mr. Gaylord, as to which Mr. Gaylord disclaims beneficial ownership. Of
the aggregate number of shares reported above, Mr. Gaylord has sole power to
vote or direct the vote of, and sole power to dispose or direct the disposition
of, 292,955 shares, and shared power to vote or direct the vote of, and shared
power to dispose or direct the disposition of, 12,861,515 shares.
9
Edith Gaylord Harper has the power to vote or direct the vote of, or
to dispose or direct the disposition of, 12,972,908 shares of Common Stock,
constituting 39.93% of total shares outstanding. This figure does not includes
shares owned by Mrs. Harper's brother Edward L. Gaylord, as to which Mrs.
Harper disclaims beneficial ownership. It does include 2,133,371 shares held
by the Edith Gaylord Harper 1995 Revocable Trust, of which 1,736,437 shares are
held in the Voting Trust. Mrs. Harper is a co-Trustee of that trust with
William J. Ross and David O. Hogan. Because Mrs. Harper is a Voting Trustee of
the Voting Trust with shared voting power over the shares in the Voting Trust,
the figure also includes the shares held in the Voting Trust that are owned by
persons other than Mrs. Harper, as to which Mrs. Harper disclaims beneficial
ownership. Mrs. Harper has shared power to vote or direct the vote of, and
shared power to dispose or direct the disposition of, all the shares reported
above.
10
None of the Reporting Persons has engaged in any transactions in the
Common Stock of the Issuer during the sixty days preceding September 30, 1997.
There are no other persons with the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale or, the
securities described herein.
In accordance with Item 5(b) of the instructions to the Schedule 13D,
the following information is provided with respect to each person with whom
the power to vote or to direct the vote or to dispose or direct the disposition
of shares of Common Stock is shared with the Reporting Persons, other than
those persons described in Item 2.
As described above, Thelma F. Gaylord and Mary I. Gaylord are
co-trustees with Edward L. Gaylord of trusts that hold shares of the Common
Stock of the Issuer. Thelma F. Gaylord is a U.S. citizen whose principal
employment is as a director of OPUBCO, with her business address being 9000
North Broadway, Oklahoma City, Oklahoma 73114. Mary I. Gaylord is a U.S.
citizen whose principal employment is as a farmer/rancher, with her business
address being P.O. Box 25125, Oklahoma City, Oklahoma 73125. Neither of them
has been convicted during the last five years in a criminal proceeding
(excluding traffic violations or similar misdemeanors), nor have they been
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction leading to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
As described above, William J. Ross and David O. Hogan are co-trustees
with Edith Gaylord Harper of a trust that holds shares of the Common Stock of
the Issuer. Mr. Ross is an attorney with Rainey, Ross, Rice & Binns, a law
firm whose address is 735 First National Center West, Oklahoma City, Oklahoma
73102-7405; Mr. Hogan is a certified public accountant with Hogan and Slovacek,
an accounting firm whose address is 301 NW 63rd Street, Suite 290, Oklahoma
City, Oklahoma 73116. To the best knowledge of the Reporting Persons, Messrs.
Ross and Hogan are U.S. citizens and have not been convicted during the last
five years in a criminal proceeding (excluding traffic violations or similar
misdemeanors), nor have they been party to a civil proceeding of a judicial or
administrative body of competent jurisdiction leading to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
11
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
On October 3, 1990, certain shareholders, including the individual
Reporting Persons, entered into a Voting Trust Agreement and deposited shares
of OPUBCO in the Voting Trust, as described above in Item 2. As a result of
the transaction described in Items 3 and 4, the Voting Trust now holds shares
of the Common Stock of the Issuer. The Voting Trust Agreement, as amended,
which describes the operative provisions of the Voting Trust, is attached
hereto as Exhibit 2, and the terms and provisions thereof are incorporated
herein by reference.
The parties have entered into a Joint Filing Agreement to make this
Schedule 13D filing (attached as Exhibit 1 hereto), and have executed powers of
attorney (previously filed with the Commission) to permit Frederic T. Spindel
to act as their authorized representative for purposes of making securities law
filings such as this Schedule 13D on their behalf.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following are filed as exhibits:
Exhibit 1: Joint Filing Agreement dated October 10, 1997
Exhibit 2: Voting Trust Agreement dated as of October 3, 1990,
and Amendment No. 1 to Voting Trust Agreement
dated as of October 23, 1991
12
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: October 10, 1997 THE OKLAHOMA PUBLISHING VOTING
TRUST
Edward L. Gaylord,
Voting Trustee
EDWARD L. GAYLORD
EDITH GAYLORD HARPER
By: /s/ FREDERIC T. SPINDEL
-------------------------------
Frederic T. Spindel,
Authorized Representative of
The Oklahoma Publishing Company
Voting Trust, Edward L.
Gaylord, and Edith Gaylord
Harper
1
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, the persons named below agree to the joint filing on behalf of each of
them of a Statement on Schedule 13D (including amendments thereto) with respect
to the common stock of Gaylord Entertainment Company, and further agree that
this Joint Filing Agreement be included as an exhibit to such Statement.
In evidence thereof, the undersigned, being duly authorized, hereby
executes this Agreement this 10th day of October, 1997.
THE OKLAHOMA PUBLISHING VOTING
TRUST
Edward L. Gaylord,
Voting Trustee
EDWARD L. GAYLORD
EDITH GAYLORD HARPER
By: /s/ FREDERIC T. SPINDEL
-------------------------------
Frederic T. Spindel,
Authorized Representative of
The Oklahoma Publishing Company
Voting Trust, Edward L.
