<PAGE> 1
REGISTRATION NO. 33------
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SECURITIES AND EXCHANGE COMMISSION
--------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
FOR REGISTRATION OF VOTING TRUST CERTIFICATES REPRESENTING
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of securities to be deposited under voting trust agreement)
ISSUED BY
GRAYBAR ELECTRIC COMPANY, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 5063 13-0794380
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
34 NORTH MERAMEC AVENUE, ST. LOUIS, MISSOURI 63105 (314) 512-9200
(Address. including zip code, and telephone number, including area
code, of registrant's principal executive offices)
GEORGE S. TULLOCH, JR., ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
GRAYBAR ELECTRIC COMPANY, INC.
34 NORTH MERAMEC AVENUE
ST. LOUIS, MISSOURI 63105
(314) 512-9200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copy to:
JOHN H. DENNE, ESQ.
WHITMAN BREED ABBOTT & MORGAN
200 PARK AVENUE
NEW YORK, NEW YORK 10166
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
January 8, 1997
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933 check the following box. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE<F1> OFFERING PRICE<F1> REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Voting Trust Certificates 5,000,000(2) $20 $100,000,000 $30,304
==================================================================================================================================
<FN>
<F1> This figure inserted for the purpose of calculating the registration fee.
<F2> Voting Trust Certificates representing 5,000,000 shares of Common Stock.
par value $ 1.00 per share.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE
UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
<TABLE>
GRAYBAR ELECTRIC COMPANY, INC.
--------------------
CROSS-REFERENCE SHEET
FURNISHED PURSUANT TO ITEM 501(B) OF REGULATION S-K
<CAPTION>
CAPTION OR LOCATION
ITEM NUMBER AND CAPTION IN FORM S-1 IN PROSPECTUS
-------------------
<S> <C>
1. Forepart of the Registration Statement and Outside Front Cover
Page of Prospectus Cover page
2. Inside Front and Outside Back Cover Pages of Prospectus Inside front cover page; Reports to
Security Holders
3. Summary Information, Risk Factors and Ratio of Earnings to
Fixed Charges The Company; Information
Concerning the Voting Trustees
4. Use of Proceeds <F*>
5. Determination of Offering Price <F*>
6. Dilution <F*>
7. Selling Security Holders <F*>
8. Plan of Distribution Cover page; Information Concerning
the 1987 Voting Trust Agreement
9. Description of Securities to be Registered Summary of Certain Provisions of
the 1997 Voting Trust Agreement
10. Interests of Named Experts and Counsel Legal Matters
11. Information with Respect to the Registrant The Company; Information
Concerning the 1987 Voting Trust
Agreement; Information
Concerning the Voting Trustees;
Summary of Certain Provisions of
the 1997 Voting Trust Agreement
12. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities <F*>
<FN>
- -----------------------
<F*> Omitted because not applicable, or answer to Item is negative
and is omitted from the Prospectus.
</TABLE>
<PAGE> 3
P R O S P E C T U S
VOTING TRUST CERTIFICATES
RELATING TO 5,000,000 SHARES OF COMMON STOCK,
PAR VALUE $1 PER SHARE,
OF
GRAYBAR ELECTRIC COMPANY, INC.
--------------------
The Voting Trust Certificates covered by this Prospectus are offered in
connection with an invitation by the voting trustees (the "Voting Trustees")
of the Graybar Electric Company, Inc. 1997 Voting Trust (the "1997 Voting
Trust") to all holders of record of shares of common stock, par value $1.00
per share with a stated value of $20.00 per share (the "Common Stock"),
issued by Graybar Electric Company, Inc. (the "Company"). All holders of
shares of Common Stock are invited to deposit their shares of Common Stock in
and become beneficiaries of the 1997 Voting Trust pursuant to the Voting
Trust Agreement, dated as of April 1, 1997 (the "1997 Voting Trust
Agreement"), and receive in exchange Voting Trust Certificates representing
beneficial ownership of such shares. Shares of Common Stock deposited in the
1997 Voting Trust may not be withdrawn or voted by the beneficial holders for
a period of ten years.
Holders of shares of Common Stock who become beneficiaries of the 1997
Voting Trust agree to deposit in the 1997 Voting Trust all shares of Common
Stock owned or subsequently acquired by them and to comply with the terms of
the 1997 Voting Trust Agreement. This Prospectus also covers the issue of
Voting Trust Certificates in exchange for additional shares of Common Stock
which are required to be deposited and are deposited from time to time under
the 1997 Voting Trust by shareholders who become beneficiaries of the 1997
Voting Trust.
The Voting Trust Certificates are subject to certain limitations on
transferability and to the right of the Company to repurchase them in certain
circumstances. See "Summary of Certain Provisions of the 1997 Voting Trust
Agreement--Restrictions on Transfer and Right of Company to Repurchase Voting
Trust Certificates Under Certain Circumstances." No public market exists for
the Company's Common Stock or for the Voting Trust Certificates, and no such
markets are expected to develop.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
THE DATE OF THIS PROSPECTUS IS JANUARY 8, 1997.
<PAGE> 4
NO PERSON HAS BEEN AUTHORIZED BY THE VOTING TRUSTEES TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATION OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING
CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE VOTING TRUSTEES. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR THE VOTING TRUST SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER
THAN THE REGISTERED SECURITIES TO WHICH IT RELATES, OR AN OFFER OR
SOLICITATION WITHIN ANY JURISDICTION WHERE SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL.
--------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
Available Information 2
The Company 2
Information Concerning the 1987 Voting Trust Agreement 3
Information Concerning the Voting Trustees 3
Summary of Certain Provisions of the 1997 Voting Trust Agreement 5
Legal Matters 8
Reports to Security Holders 9
Annex A--Voting Trust Agreement dated as of April 1, 1997
</TABLE>
--------------------
AVAILABLE INFORMATION
The Company and the Voting Trustees, as voting trustees under the Voting
Trust Agreement, dated as of April 15, 1987 (the "1987 Voting Trust
Agreement"), are each subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports and other information
filed by the Company and the Voting Trustees can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at certain regional
offices of the Commission located at Room 1102, Jacob K. Javits Building, 26
Federal Plaza, New York, New York 10278 and at Room 1204, Everett McKinley
Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604. Copies
of such material can also be obtained from the Public Reference Section of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates.
THE COMPANY
The Company, a New York corporation, is the issuer of the securities to be
deposited under the 1997 Voting Trust Agreement. The Company's principal
executive offices are located at 34 North Meramec Avenue, St. Louis, Missouri
63105, telephone number (314) 512-9200. Financial statements of the Company
are not included in this Prospectus. Certain financial and other information
regarding the Company may be obtained upon request addressed to the Secretary
of the Company at its principal executive offices.
The Company's authorized capitalization consists of 7,500,000 shares of
Common Stock, par value $1.00 per share, with a stated value of $20.00 per
share (the "Common Stock"), of which ---------- shares were issued and
outstanding and ------- shares had been acquired by the Company and were held
in its treasury as of December 16, 1996, and 300,000 shares of non-voting
preferred stock, par value $20.00 per share (the "Preferred Stock"), of which
- ------- shares were issued and outstanding and --- shares had been acquired
by the Company and were held in its treasury as of that date.
All of the issued and outstanding shares of Common Stock and Preferred
Stock are owned by employees and retirees of the Company.
-2-
<PAGE> 5
INFORMATION CONCERNING THE 1987 VOTING TRUST AGREEMENT
Since 1928, substantially all of the issued and outstanding shares of
Common Stock have been held by voting trustees under successive voting trust
agreements. Approximately 95% of the issued and outstanding shares of Common
Stock are presently held by the Voting Trustees as voting trustees under the
1987 Voting Trust Agreement, which expires by its terms on April 14, 1997.
Voting trust certificates representing the shares of Common Stock deposited
under the 1987 Voting Trust Agreement have been issued to the beneficial
owners of such shares.
In order to permit the beneficial owners of Common Stock to continue to
act together concerning the management of the Company and voting on matters
presented to the shareholders, the Board of Directors of the Company and the
Voting Trustees, each of whom is an officer or employee of the Company and a
member of its Board of Directors, have established, and recommend to the
holders of the voting trust certificates issued under the 1987 Voting Trust
Agreement that they elect to participate in, a new Voting Trust Agreement,
dated as of April 1, 1997 (the "1997 Voting Trust Agreement"), among the
Company, the Voting Trustees named therein and each holder of Common Stock
who elects to become a party to the 1997 Voting Trust Agreement. See
"Summary of Certain Provisions of the 1997 Voting Trust Agreement." Each of
the current Voting Trustees under the 1987 Voting Trust Agreement has
consented to act as a Voting Trustee under the 1997 Voting Trust Agreement.
At any time on or after April 1, 1997, if holders of at least a majority
of the voting trust certificates issued under the 1987 Voting Trust Agreement
shall have become parties to the 1997 Voting Trust Agreement, the Voting
Trustees under the 1987 Voting Trust Agreement may, in their discretion,
cause the 1987 Voting Trust Agreement to terminate. Holders of voting trust
certificates issued under the 1987 Voting Trust Agreement who elect to
participate in the 1997 Voting Trust Agreement will receive new voting trust
certificates issued under the 1997 Voting Trust Agreement (the "Voting Trust
Certificates") in exchange for voting trust certificates issued under the
1987 Voting Trust Agreement.
INFORMATION CONCERNING THE VOTING TRUSTEES
The names, positions with the Company and business addresses of the Voting
Trustees are as follows:
<TABLE>
<CAPTION>
NAME AND POSITION BUSINESS ADDRESS
----------------- ----------------
<S> <C>
Carl L. Hall, Director, President and Chief Executive Officer 34 North Meramec Avenue
St. Louis, Missouri 63105
Richard H. Haney, Director and Senior Vice President, Electrical Business 34 North Meramec Avenue
St. Louis, Missouri 63105
Golden W. Harper, Director and Vice President, Operations 34 North Meramec Avenue
St. Louis, Missouri 63105
Robert L. Mygrant, Director and District Vice President, Tampa District 34 North Meramec Avenue
St. Louis, Missouri 63105
Richard D. Offenbacher, Director, District Vice President, Southeastern 34 North Meramec Avenue
Comm/Data District St. Louis, Missouri 63105
</TABLE>
The sole occupation of each Voting Trustee is his employment with the
Company, and each has been employed by the Company for more than five years.
All communications to the Voting Trustees should be addressed to the Voting
Trustees at their principal executive office, which is c/o Graybar Electric
Company. Inc., P.O. Box 7231, St. Louis, Missouri 63177, telephone number
(314) 512-9200.
-3-
<PAGE> 6
As of December 16, 1996, each of the Voting Trustees owned of record and
beneficially for his account voting trust certificates under the 1987 Voting
Trust Agreement as follows:
<TABLE>
<CAPTION>
PERCENT OF
NAME AMOUNT OWNED<Fa> CLASS OWNED<Fb>
---- ---------------- --------------
<S> <C> <C>
C.L. Hall %
R.H. Haney
G.W. Harper
R.L. Mygrant
R.D. Offenbacher.
<FN>
- ------------
<Fa> The number of shares of Common Stock to which such voting trust
certificates relate.
<Fb> The Voting Trustees, as voting trustees under the 1987 Voting Trust
Agreement, hold of record approximately --% of the outstanding shares
of Common Stock.
</TABLE>
No person owns of record and beneficially voting trust certificates under
the 1987 Voting Trust Agreement representing more than 1% of the outstanding
shares of Common Stock.
None of the Voting Trustees has received or will receive remuneration for
serving in such capacity. The table below sets forth the total compensation
of the Voting Trustees during the three years ended December 31, 1995 in
their capacities as officers and directors of the Company.
<TABLE>
SUMMARY COMPENSATION TABLE
<CAPTION>
Annual Compensation
Name and Principal ----------------------------- All Other (F3>
Position Year Salary<F1> Bonus<F1><F2> Compensation
---------------------- ---- ---------- ------------- --------------
<S> <C> <C> <C> <C>
C.L. Hall, 1995 $217,800 $241,942 $38,439
President and Chief 1994 120,060 102,529 23,010
Executive Officer <F4> 1993 98,208 71,692 16,888
R.H. Haney, 1995 $137,500 $130,488 $24,704
Senior Vice 1994 91,150 68,363 18,461
President, Electrical 1993 85,884 62,695 14,583
Business
G.W. Harper, 1995 128,860 122,288 29,686
Vice President, 1994 121,564 118,526 25,225
Operations 1993 115,570 88,643 20,359
R.L. Mygrant, 1995 103,172 69,125 21,187
District Vice 1994 97,848 73,386 17,580
President, Tampa 1993 93,569 48,656 14,317
District
R.D. Offenbacher, 1995 95,592 67,392 19,532
District Vice 1994 89,564 67,173 18,122
President, 1993 84,764 61,454 14,474
Southeastern
Comm/Data District
<FN>
<F1> Includes amounts deferred pursuant to deferred compensation agreements
with certain employees who were not eligible to participate in the
employee contribution portion of the Profit Sharing and Savings Plan.
These agreements provide for deferral of from 2% to 10% of salary in
1993, 1994 and 1995; 2% to 15% of salary in 1996; 2% to 10% of bonus
payments in 1993, 1994 and 1995; and 2% to 25% of bonus payments in
1996, together with an additional amount credited to the employee's
deferred compensation account equal to the contribution to the Profit
Sharing and Savings Plan that would have been made by the Company if
such compensation had not been deferred. See (3) below. Payment of
sums deferred will generally be made in five or ten annual
installments commencing on retirement or
-4-
<PAGE> 7
in a lump sum on termination of service other than by retirement.
Interest is credited to sums deferred at the rate applicable to the fixed
income account of the Profit Sharing and Savings Plan at the end of each
calendar quarter.
<F2> Bonus paid on March 15th each year under the Company's Management
Incentive Plan with respect to services rendered during the prior
year. The Company's Management Incentive Plan covers all officers of
the Company and other management employees. In accordance with this
Plan, each participant has a guideline incentive, ranging from 20% to
80% of base salary. This guideline is subject to a year-end
adjustment based on performance against Plan goals. The adjustments
are based on objective measurements, such as sales and profits, but
may be varied at the discretion of the president and district vice
presidents. Participants may earn a maximum of 150% of the applicable
guideline.
<F3> Profit sharing contributions made during the years indicated.
Contributions by the Company under the Profit Sharing and Savings
Plan are made at the discretion of the Board of Directors for
eligible employees and, subject to certain exceptions, are made in
proportion to their annual earnings. Except as otherwise provided in
the Deed of Trust, the moneys held in trust thereunder are paid to
employees upon termination of employment for any reason including
their retirement or, in the event of their death prior to the
complete distribution of their interests, are paid to their estates
or designated beneficiaries. In addition, the portion of the profit
sharing payment earned by an employee in excess of the annual
limitations imposed by Section 401 or 415 of the Internal Revenue
Code was credited to his deferred compensation account or paid in
cash. In 1995, $16,596 was credited to Mr. Hall's deferred
compensation account in this regard. Similarly, $4,233, $8,718,
$2,128 and $555 were credited to the deferred compensation accounts
of Messrs. Haney, Harper, Mygrant and Offenbacher, respectively.
<F4> Mr. Hall became President and Chief Executive Officer on July 1, 1995.
Prior thereto, he was Executive Vice President since October 1, 1994.
</TABLE>
PENSION PLAN
The Company has a qualified defined benefit pension plan covering all
eligible full-time employees. Employees become fully vested after 5 years of
service. After December 31, 1992, employees may retire and begin receiving
pensions at the age of 65, or earlier if they are at least age 60 with 20
years of credited service. Prior to January 1, 1993, employees could retire
and begin receiving pensions at age 55 with 20 years or more of credited
service, at age 50 with 25 years of credited service, or any age with 30
years of credited service under the plan. Employees who had completed 15
years of service on December 31, 1992 may still retire and receive their
entire benefit under the pre-1993 rule, but employees who had not completed
15 years of service on December 31, 1992 can receive only the benefit accrued
on December 31, 1992 under the old rule, and the benefit accrued after that
date under the new rule.
