<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
PROJECT SOFTWARE & DEVELOPMENT, INC.
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(Name of Issuer)
Common Stock, $0.01 par value per share
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(Title of Class of Securities)
743 39P 101
-------------------------------------
(CUSIP Number)
Robert L. Daniels, c./o Project Software & Development, Inc.,
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20 University Road, Cambridge, Massachusetts 02138 (617-661-1444)
-----------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 28, 1996
------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box /X/.
Check the following box if a fee is being paid with the statement /X/ (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 2 of 10 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert L. Daniels, in his individual capacity
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)/ /
(b)/X/
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
Number of 7 SOLE VOTING POWER
Shares 1,069,502
Beneficially
Owned by 8 SHARED VOTING POWER
Each None
Reporting
Person 9 SOLE DISPOSITIVE POWER
with 2,167,131
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,167,131
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.4%
14 TYPE OF REPORTING PERSON
IN
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 3 of 10 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Susan H. Daniels, in her individual capacity
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)/ /
(b)/X/
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
Number of 7 SOLE VOTING POWER
Shares None
Beneficially 8 SHARED VOTING POWER
Owned by None
Each
Reporting 9 SOLE DISPOSITIVE POWER
Person None
with 10 SHARED DISPOSITIVE POWER
1,091,129
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,091,129
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.3%
14 TYPE OF REPORTING PERSON
IN
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 4 of 10 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert L. Daniels, as Trustee of the 1996 Daniels Voting Trust
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)/ /
(b)/X/
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
Number of 7 SOLE VOTING POWER
Shares 2,188,758
Beneficially 8 SHARED VOTING POWER
Owned by None
Each
Reporting 9 SOLE DISPOSITIVE POWER
Person None
with 10 SHARED DISPOSITIVE POWER
1,091,129
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,188,759
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.7%
14 TYPE OF REPORTING PERSON
00
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 5 of 10 Pages
ITEM 1. SECURITY AND ISSUER
Common Stock, $0.01 par value per share
Project Software & Development, Inc.
20 University Road
Cambridge, Massachusetts 02138
ITEM 2. IDENTITY AND BACKGROUND
This Schedule is being filed pursuant to Rule 13d-1(a) on behalf of
each of Robert L. Daniels, in his individual capacity, Susan H.
Daniels, in her individual capacity, and Robert L. Daniels, as Trustee
of the 1996 Daniels Voting Trust. Under Section 13(d) of the Securities
Exchange Act of 1934, Robert L. Daniels, Susan H. Daniels and Robert L.
Daniels, as Trustee of the 1996 Daniels Voting Trust, may be deemed to
be a "group."
Mr. Daniels is the Trustee of the 1996 Daniels Voting Trust. Of the
2,188,758 shares subject to the 1996 Daniels Voting Trust, 1,097,629
are owned beneficially by Mr. Daniels and 1,091,129 shares are owned
beneficially by Mrs. Daniels. Mr. Daniels also owns 1,069,502 shares of
common stock of the issuer free of trust. Mr. and Mrs. Daniels are
divorced.
Each of Robert L. Daniels, Susan H. Daniels and Robert L. Daniels, as
Trustee of the 1996 Daniels Voting Trust disclaims beneficial ownership
of all shares owned by the others for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended.
(a) Robert L. Daniels
(b) c/o Project Software & Development, Inc., 20
University Road, Cambridge, Massachusetts 02138
(c) Chairman of the Executive Committee, Project Software &
Development, Inc., 20 University Road, Cambridge, Massachusetts
02138
(d) Mr. Daniels has not been convicted during the past five years in a
criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Mr. Daniels has not during the last five years been a party to
civil proceedings of a judicial or administrative body of
competent jurisdiction and as a result of which proceeding was or
is subject to a judgment, decree or final order enjoining
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 6 of 10 Pages
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws.
(f) Mr. Daniels is a citizen of the United States of America.
(a) Susan H. Daniels
(b) 33 Circuit Road, Brookline, Massachusetts 02167
(c) At home.
(d) Mrs. Daniels has not been convicted during the past five years in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Mrs. Daniels has not during the last five years been a party to
civil proceedings of a judicial or administrative body of
competent jurisdiction and as a result of which proceeding was or
is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws.
(f) Mrs. Daniels is a citizen of the United States of America.