Gaylord, and Edith Gaylord Harper
1
EXHIBIT 2
VOTING TRUST AGREEMENT
THIS AGREEMENT, made and entered into as of the 3rd day of October, 1990,
between certain stockholders of The Oklahoma Publishing Company, a corporation
organized and existing under the laws of the State of Delaware, whose names are
hereto subscribed (collectively "Stockholders"), and Edward L. Gaylord, Edith
Gaylord Harper, Christine Gaylord Everest, Edward K. Gaylord II, Donald C.
Dickinson and Martin C. Dickinson (collectively "Voting Trustees" or
"Trustees").
WHEREAS the parties hereto deem it necessary and advisable, and for their
best interests and for the best interests of The Oklahoma Publishing Company
("Corporation"), in order to secure continuity and stability of policy and
management, that a Voting Trust be created pursuant to Section 218 of the
Delaware General Corporation Law; and
WHEREAS, the Voting Trustees have consented to act under this Agreement for
the purposes herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the several parties
hereto mutually covenant and agree as follows:
2
1. Transfer of Stock to Voting Trustees. After receiving notice of the
approval required under Section 24 of this Agreement, the Stockholders shall
forthwith endorse in blank and assign and deliver or cause to be assigned and
delivered to the Voting Trustees the certificate or certificates for the number
of shares of capital stock of the Corporation, consisting of shares of common
stock, $.25 per value ("Common Stock"), and/or Class B common stock, $.25 per
value ("Class B Common Stock"), set forth opposite their respective signatures
and shall do all things necessary in order to secure the transfer of such number
of shares to the Trustees on the books of the Corporation.
The Voting Trustees shall hold the said shares so transferred to them for
the common benefit of the Stockholders, under the terms and conditions set forth
herein.
The Voting Trustees shall surrender to the proper officers of the
Corporation for cancellation all certificates of stock which shall be assigned
and delivered to them and in their stead shall procure new certificates to be
issued to them as Voting Trustees under this Agreement.
Notwithstanding any change in the Voting Trustees, the certificate or
certificates for the shares of the stock of the Corporation standing in the name
of the Voting Trustees may be endorsed and transferred by the then Voting
Trustees or any
- 2 -
3
successor Voting Trustees with the same effect as if endorsed and transferred by
the Voting Trustees who have ceased to act. The Voting Trustees are authorized
and empowered to cause further transfers to be made of said shares of stock
which are necessary or desirable through the occurrence of any change of persons
holding the office of Voting Trustees hereunder.
2. Issuance of Trust Certificates. The Voting Trustees shall issue and
deliver or cause to be issued and delivered to each Stockholder voting trust
certificates ("trust certificates") for the number of shares represented by the
certificates of stock transferred or caused to be transferred to the Voting
Trustees by each such Stockholder. Each said trust certificate shall state that
it is issued under this Agreement and shall state the number of shares of stock
for which it was issued.
The trust certificate shall be substantially in the following form:
VOTING TRUST CERTIFICATE
This is to certify that the undersigned Trustees have received a
certificate or certificates issued in the name of ____________,
evidencing the ownership of ________________ shares of [Class B Common
Stock] [Common Stock], ($.25) par value, of [The Oklahoma Publishing
Company, a Delaware corporation] [name of subsidiary or affiliate],
and that such shares are held subject to all the terms and conditions
of that certain agreement, dated as of ______________, 1990, by and
between
- 3 -
4
Edward L. Gaylord, Edith Gaylord Harper, Christine Gaylord Everest,
Edward K. Gaylord II, Donald C. Dickinson and Martin C. Dickinson, as
Trustees, and certain shareholders of The Oklahoma Publishing Company.
During the period of ten (10) years from and after ___________, the
said Trustees or their successors shall, as provided in said
agreement, possess and be entitled to exercise the vote and otherwise
represent all of the said shares for all purposes, being agreed that
no voting right shall pass to the holder hereof by virtue of the
ownership of this certificate.
Upon the termination of said Trust, this certificate shall be
surrendered to the Trustees by the holder hereof upon delivery to such
holder of a stock certificate representing a like number of shares.
IN WITNESS WHEREOF, the undersigned Trustees have executed this
certificate as of the ___ day of______.
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
Trustees
3. Transfer of Additional Stock. Should the registered holders of trust
certificates issued hereunder desire to deposit additional shares of capital
stock of the Corporation under and subject to the terms of this Agreement, they
may do so by assigning and delivering the additional shares of stock in the
- 4 -
5
manner prescribed in Section 1 above and the Voting Trustees shall thereupon
issue a trust certificate therefor in the manner and form prescribed in Section
2 above.
4. Withdrawal of Stock. Upon written consent of at least 60% of the Voting
Trustees, any registered holder of trust certificates issued hereunder may
transfer to the Voting Trustees the trust certificates held by such holder and,
in exchange therefor, the Voting Trustees shall assign and deliver or cause to
be assigned and delivered to such holder the number of shares of stock
represented by the surrendered trust certificates.
5. Appointment of Trustees. The Stockholders hereby appoint the Trustees to
serve as the voting trustees of the Voting Trust. The Trustees hereby accept
their appointment as Trustees of the Voting Trust and, in voting the shares of
capital stock or otherwise performing their duties and responsibilities with
respect to the Trust, shall act in good faith and faithfully exercise their
judgments in the best interests of the Stockholders and the Corporation to the
end that its affairs are properly managed.
6. Compensation. The Trustees shall not be entitled to receive any
compensation for duties performed in respect of the Trust.