The following table sets forth annual benefits which would become
payable under the Company's pension plan or supplemental benefits plan based
on certain assumptions as to earnings and years of credited service without
giving effect to any applicable Social Security offset.
<TABLE>
PENSION PLAN TABLE
<CAPTION>
Years of Service
--------------------------------------------------------------------------------
Compensation 20 25 30 35 40
- ------------ --------- --------- -------- --------- --------
<S> <C> <C> <C> <C> <C>
$200,000 $ 40,000 $ 50,000 $ 60,000 $ 70,000 $ 80,000
300,000 60,000 75,000 90,000 105,000 120,000
400,000 80,000 100,000 120,000 140,000 160,000
600,000 120,000 150,000 180,000 210,000 240,000
800,000 160,000 200,000 240,000 280,000 320,000
</TABLE>
An employee's annual pension income is based on the employee's average
earnings during the sixty consecutive months preceding retirement in which
earnings were highest, multiplied by one percent for each year of credited
service and offset by an amount which cannot exceed limitations imposed by
the Internal Revenue Code. As of December 31, 1995, the years of credited
service for the Voting Trustees were as follows: C.L. Hall - 36, R.H. Haney
- - 33, G.W. Harper - 38, R.L. Mygrant - 31 and R.D. Offenbacher -27. The
amounts of salary and bonus in the Summary Compensation Table are substantially
equivalent to covered compensation under the plan. To the extent that annual
benefits exceed limitations imposed by the Internal Revenue Code of 1986, as
amended, such benefits will be paid out of the general revenues of the Company
by means of a supplemental benefits plan.
-5-
<PAGE> 8
SUMMARY OF CERTAIN PROVISIONS OF THE 1997 VOTING TRUST AGREEMENT
The statements under this heading relating to the 1997 Voting Trust
Agreement are summaries of certain of its provisions and do not purport to be
complete. Such summaries are qualified in their entirety by reference to the
1997 Voting Trust Agreement, a copy of which appears as Annex A to this
Prospectus and which is incorporated herein by reference. All section
references are to the 1997 Voting Trust Agreement.
General. The 1997 Voting Trust Agreement provides for the deposit
thereunder only of Common Stock or voting stock of the Company or a successor
corporation issued in respect of the Common Stock in connection with a
recapitalization or reclassification of the Common Stock or merger or
consolidation of the Company into another corporation. Such securities may
not be withdrawn by the beneficial owners prior to the expiration or
termination of the 1997 Voting Trust Agreement. The certificates
representing shares of Common Stock deposited under the 1997 Voting Trust
Agreement must be deposited, within a reasonable time after receipt thereof
by the Voting Trustees, either in a safe deposit box rented by the Voting
Trustees or with a depositary bank or trust company located in the County of
St. Louis, State of Missouri. No such depositary has been appointed and the
Voting Trustees have no present intention of making any such appointment.
(Section 6.02)
The Voting Trust was originally established in 1928 as a security device
in connection with the purchase by the Company of the wholesale supply
business of Western Electric Company, Incorporated. The Voting Trust
arrangement has been continued since its inception by the periodic adoption,
as permitted by applicable law, of successive Voting Trust Agreements by
substantially all of the shareholders of the Company. In connection with the
adoption of each new Voting Trust Agreement, management has recommended to
shareholders that the Voting Trust arrangement be continued because it
believed that the operation of the business of the Company had been
successfully conducted under such arrangement and such arrangement was in the
best interests of the Company.
The 1997 Voting Trust Agreement is dated as of April 1, 1997 and will
expire on March 31, 2007 unless extended or sooner terminated as provided
therein. The 1997 Voting Trust Agreement may be terminated at any time by a
majority of the Voting Trustees or by the holders of Voting Trust
Certificates representing at least 75% of the number of shares of Common
Stock deposited under the 1997 Voting Trust Agreement. At any time within
six months prior to the expiration of the 1997 Voting Trust Agreement, one or
more holders of Voting Trust Certificates may, by agreement in writing with
the Voting Trustees and the Company, extend the duration of the 1997 Voting
Trust Agreement for an additional period not exceeding ten years. Any such
extension will be binding only upon holders of Voting Trust Certificates who
consent thereto. (Section 6.04)
The 1997 Voting Trust Agreement may be amended or modified at any time by
a majority of the Voting Trustees, the Company and the holders of Voting
Trust Certificates representing at least 75% of the number of shares of
Common Stock deposited under the 1997 Voting Trust Agreement. Such amendment
or modification, if made, could affect the rights of the then existing
holders of Voting Trust Certificates. (Section 6.03)
The 1997 Voting Trust Agreement is governed by the laws of the State of
New York. Under the Business Corporation Law of the State of New York,
holders of Voting Trust Certificates are given the right to inspect the books
and records of the Company under certain circumstances. The Company intends
to furnish copies of its Annual Report to holders of Voting Trust
Certificates. (Section 6.08)
Voting Trustees. Voting Trustees must be employees of the Company and
any Voting Trustee who for any cause, including retirement on a pension,
ceases to be an employee of the Company automatically ceases to be a Voting
Trustee. Any Voting Trustee may at any time resign and may be removed by
holders of Voting Trust Certificates representing at least 66-2/3% of the
number of shares of Common Stock deposited under the 1997 Voting Trust
Agreement. (Section 5.01)
-6-
<PAGE> 9
Vacancies in the office of Voting Trustee will be filled by a majority of
the remaining Voting Trustees, unless there shall be less than three Voting
Trustees in office, in which event the vacancies shall be filled by the Board
of Directors of the Company. No Voting Trustee who has been previously
removed from office may be redesignated or elected a Voting Trustee without
the approval of holders of Voting Trust Certificates representing at least
66-2/3% of the number of shares of Common Stock deposited under the 1997
Voting Trust Agreement. (Section 5.01)
The 1997 Voting Trust Agreement provides that the Voting Trustees, in
exercising the rights and powers granted to them, shall exercise their best
judgment in securing the election of suitable directors for the Company and
in voting on or consenting to other matters. Voting Trustees may be, and may
vote for themselves as, directors of the Company. No person is disqualified
from acting as a Voting Trustee by reason of any personal interest in the
Company and a Voting Trustee may deal with the Company as fully as if he did
not hold such office. The Voting Trustees may execute any of the trusts or
powers or perform any of the duties under the 1997 Voting Trust Agreement
either directly or by or through agents or attorneys appointed by them. Any
action required or permitted to be taken by the Voting Trustees may be taken
by vote or written consent of a majority of the Voting Trustees. (Section
5.02)
As specified in the 1997 Voting Trust Agreement, Voting Trustees and
their agents and attorneys are not liable to holders of Voting Trust
Certificates or the Company except for their individual willful misconduct.
The Company has agreed to indemnify each Voting Trustee and each agent or
attorney of the Voting Trustees for, and to hold him harmless against, any
tax, loss, liability or expense incurred for any reason, except his own
individual willful misconduct, arising out of or in connection with the
acceptance or administration of the Voting Trust and the performance of his
duties and obligations and the exercise of his rights and powers thereunder.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to the Voting
Trustees pursuant to the foregoing provisions, the Voting Trustees have been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable. The Company has also agreed to pay the
reasonable expenses incurred by the Voting Trustees in connection with the
performance of their duties and obligations under the 1997 Voting Trust
Agreement. In consideration of the Voting Trustees having agreed to serve in
that capacity for the benefit of the holders of Voting Trust Certificates, the
1997 Voting Trust Agreement provides that, in the event the Company fails or
is unable to provide such indemnification or pay such expenses, the holders
of Voting Trust Certificates will do so and the responsibility therefor will
be allocated among them ratably in proportion to the number of shares of
Common Stock represented by their respective Voting Trust Certificates. The
obligations of the Company and the holders of Voting Trust Certificates are
payable from any funds or other assets held by the Voting Trustees for their
respective accounts. (Sections 5.03 and 5.04)
No bond is to be posted by the Voting Trustees with respect to their
performance under the 1997 Voting Trust Agreement.
Voting. Except as set forth below, the Voting Trustees are entitled in
their discretion and using their best judgment to vote on or consent to the
election of directors of the Company and the ratification, approval or
disapproval of any other action or proposed action of the Company. The
Voting Trustees, each of whom is currently a director of the Company, are
specifically authorized to vote for themselves as directors of the Company
under the terms of the 1997 Voting Trust Agreement. The Voting Trustees may
not, without the consent of the holders of Voting Trust Certificates
representing at least 75% of the aggregate number of shares of Common Stock
then deposited under the 1997 Voting Trust Agreement, vote on or consent to
the merger or consolidation of the Company into another corporation, the sale
of all or substantially all of the Company's assets, or the liquidation and
dissolution of the Company. (Section 4.02)
Dividends. All dividends payable with respect to shares of Common Stock
deposited under the 1997 Voting Trust Agreement are payable to the Voting
Trustees as the owners of record of such shares. The Voting Trustees will
retain, subject to the terms of the 1997 Voting Trust Agreement, all shares
of Common Stock received as a stock dividend, and will deliver to each holder
of a Voting Trust Certificate representing
-7-
<PAGE> 10
shares of Common Stock on which such stock dividend shall have been paid an
additional Voting Trust Certificate for the number of shares received as a
dividend with respect to such Common Stock. The Voting Trustees will pay or
cause to be paid to the holders of Voting Trust Certificates an amount equal
to any cash dividend and any distribution paid other than in cash or Common
Stock. (Section 4.03)
Subscription Offers and Employee Plans. Any shares of Common Stock
subscribed for on behalf of, or acquired by, a holder of a Voting Trust
Certificate pursuant to a subscription offer or employee plan or otherwise
must be deposited with the Voting Trustees and will be held by them subject
to the terms of the 1997 Voting Trust Agreement. The Voting Trustees will
deliver to the holders of Voting Trust Certificates on whose behalf any such
shares of Common Stock are deposited additional Voting Trust Certificates for
such shares. (Sections 4.04 and 4.05)
Recapitalization or Reclassification of Common Stock. In the event of a
recapitalization of the Company or reclassification of the Common Stock, the
Voting Trustees will hold, subject to the terms of the 1997 Voting Trust
Agreement, any shares of voting stock of the Company issued in respect of
shares of Common Stock deposited under the 1997 Voting Trust Agreement. In
such case, issued and outstanding Voting Trust Certificates may remain
outstanding or the Voting Trustees may substitute new certificates in
appropriate form. (Section 4.06)
Reorganization of the Company. Depending on the terms of any agreement
pursuant to which the Company is merged or consolidated into another
corporation, the Voting Trustees either will hold, subject to the terms of
the 1997 Voting Trust Agreement, any shares of voting stock of the successor
corporation issued to them in respect of the Common Stock deposited under the
1997 Voting Trust Agreement (in which case issued and outstanding Voting
Trust Certificates may remain outstanding or the Voting Trustees may
substitute new certificates in appropriate form), or will distribute such
shares to the holders of Voting Trust Certificates in accordance with the
number of shares of Common Stock represented by their respective Voting Trust
Certificates. In any event, any other consideration received as a result of
such reorganization will be distributed ratably to the holders of Voting
Trust Certificates. (Section 4.08)
Dissolution of the Company. In the event of the dissolution and
liquidation of the Company, the Voting Trustees will distribute any money,
securities, rights or property received by them as the record owners of
Common Stock ratably to the holders of Voting Trust Certificates. (Section
4.07)
Restrictions on Transfer and Right of the Company to Repurchase Voting
Trust Certificates Under Certain Circumstances. The 1997 Voting Trust
Agreement provides that the Voting Trustees need not recognize any claim of a
holder of a Voting Trust Certificate who has obtained such certificate in
contravention of any of the provisions of the Restated Certificate of
Incorporation, as amended, of the Company in effect at the time such Voting
Trust Certificate was so obtained, and further provides that Voting Trust
Certificates issued under the 1997 Voting Trust Agreement are held by each
holder upon and subject to the same terms and conditions upon which shares of
Common Stock are held pursuant to the provisions of the Restated Certificate
of Incorporation, as amended, of the Company. (Sections 3.01 and 4.09)
The following is a brief summary of the provisions of the Company's
Restated Certificate of Incorporation, as amended, which place restrictions
and limitations on the holding and sale, transfer or pledge of Common Stock.
Such provisions are equally applicable to Voting Trust Certificates.
No holder of Common Stock may sell, transfer or otherwise dispose of any
shares of Common Stock without first offering the Company the option to
purchase such shares within 30 days after said offer at the purchase price of
$20 per share, with appropriate adjustment for regular dividends, if any,
declared and paid at the end of the quarter in which such offer is made. The
Company also has the option to purchase the Common Stock of any shareholder
who ceases to be an employee of the Company for any reason other than death
or retirement on a pension (except a deferred pension, in which case the
holder must surrender his shares or Voting Trust Certificates as a condition
to eligibility for and entitlement to such deferred pension) at the same
price at any time after termination of employment until 30 days after the
holder makes an offer
-8-
<PAGE> 11
to sell said Common Stock to the Company. In the event of the death of any
shareholder, the Company has the option to purchase all or any part of his
Common Stock from his estate at the purchase price hereinabove referred to at
any time after the expiration of one year from the date of death until 30 days
after such Common Stock shall have been offered to the Company; provided,
however, that the estate of such deceased shareholder may offer to sell said
shares to the Company within such one-year period, in which event the
Company's option terminates within 30 days from such offer. In the past, the
Company has always exercised the options referred to above and expects to
continue exercising such options.
No shareholder may hypothecate or pledge any shares of Common Stock,
except under an agreement of hypothecation or pledge containing provisions
permitting the Company to exercise the options referred to above and to
redeem the pledge of shares in the event of default upon payment of the
lesser of the amount due on the pledge or the purchase price hereinabove
referred to with suitable provisions for redemption by the shareholder or
payment to him of any balance to which he may be entitled. No shareholder
may transfer or place any shares of Common Stock, or Voting Trust
Certificates representing shares, into a trust, except that the Company will,
under certain circumstances, permit such transfer or placement upon receipt
of a written agreement from the trustees and the shareholder in form
satisfactory to the Company providing that such shareholder retains the right
to direct the action to be taken by the trustees on any matter submitted to a
vote by holders of shares of Common Stock or Voting Trust Certificates and
permitting the Company to exercise the options referred to above and to
redeem the shares, or Voting Trust Certificates representing shares, if any
party other than the holder or the trustee shall claim or establish ownership
of or interest in the shares, or Voting Trust Certificates representing
shares, and requiring the trustees to comply with all provisions of the
Restated Certificate of Incorporation, as amended, relating to transfers of
shares.
LEGAL MATTERS
The legality of the Voting Trust Certificates offered hereby will be
passed upon by Whitman Breed Abbott & Morgan, 200 Park Avenue, New York, New
York 10166, counsel for the Company and the Voting Trustees.
REPORTS TO SECURITY HOLDERS
The 1997 Voting Trust Agreement does not provide for the Voting Trustees
to furnish reports to the holders of Voting Trust Certificates. The Company
furnishes annual and quarterly reports and information statements to its
shareholders, including all persons listed on the books of the Voting
Trustees as holders of Voting Trust Certificates.
The 1997 Voting Trust Agreement does not provide for the inspection of
the transfer books and list of certificate holders by the holders of Voting
Trust Certificates. Such holders, however, will have the rights set forth in
Section 621(b) of the New York Business Corporation Law, which provides as
follows:
"The trustee or trustees shall keep available for inspection by
holders of voting trust certificates at his or their office or at a
place designated in such agreement or of which the holders of voting
trust certificates have been notified in writing, correct and complete
books and records of account relating to the trust, and a record
containing the names and addresses of all persons who are holders of
voting trust certificates and the number and class of shares
represented by the certificates held by them and the dates when they
became the owners thereof. The record may be in written form or any
other form capable of being converted into written form within a
reasonable time."
In addition, a copy of the 1997 Voting Trust Agreement and the list of
holders of Voting Trust Certificates will be on file in the principal
executive office of the Company and will be available for inspection by any
shareholder of the Company or any holder of Voting Trust Certificates.