The 1996 Daniels Voting Trust is a voting trust created under the laws
of the Commonwealth of Massachusetts. Its address is Robert L. Daniels,
Trustee, c/o Project Software & Development, Inc., 20 University Road,
Cambridge, Massachusetts 02138. The 1996 Daniels Voting Trust has not
been convicted during the past five years in a criminal proceeding
(excluding traffic violations or similar misdemeanors). The 1996
Daniels Voting Trust has not during the last five years been a party to
civil proceedings of a judicial or administrative body of competent
jurisdiction and as a result of which proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The transfer by Mr. and Mrs. Daniels of shares of common stock of the
issuer to the 1996 Daniels Voting Trust was made without monetary
consideration and
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 7 of 10 Pages
consists of the transfer of such shares to Mr. Daniels, acting as
trustee of the voting trust, against issuance of voting trust
certificates representing beneficial ownership of the deposited shares.
The shares owned by Mr. and Mrs. Daniels were originally acquired with
their personal funds; a substantial portion of Mrs. Daniels' shares
were acquired through a division of marital property in connection with
the Daniels' 1996 divorce.
ITEM 4. PURPOSE OF TRANSACTION
The 1996 Daniels Voting Trust replaces the 1994 Daniels Voting Trust,
which terminated on or about August 19, 1996. Mr. Daniels founded the
Company, is a director and is Chairman of the Executive Committee of
the Company's Board of Directors.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Shares beneficially owned:
Robert L. Daniels 2,167,131 (22.4%)
Susan H. Daniels 1,091,129 (11.3%)
Robert L. Daniels,
Trustee of the
1996 Daniels Voting
Trust 2,188,758 (22.7%)
Percentages are based on the number of shares of common stock
outstanding as of July 31, 1996 (9,639,150) as contained in the
issuer's Form 10-Q for the quarter ended June 30, 1996, the most recent
filing by the issuer with the Commission.
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 8 of 10 Pages
(b) Number of shares as to which each person has:
(i) Sole power to vote or direct the vote:
Robert L. Daniels 1,069,502
Susan H. Daniels None
Robert L. Daniels,
Trustee of the
1996 Daniels Voting
Trust 2,188,758
(ii) Shared power to vote or direct the vote:
Robert L. Daniels None
Susan H. Daniels None
Robert L. Daniels,
Trustee of the
1996 Daniels Voting
Trust None
(iii) Sole power to dispose or direct the disposition of:
Robert L. Daniels 2,167,131
Susan H. Daniels None
Robert L. Daniels,
Trustee of the
1996 Daniels Voting
Trust None
(iv) Shared power to direct the disposition of:
Robert L. Daniels None
Susan H. Daniels 1,091,129*
Robert L. Daniels,
Trustee of the
1996 Daniels Voting
Trust 1,091,129*
* These shares are subject to certain restrictions on transfer contained in
the 1996 Daniels Voting Trust Agreement. See Item 6 below and Exhibit 1 hereto.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Pursuant to the 1996 Daniels Voting Trust Agreement, the Trustee shall
have the right (i) to exercise all voting rights and powers with
respect to all shares held by the voting trust, (ii) to take part in or
consent to any corporate or stockholders' action of any
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 9 of 10 Pages
kind whatsoever, and (iii) to file applications with, and otherwise
deal with, any Federal or state regulatory agencies with respect to all
matters relating to said shares. The Trustee's right to vote shares in
respect of a merger, liquidation, dissolution, or consolidation of the
issuer is subject to certain limitations set forth in the voting trust
agreement. Reference is made to the text of the 1996 Daniels Voting
Trust Agreement, a copy of which is filed as an exhibit hereto, for a
complete statement of the rights of the parties thereto, and said
exhibit is hereby incorporated herein by this reference thereto.