- 5 -
6
7. Powers Of Voting Trustees. So long as any trust certificates are
outstanding and all shares of stock held by the Voting Trustees have not been
delivered to the holders of trust certificates under this Agreement, the Voting
Trustees, in their unrestricted discretion, in person, or by their nominees
agents, attorneys in fact, or proxies, shall possess in respect of any and all
such shares of stock held by them hereunder, and shall be entitled to exercised,
all powers of absolute owners of such stock, including the full and unqualified
right and power to vote the shares of stock held by them in accordance with the
provisions in the Certificate of Incorporation and By-Laws of the Corporation,
as the same may be amended, to consent to any lawful corporate act of the
Corporation and to waive any notice to stockholders of any meeting of the
Corporation, except as such right is specifically limited by the terms of this
Agreement. The right of the Voting Trustees to vote shall include the right to
vote for the election of directors and in favor of or in opposition to any
resolution or proposed action of any character whatsoever which may be presented
at any meeting or otherwise require the consent of stockholders of the
Corporation. The Voting Trustees may vote for the election of Trustees as
directors and corporate officers of the Corporation. it is expressly understood
and agreed that the stockholders shall not have any
- 6 -
7
right in respect of any stock held by the Trustees to take part in, consent to,
or in any way control or limit any action be taken by stockholders of the
Corporation.
8. Rights of Voting Trustees. The Voting Trustees herein appointed, and
their successors, from time to time, may be parties to this Agreement as
Stockholders and to the extent of shares of stock deposited hereunder by them,
shall be entitled in all respects to the same rights and benefits as other
Stockholders. Each Voting Trustee may in his individual capacity and for his own
accounts, buy, sell or deal in shares of stock of the Corporation and trust
certificates, subject, as the case may be, to the restrictions set forth in the
Certificate of Incorporation and By-Laws of the Corporation as the same may be
amended.
Any Voting Trustee may be a stockholder, director or officer of the
Corporation, of any subsidiary, or of any affiliated corporation, or may
contract with or be or become pecuniarily interested, directly or indirectly, in
any matter or transaction in which the Corporation, any subsidiary or any
controlled or affiliated corporation may be a party, or in which it may be
concerned, as fully and freely as though such Voting Trustee were not a Voting
Trustee.
- 7 -
8
9. Voting Trustees to Keep Records. The Voting Trustees shall keep a list
of the shares of stock transferred to them and shall also keep a record of all
trust certificates issued or transferred on their books. Such record shall
contain the names and addresses of the trust certificate holders and the number
of shares represented by each such trust certificate. Such list and record shall
be open at all reasonable times to the inspection of trust certificate holders.
10. Assignability of Trust Certificates. The trust certificates, when duly
endorsed, shall be transferable; provided, however, that any transfer thereof
shall be subject to the same restrictions, limitations and provisions contained
in the Certificate of Incorporation or By-Laws of the Corporation, as the same
may be amended, which are applicable to the sale, transfer or other assignment
of the stock of the Corporation. Upon an authorized transfer of any trust
certificate, the Voting Trustees shall, upon surrender of the trust certificate
by the transferee, issue a new certificate to the transferee and register the
transferee on their records. Thereafter, the transferee shall succeed to all of
the rights hereunder of the transferor, and shall be bound by the terms of this
Agreement and be deemed a Stockholder to the same extent as if such transferee
had subscribed thereto.
- 8 -
9
In the event a trust certificate is purchased or otherwise transferred to
the Corporation, pursuant to its right of first refusal as provided in the
By-Laws of the Corporation or otherwise, the Voting Trustees, upon presentation
of the trust certificate properly endorsed, shall cause a new trust certificate
to be issued in the name of the Corporation, unless at the time of presentation,
the Corporation notifies the Trustees in writing that it elects, in lieu
thereof, to receive the number of shares of its stock represented by the trust
certificate surrendered, in which event the Trustees shall cause the certificate
for the shares of stock to be transferred to the Corporation, Section 4 hereof
notwithstanding.
11. Cash Dividends. The holders of trust certificates shall be entitled,
subject as hereinafter provided, to receive from time to time payments equal
to the cash dividends, if any, received by the Voting Trustees from the
Corporation upon the number of shares of stock represented by trust
certificates. The Voting Trustees may from time to time by written notice to
the Corporation instruct the Corporation to pay the amount of any cash
dividends upon the shares of stock held by the Voting Trustees hereunder to
which the Voting Trustees from time to time become entitled directly to the
holders of the outstanding trust certificates, payments in respect of each such
dividend to be made to the
- 9 -
10
holders according to their respective interest in outstanding trust certificates
registered as such at the close of business on the record date as fixed by the
Corporation for the determination of the holders of stock entitled to receive
such dividends. Before paying over, or causing the Corporation to pay over, to
any trust certificate holder the amount of any cash dividend payable to such
holder as provided in this Section 11, the Voting Trustees shall be entitled to
deduct, or cause the Corporation to deduct from the dividend so payable, the
amount of any expenses and charges incurred by the Voting Trustees in connection
with carrying out the terms of this Agreement, and also the amount of any taxes
imposed on the stock in respect of which such dividend is payable, or upon such
dividend which the Voting Trustees may have been required or permitted to pay
thereon, or withhold therefrom, under any present or future law of the United
States or of any state, county, municipality, or other taxing authority.
12. Stock and Other Non-Cash Distributions. In the event the Voting
Trustees shall receive, as a dividend or distribution upon the stock held by
them hereunder, any shares of stock of the Corporation or any shares of capital
stock of any subsidiary or affiliate of the Corporation, such as by reason of
spin-off, split-off, merger, reorganization or recapitalization, they shall hold
such shares subject to this Agreement and shall issue trust
- 10 -
11
certificates in respect of such shares to the holders of outstanding trust
certificates of record at the close of business on the date fixed by the
Corporation for the determination of the holders of stock entitled to receive
such dividend, in proportion to their respective interests.