-9-
<PAGE> 12
ANNEX A
GRAYBAR ELECTRIC COMPANY, INC.
-----------------------------------------
VOTING TRUST AGREEMENT
-----------------------------------------
Dated as of April 1, 1997
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<PAGE> 13
<TABLE>
INDEX
<CAPTION>
Page
----
<S> <C>
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
ARTICLE I
DEFINITIONS
Section 1.01. Agent. . . . . . . . . . . . . . . . . . A-1
Section 1.02. Certificate of Incorporation . . . . . . A-1
Section 1.03. Common Stock . . . . . . . . . . . . . . A-1
Section 1.04. Corporation. . . . . . . . . . . . . . . A-1
Section 1.05. 1997 Voting Trust. . . . . . . . . . . . A-1
Section 1.06. Non-participating Shareholders . . . . . A-2
Section 1.07. Participating Shareholders . . . . . . . A-2
Section 1.08. Register . . . . . . . . . . . . . . . . A-2
Section 1.09. Shareholders . . . . . . . . . . . . . . A-2
Section 1.10. Stock Certificates . . . . . . . . . . . A-2
Section 1.11. Voting Trust Agreement . . . . . . . . . A-2
Section 1.12. Voting Trust Certificates. . . . . . . . A-2
Section 1.13. Voting Trustees. . . . . . . . . . . . . A-2
ARTICLE II
PARTICIPATION
Section 2.01. Election to Participate. . . . . . . . . A-2
Section 2.02. Delivery of Voting Trust Certificates. . A-2
ARTICLE III
VOTING TRUST CERTIFICATES
Section 3.01. Form of Voting Trust Certificates. . . . A-3
Section 3.02. Execution. . . . . . . . . . . . . . . . A-12
Section 3.03. Exchange, Registration and Registration
of Transfer. . . . . . . . . . . . . . . . . . . . A-12
Section 3.04. Mutilated, Destroyed, Lost or Stolen
Voting Trust Certificate . . . . . . . . . . . . . A-13
ARTICLE IV
CONCERNING THE PARTICIPATING SHAREHOLDERS
Section 4.01. Rights of Participating Shareholders . . A-13
Section 4.02. Voting . . . . . . . . . . . . . . . . . A-13
Section 4.03. Dividends. . . . . . . . . . . . . . . . A-14
Section 4.04. Subscription Offers. . . . . . . . . . . A-14
Section 4.05. Employee Plans . . . . . . . . . . . . . A-14
Section 4.06. Recapitalization or Reclassification of
Common Stock . . . . . . . . . . . . . . . . . . . A-15
Section 4.07. Dissolution of the Corporation . . . . . A-15
Section 4.08. Reorganization of the Corporation. . . . A-15
<PAGE> 14
Section 4.09. Restrictions on Transfer . . . . . . . . A-15
Section 4.10. Exchange of Voting Trust Certificates for
Stock Certificates . . . . . . . . . . . . . . . . A-16
Section 4.11. Meetings of Participating Shareholders . A-16
ARTICLE V
CONCERNING THE VOTING TRUSTEES
Section 5.01. Appointment and Qualification;
Vacancies. . . . . . . . . . . . . . . . . . . . . A-17
Section 5.02. Rights and Powers. . . . . . . . . . . . A-17
Section 5.03. Limitation on Liability;
Indemnification. . . . . . . . . . . . . . . . . . A-18
Section 5.04. Compensation and Expenses. . . . . . . . A-19
ARTICLE VI
MISCELLANEOUS
Section 6.01. Appointment of Agents. . . . . . . . . . A-19
Section 6.02. Deposit of Stock Certificates. . . . . . A-20
Section 6.03. Amendment. . . . . . . . . . . . . . . . A-20
Section 6.04. Termination and Extension. . . . . . . . A-20
Section 6.05. Notices. . . . . . . . . . . . . . . . . A-20
Section 6.06. Successors and Assigns . . . . . . . . . A-21
Section 6.07. Counterparts . . . . . . . . . . . . . . A-21
Section 6.08. Governing Law. . . . . . . . . . . . . . A-21
Section 6.09. Severability . . . . . . . . . . . . . . A-21
Section 6.10. Headings; Table of Contents. . . . . . . A-21
-ii-
<PAGE> 15
THIS VOTING TRUST AGREEMENT, dated as of April 1, 1997, among
such holders of shares (the "Participating Shareholders") of common
stock, par value $1.00 per share with a stated value of $20.00 per
share (the "Common Stock"), of GRAYBAR ELECTRIC COMPANY, INC., a
New York corporation (the "Corporation ), who shall become parties
to this Voting Trust Agreement as hereinafter provided, Carl L.
Hall, Richard H. Haney, Golden W. Harper, Robert L. Mygrant and
Richard D. Offenbacher, as voting trustees (the "Voting Trustees"),
and the Corporation.
WITNESSETH:
WHEREAS, substantially all of the issued and outstanding
shares of Common Stock of the Corporation are owned of record by
voting trustees under a voting trust agreement dated as of April
15, 1987, which agreement, unless extended or sooner terminated as
provided therein, will terminate on April 14, 1997; and
WHEREAS, the Participating Shareholders believe it is
advisable and in the best interests of the Corporation and the
Participating Shareholders to enter into this Voting Trust
Agreement in order to secure continuity and stability of policy and
management of the Corporation by acting together with respect to
the voting on or consenting to certain matters that may be acted
upon by the holders of Common Stock;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements herein contained, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Voting Trust Agreement, the following
terms shall have the respective meanings specified in this
Article I.
SECTION 1.01. "Agent" shall mean each of the individuals, and
their respective successors, appointed as an Agent of the Voting
Trustees pursuant to the provisions of Section 6.01 hereof.
SECTION 1.02. "Certificate of Incorporation" shall mean the
Restated Certificate of Incorporation of the Corporation as from
time to time amended.
SECTION 1.03. "Common Stock" shall mean the common stock, par
value $1.00 per share with a stated value of $20.00 per share, of
the Corporation.
SECTION 1.04. "Corporation" shall mean Graybar Electric
Company, Inc., a New York corporation, and its successors.
SECTION 1.05. "1997 Voting Trust" shall mean the trust
created pursuant to the provisions of this Voting Trust Agreement.
SECTION 1.06. "Non-participating Shareholders" shall mean the
holders of shares of Common Stock who do not become parties to this
Voting Trust Agreement.
SECTION 1.07. "Participating Shareholders" shall mean the
beneficial owners of shares of Common Stock who have become parties
to this Voting Trust Agreement pursuant to the provisions of
Section 2.01 hereof.
A-1
<PAGE> 16
SECTION 1.08. "Register" shall mean the register or
registers, to be maintained by the Voting Trustees pursuant to the
provisions of Section 3.03(b) hereof, in which the Voting Trustees
shall register the original issuance and transfer of Voting Trust
Certificates.
SECTION 1.09. "Shareholders" shall mean all record and
beneficial owners of shares of Common Stock, including, but not
limited to, Participating Shareholders.
SECTION 1.10. "Stock Certificates" shall mean the
certificates representing shares of Common Stock, whether or not
the same shall have been deposited with the Voting Trustees
pursuant to this Voting Trust Agreement.
SECTION 1.11. "Voting Trust Agreement" shall mean this Voting
Trust Agreement, dated as of April 1, 1997, among the Participating
Shareholders, the Voting Trustees and the Corporation, as it may
hereafter be amended or modified pursuant to the provisions of
Section 6.03 hereof.
SECTION 1.12. "Voting Trust Certificates" shall mean the
Voting Trust Certificates, substantially in the form set forth in
Section 3.01 hereof, issued to the Participating Shareholders
pursuant to the terms of Section 2.02 hereof.
SECTION 1.13. "Voting Trustees" shall mean Carl L. Hall,
Richard H. Haney, Golden W. Harper, Robert L. Mygrant and Richard
D. Offenbacher, and their survivors or survivor and their or his
successors or successor, as voting trustees, appointed pursuant to
the provisions of Section 5.01 hereof.
ARTICLE II
PARTICIPATION
SECTION 2.01. Election to Participate. Each Shareholder may
elect to participate in the 1997 Voting Trust by (i) executing and
delivering a copy of this Voting Trust Agreement, either in person
or by a duly authorized attorney-in-fact, and (ii) depositing or
causing to be deposited with the Voting Trustees one or more Stock
Certificates representing the shares of Common Stock beneficially
owned by him.
SECTION 2.02. Delivery of Voting Trust Certificates. (a)
Upon receipt by the Voting Trustees of (i) a copy of this Voting
Trust Agreement duly executed by a Participating Shareholder or his
or her duly authorized attorney-in-fact and (ii) one or more Stock
Certificates representing the shares of Common Stock beneficially
owned by such Participating Shareholder, the Voting Trustees will
deliver to the Participating Shareholder one or more Voting Trust
Certificates representing beneficial ownership of the number of
shares of Common Stock deposited by or on behalf of the
Participating Shareholder with the Voting Trustees.
(b) Upon receipt by the Voting Trustees, on behalf of a
Participating Shareholder, as the record owner of shares of Common
Stock beneficially owned by such Participating Shareholder, of
additional shares of Common Stock, whether as a result of a stock
dividend or stock split or pursuant to directions given to the
Corporation by such Participating Shareholder or his or her duly
authorized attorney-in-fact concerning shares of Common Stock
purchased pursuant to a subscription offer made to eligible
employees of the Corporation or otherwise, the Voting Trustees will
deliver to such Participating Shareholder one or more additional
Voting Trust Certificates representing beneficial ownership of the
number of shares of Common Stock received by the Voting Trustees on
behalf of such Participating Shareholder.
(c) The Voting Trustees shall not in any event be required to
deliver Voting Trust Certificates representing the beneficial
ownership of a fraction of a share of Common Stock, but may in lieu
thereof
A-2
<PAGE> 17
deliver in respect of such fractional interests either scrip for Stock
Certificates, cash received by the Voting Trustees from the Corporation or
scrip for Voting Trust Certificates.
ARTICLE III
VOTING TRUST CERTIFICATES
SECTION 3.01. Form of Voting Trust Certificates. The Voting
Trust Certificates shall be substantially in the following form:
[Form of Face of Voting Trust Certificate]
No. ....... ............Shares
GRAYBAR ELECTRIC COMPANY, INC.
1997 VOTING TRUST
VOTING TRUST CERTIFICATE
THIS VOTING TRUST CERTIFICATE certifies that, as provided
herein and in the Voting Trust Agreement dated as of April 1, 1997
(the "Voting Trust Agreement") among certain holders of shares of
common stock, par value $1.00 per share with a stated value of
$20.00 per share (the "Common Stock"), of Graybar Electric Company,
Inc., a New York corporation (the "Corporation"), the Voting
Trustees appointed pursuant to the Voting Trust Agreement and the
Corporation,
will be entitled to receive, in respect of
shares of Common Stock deposited with the Voting Trustees, upon
surrender of this Voting Trust Certificate, a certificate or
certificates representing -------- shares of Common Stock or, in
lieu thereof as provided in the Voting Trust Agreement, such number
of shares of voting stock of the Corporation or any successor
corporation or such other property as the holder of this Voting
Trust Certificate may be entitled to receive as the result of any
recapitalization or reclassification of the Common Stock or any
merger or consolidation of the Corporation into another corporation
As provided in the Voting Trust Agreement, this Voting Trust Certificate
may not be so exchanged prior to the termination of the trust (the "1997
Voting Trust") created thereby, which will occur on March 31, 2007 unless
the 1997 Voting Trust is sooner terminated.
All dividends payable with respect to shares of Common Stock
to which this Voting Trust Certificate relates are payable to the
Voting Trustees as the owners of record of such shares of Common
Stock. The Voting Trust Agreement provides that the Voting
Trustees will retain any shares of Common Stock which are received
as dividends on shares of Common Stock deposited with the Voting
Trustees and will deliver to the registered holder of this Voting
Trust Certificate one or more additional Voting Trust Certificates,
in form similar hereto, representing beneficial ownership of the
number of shares of Common Stock so received by the Voting Trustees
in respect of this Voting Trust Certificate. The Voting Trust
Agreement further provides that the Voting Trustees will pay or
cause to be paid to the registered holder of this Voting Trust
Certificate amounts equal to any cash dividends paid on shares of
Common Stock deposited with the Voting Trustees by the registered
holder of this Voting Trust Certificate. In the event that any
dividend or distribution other than in cash or Common Stock is
received by the Voting Trustees, the Voting Trustees shall
distribute or cause to be distributed the same among the registered
holders of Voting Trust Certificates ratably in accordance with the
number of shares of Common Stock represented by their respective
Voting Trust Certificates.
Except as expressly provided in Section 4.02(b) of the Voting
Trust Agreement and in the proviso to this sentence, the registered
holder of this Voting Trust Certificate shall have no right, and
the Voting
A-3
<PAGE> 18
Trustees shall possess and be entitled in their discretion to exercise the
right, to vote on or consent to the election of directors of the Corporation
or the ratification, approval or disapproval of any action or proposed action
of the Corporation; provided, however, that without the consent of the
holders of Voting Trust Certificates representing at least 75% of
the shares of Common Stock deposited with the Voting Trustees under
the Voting Trust Agreement, the Voting Trustees shall not vote on
or consent to the merger or consolidation of the Corporation into
another corporation, the sale of all or substantially all its
assets or its liquidation and dissolution.
Any funds or other assets held by the Voting Trustees for the
respective accounts of the Corporation or the Participating
Shareholders may be used to satisfy their obligations under
Sections 5.03(c) and 5.04(b) of the Voting Trust Agreement to
indemnify the Voting Trustees and to pay or reimburse them for
expenses, disbursements and advances under certain circumstances.
This Voting Trust Certificate is issued pursuant to, and the
rights of the holder hereof are subject to, the provisions of the
Voting Trust Agreement which set forth the rights, duties and
obligations of the Voting Trustees and the holders of the Voting
Trust Certificates. An original counterpart of the Voting Trust
Agreement is on file at the executive offices of the Corporation,
which are presently located at 34 North Meramec Avenue, St. Louis,
Missouri 63105-3882. As provided in the Voting Trust Agreement,
the registered holder of this Voting Trust Certificate is bound by
the provisions of the Restated Certificate of Incorporation of the
Corporation with the same effect as if this Voting Trust
Certificate were a certificate for shares of Common Stock.
Reference is hereby made to the provisions of the Restated
Certificate of Incorporation of the Corporation printed on the
reverse hereof for a description of the designations, preferences,
privileges and voting powers of the Common Stock, the restrictions
on transfer applicable thereto and hereto and the option of the
Corporation under certain circumstances to purchase the shares of
Common Stock the beneficial ownership of which is represented by
this Voting Trust Certificate, to all of which the holder hereof
consents.
This Voting Trust Certificate shall not become valid for any
purpose until there shall have been affixed hereto the manual or
facsimile signature of at least one of the Voting Trustees and at
least one of the Agents of the Voting Trustees holding office
pursuant to Section 6.01 of the Voting Trust Agreement.
Dated: , 19
By-----------------------------------
Voting Trustee
- --------------------------------------
Agent
There shall also be set forth on the margin of the face of the
Voting Trust Certificate the following statement:
THE SALE, TRANSFER OR PLEDGE OF THIS VOTING TRUST
CERTIFICATE IS SUBJECT TO THE RESTRICTIONS AND LIMITATIONS,
INCLUDING CERTAIN OPTIONS TO THE CORPORATION TO PURCHASE THE
SHARES REPRESENTED HEREBY, SET FORTH ON THE REVERSE HEREOF.
[FORM OF REVERSE OF VOTING TRUST CERTIFICATE]
A-4
<PAGE> 19
The holder of this Voting Trust Certificate shall be bound by
the provisions of the Restated Certificate of Incorporation of the
Corporation, as from time to time amended, with the same effect as
if this Voting Trust Certificate were a certificate for shares of
Common Stock; and this Voting Trust Certificate shall be subject to
the same restrictions on transfer and the Corporation shall have
the same rights with respect to the purchase of this Voting Trust
Certificate as the Corporation has with respect to the purchase of
shares of Common Stock pursuant to such Restated Certificate of
Incorporation. The applicable provisions of the Restated
Certificate of Incorporation presently in effect are as follows:
"B. The common stock shall be designated as `Common Stock.'
"(a) No holder of Common Stock shall sell,
transfer, or otherwise dispose of any shares of such
stock to any party other than the corporation without
first offering to sell said shares to the corporation at
the price for which said shares were issued by the
corporation (or in the event of any change, subdivision,
combination or reclassification of said shares, then at
the price for which were issued the shares so changed,
subdivided, combined or reclassified into the shares so
offered to the corporation), plus an amount equal to
dividends accrued on said stock from the beginning of the
calendar quarter to be paid at the close of such calendar
quarter only if a dividend for said quarter is declared,
and tendering to the corporation the certificates
therefor duly endorsed in proper form for transfer, and
the corporation is hereby given an option to purchase all
or any part of the Common Stock held by such holder at
the price aforesaid good from the date of such offer and
tender until the expiration of thirty (30) days after
said date. Nothing in this Section B contained, however,
shall be construed to prevent any holder of shares of
Common Stock from transferring such shares to voting or
other trustees under a voting trust agreement, or under
any other agreement relating to stock of the corporation
approved by the board of directors of the corporation or
to prevent any subscriber to the Common Stock from
causing the stock subscribed for by him from being issued
direct to such voting or other trustees and in either
event receiving voting trust certificates or other
certificates of interest covering the shares so
transferred to or issued to such voting or other
trustees; and in the event that shares of Common Stock of
the Corporation shall be transferred to such voting or
other trustees, the voting trust certificates or other
certificates of interest so issued to such stockholders
or subscribers shall be held by each and every owner
thereof subject to the same terms and conditions as
provided in this Section B for shares of Common Stock of
the corporation; and the terms "shares," "stock," "Common
Stock;" "shares of stock," "shares of Common Stock,"
"stock certificates," or "certificates for stock"
whenever used in this Section B shall be deemed to
include voting trust certificates or other certificates
of interest covering shares of Common Stock of the
corporation unless otherwise stated, and the term
'stockholder' as used in this Section B shall also be
deemed to include the owner of such voting trust
certificates or other certificates of interest covering
shares of Common Stock of the corporation.
"(b) The corporation is hereby given an option in
the event of the death of the holder of any shares of
Common Stock of the corporation to purchase from his
estate all or any part of such shares at the price per
share provided in paragraph (a) of this Section B, at any
time from and after the expiration of one year from the
date of his death until thirty (30) days after such
shares shall have been offered for sale to the
corporation at the said price and certificates for said
shares of stock duly endorsed in proper form for transfer
shall have been tendered to the corporation, accompanied
by any other papers necessary or proper to effect a valid
transfer. The option in this paragraph (b) given to the
corporation, however, is subject to the provision that in
the event the estate of any deceased stockholder shall
offer to sell and shall tender to the corporation at any
time before the expiration of the period of one year from
the date of death of such deceased stockholder any stock
held by his estate, the option shall terminate
A-5
<PAGE> 20
unless within thirty (30) days from the time said stock is
presented to the corporation for purchase, the
corporation shall purchase said stock at the said
purchase price.
"(c) In the event that any holder of Common Stock
ceases to be an employee of the corporation, or of a
subsidiary corporation, for any cause other than death or
retirement on a pension allowed by the corporation or by
such subsidiary corporation, the corporation is hereby
given an option to purchase all the Common Stock held by
such stockholder at the price provided in paragraph (a)
of this Section B good from the date such holder ceases
to be an employee as aforesaid until the expiration of
thirty (30) days after he has made an offer to the
corporation to sell said stock at said price and a tender
of the certificates therefor duly endorsed in proper form
for transfer.
"(d) All offers for sale of shares to the
corporation and tenders of certificates for such shares
must be made at the principal office of the corporation,
in the County of St. Louis, State of Missouri or such
other place as the corporation shall designate by notice
in writing to the stockholders of record. In the event
of any such offer and tender, the mailing of a check for
the purchase price as determined pursuant to the
provisions of paragraph (a) of this Section B of the
shares under option to the seller at the address shown
upon the books of the corporation or in the event that
the seller is a holder of a voting trust certificate at
the address shown upon the books of the voting trustees
or at any other address furnished by the seller for such
purpose at any time within the option period shall be
deemed to be due exercise of the option. The corporation
may at any time, whether or not such offer and tender has
been made, exercise any option to purchase, redeem, or
otherwise acquire any shares of stock of the corporation
granted to it hereunder by mailing notice of its election
so to do to the record holder of the stock covered
thereby at his address as shown upon the stock books of
the corporation, or in case of voting trust certificates
or other certificates of interest covering stock of the
corporation then at the address of the owner thereof as
shown upon the books of the voting or other trustees.
Said notice shall state in substance that the corporation
has elected to exercise its option and that it will make
payment for the stock to be thus purchased upon delivery
to it at its principal office in the County of St. Louis,
State of Missouri or such other place as the corporation
shall designate by notice in writing to the stockholders
of record, of the certificates therefor, properly
endorsed for transfer, accompanied by such instruments as
the corporation may deem necessary, and such stockholder,
or his executors or administrators as the case may be,
shall forthwith surrender and deliver at said office the
certificates for said stock duly endorsed in blank,
accompanied by such instruments, and shall be entitled to
receive payment (which payment may be by check) of the
purchase price therefor as determined pursuant to the
provisions of paragraph (a) of this Section B.
"(e) In the event that the corporation shall
purchase any of the Common Stock upon exercising any of
the aforesaid options, the corporation may purchase such
stock in the name and for the account of any employee of
the corporation or of a subsidiary corporation with funds
provided by any such party, or at its option, if it has
funds available for the purpose, the corporation may
purchase the shares for its own account and deposit them
in its treasury, and may resell from time to time any or
all such shares purchased for its own account for such
price or prices, and to such employee or employees of the
corporation or of a subsidiary corporation as the board
of directors may determine, or at the option of the board
of directors, any or all of such shares may be retired or
canceled in any manner permitted by law.
"(f) Subject to all of the rights of the Preferred
Stock, dividends may be paid upon the Common Stock if and
when declared by the board of directors out of any funds
of the corporation legally available therefor.
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"(g) Except as otherwise in the certificate of
incorporation as amended provided, the holders of the
Common Stock shall have exclusive voting power for the
election of directors and upon all other matters that may
be submitted to the stockholders for their vote or
consent.
"C. No stockholder (whether a holder of Preferred or
Common Stock) shall hypothecate or pledge any stock except under an
agreement of hypothecation or pledge with the pledgee containing
the following provisions together in the following sequence:
`In the event of the death of the pledgor or in the event
that he ceases to be an employee of Graybar Electric Company,
Inc. or of a subsidiary corporation for any cause other than
death or retirement on a pension, Graybar Electric Company,
Inc. shall have the same right to purchase any or all of the
pledged stock as it would have had if the stock had not been
pledged, and may make payment therefor to the pledgee or any
party presenting the certificates therefor, properly endorsed
for transfer. The provisions of the certificate of
incorporation of the corporation relating to the rights of the
corporation to such stock and the price to be paid therefor
are set forth on the back of the stock certificates pledged
and the pledgee has notice thereof.
`In the event that the pledgor shall be in default under
the pledge, Graybar Electric Company, Inc. shall have an
option, good until the expiration of thirty (30) days from the
time written notice of such default is served upon said
corporation by the pledgee, to take over the stock pledged and
the debt to secure which such stock has been pledged, upon
payment to the pledgee of the amount then owing on said debt,
and no sale shall be made by the pledgee under said pledge
until such option has expired.
`In the event that the pledgor shall be in default under
the pledge and the amount then owing on the debt shall exceed
the price at which Graybar Electric Company, Inc. would be
entitled to purchase stock under option given to it in case
the pledgor should desire to sell same, said corporation shall
have the right, good until the expiration of thirty (30) days
from the time written notice is served upon said corporation
by the pledgee, to redeem or purchase such stock, at said
option price, and may make payment therefor to the pledgee or
any party presenting the certificates therefor properly
endorsed for transfer, and no sale shall be made by the
pledgee until such option has expired.
`No other provisions in the hypothecation or pledge shall
in any way affect the rights given in the three preceding
paragraphs, and by accepting the pledge the pledgee agrees to
carry out and be bound by the provisions of the three
preceding paragraphs and of the certificate of incorporation
as amended of Graybar Electric Company, Inc.
`Any right or option in the corporation to purchase,
redeem, take over or otherwise acquire any stock of the
corporation shall, in accordance with the provisions of the
certificate of incorporation as amended, also accrue to and
may be exercised by any person, persons, firm or corporation
designated by the corporation to purchase or acquire such
stock or any part thereof.
`It is understood that the certificate of incorporation
of Graybar Electric Company, Inc. also provides, in substance,
that if any party shall claim or establish ownership of or any
interest in shares of stock of the corporation and if such
ownership or interest is the result of a sale or transfer in
breach of the provisions of the certificate of incorporation,
such shares or interest shall at the option of the corporation
be subject at all times to purchase by said corporation at
prices and under terms and conditions set forth in or to be
determined as provided in said certificate of incorporation.'
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<PAGE> 22
"In the event that the corporation shall have exercised any
such option to take over any stock which shall have been pledged or
hypothecated and the debt to secure which such stock has been
pledged, the corporation shall have the right, at any time after
the expiration of thirty (30) days after written notice mailed to
the holder of record of the pledged stock at his address as shown
on the books of the corporation, to purchase said stock by paying
or tendering to the pledgor the difference, if any, between the
amount paid by the corporation to the pledgee in taking over said
stock, together with interest to the time of such purchase, and the
price which the corporation would be required to pay to purchase
said stock in case of sale by the stockholder to the corporation
under the provisions of paragraph (e) of Section A or paragraph (a)
of Section B, as the case may be; provided, however, that at any
time prior to such purchase of said stock by the corporation the
pledgor may redeem said stock from the corporation by paying to the
corporation the amount which the corporation paid to the pledgee in
taking over the said stock, together with interest thereon. All
such interest shall be computed at the rate of six per cent (6%)
per annum.
"In the event that the corporation shall have exercised its
option to take over any stock which shall have been pledged or
hypothecated, and the debt to secure which the stock has been
pledged, the corporation shall, in addition to any rights herein
granted, be subrogated to all the rights of the pledgee of said
stock.
"No pledge or hypothecation of any stock of the corporation,
except in accordance with the foregoing conditions, shall in any
way affect the right of the corporation to treat the stock as if it
had not been pledged, whether in the hands of the pledgee or any
subsequent holder whose title is through the pledgee or through any
sale or transfer resulting from the pledge.
"D. All certificates of Preferred and Common Stock of the
corporation shall contain or have endorsed thereon the provisions
of the certificate of incorporation as amended in respect of the
sale, transfer and pledge of stock, and all voting trust
certificates or other certificates of interest covering stock of
the corporation issued under a voting trust agreement or other
agreement to which the corporation may be a party shall likewise
contain or have endorsed thereon said provisions. No transfers of
stock shall be recorded on the books of the corporation unless
effected in accordance with the provisions of the certificate of
incorporation as amended. Each holder of a certificate of stock of
the corporation shall be charged with notice of the provisions of
the certificate of incorporation of the corporation as amended and
shall by receiving any such stock certificate be deemed to assent
to and be bound by all of the provisions of the certificate of
incorporation as amended.
"If for any reason whatsoever any party to whom a sale or
transfer has been made in breach of any of the provisions of the
certificate of incorporation as amended should claim or establish
ownership of or any interest in any shares of stock of the
corporation, such shares shall thereupon become subject to
redemption or purchase at any and all times thereafter at the
option of the corporation, whether in the hands of such party or
any subsequent transferee, immediate or remote, upon mailing thirty
(30) days notice of the election of the corporation to redeem or
purchase such shares to the then holder of record at its address as
it appears upon the stock books of the corporation or the books of
the voting or other trustees at the price provided in paragraph (e)
of Section A or paragraph (a) of Section B hereof, as the case may
be, and the corporation may redeem or purchase any such shares upon
paying the price specified.
"The corporation shall withhold any dividends and refuse to
permit the exercise of any voting right upon any shares transferred
in violation of the provisions of the certificate of incorporation
as amended or in regard to which there has been any default in
notifying the corporation of the stockholder's desire to sell his
stock in order to give the corporation opportunity to exercise its
option to purchase, or default in delivery of stock after the
corporation has given notice of its election to exercise any option
to purchase.
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"Whenever herein the corporation shall be given any right or
option to purchase, redeem or otherwise acquire any shares of stock
of the corporation in any manner whatsoever, such rights shall also
accrue and may be exercised by any person, persons, firm or
corporation designated by the corporation to purchase or acquire
such stock or any part thereof.
"If any one or more provisions of Section A, B or C or of this
Section D shall be declared to be invalid, it shall not affect the
validity of any other provisions of said sections or this section
or of the certificate of incorporation as amended, nor shall the
fact that any shares of the corporation shall be held at any time
by any party not entitled to hold the same or from whom the
corporation might purchase the same under the provisions of this
Section D relieve any other stockholder from compliance with the
terms of the provisions of Sections A, B, and C and of this Section
D.
"The term `employee' as used in Sections A and B shall be
deemed to include salaried officers. The term `subsidiary' or
`subsidiary company' as used in the certificate of incorporation as
amended shall be deemed to mean any company seventy-five percent
(75%) of whose outstanding shares of equity stock, as hereinafter
defined, shall be owned by the corporation or by another
subsidiary. The term `equity stock' as herein used means the
outstanding class or classes of shares entitled upon liquidation of
a company to the final distribution of all assets remaining after
the payment and discharge of all obligations and after payment and
distribution to all classes of shares entitled to priority on the
distribution of assets.
"E. No stockholder of any class of the corporation shall as
such be entitled as of right to purchase or subscribe for stock of
any class of the corporation, whether authorized by this
Certificate of Increase in Number and Classification of Shares or
by any amendment to the certificate of incorporation or to purchase
or subscribe for any other securities of the corporation whether or
not such securities may be convertible into stock of any class of
the corporation."
In the event of a pledge of this Voting Trust Certificate,
there shall be inserted in the agreement of pledge the following
provisions, which are based upon the provisions of the Certificate
of Incorporation of the Corporation governing pledges of
certificates representing shares of Common Stock:
"In the event of the death of the pledgor or in the event that
he ceases to be an employee of Graybar Electric Company, Inc. or of
a subsidiary corporation, for any cause other than death or
retirement on a pension, Graybar Electric Company, Inc. shall have
the same right to purchase any or all of the pledged voting trust
certificates as it would have had if said certificates had not been
pledged, and may make payment therefor to the pledgee or any other
party presenting the said certificates properly endorsed for
transfer. The provisions of the certificate of incorporation, as
amended, of the corporation relating to the rights of the
corporation to such voting trust certificates and the price to be
paid therefor are set forth on the back of the voting trust
certificates pledged and the pledgee has notice thereof.
"In the event that the pledgor shall be in default under the
pledge, Graybar Electric Company, Inc. shall have an option, good
until the expiration of thirty (30) days from the time written
notice of such default is served upon said corporation by the
pledgee, to take over the voting trust certificates pledged and the
debt to secure which such voting trust certificates have been
pledged, upon payment to the pledgee of the amount then owing on
said debt, and no sale shall be made by the pledgee until such
option has expired.
"In the event that the pledgor shall be in default under the
pledge and the amount then owing on the debt shall exceed the price
at which Graybar Electric Company, Inc. would be entitled to
purchase voting trust certificates under the option given to it in
the preceding paragraph, said corporation shall have the right,
good until the expiration of thirty (30) days from the time written
notice is served upon said corporation by the pledgee, to purchase
such voting trust certificates at the per share price at which
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<PAGE> 24
said corporation would have an option to purchase the Common Stock
represented by such voting trust certificates in ease the pledgor
should desire to sell the same, and may make payment therefor to
the pledgee or any other party presenting the said voting trust
certificates properly endorsed for transfer, and no sale shall be
made by the pledgee until such option has expired.