In the event the Voting Trustees shall receive, as a dividend or
distribution upon the shares held by them hereunder, any other stock or any
property (except cash), they shall assign and deliver or cause to be assigned
and delivered such shares or property, as the case may be, to the holders of
outstanding trust certificates of record at the close of business on the date
fixed by the Corporation for the determination of stock entitled to receive such
dividend or distribution, in proportion to their respective interests.
13. Subscription Rights. In the event any securities (including within such
term stock) shall be offered for subscription to stockholders, the Voting
Trustees shall promptly mail a copy of such notice to each trust certificate
holder of record on such date as fixed by the Corporation as the record date for
the determination of the holders of stock entitled to subscribe to such
securities. Upon receipt by the Voting Trustees, at least five days prior to the
last date fixed by the Corporation for subscription and payment, of a request
from any
- 11 -
12
registered holder of a trust certificate to subscribe in his behalf together
with the amount of money required to pay for such securities (not in excess of
the amount subscribable in respect of the shares represented by the trust
certificate held by such certificate holder), the Voting Trustees shall make
such subscription and payment. Upon receiving from the Corporation the
certificate for the securities so subscribed for, the Voting Trustees shall
issue to such holders a trust certificate in respect thereof if the subscription
is for stock, or is for securities convertible, exchangeable or exercisable into
stock, of the same nature as that described in the first paragraph of Section 12
above; but if the subscription is for securities other than stock described in
said paragraph or is for securities convertible, exchangeable or exercisable
other than into such stock, the Voting Trustees shall deliver the same to the
trust certificate holder in whose behalf the subscription is made. In the event
any subscription rights are not exercised by any of the trust certificate
holders entitled thereto, the Voting Trustees, to the extent permitted by the
terms of such offer, may subscribe and pay for the new securities on behalf of
any other trust certificate holder or holders desiring the same and complying
with the above provisions to the extent permitted by the Certificate of
- 12 -
13
Incorporation and By-Laws of the Corporation, as the same may be amended.
14. Removal of Voting Trustees. In the event of the permanent physical or
mental disability or incapacity of a Voting Trustee, such Voting Trustee,
after being given ten (10) days prior written notice, may be removed upon the
unanimous vote of the other Voting Trustees or upon the affirmative vote of at
least 75% of the aggregate number of votes attributable to the shares of stock
represented by outstanding trust certificates. For purposes of this Section 14,
permanent disability or incapacity shall mean a disability or incapacity which
renders the Voting Trustee incapable of carrying out his or her duties under
this Agreement continuously for a period exceeding sixty (60) days. As a
condition to the removal of a Voting Trustee by the remaining Voting Trustees in
accordance with this Section 14, the remaining Voting Trustees shall have first
received a certification of the disability of the Voting Trustee to be removed
from a qualified medical doctor selected by such remaining Voting Trustees. The
required vote of trust certificate holders in favor of removal of a Voting
Trustee shall be conclusive whether or not receipt of any certification from a
qualified medical doctor is obtained.
- 13 -
14
15. Replacement of Voting Trustees. In the event of death, resignation
or removal for any reason of one or more of Edward L. Gaylord and Edith Gaylord
Harper, the Stockholders hereby appoint, in the following order of designation,
Mary I. Gaylord, P.O. Box 100, Simpsonville, Kentucky 40067, and Louise Gaylord
Bennett, 1604 Dorchester Drive, Oklahoma City, Oklahoma 73120, each as a
successor Trustee to fill the vacancy or vacancies thereby created. Should Mary
I. Gaylord and Louise Gaylord Bennett, or either of them, decline appointment or
otherwise fail to qualify as a Voting Trustee hereunder, or in the event of
death, resignation or removal for any reason of any other Voting Trustee, the
remaining Voting Trustees are authorized to name, by an instrument in writing
signed by a majority thereof, a successor Trustee to fill the vacancy thereby
created. The remaining Voting Trustees are not required, however, to name a
successor Trustee unless (a) the number of Voting Trustees is fewer than four
(4), or (b) the composition of the remaining Voting Trustees would require
approval of the Federal Communications Commission ("FCC"); in either of which
events a successor or successors shall be named to fill such vacancies as will
result in (y) the Voting Trustees being at least four (4) in number, and (z) a
composition which does not require FCC approval. Any successor Voting Trustee
named hereunder must, at the time of acceptance of appointment, be a
- 14 -
15
"Qualified Person" within the meaning of the Certificate of Incorporation, as
amended, so long as such term is contained in said Certificate.
In the event the Trustees are required or otherwise undertake as
hereinabove provided to fill a vacancy in the office of Trustee held by
Donald C. Dickinson, Martin C. Dickinson, or their respective successors, the
remaining Trustees in filling such vacancy shall give preference to a Qualified
Person who is nominated in writing by the trust certificate holders representing
at least 50% of the aggregate number of votes attributable to shares of stock of
the Corporation represented by all of the trust certificates held by the members
of the Dickinson family group.
In the event the Trustees are required or otherwise undertake as
hereinabove provided to fill a vacancy in the office of Trustee held by Edward
L. Gaylord, Edith Gaylord Harper, Christine G. Everest, Edward K. Gaylord II, or
their respective successors, the remaining Trustees in filling such vacancy
shall give preference to a Qualified Person who is nominated in writing by the
trust certificate holders representing at least 50% of the aggregate number of
votes attributable to shares of stock of the Corporation represented by all of
the trust certificates held by the members of the Gaylord family group.
- 15 -
16
All nominations shall be in writing and delivered to the Trustees within
fifteen (15) days after the date of notice by the Trustees of a vacancy to the
members of the particular family group entitled to nominate a successor Trustee.