"No other provisions in the hypothecation or pledge shall in
any way affect the rights given in the three preceding paragraphs,
and by accepting the pledge the pledgee agrees to carry out and be
bound by the provisions of the three preceding paragraphs and of
the certificate of incorporation, as from time to time amended, of
Graybar Electric Company, Inc. and of the voting trust agreement
under which the pledged voting trust certificates are issued.
"Any right or option in Graybar Electric Company, Inc. to
purchase, take over or otherwise acquire any voting trust
certificates shall also accrue to and may be exercised by any
person, persons, firm or corporation designated by the corporation
to purchase or acquire such voting trust certificates or any part
thereof.
"It is understood that the voting trust agreement under which
the pledged voting trust certificates are issued provides in
substance that if any party shall claim or establish ownership of
voting trust certificates of the corporation and if such ownership
or interest is the result of a sale or transfer in breach of the
provisions of the certificate of incorporation which are applicable
to voting trust certificates pursuant to the terms of such voting
trust certificates, such voting trust certificates shall at the
option of the corporation be subject at all times to purchase by
said corporation at prices and under terms and conditions set forth
in or to be determined as provided in said certificate of
incorporation with respect to the Common Stock represented by such
voting trust certificates."
[FORM OF ASSIGNMENT ON REVERSE OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED, hereby sells, assigns and
transfers, in accordance with and subject to the provisions set forth above,
unto
the within Voting Trust Certificate and
all rights and interests represented thereby, and does hereby irrevocably
constitute and appoint
attorney to transfer the same on the register maintained by the Voting
Trustees, with full power of substitution in the premises.
Dated , 19 .
---------------------------------------------------
ATTEST:
- -------------------------------------
NOTE: The signature to this assignment must correspond in every
particular with the name of the registered holder
appearing on the face of this Voting Trust Certificate.
SECTION 3.02. Execution. The Voting Trust Certificates shall
have affixed thereto the manual or facsimile signature of at least
one of the Voting Trustees and at least one of the Agents. In case
any person who has signed a Voting Trust Certificate or whose
facsimile signature has been placed thereon
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<PAGE> 25
shall have ceased to be a Voting Trustee or Agent before such Voting Trust
Certificate is issued, it may be issued as if he were a Voting Trustee or
Agent at the date of issue.
SECTION 3.03. Exchange, Registration and Registration of
Transfer. (a) Subject to the limitations on transfer set forth in
the Certificate of Incorporation, in Article IV hereof and in the
Voting Trust Certificates, a Voting Trust Certificate may be
transferred, and such transfer shall be registered on the register
maintained by the Voting Trustees for that purpose pursuant to the
provisions of Section 3.03(b) hereof, by surrendering such Voting
Trust Certificate in the manner set forth in Section 3.03(b) hereof
to the Voting Trustees at the executive offices of the Corporation.
Upon such surrender, the Voting Trustees will execute and deliver
a new Voting Trust Certificate in accordance with the proper
instructions of the transferor.
(b) The Voting Trustees shall maintain, at the executive
offices of the Corporation, a register or registers (the
"Register") in which, subject to such reasonable regulations as
they may prescribe, the Voting Trustees shall register the original
issuance of Voting Trust Certificates and shall register the
transfer of Voting Trust Certificates pursuant to the provisions of
this Voting Trust Agreement. The Register shall show the name and
address of each Participating Shareholder. All Voting Trust
Certificates presented or surrendered for registration of transfer
or exchange shall be duly endorsed by the Participating Shareholder
or his attorney duly authorized in writing, or shall be accompanied
by a written instrument or instruments of transfer, in form
satisfactory to the Voting Trustee, duly executed by the registered
holder or by his duly authorized attorney. The Voting Trustees may
appoint one or more transfer agents or registrars (who may be the
Agents or other employees of the Corporation) to maintain the
Register pursuant to this Section 3.03(b).
(c) No service charge shall be made for any registration of
transfer or exchange of any Voting Trust Certificate, but the
Voting Trustees may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto.
(d) Prior to due presentment of Voting Trust Certificates for
registration of transfer on the Register, the Voting Trustees shall
not be bound to recognize any equitable or other claim to or
interest in any Voting Trust Certificate on the part of any person
other than the registered holder thereof, whether or not the
Voting Trustees shall have notice of such claim or interest.
(e) The Voting Trustees may make such rules and regulations
as they deem expedient and proper concerning registration of
transfer of Voting Trust Certificates, and may close the Register
against transfers at any time or times that the Corporation
properly closes its record of Shareholders against transfers of
Stock Certificates. Any record date fixed by the Corporation for
the purpose of determining Shareholders entitled to receive any
payment or distribution shall be used by the Voting Trustees in
determining Participating Shareholders entitled to receive such
payment or distribution pursuant to the provisions of this Voting
Trust Agreement.
SECTION 3.04. Mutilated, Destroyed, Lost or Stolen Voting
Trust Certificates. In case any Voting Trust Certificate shall
become mutilated or be destroyed, lost or stolen, the Voting
Trustees may, in their discretion, issue and deliver a new Voting
Trust Certificate representing the same number of shares of Common
Stock in exchange and substitution for the mutilated Voting Trust
Certificate, or in lieu of and in substitution for the Voting Trust
Certificate so destroyed, lost or stolen, upon the production of
evidence of such destruction, loss or theft satisfactory to the
Voting Trustees and upon receipt of indemnity satisfactory to them,
and upon compliance with such reasonable regulations as the Voting
Trustees may prescribe.
ARTICLE IV
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CONCERNING THE PARTICIPATING SHAREHOLDERS
SECTION 4.01. Rights of Participating Shareholders. Except
as provided in this Voting Trust Agreement, the Participating
Shareholders shall have all the rights, powers and privileges of
the Nonparticipating Shareholders, and shall be subject to and
bound by the provisions of the Certificate of Incorporation to the
same extent as the Non-participating Shareholders, with the same
effect as if Voting Trust Certificates were Stock Certificates; and
the Corporation shall have the same rights with respect to Voting
Trust Certificates as are set forth in the Certificate of
Incorporation with respect to Stock Certificates.
SECTION 4.02. Voting. (a) During the term of this Voting
Trust Agreement, the Participating Shareholders shall have no
right, except as provided in Section 4.02(b) hereof, to vote on or
consent to the election of directors of the Corporation or the
ratification, approval or disapproval of any action or proposed
action of the Corporation; and all such right shall be vested in,
and may in their discretion be exercised by, the Voting Trustees.
(b) Notwithstanding the provisions of Section 4.02(a) hereof,
the Voting Trustees shall have no right to vote on or consent to
the merger or consolidation of the Corporation into another
corporation, the sale of all or substantially all its assets or its
dissolution and liquidation, unless Participating Shareholders
holding Voting Trust Certificates representing at least 75% of the
shares of Common Stock deposited with the Voting Trustees under
this Voting Trust Agreement shall have consented thereto in writing
or at a meeting of such Participating Shareholders duly called for
such purpose pursuant to the provisions of Section 4.11 hereof.
SECTION 4.03. Dividends. (a) All dividends paid in respect
of shares of Common Stock deposited with the Voting Trustees shall
be paid to the Voting Trustees as the owners of record.
(b) The Voting Trustees will (i) pay or cause to be paid to
the registered holder of each Voting Trust Certificate amounts
equal to any cash dividends paid to the Voting Trustees on shares
of Common Stock deposited with the Voting Trustees hereunder on his
behalf or (ii) from time to time deliver to the Corporation
assignments and orders for payment of all such cash dividends to
such Participating Shareholder.
(c) If any dividend in respect of shares of Common Stock
deposited under this Voting Trust Agreement is paid in Common
Stock, the Voting Trustees shall hold, subject to the terms of this
Voting Trust Agreement, the certificates for shares of Common Stock
which are received by them on account of such dividend; and the
Voting Trustees shall deliver to the registered holder of each
Voting Trust Certificate representing Common Stock on which such
stock dividend shall have been paid an additional Voting Trust
Certificate pursuant to the provisions of Section 2.02(b) hereof
for the number of shares of Common Stock received as such dividend
with respect to the shares of Common Stock represented by such
Voting Trust Certificate.
(d) If any dividend or other distribution in respect of
shares of Common Stock deposited under this Voting Trust Agreement
is paid other than in cash or Common Stock, the Voting Trustees
shall distribute or cause to be distributed the same among the
registered holders of Voting Trust Certificates ratably in
accordance with the number of shares of Common Stock represented by
their respective Voting Trust Certificates.
SECTION 4.04. Subscription Offers. If the Corporation shall
offer to Shareholders the right to subscribe for any shares of
Common Stock, the Voting Trustees shall mail notice of such offer
to the Participating Shareholders. Each Participating Shareholder
who determines to subscribe for additional shares of Common Stock
shall request the Voting Trustees to subscribe for such additional
shares on his
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<PAGE> 27
behalf. The Voting Trustees, upon timely receipt from any Participating
Shareholder of such a request and the money required to pay for the shares of
Common Stock subscribed for, will make such subscription and payment. Upon
receipt of Stock Certificates representing the shares of Common Stock so
subscribed for, the Voting Trustees will issue to such Participating
Shareholder one or more Voting Trust Certificates pursuant to the
provisions of Section 2.02(b) hereof.
SECTION 4.05. Employee Plans. (a) If any Participating
Shareholder, pursuant to the terms of any employee plan (including
any Common Stock Purchase Plan of the Corporation, stock option
plan or otherwise), shall acquire additional shares of Common
Stock, such Participating Shareholder, in consideration of the
mutual covenants of all Participating Shareholders, shall direct
the Corporation to deposit the Stock Certificates representing such
additional shares of Common Stock with the Voting Trustees.
(b) The Voting Trustees, upon receipt of Stock Certificates
pursuant to the provisions of Section 4.05(a) hereof, will issue to
such Participating Shareholder one or more additional Voting Trust
Certificates pursuant to the provisions of Section 2.02(b) hereof.
SECTION 4.06. Recapitalization or Reclassification of Common
Stock. In the event of a recapitalization of the Corporation or
reclassification of the Common Stock, the Voting Trustees shall
hold, subject to the terms of this Voting Trust Agreement, the
certificates for any voting stock of the Corporation issued in
respect of the Common Stock. Voting Trust Certificates issued and
outstanding under this Voting Trust Agreement at the time of such
recapitalization or reclassification may remain outstanding or the
Voting Trustees may, in their discretion, substitute for such
Voting Trust Certificates new voting trust certificates in
appropriate form, and the term "Common Stock" as used herein and in
Voting Trust Certificates shall include the voting stock received
on account of such recapitalization or reclassification in respect
of the Common Stock.
SECTION 4.07. Dissolution of the Corporation. In the event
of the dissolution and liquidation of the Corporation, whether
voluntary or involuntary, the Voting Trustees as the owners of
record shall receive the money, securities, rights or property to
which the holders of Common Stock are entitled in respect of the
shares of Common Stock deposited under this Voting Trust Agreement
and shall distribute or cause to be distributed the same among the
registered holders of the Voting Trust Certificates ratably in
accordance with the number of shares of Common Stock represented by
their respective Voting Trust Certificates.
SECTION 4.08. Reorganization of the Corporation. In the
event the Corporation is merged or consolidated into another
corporation, the Voting Trustees shall, depending on the terms of
the agreement authorizing such transaction, either (i) receive and
hold under the terms of this Voting Trust Agreement any shares of
voting stock of the successor corporation received on account of
such merger or consolidation in respect of the shares of Common
Stock deposited under this Voting Trust Agreement (in which case
Voting Trust Certificates issued and outstanding under this Voting
Trust Agreement at the time of such merger or consolidation may
remain outstanding or the Voting Trustees may, in their discretion,
substitute for such Voting Trust Certificates, new voting trust
certificates in appropriate form, and the terms "Common Stock" and
"Corporation" as used herein and in Voting Trust Certificates shall
include any shares of voting stock of the successor corporation
received on account of such merger or consolidation in respect of
shares of Common Stock of the Corporation and such successor
corporation, respectively) and distribute or cause to be
distributed any money, other securities, rights or property so
received among the registered holders of Voting Trust Certificates
ratably in accordance with the number of shares of Common Stock
represented by their respective Voting Trust Certificates, or (ii)
distribute or cause to be distributed such voting stock, together
with any money, other securities, rights or property so received,
among the registered holders of Voting Trust Certificates ratably
in accordance with the number of shares of Common Stock represented
by their respective Voting Trust Certificates.
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<PAGE> 28
SECTION 4.09. Restrictions on Transfer. With respect to the
sale, transfer, pledge or other disposition of Voting Trust
Certificates or any right or interest therein, the Voting Trust
Certificates shall be deemed to be, and shall be treated in all
respects as if they are, Stock Certificates; and the Participating
Shareholders, the Voting Trustees, the Corporation and all other
persons shall be bound by and subject to the provisions of the
Certificate of Incorporation with respect to the sale, transfer,
pledge, or other disposition of Voting Trust Certificates in all
respects as if the Voting Trust Certificates were Stock
Certificates.
SECTION 4.10. Exchange of Voting Trust Certificates for Stock
Certificates. (a) Upon termination of the 1997 Voting Trust as
provided in Section 6.04 hereof, the Voting Trustees will mail
notice of such termination to the Participating Shareholders. From
the date of termination specified in such notice, holders of Voting
Trust Certificates shall have no rights under this Voting Trust
Agreement other than the right to receive, upon surrender of Voting
Trust Certificates, Stock Certificates representing the number of
shares of Common Stock deposited with the Voting Trustees hereunder
for which Voting Trust Certificates were issued.
(b) Any Stock Certificates deposited with the Voting Trustees
under this Voting Trust Agreement which are not delivered to
Participating Shareholders pursuant to the provisions of Section
4.10(a) hereof within 60 days from the termination of the 1997
Voting Trust shall be deposited with the Corporation: and any
Participating Shareholder entitled to receive Stock Certificates in
exchange for Voting Trust Certificates shall thereafter look only
to the Corporation for distribution thereof, and all liability of
the Voting Trustees with respect thereto shall thereupon cease.
SECTION 4.11. Meetings of Participating Shareholders. (a)
A meeting of Participating Shareholders may be called at any time
and from time to time for any of the following purposes:
(i) to consent to the amendment of this Voting Trust
Agreement pursuant to the provisions of Section 6.03 hereof,
or to the termination or extension of the 1997 Voting Trust
pursuant to the provisions of Section 6.04 hereof;
(ii) to consider authorizing the Voting Trustees to vote
on the merger or consolidation of the Corporation into another
corporation, the sale of all or substantially all its assets
or its liquidation and dissolution as provided in Section
4.02(b); and
(iii) to remove any one or more of the Voting Trustees
pursuant to Section 5.01 (d) hereof.
(b) A meeting of the Participating Shareholders may be called
by one or more of the Voting Trustees or by the holders of Voting
Trust Certificates representing at least 25% of the shares of
Common Stock deposited with the Voting Trustees under this Voting
Trust Agreement.
(c) Meetings of the Participating Shareholders shall be held
at the executive offices of the Corporation or at such other place
designated in the notice of such meeting. Notice of every such
meeting, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting,
shall be mailed by the Voting Trustees, not less than 20 nor more
than 60 days prior to the date fixed for the meeting, to the
Participating Shareholders at their addresses as shown on the
Register. Participating Shareholders may vote by proxy at any such
meeting.
(d) Any action permitted to be taken at a meeting of
Participating Shareholders may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting
forth the action to be taken, shall be signed by Participating
Shareholders holding Voting Trust Certificates representing the
minimum number of shares of Common Stock necessary to approve such
action under the provisions of this Voting Trust Agreement.
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<PAGE> 29
ARTICLE V
CONCERNING THE VOTING TRUSTEES
SECTION 5.01. Appointment and Qualification; Vacancies. (a)
Each of Carl L. Hall, Richard H. Haney, Golden W. Harper, Robert L.
Mygrant and Richard D. Offenbacher is hereby named and appointed a
Voting Trustee of the 1997 Voting Trust, to hold such office until
his resignation or earlier disqualification, removal from office or
death.