Opposite each of their signatures, Stockholders are designated as belonging
to either the Dickinson family group or the Gaylord family group. Their
transferees will be deemed members of the family group to which their transferor
belonged.
16. Meeting of Trustees. At any meeting of the Voting Trustees, any Voting
Trustee may vote in person or by proxy given to any other Voting Trustee. All
meetings of the Voting Trustees shall be held at such place or places or by
telephone conference as the Voting Trustees shall from time to time determine.
Any one or more Voting Trustees may participate in a meeting by means of
conference telephone or similar communications equipment on which all persons
participating in the meeting can hear each other. Such participation shall
constitute presence in person at the meeting. A special meeting may be called by
any Voting Trustee upon ten (10) days written notice to the other Voting
Trustees.
17. Action by Voting Trustees. The action of at least 60% of the Voting
Trustees in office expressed from time to time at a meeting of the Voting
Trustees or by written consent without a
- 16 -
17
meeting shall constitute the action of the Voting Trustees and shall have the
same effect as though assented by all. The Voting Trustees may vote by proxy at
any meeting of the Corporation provided such proxy be signed by at least 60% of
the Voting Trustees in office.
18. Reimbursement of Expenses; Indemnification. The Voting Trustees shall
be entitled to be fully indemnified out of dividends declared by the Corporation
for all costs, charges, expenses, and other liabilities properly incurred in the
administration of the trust or in the exercise of any power conferred upon them
by this Agreement, and for all loss or damage which they may sustain or be put
to by reason of anything they may lawfully do in the execution of the Trust and
their duties hereunder.
19. Limitation of Liability. The Voting Trustees assume no responsibility
in respect of any action taken by them or by any agent designated or employed by
them or taken in pursuance of their consent thereto or in pursuance of their
votes, and no voting Trustee, whether or not acting under the advice of counsel,
shall incur or be under any responsibility or liability as a Stockholder,
Trustee, fiduciary, or otherwise, by reason of any error of law, fact or
judgment, or of any matter or thing done or
- 17 -
18
suffered or omitted to be done under this Agreement, except for such Trustee's
actual fraud or willful malfeasance. The Voting Trustees shall be protected in
acting upon any certificate for stock, trust certificate, or other paper or
document, believed by them or any of them in good faith to be genuine and to
have been signed by the proper party or parties.
Without limiting the foregoing, the Voting Trustees may consult with legal
counsel and any action under this Agreement taken or suffered in good faith by
them in accordance with the opinion of such counsel shall be conclusive upon the
parties hereto, and the Trustees shall be presumptively relieved of liability
and fully protected in respect thereof.
20. Term. The Trust hereby created shall continue for a period of ten years
from the date hereof unless terminated at an earlier date in accordance with
the provisions hereof; provided that at any time within two years prior to the
date of the expiration of this Agreement, or any extension thereof, one or more
of the trust certificate holders may, by agreement in writing, and with the
written consent of the Voting Trustee, extend the duration this Agreement
for an additional period not to exceed ten years; provided, that no such
agreement shall affect the rights or obligations of persons not parties
thereto. This Agreement or any extension thereof may be terminated at any time
- 18 -
19
upon the delivery to the Voting Trustees and to the Corporation of copies of an
instrument or instruments so directing, executed in duplicate by the holders of
trust certificates representing not less than seventy-five percent (75%) of the
aggregate number of votes attributable to shares of stock of the Corporation
represented by all of the trust certificates then outstanding hereunder.
21. Surrender of Stock Certificates on Termination. The voting Trustees
promptly after the termination of this Agreement shall deliver or cause to be
delivered to the holders of record of trust certificates, stock certificates
representing the number of shares of stock in respect of which such trust
certificates were issued, upon the surrender thereof properly endorsed, and in
the event of any extension of this Agreement to which any trust certificate
holders have not assented, the Voting Trustees shall promptly deliver to such
trust certificate holders, stock certificates representing the number of shares
of stock in respect of which said trust certificates were issued upon the
surrender thereof of trust certificates properly endorsed.
22. Transfer Taxes. In the event any stamp or other tax is required to be
paid upon the transfer of trust certificates, or upon the issuance of stock upon
the surrender of the trust
- 19 -
20
certificates, the Voting Trustees may require its payment before effecting the
transfer.
23. No Termination Upon Change in Character of Trust Res. In the event that
the Certificate of Incorporation no longer authorizes Class B Common Stock or
any other class of capital stock due to operation of law, action by the
stockholders or directors of the Corporation, or for any other reason, this
Agreement shall nevertheless continue in full force and effect, and the Voting
Trustees shall hold the shares of said stock regardless of any change in rights,
characteristics or privileges of such stock, or any shares issued in exchange
for the Class B Common Stock or any other class of capital stock, under the
terms of the then Certificate of Incorporation and By-Laws, as then in
effect.
24. FCC Consent. It is specifically understood and agreed that the
consummation of this Agreement and the creation of the Voting Trust hereunder,
shall be in all respects subject to the prior approval of the FCC. Within sixty
(60) days after the execution of this Agreement, the Voting Trustees and the
Stockholders shall join in and file with the FCC the necessary transfer
application requesting its written consent to the transfer of control of the
capital stock to the Voting Trustees,
- 20 -
21
and they shall prosecute such application with all reasonable diligence and
otherwise cooperate with each other and use their best efforts to obtain the
requisite consent and approval promptly. The Voting Trustees shall promptly
notify the Stockholders in writing of the issuance of such consent and approval.
Any FCC grant fees and filing fees shall be paid by Stockholders. If, following
creation of the Voting Trust hereunder, it is determined that any action,
transaction or event required or permitted pursuant to this Agreement,
including, without limitation, the termination of this Agreement, shall require
the prior written consent of the FCC, such action, transaction or event shall
not be taken, be consummated or become effective until any such necessary FCC
consent is first obtained as provided herein.
25. Construction. The Voting Trustees are authorized and empowered to
construe this Agreement, and their construction made in good faith shall be
conclusive and final upon all trust certificate holders.
This Agreement shall be construed solely as an agreement between the
parties hereto, and solely affecting and relating to the Voting Trustees and
trust certificate holders, and no other person shall have any rights whatsoever
hereunder.
- 21 -
22
26. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto, and each and all of the heirs, executors,
administrators, devisees, trustees and assigns of said parties, and each of
them, but nothing herein contained shall be construed to create a partnership
between any of the parties hereto.
27. Amendment of Agreement. This Agreement may be amended, altered or
modified by an affirmative vote of at least 60% of the Voting Trustees. If in
the opinion of at least 60% of the Voting Trustees (which shall be conclusive)
any such amendment, alteration or modification will materially adversely affect
the rights of the holders of trust certificates, the Voting Trustees shall
notify the registered holders of all trust certificates outstanding hereunder at
the addresses shown on the Voting Trustees' records of the nature of such
amendment, alteration or modification not less than fifteen (15) days prior to
the date on which it is proposed that such amendment, alteration or modification
is to become effective, and such amendment, alteration or modification shall not
become effective if at or prior to said date, the holders of trust certificates
representing more than fifty percent (50%) of the aggregate number of votes
attributable to shares of stock of the Corporation represented by
- 22 -
23
all of the trust certificates then outstanding hereunder, shall in writing
advise the Voting Trustees of their objection thereto.
28. Notices.
a. Voting Trustees. Any notice, demand or request to the Voting Trustees
required or permitted to be given under this Agreement shall be sufficient if
addressed to the Voting Trustees at 500 North Broadway, Post Office Box 25125,
Oklahoma City, Oklahoma 73125 (or such other address as the Voting Trustees may
designate for receipt of notices) and if deposited, postage prepaid, into the
United States mails, or given by telex, facsimile or personal delivery. Any such
notice, demand or request shall be effective only upon its actual receipt by the
Voting Trustees. Any notice to a Voting Trustee from another Voting Trustee
shall be sufficient if addressed to the Voting Trustee at the address as set
forth opposite such Trustee's signature and if deposited, postage prepaid, into
the United States mails or given by telex, facsimile or personal delivery. Any
such notice shall be effective upon the date of mailing or transmission, whether
or not received.
b. Certificate Holders. Any notice to trust certificate holders shall be
sufficient hereunder if addressed to such trust certificate holders at their
respective addresses
- 23 -
24
appearing on the transfer books of the Voting Trustees, and if deposited,
postage prepaid, into the United States mails, or given by telex, facsimile or
personal delivery. Every notice so given shall be effective whether or not
received, and the date of mailing or other transmission shall be the date such
notice is deemed given for all purposes.
c. Corporation. Any notice given to the Corporation hereunder shall be
sufficient if addressed to the Corporation and sent by certified mail, return
receipt requested, as follows:
The Oklahoma Publishing Company
500 North Broadway
Oklahoma City, Oklahoma 73160
Attention: Secretary
or to such other address as the Corporation may designate by notice in writing
to the Voting Trustees; provided however, that any notice receipted for by any
executive officer of the Corporation shall be deemed sufficient.
29. Counterparts This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts shall together constitute one and the same instrument.
30. Filing and Inspection. This Agreement shall be on file at the offices
of the Voting Trustees and copies thereof shall be
- 24 -
25
filed with the Corporation at its principal offices at 500 North Broadway,
Oklahoma City, Oklahoma, and in the Corporation's registered office in the State
of Delaware, at which places, upon reasonable notice, they shall be open for
inspection by any stockholder of the Corporation and by any beneficiary of the
Trust created under this Agreement daily during business hours.
31. Severability. The invalidity of any term or provision of this Agreement
shall not affect the validity of the remainder of this Agreement.
32. Governing Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Delaware.
33. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
34. Headings. The headings of the sections of this Agreement are inserted
as a matter of convenience and for reference only and shall not be deemed to
define the scope or intent of any section thereof.
- 25 -
26
IN WITNESS WHEREOF, the undersigned Stockholders and the Trustees have
executed this Agreement as of the day and year first above written.