(b) No person shall be qualified to be named and appointed a
Voting Trustee, and no person shall continue to hold his
appointment as a Voting Trustee, unless such person is an employee
of the Corporation. Any Voting Trustee who shall at any time cease
to be an employee of the Corporation for any cause, including
retirement on a pension, shall thereupon cease to be a Voting
Trustee without any action being taken hereunder.
(c) Any Voting Trustee may at any time resign by giving
written notice to the other Voting Trustees and to the Corporation.
Such resignation shall be effective upon receipt thereof by the
Corporation.
(d) The Participating Shareholders may at any time remove any
Voting Trustee from office by vote at a meeting by Participating
Shareholders holding Voting Trust Certificates representing at
least 66% of the shares of Common Stock deposited with the Voting
Trustees under this Voting Trust Agreement and by delivering notice
thereof to the other Voting Trustees and the Corporation.
(e) Vacancies in the office of Voting Trustee occurring as a
result of the resignation or earlier disqualification, removal from
office or death of one or more of the Voting Trustees named in
Section 5.01(a) hereof or a successor Voting Trustee appointed
pursuant to the provisions of this Section 5.01(e) shall be filled
by the action of a majority of the remaining Voting Trustees then
in office; provided, however, that in the event that at any time
there shall be less than three Voting Trustees in office, the
vacancies shall be filled by the Board of Directors of the
Corporation. Any Voting Trustee who has been removed by the
Participating Shareholders pursuant to Section 5.01(d) hereof shall
not thereafter be appointed a Voting Trustee without the vote at a
meeting by Participating Shareholders holding Voting Trust
Certificates representing at least 66% of the shares of Common
Stock deposited with the Voting Trustees under this Voting Trust
Agreement. Any appointment of a successor Voting Trustee shall
become effective upon acceptance.
SECTION 5.02. Rights and Powers. (a) The Voting Trustees
(i) shall surrender the Stock Certificates deposited with them
under this Voting Trust Agreement to the Corporation for
cancellation, and (ii) shall request the Corporation to issue, and
the Corporation shall issue, one or more Stock Certificates
registered in the names of the Voting Trustees representing the
aggregate number of shares of Common Stock so surrendered and
canceled. The Voting Trustees thereupon, as the registered owners
of such Common Stock, (x) shall have and may in their discretion
exercise all rights, subject to the provisions of Section 4.02(b)
hereof, to vote on or consent to the election of directors of the
Corporation or the ratification, approval or disapproval of any
action or proposed action of the Corporation and (y) shall be
entitled to receive all dividends, payments and distributions in
respect of the Stock Certificates deposited hereunder, subject to
the provisions of Section 4.03(b) and (d) hereof.
(b) In exercising the rights granted in clause (x) of Section
5.02(a) hereof, the Voting Trustees shall exercise their best
judgment from time to time (i) in securing the election of suitable
directors for the Corporation, to the end that its business and
affairs properly shall be managed, and (ii) in voting on or
consenting to other matters.
A-15
<PAGE> 30
(c) Any action required or permitted to be taken by the
Voting Trustees may be taken with or without a meeting by the vote
or written consent of a majority of the Voting Trustees.
(d) The Voting Trustees may be, and may vote for themselves
as, members of the Board of Directors of the Corporation. No
person shall be disqualified from acting as a Voting Trustee by
reason of any personal interest, either direct or indirect, in the
Corporation and any Voting Trustee or affiliate of a Voting Trustee
may deal with the Corporation as fully as though he were not a
Voting Trustee.
SECTION 5.03. Limitation on Liability; Indemnification. (a)
The Voting Trustees will exercise their best judgment in exercising
the rights and powers and in performing the duties and obligations
set forth in this Voting Trust Agreement. The Voting Trustees may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys
(including, without limitation, Agents, transfer agents or
registrars) and the Voting Trustees shall not be responsible for
any misconduct or negligence on the part of any such agent or
attorney appointed with due care by the Voting Trustees hereunder.
No Voting Trustee or agent or attorney of such Voting Trustee
(including, without limitation, Agents, transfer agents and
registrars) will incur any liability with respect to any action
taken or omitted by him in good faith and believed by him to be
authorized or within the discretion or rights or powers conferred
upon the Voting Trustees or such agents or attorneys by this Voting
Trust Agreement. The Voting Trustees and their agents and
attorneys (including, without limitation, Agents, transfer agents
and registrars) shall not be liable to the Participating
Shareholders or the Corporation except for their individual willful
misconduct.
(b) No provisions of this Voting Trust Agreement shall be
construed to relieve any Voting Trustee or any such agent or
attorney from liability for his own willful misconduct. No Voting
Trustee shall be liable with respect to misconduct or negligence of
any other Voting Trustee. The duties and obligations of the Voting
Trustees shall be determined solely by the express provisions of
this Voting Trust Agreement and no Voting Trustee shall be liable
except for the performance of such duties and obligations as are
specifically set forth in this Voting Trust Agreement, and no
implied covenants or obligations shall be read into this Voting
Trust Agreement against the Voting Trustees.
(c) The Corporation covenants and agrees, and in the event
the Corporation shall not do so for any reason whatsoever the
Participating Shareholders in consideration of the Voting Trustees
having agreed to serve in that capacity for the benefit of the
Participating Shareholders covenant and agree ratably in accordance
with the number of shares of Common Stock represented by their
respective Voting Trust Certificates, to indemnify each Voting
Trustee and each agent or attorney of the Voting Trustees
(including, without limitation, Agents, transfer agents and
registrars) for, and to hold him harmless against, any tax, loss,
liability or expense incurred for any reason other than his own
individual willful misconduct, arising out of or in connection with
the acceptance or administration of the 1997 Voting Trust, and the
performance of his duties and obligations hereunder and the
exercise of his rights and powers hereunder, including the costs
and expenses of defending himself against any claim of liability.
The obligations under this Section 5.03(c) of the Corporation and
the Participating Shareholders to indemnify the Voting Trustees and
each agent or attorney of the Voting Trustees (including, without
limitation, Agents, transfer agents and registrars) shall be
payable from any funds or other assets held by the Voting Trustees
hereunder for the account of the Corporation or the Participating
Shareholders, as the case may be.
(d) The Voting Trustees may consult with counsel, who may be
counsel to the Corporation, and the written advice or opinion of
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by the Voting
Trustees hereunder in good faith and in reliance thereon.
A-16
<PAGE> 31
(e) The Voting Trustees may rely and shall be protected in
acting, or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper believed to
be genuine and to have been signed or presented by the proper party
or parties.
SECTION 5.04. Compensation and Expenses. (a) The Voting
Trustees shall not be entitled to receive any compensation for
their services as Voting Trustees hereunder.
(b) The Corporation covenants and agrees, and in the event
the Corporation shall not do so for any reason whatsoever the
Participating Shareholders in consideration of the Voting Trustees
having agreed to serve in that capacity for the benefit of the
Participating Shareholders covenant and agree ratably in accordance
with the number of shares of Common Stock represented by their
respective Voting Trust Certificates, to pay or reimburse the
Voting Trustees upon request for all reasonable expenses, disbursements
or advances incurred or made by the Voting Trustees in accordance with any
of the provisions of this Voting Trust Agreement (including the reasonable
compensation and expenses and disbursements of their counsel and any
agents or attorneys (including, without limitation, Agents, transfer
agents or registrars) acting for the Voting Trustees) except any such
expense, disbursement or advance as may arise from the willful
misconduct of the Voting Trustees. The obligations under this
Section 5.04(b) of the Corporation and the Participating
Shareholders to pay or reimburse the Voting Trustees for expenses,
disbursements and advances shall be payable from any funds or other
assets held by the Voting Trustees hereunder for the account of the
Corporation or the Participating Shareholders, as the case may be.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Appointment of Agents. (a) The Voting
Trustees shall appoint two employees of the Corporation to serve as
Agents of the Voting Trustees by delivering written notice to the
Corporation to that effect. Each of such persons shall hold such
office until his resignation or earlier disqualification, removal
from office or death. The Voting Trustees may fill vacancies in
the office of Agent and may in their discretion from time to time
appoint one or more additional Agents by delivering written notice
to the Corporation to that effect.
(b) The Agents shall have full power and authority to perform
any of the acts set forth in Article III of this Voting Trust
Agreement and to exercise any power properly delegated to such
Agent by one or more of the Voting Trustees in connection
therewith.
(c) No person shall be named and appointed an Agent, and no
person shall continue to hold his appointment as an Agent, unless
such person is an employee of the Corporation. Any Agent who shall
at any time cease to be an employee of the Corporation for any
cause, including retirement on a pension, shall thereupon cease to
be an Agent without any action being taken hereunder.
(d) Any Agent may at any time resign by giving written notice
to the Voting Trustees and to the Corporation, and the Voting
Trustees may at any time remove any Agent with or without cause by
delivering to the Agent and the Corporation written notification to
that effect.
SECTION 6.02. Deposit of Stock Certificates. The Stock
Certificates delivered to the Voting Trustees by the Corporation
pursuant to the provisions of Section 5.02(a) hereof shall be
deposited, within a reasonable time after receipt thereof by the
Voting Trustees, either in a safe deposit box rented by the Voting
Trustees or with a depositary bank or trust company located in the
County of St. Louis, State of Missouri.
A-17
<PAGE> 32
SECTION 6.03. Amendment. This Voting Trust Agreement may be
amended or modified at any time and from time to time by an
instrument or instruments in writing executed by the Corporation
and at least a majority of the Voting Trustees and consented to by
Participating Shareholders holding Voting Trust Certificates
representing at least 75% of the shares of Common Stock deposited
with the Voting Trustees under this Voting Trust Agreement.
SECTION 6.04. Termination and Extension. (a) Unless sooner
terminated as provided in Section 6.04(b) hereof or extended as
provided in Section 6.04(c) hereof, the 1997 Voting Trust will
terminate on March 31, 2007.
(b) The 1997 Voting Trust may be terminated at any time by
the affirmative vote of at least a majority of the Voting Trustees
or of Participating Shareholders holding Voting Trust Certificates
representing at least 75% of the shares of Common Stock deposited
with the Voting Trustees under this Voting Trust Agreement.
(c) Provided that the 1997 Voting Trust has not been
terminated theretofore, at any time within six months prior to the
termination of the 1997 Voting Trust pursuant to the provisions of
Section 6.04(a) hereof or, if the 1997 Voting Trust shall have been
extended pursuant to the provisions of this Section 6.04(c), then
within six months prior to such extended termination date, one or
more Participating Shareholders may, by agreement in writing with
the Voting Trustees and the Corporation, extend the duration of the
1997 Voting Trust for an additional period not to exceed ten years.
Such agreement to extend the duration of the 1997 Voting Trust
shall not be binding upon any Shareholder who is not a party
thereto.
SECTION 6.05. Notices. All notices, consents, requests,
instructions and other communications provided for herein shall be
in writing and shall be deemed to have been sufficiently given or
served, for all purposes, if given or served:
(i) to the Participating Shareholders, at their
respective addresses as shown on the Register;
(ii) to the Voting Trustees, addressed to the Voting
Trustees, c/o Graybar Electric Company, Inc., 34 North Meramec
Avenue, St. Louis, Missouri 63105-3882, if delivered other
than by mail, or P.O. Box 7231, St. Louis, Missouri 63177-
1231, if by mail; and
(iii) to the Corporation, addressed to Graybar Electric
Company, Inc., 34 North Meramec Avenue, St. Louis, Missouri
63105-3882, if delivered other than by mail, or P.O. Box 7231,
St. Louis, Missouri 63177-1231, if by mail;
or at such other address as shall be furnished by any party hereto
to the other parties in such manner.
SECTION 6.06. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and
assigns.
SECTION 6.07. Counterparts. This Voting Trust Agreement, and
any document or instrument executed and delivered pursuant to the
provisions of this Voting Trust Agreement may be executed by each
Participating Shareholder, the Voting Trustees and the Corporation
in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall
together constitute but one and the same instrument.
SECTION 6.08. Governing Law. This Voting Trust Agreement
shall be governed by and construed in accordance with the laws of
the State of New York.
A-18
<PAGE> 33
SECTION 6.09. Severability. Any provision of this Voting
Trust Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6.10. Headings; Table of Contents. The headings and
the table of contents in this Voting Trust Agreement are for
convenience of reference only and shall not define or limit any of
the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
respective hands as of the day and year first above written.
---------------------------------------------------------
Carl L. Hall
---------------------------------------------------------
Richard H. Haney
---------------------------------------------------------
Golden W. Harper
---------------------------------------------------------
Robert L. Mygrant
---------------------------------------------------------
Richard D. Offenbacher
GRAYBAR ELECTRIC COMPANY, INC.
By: -------------------------------------------
PARTICIPATING SHAREHOLDERS
By: -------------------------------------------
As Attorney-in-Fact for each of the individuals
named on Schedule A annexed hereto.
A-19
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
</TABLE>
<TABLE>
ITEM 13. Other Expenses of Issuance and Distribution.
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee. . . . . . . . . . $30,304
Printing fees and expenses . . . . . . . . . . . . . . . . . . . . . . 11,000<F*>
Legal fees and expenses. . . . . . . . . . . . . . . . . . . . . . . 20,000<F*>
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000<F*>
-------
$66,304<F*>
<FN>
- ---------------
<F*> Estimated.
</TABLE>
ITEM 14. Indemnification of Directors and Officers.
The provisions of Section 5.03 of the 1997 Voting Trust
Agreement included as Annex A to the Prospectus are incorporated
herein by reference.
ITEM 15. Recent Sales of Unregistered Securities.
Not applicable.
ITEM 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
4. Instruments defining the rights of security holders,
including indentures.
(i) Restated Certificate of Incorporation, as
amended.
(ii) Copy of Voting Trust Agreement dated as of
April 1, 1997, attached as Annex A to the
Prospectus and incorporated herein by
reference.
(iii) Form of Voting Trust Certificate to be
issued under Voting Trust Agreement,
included in Exhibit 4(ii) and incorporated
herein by reference (specimens are not
available).
5. Opinion re legality--Opinion of Whitman Breed
Abbott & Morgan.
9. Voting Trust Agreement--See Exhibit 4(ii).
23. Consent of Whitman Breed Abbott &
Morgan--contained in the opinion filed as
Exhibit 5 and incorporated herein by
reference.
(b) Financial Statement Schedules.
Not applicable.
II-1
<PAGE> 35
ITEM 17. Undertakings.
(i) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company or the Voting Trustees
pursuant to the foregoing provisions, or otherwise, the Company and
the Voting Trustees have been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Company or the Voting Trustees of
expenses incurred or paid by a director, officer or controlling
person of the Company or the Voting Trustees in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Company or the Voting Trustees
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it or
them is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-2
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement on Form S-1 has been
signed by the following persons, as Voting Trustees, on
November 4, 1996.
- -------------------------------------- --------------------------------
(C.L. Hall) (G.W. Harper)
- -------------------------------------- --------------------------------
(R.H. Haney) (R.L. Mygrant)
-------------------------------------
R.D. Offenbacher
II-3
<PAGE> 1
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
of
GRAYBAR ELECTRIC COMPANY, INC.
Under Section 807 of The Business Corporation Law
-----------------------------------
We, the undersigned, James L. Hoagland and George
S. Tulloch, Jr., being respectively the President and
Secretary of GRAYBAR ELECTRIC COMPANY, INC., hereby certify:
1. The name of the Corporation is GRAYBAR
ELECTRIC COMPANY, INC.
2. The Certificate of Incorporation of the
Corporation was filed in the Department of State of New York
on the 11th day of December 1925 and a Restated Certificate
of Incorporation was so filed on June 17, 1969.
3. The text of the Restated Certificate of
Incorporation as amended heretofore is hereby restated
without further amendment or change to read as herein set
forth in full:
FIRST: The name of the corporation is
GRAYBAR ELECTRIC COMPANY, INC.
SECOND: The purposes for which it is formed
are as follows:
(a) To manufacture or otherwise acquire,
own, use, buy, sell, lease and deal in all kinds
and descriptions of electric and other
instruments, machinery, apparatus, appliances and
<PAGE> 2
equipment, and all materials, supplies, tools and
implements appertaining thereto;
(b) To carry on and conduct any and every
kind of manufacturing business;
(c) To carry on and conduct any and every
kind of general contracting, construction and
engineering business;
(d) To carry on and conduct any and every
kind of general purchasing, mercantile and supply
business;
(e) To mine, extract, remove or otherwise
acquire and use, turn to account and dispose of
coal, oil, metal, stone, minerals of every kind,
and timber.
THIRD: The aggregate number of shares which the
corporation shall have authority to issue is seven
million eight hundred thousand (7,800,000), of which
three hundred thousand (300,000) shares of the par
value of Twenty Dollars ($20.00) each shall be
designated "Preferred Stock" and seven million five
hundred thousand (7,500,000) shares of the par value of
One Dollar ($1.00) each shall be designated "Common
Stock".
FOURTH: The designations, preferences, privileges
and voting powers of the shares of each class and the
qualifications thereof are as follows:
- 2 -
<PAGE> 3
A. The preferred stock shall be designated as
"Preferred Stock."
(a) Commencing January 1, 1948, the holders
of the Preferred Stock shall be entitled to
receive, when and as declared by the board of
directors, dividends thereon at the rate of One
Dollar ($1) per share per annum payable quarterly
on the last business day of March, June, September
and December in each year, such dividends to
accrue from January 1, 1948, or, as to Preferred
Stock issued thereafter, from the dividend date
next preceding the date of issue, or from the date
of issue if the date of issue coincides with the
dividend date. The first such dividend shall be
payable March 31, 1948. Such dividends shall be
non-cumulative except to the extent earned in each
calendar year. No dividends shall be deemed to be
earned for any year if, after the payment thereof
and after any necessary adjustments in the
liabilities and assets of the corporation, the
capital of the corporation would be impaired.
Unless all dividends on the Preferred Stock out of
net earnings for a year and to the extent of the
earnings for such year available for dividends on
the Preferred Stock shall have been paid on or
before March 31 of the following year, no
dividends shall thereafter be paid on the Common
- 3 -
<PAGE> 4
Stock until all such dividends to the extent
earned for such preceding year on the Preferred
Stock shall have been paid.
The term "net earnings" as used in this
paragraph (a) of Section A hereof shall be deemed
to mean net earnings as determined under the
corporation's established accounting methods,
including the deduction of payments into the
Pension Fund of Graybar Electric Company, Inc. (or
to an insurance company for pension purposes)
covering current accrued liability pursuant to the
provisions of Graybar Electric Company, Inc.'s
Plan for Employees' Pensions, Disability Benefits
and Death Benefits and payments of disability and
death benefits thereunder but excluding payments
to make up deficiencies in said Pension Fund (or
to make up deficiencies in payments to an
insurance company for pension purposes) as such
deficiencies exist on December 31, 1947.
If the net earnings for any year determined
as aforesaid shall be less than the amount paid as
dividends on the Preferred Stock for such year,
the excess of the dividends so paid shall be
deducted from earnings for the next succeeding
year or years in determining net earnings for such
next succeeding year or years available for
- 4 -
<PAGE> 5
non-cumulative dividends on the Preferred Stock
until such excess shall be made up.
(b) Upon any dissolution or liquidation of
the corporation or sale of all of its assets,
whether voluntary of involuntary, there shall be
paid to the holders of Preferred Stock Twenty
Dollars ($20) per share plus an amount equal to
any dividends accrued thereon to the extent earned
but unpaid to the date of payment, or an amount
sufficient to pay the aggregate amount to which
the holders of the Preferred Stock shall be
entitled shall be deposited with a bank or trust
company in the Borough of Manhattan, City of New
York, having a capital surplus and undivided
profits of at least Five Million Dollars
($5,000,000) as a trust fund for the benefit of
holders of such Preferred Stock, before any sums
shall be paid to or any assets distributed among
the holders of the Common Stock, and after such
payments to the holders of the Preferred Stock or
the making of such deposit all remaining assets
and funds shall be paid to or distributed among
the holders of the Common Stock.
(c) The corporation, at the option of the
board of directors, may redeem at any time or from
time to time all or any part of the Preferred
Stock at Twenty Dollars ($20) a share plus an
- 5 -
<PAGE> 6
amount equal to any dividends accrued thereon to
the extent earned but unpaid to the dividend date
next preceding the date fixed for redemption, and
the determination of the board of directors with
respect to the earnings available for dividends on
the Preferred Stock for any quarter or quarters of
a year shall be conclusive and binding upon any
stockholder whose stock is so redeemed; provided,
however, that not less than thirty (30) days
previous to the date fixed for redemption a notice
of the time and place thereof shall be given to
the holders of record of the shares of Preferred
Stock so to be redeemed by mailing a copy of such
notice to such holders at their respective
addresses as the same appear upon the books of the
corporation. In case of redemption of less than
all of the outstanding Preferred Stock, such
redemption shall be made pro rata, or the shares
to be redeemed shall be chosen by lot, in such
manner as the board of directors may determine.
At any time after notice of redemption has
been given in the manner herein prescribed, or, in
the case of redemption of all the outstanding
shares of Preferred Stock, after the corporation
shall have delivered to any bank or trust company
having its principal office in the Borough of
Manhattan, City and State of New York and having a
- 6 -
<PAGE> 7
capital, surplus and undivided profits of at least
Five Million Dollars ($5,000,000) an instrument in
writing irrevocably authorizing such bank or trust
company to give notice of redemption of such
shares in the name of the corporation and in the
manner herein prescribed, the corporation may
deposit the amount of the aggregate redemption
price with any such bank or trust company named in
such notice, in trust for the holders of the
shares so to be redeemed, payable on the date
fixed for redemption as aforesaid and in the
amounts aforesaid to the respective order of such
holders, on endorsement to the corporation or
otherwise, as may be required, and upon surrender
of the certificates for such shares. Upon deposit
of the aggregate redemption price as aforesaid, or
if no such deposit is made, upon said date fixed
for redemption (unless the corporation shall
default in making payment of the redemption price
as set forth in said notice), such holders shall
cease to be stockholders with respect to said
shares and shall be entitled only to receive the
redemption price on the date fixed for redemption
as aforesaid, from such bank or trust company or
from the corporation, without interest thereon,
upon endorsement if required, and the surrender of
the certificates for such shares, as aforesaid;
- 7 -
<PAGE> 8
provided that any funds so deposited by the
corporation and unclaimed at the end of six (6)
years from the date fixed for such redemption
shall be repaid to the corporation upon its
request, after which repayment the holders of such
shares so called for redemption shall look only to
the corporation for payment of the redemption
price thereof. Any interest accrued on any funds
so deposited shall belong to the corporation and
shall be paid to it from time to time.
If at any time dividends on the Preferred
Stock shall be in arrears to the extent earned and
until all such dividends in arrears to the extent
earned shall have been declared or provided for,
the corporation shall not redeem Preferred Stock,
except as a whole.
Subject to the provisions hereof, the board
of directors shall have authority to prescribe the
manner in which Preferred Stock shall be redeemed
from time to time. No shares of Preferred Stock
redeemed shall be reissued or otherwise disposed
of.
(d) Except as otherwise required by law, no
holder of Preferred Stock shall have any right to
vote for the election of directors or for any
other purpose including a proceeding for
mortgaging the property and franchises of the
- 8 -
<PAGE> 9
corporation pursuant to Section 16 of the Stock
Corporation Law of the State of New York, for
authorizing any guaranty pursuant to Section 19 of
said Law, for sale of the franchises and property
of the corporation pursuant to Section 20 of said
Law, for consolidation pursuant to Section 86 of
said Law, for voluntary dissolution pursuant to
Section 105 of said Law, or for change of name
pursuant to the General Corporation Law.
(e) No holder of Preferred Stock shall sell,
transfer or otherwise dispose of any shares of
such stock to any party other than the corporation
without first offering to sell said shares to the
corporation at the price of Twenty Dollars ($20)
per share plus an amount equal to dividends
accrued to the extent earned on said stock to the
end of the immediately preceding calendar quarter
(the determination of the board of directors with
respect to the earnings available for dividends on
the Preferred Stock for any quarter or quarters of
a year being conclusive and binding upon any
stockholder so offering to sell any shares) and
tendering to the corporation the certificates
therefor duly endorsed in proper form for
transfer; and the corporation is hereby given an
option to purchase all or any part of the
Preferred Stock held by such holder at the price
- 9 -
<PAGE> 10
aforesaid good from the date of such offer and
tender until the expiration of thirty (30) days
from said date. Nothing in this paragraph (e)
contained, however, shall be construed to prevent
any holder of shares of Preferred Stock from
transferring such shares to voting or other
trustees under a voting trust agreement or under
any other agreement relating to stock of the
corporation approved by the board of directors of
the corporation and receiving voting trust
certificates or other certificates of interest
covering the shares so transferred; and, in the
event that shares of Preferred Stock of the
corporation shall be transferred to such voting
trustees, the voting trust certificates or other
certificates of interest so issued to such
stockholders shall be held by each and every owner
thereof subject to the same terms and conditions
as provided in this Section A; and the terms
"shares," "stock," "Preferred Stock," "shares of
Preferred Stock," "stock certificates" or
"certificates for stock" whenever used in this
Section A shall be deemed to include voting trust
certificates or other certificates of interest
covering shares of Preferred Stock of the
corporation unless otherwise stated; and the term
"stockholder" as used in this Section A shall also
- 10 -
<PAGE> 11
be deemed to include the owner of such voting
trust certificates or other certificates of
interest covering shares of Preferred Stock of the
corporation.
(f) The corporation is hereby given an
option in the event of the death of the holder of
any shares of Preferred Stock of the corporation
to purchase from his estate all or any part of
such shares at the price per share provided in
paragraph (e) of this Section A at any time from
and after the expiration of one year from the date
of his death until thirty (30) days after such
shares shall have been offered for sale to the
corporation at the said price and certificates for
such shares of stock, duly endorsed in proper form
for transfer, shall have been tendered to the
corporation, accompanied by any other papers
necessary or proper to effect a valid transfer.
The option in this paragraph (f) given to the
corporation, however, is subject to the provision
that in the event the estate of any deceased
stockholder shall offer to sell and shall tender
to the corporation at any time before the
expiration of the period of one year from the date
of death of such deceased stockholder any stock
held by his estate, the option shall terminate
unless within thirty (30) days from the time said
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<PAGE> 12
stock is presented to the corporation for purchase
the corporation shall purchase said stock at the
said purchase price.
(g) In the event that any holder of
Preferred Stock ceases to be an employee of the
corporation or a subsidiary corporation, for any
cause other than death or retirement on a pension
allowed by the corporation or by such subsidiary
corporation, the corporation is hereby given an
option to purchase all the Preferred Stock held by
such stockholder, at the price provided in
paragraph (e) of this Section A good from the date
such holder ceases to be an employee as aforesaid
until the expiration of thirty (30) days after he
has made an offer to the corporation to sell said
stock at said price and a tender of the
certificates therefor duly endorsed in proper form
for transfer.
(h) All offers for sale of shares to the
corporation and tenders of certificates for such
shares must be made at the principal office of the
corporation, in the County of St. Louis, State of
Missouri or such other place as the corporation
shall designate by notice in writing to
stockholders of record. In the event of any such
offer and tender, the mailing of a check for the
purchase price as determined pursuant to the
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<PAGE> 13
provisions of paragraph (e) of this Section A of
the shares under option to the seller at the
address shown upon the books of the corporation or
in the event that the seller is a holder of a
voting trust certificate at the address shown upon
the books of the voting trustees or at any other
address furnished by the seller for such purpose
at any time within the option period shall be
deemed to be due exercise of the option. The
corporation may at any time, whether or not such
offer and tender has been made, exercise any
option to purchase, redeem, or otherwise acquire
any shares of stock of the corporation granted to
it hereunder by mailing notice of its election so
to do to the record holder of the stock covered
thereby at his address as shown upon the stock
books of the corporation, or in case of voting
trust certificates or other certificates of
interest covering stock of the corporation then at
the address of the owner thereof as shown upon the
books of the voting or other trustees. Said
notice shall state in substance that the
corporation has elected to exercise its option and
that it will make payment for the stock to be thus
purchased upon delivery to it at its principal
office in the County of St. Louis, State of
Missouri or such other place as the corporation
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<PAGE> 14
shall designate by notice in writing to
stockholders of record, of the certificates
therefor, properly endorsed for transfer,
accompanied by such instruments as the corporation
may deem necessary, and such stockholder, or his
executors or administrators as the case may be,
shall forthwith surrender and deliver at said
office the certificates for said stock duly
endorsed in blank, accompanied by such
instruments, and shall be entitled to receive
payment (which payment may be by check) of the
purchase price therefor as determined pursuant to
the provisions of paragraph (e) of this Section A.
(i) In the event that the corporation shall
purchase any of the Preferred Stock upon exercise
of any of the aforesaid options, the corporation
may purchase such stock in the name and for the
account of any employee of the corporation, or of
a subsidiary corporation, with funds provided by
any such party, or at its option, if it has funds
available for the purpose, the corporation may
purchase the shares for its own account and
deposit them in its treasury, and may resell from
time to time any or all of such shares purchased
for its own account for such price or prices, and
to such employee or employees of the corporation
or of a subsidiary corporation as the board of
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<PAGE> 15
directors may determine, or, at the option of the
board of directors, any or all of such shares may
be retired or cancelled in any manner permitted by
law.
B. The common stock shall be designated as
"Common Stock."
(a) No holder of Common Stock shall sell,
transfer, or otherwise dispose of any shares of
such stock to any party other than the corporation
without first offering to sell said shares to the
corporation at the price for which said shares
were issued by the corporation (or in the event of
any change, subdivision, combination or
reclassification of said shares, then at the price
for which were issued the shares so changed,
subdivided, combined or reclassified into the
shares so offered to the corporation), plus an
amount equal to dividends accrued on said stock
from the beginning of the calendar quarter to be
paid at the close of such calendar quarter only if
a dividend for said quarter is declared, and
tendering to the corporation the certificates
therefor duly endorsed in proper form for
transfer, and the corporation is hereby given an
option to purchase all or any part of the Common
Stock held by such holder at the price aforesaid
good from the date of such offer and tender until
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<PAGE> 16
the expiration of thirty (30) days after said
date. Nothing in this Section B contained,
however, shall be construed to prevent any holder
of shares of Common Stock from transferring such
shares to voting or other trustees under a voting
trust agreement, or under any other agreement
relating to stock of the corporation approved by
the board of directors of the corporation or to
prevent any subscriber to the Common Stock from
causing the stock subscribed for by him from being
issued direct to such voting or other trustees and
in either event receiving voting trust
certificates or other certificates of interest
covering the shares so transferred to or issued to
such voting or other trustees; and in the event
that shares of Common Stock of the corporation
shall be transferred to or issued to such voting
or other trustees, the voting trust certificates
or other certificates of interest so issued to
such stockholders or subscribers shall be held by
each and every owner thereof subject to the same
terms and conditions as provided in this Section B
for shares of Common Stock of the corporation; and
the terms "shares," "stock," "Common Stock,
"shares of stock," "shares of Common Stock,"
"stock certificates," or "certificates for stock"
whenever used in this Section B shall be deemed to
- 16 -
<PAGE> 17
include voting trust certificates or other
certificates of interest covering shares of Common
Stock of the corporation unless otherwise stated,
and the term "stockholder" as used in this
Section B shall also be deemed to include the
owner of such voting trust certificates or other
certificates of interest covering shares of Common
Stock of the corporation.
(b) The corporation is hereby given an
option in the event of the death of the holder of
any shares of Common Stock of the corporation to
purchase from his estate all or any part of such
shares at the price per share provided in
paragraph (a) of this Section B, at any time from
and after the expiration of one year from the date
of his death until thirty (30) days after such
shares shall have been offered for sale to the
corporation at the said price and certificates for
said shares of stock duly endorsed in proper form
for transfer shall have been tendered to the
corporation, accompanied by any other papers
necessary or proper to effect a valid transfer.