STOCKHOLDERS
OF
THE OKLAHOMA PUBLISHING C0MPANY
CLASS B
COMMON COMMON
STOCKHOLDER STOCK STOCK FAMILY GROUP
- -------------------------- ------------ ------------ ------------
/s/ Thelma F. Gaylord 649,751 669,751 Gaylord
- -------------------------- ------------ ------------ ------------
/s/ Edward L. Gaylord 522,375 7,000,000 Gaylord
- -------------------------- ------------ ------------ ------------
/s/ Edward L. Gaylord, 10,500,000 Gaylord
- -------------------------- ------------ ------------ ------------
Trustee, Edward L. Gaylord
Rev. Trust
/s/ Edward L. Gaylord, 1,818,232 1,818,231 Gaylord
- -------------------------- ------------ ------------ ------------
Trustee, Mary I. Gaylord,
Revocable Living Trust of
1985
/s/ Edward K. Gaylord II 2,240,744 1,798,626 Gaylord
- -------------------------- ------------ ------------ ------------
/s/ Louise Gaylord Bennett 1,821,561 1,851,560 Gaylord
- -------------------------- ------------ ------------ ------------
- 26 -
27
CLASS B
COMMON COMMON
STOCKHOLDER STOCK STOCK FAMILY GROUP
- ----------- ----- ----- ------------
/s/ Christine Gaylord Everest 1,826,183 1,822,655 Gaylord
- ------------------------------- ----------- ----------- ----------
/s/ Christine G. Everest, 4,284 5,460 Gaylord
- ------------------------------- ----------- ----------- ----------
Cust., Mary Christine Everest
/s/ Christine G. Everest, 4,284 5,460 Gaylord
- ------------------------------- ----------- ----------- ----------
Cust., James Christopher
Everest
/s/ Christine G. Everest, 4,284 5,460 Gaylord
- ------------------------------- ----------- ----------- ----------
Cust., Tricia Louise Everest
/s/ James R. Everest 8,568 8,568 Gaylord
- ------------------------------- ----------- ----------- ----------
/s/ Edith Gaylord Harper 4,000,000 2,750,000 Gaylord
- ------------------------------- ----------- ----------- ----------
/s/ Martin C. Dickinson 259,060 246,312 Dickinson
- ------------------------------- ----------- ----------- ----------
/s/ Elizabeth Dickinson 128,520 128,520 Dickinson
- ------------------------------- ----------- ----------- ----------
Smoyer
/s/ Walter J. and Elizabeth 128,520 128,520 Dickinson
- ------------------------------- ----------- ----------- ----------
D. Smoyer as Jnt. Tenants
/s/ Donald C. Dickinson, 2,347,320 2,340,230 Dickinson
- ------------------------------- ----------- ----------- ----------
Trustee of Dickinson Trust
- 27 -
28
CLASS B
COMMON COMMON
STOCKHOLDER STOCK STOCK FAMILY GROUP
- ----------- ----- ----- ------------
/s/ John R. Henkel, Trustee 2,656,354 2,179,098 Dickinson
- ------------------------------- ----------- ----------- ----------
Dorothy L. Root Liv. Tr.
/s/ John R. Henkel, Trustee -0- 268,756 Dickinson
- ------------------------------- ----------- ----------- ----------
Charles R. Root, Jr.
/s/ Rebecca E. Dickinson 3,950 -0- Dickinson
- ------------------------------- ----------- ----------- ----------
/s/ Janet L. Rollins, Trustee 671,731 671,731 Dickinson
- ------------------------------- ----------- ----------- ----------
of Janet L. Rollins 1986 Tr.
U/T/D 8/13/86
/s/ Leon J. Fairbanks 579,981 528,596 Dickinson
- ------------------------------- ----------- ----------- ----------
/s/ Faith Fairbanks 55,500 65,600 Dickinson
- ------------------------------- ----------- ----------- ----------
Friedlander
/s/ David M. Friedlander 428 428 Dickinson
- ------------------------------- ----------- ----------- ----------
- 28 -
29
VOTING TRUSTEES
TRUSTEE ADDRESS
- ------------------------------- ------------------------------------
/s/ Edward L. Gaylord 1506 Dorchester Dr.
- ------------------------------- ------------------------------------
Edward L. Gaylord Oklahoma City, OK 73120
- ------------------------------- ------------------------------------
------------------------------------
/s/ Edith Gaylord Harper 1701 Bedford Drive
- ------------------------------- ------------------------------------
Edith Gaylord Harper Oklahoma City, OK 73116
- ------------------------------- ------------------------------------
------------------------------------
/s/ Christine Gaylord Everest 6608 N. Pennsylvania Ave.
- ------------------------------- ------------------------------------
Christine Gaylord Everest Oklahoma City, OK 73116
- ------------------------------- ------------------------------------
------------------------------------
/s/ Edward K. Gaylord II Route 8, Box 104B
- ------------------------------- ------------------------------------
Edward K. Gaylord II Guthrie, OK 73044
- ------------------------------- ------------------------------------
------------------------------------
/s/ Donald C. Dickinson P.O. Box 808
- ------------------------------- ------------------------------------
Donald C. Dickinson Rancho Santa Fe, CA 92067
- ------------------------------- ------------------------------------
------------------------------------
/s/ Martin C. Dickinson 605 Gage Drive
- ------------------------------- ------------------------------------
Martin C. Dickinson San Diego, CA 92106
- ------------------------------- ------------------------------------
------------------------------------
- 29 -
30
Amendment No. 1 to Voting Trust Agreement
WHEREAS The Oklahoma Publishing Company (to be renamed "Gaylord
Entertainment Company," the "Company"), a corporation organized and existing
under the laws of the State of Delaware, pursuant to a plan of reorganization
has proposed to cause, among other things, the following actions to occur: (i)
transferring certain of its assets and associated liabilities to OPUBCO, Inc.
(to be renamed "The Oklahoma Publishing Company," "OPUBCO"), a newly formed
subsidiary of the Company, (ii) distributing pro rata all of the outstanding
capital stock of OPUBCO to the Company's stockholders, and (iii) recapitalizing
the Company's capital stock such that the then holders of the Company's
outstanding capital stock will receive one share of Class B Common Stock in
exchange for each three shares of capital stock (collectively, the
"Reorganization");
WHEREAS following the Reorganization, the Voting Trustees will, pursuant
to Section 12 of the Voting Trust Agreement, dated as of the 3rd day of October,
1990 (the "Agreement"), hold on behalf of the Stockholders, stock of
two issuers, the Company and OPUBCO; and
WHEREAS the parties to the Agreement, deem it advisable and appropriate to
amend the Agreement in light of the Reorganization;
31
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the several parties
hereto mutually agree to the following amendments to the Agreement set forth
below:
1. All references to the "Corporation" used herein and in the Agreement
shall mean the Company, OPUBCO and/or any other corporation of which the Voting
Trustees hold shares of such corporation's capital stock pursuant to Section 12
of this Agreement, as applicable.