The option in this paragraph (b) given to the
corporation, however, is subject to the provision
that in the event the estate of any deceased
stockholder shall offer to sell and shall tender
to the corporation at any time before the
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<PAGE> 18
expiration of the period of one year from the date
of death of such deceased stockholder any stock
held by his estate, the option shall terminate
unless within thirty (30) days from the time of
said stock is presented to the corporation for
purchase, the corporation shall purchase said
stock at the said purchase price.
(c) In the event that any holder of Common
Stock ceases to be an employee of the corporation,
or of a subsidiary corporation, for any cause
other than death or retirement on a pension
allowed by the corporation or by such subsidiary
corporation, the corporation is hereby given an
option to purchase all the Common Stock held by
such stockholder at the price provided in
paragraph (a) of this Section B good from the date
such holder ceases to be an employee as aforesaid
until the expiration of thirty (30) days after he
has made an offer to the corporation to sell said
stock at said price and a tender of the
certificates therefor duly endorsed in proper form
for transfer.
(d) All offers for sale of shares to the
corporation and tenders of certificates for such
shares must be made at the principal office of the
corporation, in the County of St. Louis, State of
Missouri or such other place as the corporation
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<PAGE> 19
shall designate by notice in writing to
stockholders of record. In the event of any such
offer and tender, the mailing of a check for the
purchase price as determined pursuant to the
provisions of paragraph (a) of this Section B of
the shares under option to the seller at the
address shown upon the books of the corporation or
in the event that the seller is a holder of a
voting trust certificate at the address shown upon
the books of the voting trustees or at any other
address furnished by the seller for such purpose
at any time within the option period shall be
deemed to be due exercise of the option. The
corporation may at any time, whether or not such
offer and tender has been made, exercise any
option to purchase, redeem, or otherwise acquire
any shares of stock of the corporation granted to
it hereunder by mailing notice of its election so
to do to the record holder of the stock covered
thereby at his address as shown upon the stock
books of the corporation, or in case of voting
trust certificates or other certificates of
interest covering stock of the corporation then at
the address of the owner thereof as shown upon the
books of the voting or other trustees. Said
notice shall state in substance that the
corporation has elected to exercise its option and
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<PAGE> 20
that it will make payment for the stock to be thus
purchased upon delivery to it at its principal
office in the County of St. Louis, State of
Missouri or such other place as the corporation
shall designate by notice in writing to
stockholders of record, of the certificates
therefor, properly endorsed for transfer,
accompanied by such instruments as the corporation
may deem necessary, and such stockholder, or his
executors or administrators as the case may be,
shall forthwith surrender and deliver at said
office the certificates for said stock duly
endorsed in blank, accompanied by such
instruments, and shall be entitled to receive
payment (which payment may be by check) of the
purchase price therefor as determined pursuant to
the provisions of paragraph (a) of this Section B.
(e) In the event that the corporation shall
purchase any of the Common Stock upon exercising
any of the aforesaid options, the corporation may
purchase such stock in the name and for the
account of any employee of the corporation or of a
subsidiary corporation with funds provided by any
such party, or at its option, if it has funds
available for the purpose, the corporation may
purchase the shares for its own account and
deposit them in its treasury, and may resell from
- 20 -
<PAGE> 21
time to time any or all such shares purchased for
its own account for such price or prices, and to
such employee or employees of the corporation or
of a subsidiary corporation as the board of
directors may determine, or at the option of the
board of directors, any or all of such shares may
be retired or cancelled in any manner permitted by
law.
(f) Subject to all of the rights of the
Preferred Stock, dividends may be paid upon the
Common Stock if and when declared by the board of
directors out of any funds of the corporation
legally available therefor.
(g) Except as otherwise provided in the
certificate of incorporation as amended, the
holders of the Common Stock shall have exclusive
voting power for the election of directors and
upon all other matters that may be submitted to
the stockholders for their vote or consent.
C. No stockholder (whether a holder of Preferred
or Common Stock) shall hypothecate or pledge any stock
except under an agreement of hypothecation or pledge
with the pledgee containing the following provisions
together in the following sequence:
"In the event of the death of the pledgor or
in the event that he ceases to be an employee of
Graybar Electric Company, Inc. or of a subsidiary
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<PAGE> 22
corporation for any cause other than death or
retirement on a pension, Graybar Electric Company,
Inc. shall have the same right to purchase any or
all of the pledged stock as it would have had if
the stock had not been pledged, and may make
payment therefor to the pledgee or any party
presenting the certificates therefor, properly
endorsed for transfer. The provisions of the
certificate of incorporation of the corporation
relating to the rights of the corporation to such
stock and the price to be paid therefor are set
forth on the back of the stock certificates
pledged and the pledgee has notice thereof.
"In the event that the pledgor shall be in
default under the pledge, Graybar Electric
Company, Inc. shall have an option, good until the
expiration of thirty (30) days from the time
written notice of such default is served upon said
corporation by the pledgee, to take over the stock
pledged and the debt to secure which such stock
has been pledged, upon payment to the pledgee of
the amount then owing on said debt, and no sale
shall be made by the pledgee under said pledge
until such option has expired.
"In the event that the pledgor shall be in
default under the pledge and the amount then owing
on the debt shall exceed the price at which
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<PAGE> 23
Graybar Electric Company, Inc. would be entitled
to purchase stock under option given to it in case
the pledgor should desire to sell same, said
corporation shall have the right, good until the
expiration of thirty (30) days from the time
written notice is served upon said corporation by
the pledgee, to redeem or purchase such stock, at
said option price, and may make payment therefor
to the pledgee or any party presenting the
certificates therefor properly endorsed for
transfer, and no sale shall be made by the pledgee
until such option has expired.
"No other provisions in the hypothecation or
pledge shall in any way affect the rights given in
the three preceding paragraphs, and by accepting
the pledge the pledgee agrees to carry out and be
bound by the provisions of the three preceding
paragraphs and of the certificate of incorporation
as amended of Graybar Electric Company, Inc.
"Any right or option in the corporation to
purchase, redeem, take over or otherwise acquire
any stock of the corporation shall, in accordance
with the provisions of the certificate of
incorporation as amended, also accrue to and may
be exercised by any person, persons, firm or
corporation designated by the corporation to
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<PAGE> 24
purchase or acquire such stock or any part
thereof.
"It is understood that the certificate of
incorporation of Graybar Electric Company, Inc.
also provides, in substance, that if any party
shall claim or establish ownership of or any
interest in shares of stock of the corporation and
if such ownership or interest is the result of a
sale or transfer in breach of the provisions of
the certificate of incorporation, such shares or
interest shall at the option of the corporation be
subject at all times to purchase by said
corporation at prices and under terms and
conditions set forth in or to be determined as
provided in said certificate of incorporation."
In the event that the corporation shall have
exercised any such option to take over any stock which
shall have been pledged or hypothecated and the debt to
secure which such stock has been pledged, the
corporation shall have the right, at any time after the
expiration of thirty (30) days after written notice
mailed to the holder of record of the pledged stock at
his address as shown on the books of the corporation,
to purchase said stock by paying or tendering to the
pledgor the difference, if any, between the amount paid
by the corporation to the pledgee in taking over said
stock, together with interest to the time of such
- 24 -
<PAGE> 25
purchase, and the price which the corporation would be
required to pay to purchase said stock in case of sale
by the stockholder to the corporation under the
provisions of paragraph (e) of Section A or paragraph
(a) of Section B, as the case may be; provided,
however, that at any time prior to such purchase of
said stock by the corporation the pledgor may redeem
said stock from the corporation by paying to the
corporation the amount which the corporation paid to
the pledgee in taking over the said stock, together
with interest thereon. All such interest shall be
computed at the rate of six per cent (6%) per annum.
In the event that the corporation shall have
exercised its option to take over any stock which shall
have been pledged or hypothecated, and the debt to
secure which the stock has been pledged, the
corporation shall, in addition to any rights herein
granted, be subrogated to all the rights of the pledgee
of said stock.
No pledge or hypothecation of any stock of the
corporation, except in accordance with the foregoing
conditions, shall in any way affect the right of the
corporation to treat the stock as if it had not been
pledged, whether in the hands of the pledgee or any
subsequent holder whose title is through the pledgee or
through any sale or transfer resulting from the pledge.
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<PAGE> 26
D. All certificates of Preferred and Common
Stock of the corporation shall contain or have endorsed
thereon the provisions of the certificate of
incorporation as amended in respect of the sale,
transfer and pledge of stock, and all voting trust
certificates or other certificates of interest covering
stock of the corporation issued under a voting trust
agreement or other agreement to which the corporation
may be a party shall likewise contain or have endorsed
thereon said provisions. No transfers of stock shall
be recorded on the books of the corporation unless
effected in accordance with the provisions of the
certificate of incorporation as amended. Each holder
of a certificate of stock of the corporation shall be
charged with notice of the provisions of the
certificate of incorporation of the corporation as
amended and shall by receiving any such stock
certificate be deemed to assent to and be bound by all
of the provisions of the certificate of incorporation
as amended.
If for any reason whatsoever any party to whom a
sale or transfer has been made in breach of any of the
provisions of the certificate of incorporation as
amended should claim or establish ownership of or any
interest in any shares of stock of the corporation,
such shares shall thereupon become subject to
redemption or purchase at any and all times thereafter
- 26 -
<PAGE> 27
at the option of the corporation, whether in the hands
of such party or any subsequent transferee, immediate
or remote, upon mailing thirty (30) days notice of the
election of the corporation to redeem or purchase such
shares to the then holder of record at its address as
it appears upon the stock books of the corporation or
the books of the voting or other trustees at the price
provided in paragraph (e) of Section A or paragraph (a)
of Section B hereof, as the case may be, and the
corporation may redeem or purchase any such shares upon
paying the price specified.
The corporation shall withhold any dividends and
refuse to permit the exercise of any voting right upon
any shares transferred in violation of the provisions
of the certificate of incorporation as amended or in
regard to which there has been any default in notifying
the corporation of the stockholder's desire to sell his
stock in order to give the corporation opportunity to
exercise its option to purchase, or default in delivery
of stock after the corporation has given notice of its
election to exercise any option to purchase.
Whenever herein the corporation shall be given any
right or option to purchase, redeem or otherwise
acquire any shares of stock of the corporation in any
manner whatsoever, such rights shall also accrue and
may be exercised by any person, persons, firm or
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<PAGE> 28
corporation designated by the corporation to purchase
or acquire such stock or any part thereof.
If any one or more provisions of Section A, B or C
or of this Section D shall be declared to be invalid,
it shall not affect the validity of any other
provisions of said sections or this section or of the
certificate of incorporation as amended, nor shall the
fact that any shares of the corporation shall be held
at any time by any party not entitled to hold the same
or from whom the corporation might purchase the same
under the provisions of this Section D relieve any
other stockholder from compliance with the terms of the
provisions of Sections A, B and C and of this
Section D.
The term "employee" as used in Sections A and B
shall be deemed to include salaried officers.
The term "subsidiary" or "subsidiary company" as used
in the certificate of incorporation as amended shall be
deemed to mean any company seventy-five per cent (75%)
of whose outstanding shares of equity stock, as
hereinafter defined, shall be owned by the corporation
or by another subsidiary. The term "equity stock" as
herein used means the outstanding class or classes of
shares entitled upon liquidation of a company to the
final distribution of all assets remaining after the
payment and discharge of all obligations and after
- 28 -
<PAGE> 29
payment and distribution to all classes of shares
entitled to priority on the distribution of assets.
E. No stockholder of any class of the
corporation shall as such be entitled as of right to
purchase or subscribe for stock of any class of the
corporation, whether authorized by this Certificate of
Increase in Number and Classification of Shares or by
any amendment to the certificate of incorporation or to
purchase or subscribe for any other securities of the
corporation whether or not such securities may be
convertible into stock of any class of the corporation.
FIFTH: No stockholder shall be entitled as
of right to purchase or subscribe for any part of any
unissued stock or of any additional stock to be issued
by reason of any increase of the authorized capital
stock of the corporation or of bonds, certificates of
indebtedness, debentures or other securities
convertible into stock of the corporation, but any such
unissued stock or such additional authorized issue of
new stock or of other securities convertible into stock
may be issued and disposed of pursuant to resolution of
the board of directors to such persons, firms,
corporations or associations and upon such terms as may
be deemed advisable by the board of directors in the
exercise of their discretion.
SIXTH: The Secretary of State of New York is
hereby designated as the agent of the corporation upon
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<PAGE> 30
whom process in any action or proceeding against the
corporation may be served. The principal office of the
corporation in the State of New York is located in the
City, County and State of New York, and the address to
which the Secretary of State shall mail a copy of
p00000000rocess in any action or proceeding against the
corporation which may be served upon him is c/o CT
Corporation System, 1633 Broadway, New York, New York
10019. The name of the registered agent upon whom and
the address of the registered agent at which process
against the corporation may be served is CT Corporation
System, 1633 Broadway, New York, New York 10019.
4. The board of directors of this corporation
has authorized this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, we have made, signed and
acknowledged this Restated Certificate of Incorporation this
9th day of March, 1984.
/s/ James L. Hoagland
---------------------------------
James L. Hoagland,
President
/s/ George S. Tulloch, Jr.
----------------------------------
George S. Tulloch, Jr.
Secretary
- 30 -
<PAGE> 31
STATE OF MISSOURI )
: ss.:
COUNTY OF ST. LOUIS )
GEORGE S. TULLOCH, JR., being first duly sworn,
deposes and says that he is the Secretary of GRAYBAR
ELECTRIC COMPANY, INC., that he has read the foregoing
certificate and knows the contents thereof and that the
statements therein are true.
/s/ George S. Tulloch, Jr.
----------------------------------
George S. Tulloch, Jr.
Sworn to before me this
12th day of March, 1984
/s/ Alberta S. Duchek
- -----------------------------
Notary Public
- 31 -
<PAGE> 1
EXHIBIT 5
November 4, 1996
Carl L. Hall
Richard H. Haney
Golden W. Harper
Robert L. Mygrant
Richard D. Offenbacher
As Voting Trustees under the
Voting Trust Agreement relating
to shares of Common Stock of
Graybar Electric Company, Inc.
Dear Sirs:
We refer (i) to the Voting Trust Agreement, to be
dated as of April 1, 1997 (the "Voting Trust Agreement") and
entered into by holders of shares of Common Stock of Graybar
Electric Company, Inc. (the "Company"), the Company and you
as voting trustees (the "Voting Trustees"), and (ii) to the
Registration Statement on Form S-1 (the "Registration
Statement") under the Securities Act of 1933, as amended,
being filed by the Voting Trustees with the Securities and
Exchange Commission relating to voting trust certificates
(the "Voting Trust Certificates") to be issued pursuant to
the Voting Trust Agreement.
We have examined the Voting Trust Agreement, the
form of Voting Trust Certificates set forth in the Voting
Trust Agreement and the original or certified, photostatic
or facsimile copies of such records and other documents as
we have deemed relevant and necessary as the basis for the
opinion set forth below. In such examination, we have
assumed the legal capacity of all natural persons, the
genuineness of all signatures, the conformity to original
documents of all documents submitted to us as certified,
photostatic or facsimile copies and the authenticity of the
originals of such copies.
<PAGE> 2
Based upon our examination as described above and
subject to the assumptions and qualifications stated, and
relying as to various questions of fact material to the
opinion rendered herein on the representations in the
documents that we have examined, we are of the opinion that
the Voting Trust Agreement, when duly executed and delivered
by one or more holders of shares of Common Stock of the
Company, the Voting Trustees and the Company, will be a
valid and legal agreement of the parties thereto under the
laws of the State of New York, and that the Voting Trust
Certificates, when issued in accordance with the provisions
of the Voting Trust Agreement, will be validly and legally
issued.
We consent to the filing of this opinion as a
exhibit to the Registration Statement and to the reference
to our firm appearing under the caption "Legal Matters" in
the Prospectus that forms a part of the Registration
Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required
under Section 7 of the Securities Act or the General Rules
and Regulations of the Commission.
Very truly yours,
WHITMAN BREED ABBOTT & MORGAN
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