2. Section 2. In the seventh line of paragraph 1 of Section 2, after the
words "shall state the," the following shall be added:
"issuer, class and"
3. Section 7. In the eighth line of Section 7 after the words "entitled to
exercise," the following shall be added:
"except for the right to sell, transfer or assign such stock,"
4. Section 10. The heading and the first paragraph of Section 10 shall be
deleted and replaced by the following:
"10. Transfer Restrictions on Trust Certificates. The trust certificates
representing stock may not be transferred, either by sale, assignment, gift, be-
quest, appointment, or otherwise, except to a Permitted Transferee, as such term
is defined in the Certificate of
2
32
Incorporation of the applicable Corporation; provided that, prior to the
transfer to a Permitted Transferee, the trust certificate holder shall provide
written notice to the Voting Trustees of such proposed transfer. The trust
certificate may not be transferred to the Permitted Transferee if, within 10
days after the written notice is provided to the Voting Trustees, at least 60%
of the Voting Trustees object, in their sole discretion, to such transfer and
notify, in writing, the proposed transferor of such objection. All transfers of
trust certificates shall, in addition be subject to such Permitted Transferees
entering into and becoming a party to this Agreement and to any additional
restrictions, limitations and provisions contained in the Certificate of
Incorporation or By-Laws of the applicable Corporation, as the same may be
amended from time to time, which are applicable to the sale, transfer or other
assignment of the stock of such Corporation. Upon an authorized transfer of any
trust certificate to a Permitted Transferee, the Voting Trustees shall, upon
surrender of the trust certificate, duly endorsed by the transferor thereof to
the Permitted Transferee, issue a new certificate to the Permitted Transferee
and register the Permitted Transferee on their records. Thereafter, the
Permitted Transferee shall succeed to all of the rights hereunder of the
transferor, and shall be bound by the terms of this Agreement and be deemed a
Stockholder to the same extent as if such Permitted Transferee had subscribed
thereto. The determination of whether a trust certificate has been validly
transferred and whether the transferee is a Permitted Transferee shall be at the
sole discretion of the Voting Trustees."
5. Section 14. In the seventh line of Section 14, after the word "stock,"
the following shall be added:
"of each Corporation the stock of which is represented by outstanding trust
certificates"
6. Section 15. (a) In the eighth line of paragraph 2 of Section 15, after
the words "shares of stock of" the words "the Corporation" shall be deleted and
the following shall be added:
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"each Corporation the stock of which is represented by outstanding trust
certificates"
(b) In the eighth line of paragraph 3 of Section 15, after the words
"shares of stock of," the words "the Corporation" shall be deleted and the
following shall be added:
"each Corporation the stock of which is represented by trust
certificates"
7. Section 18. The following, new paragraph shall be added after the first
paragraph in Section 18.
"All indemnification and reimbursement of expenses hereunder shall be
allocated pro rata among the Stockholders, based upon the cash dividends
allocable to shares beneficially owned by such Stockholders in each Corporation
the stock of which is represented by trust certificates; provided, however, that
if an indemnification and/or reimbursement expense is attributable to actions
taken or not taken by the Voting Trustees in respect of the stock of a
particular Corporation, then such reimbursement shall be the exclusive
responsibility of Stockholders of such Corporation, on a pro rata basis. The
allocation of reimbursement for expenses and indemnification shall be at the
sole discretion of the Voting Trustees."
8. Section 20. In the sixteenth line of Section 20, after the words
"shares of stock of," the words "the Corporation" shall be deleted and the
following shall be added:
"each Corporation the stock of which is represented by trust
certificates"
9. Section 27. In the sixteenth line of Section 27, after the words
"shares of stock of," the words
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"the Corporation" shall be deleted and the following shall be added:
"each Corporation the stock of which is represented by trust
certificates"
10. Section 28. (a) The fourth and fifth lines of Section 28 a. shall be
deleted and replaced by the following:
"at 9000 North Broadway, Oklahoma City, Oklahoma 73114 (or such other
address as the Voting Trustees may"
(b) Section 28 c. shall be deleted and replaced with the following:
c. OPUBCO and the Company. Any notice given to OPUBCO hereunder shall be
sufficient if addressed to OPUBCO and sent by certified mail, return receipt re-
quested, as follows:
The Oklahoma Publishing Company
9000 North Broadway
Oklahoma City, Oklahoma 73114
Attention: Secretary
Any notice given to the Company hereunder shall be sufficient if addressed
to the Company and sent by certified mail, return receipt requested, as follows:
Gaylord Entertainment Company
2802 Opryland Drive
Nashville, Tennessee 37214
Attention: Secretary
or to such other address as either, OPUBCO or the Company, as the case may be,
may designate by notice in writing to the Voting Trustees; provided however,
that any notice receipted for by any executive officer of OPUBCO or the Company,
as the case may be, shall be deemed sufficient for the respective corporation.
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11. Section 30. The third and fourth lines of Section 30 shall be deleted
and replaced by the following:
"filed with the Corporation at its principal offices at 9000 North
Broadway, Oklahoma City, Oklahoma, and in the Corporation's"
All terms not defined herein shall have the meaning set forth in the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Agreement, as Voting Trustees and as Stockholders, as of the 23rd day of
October, 1991.
/s/ EDWARD L. GAYLORD
------------------------------
Edward L. Gaylord
/s/ EDITH GAYLORD HARPER
------------------------------
Edith Gaylord Harper
/s/ CHRISTINE GAYLORD EVEREST
------------------------------
Christine Gaylord Everest
/s/ EDWARD K. GAYLORD II
------------------------------
Edward K. Gaylord II
------------------------------
Martin C. Dickinson
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