Pursuant to the 1996 Daniels Voting Trust Agreement, neither Mr. nor
Mrs. Daniels shall, except as provided therein, sell, assign, convey,
pledge, encumber, hypothecate or otherwise transfer any of the shares
represented by voting trust certificates. Permitted Transfers include
(i) certain transfers for estate planning purposes; (ii) bona fide
transfers for value to unaffiliated third parties (subject in the case
of Mrs. Daniels, to a volume limitation); and (iii) certain pledges to
a bank or financial institution as collateral security. In addition,
the parties may sell their entire respective interests in the case of a
tender or exchange offer for the common shares of the issuer approved
by both Mr. and Mrs. Daniels, or, in certain cases, as to which a
qualified investment bank has opined is fair from a financial point of
view. Reference is made to the text of the 1996 Daniels Voting Trust
Agreement, a copy of which is filed as an exhibit hereto, for a
complete statement of the rights of the parties thereto, and said
exhibit is hereby incorporated herein by this reference thereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1. 1996 Daniels Voting Trust Agreement
Exhibit 2. Agreement among Signatories
<PAGE>
SCHEDULE 13D
CUSIP No. 743 39P 101 Page 10 of 10 Pages
SIGNATURE
After reasonable inquiry and to the best of his or her knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement with respect to him or her is true, complete and correct.
September 6, 1996
ROBERT L. DANIELS
-----------------------------------
Robert L. Daniels
SUSAN H. DANIELS
-----------------------------------
Susan H. Daniels
THE 1996 DANIELS VOTING TRUST
By: ROBERT L. DANIELS
--------------------------------
Robert L. Daniels, as
Trustee
<PAGE>
EXHIBIT 1
---------
1996 DANIELS VOTING TRUST AGREEMENT
-----------------------------------
THIS AGREEMENT made effective as of the 19th day of August, 1996, by and
among Susan H. Daniels ("SHD"), Robert L. Daniels ("RLD"; RLD and SHD being
hereinafter referred to from time to time collectively as the "Stockholders"),
and Robert L. Daniels, as trustee of the voting trust created by this voting
trust agreement (the "Trustee").
WHEREAS, the Stockholders, among others, entered into a Voting Trust
Agreement dated April 29, 1994 (the "1994 Voting Trust Agreement"), which was
subsequently amended and restated by agreement dated as of December 1, 1995, and
was terminated as a result of RLD's resignation as Chairman and Chief Executive
Officer of Project Software & Development, Inc. (the "Corporation") on August
19, 1996; and
WHEREAS, RLD and SHD own, beneficially, 1,097,629 and 1,091,129 shares of
the common stock, $.01 par value, of the Corporation, respectively, which were
subject to the terms of the 1994 Voting Trust, as amended and restated; and
WHEREAS, the Stockholders desire to make said shares subject to this 1996
Daniels Voting Trust Agreement ("Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Name. The trust created by this Agreement shall be known as the
----
1996 Daniels
Voting Trust.
2. Transfer of Stock to the Trustee.
--------------------------------
(a) The RLD Shares and SHD Shares deposited in trust with the Trustee
under this Agreement, together with all other shares of capital stock of the
Corporation deposited from and after the date hereof with the Trustee under this
Agreement, whether pursuant to this Section 2(a) or by reason of the payment of
dividends by the Corporation in capital stock of the Corporation, the offering
of subscription rights by the Corporation to the holders of its capital stock, a
reorganization or recapitalization of the Corporation or otherwise, are
hereinafter referred to as the "Restricted Securities." The Trustee shall hold
the Restricted Securities subject to the terms of this Agreement.
(b) All certificates for Restricted Securities transferred and delivered
to the Trustee pursuant to this Agreement shall be surrendered by the Trustee to
the Corporation and shall be cancelled on the books of the Corporation, and new
certificates therefor shall be issued by the Corporation to the Trustee in the
name of "Robert L. Daniels, as Trustee under the 1996 Daniels Voting Trust." All
certificates representing Restricted Securities issued to the Trustee under this
Agreement shall have endorsed thereon, in addition to any other legends thereon,
a legend in substantially the following form:
<PAGE>
The securities represented by this certificate are subject to restrictions
on voting and transfer set forth in a Voting Trust Agreement dated as of
August 19, 1996 between Susan H. Daniels and Robert L. Daniels,
individually and as Trustee.
3. Voting Trust Certificates.
-------------------------
(a) Upon delivery to the Trustee by each Stockholder of the certificate
or certificates for their respective Restricted Securities, together with all
necessary instruments of transfer, such Stockholder shall be deemed to be the
beneficial owner of the number of Restricted Securities so deposited with the
Trustee (the "Beneficial Shares"), which beneficial ownership shall be evidenced
by a voting trust certificate or certificates (the "Voting Trust Certificates"),
and the Trustee shall issue and deliver or cause to be delivered to such
Stockholder a Voting Trust Certificate for the number of Restricted Securities
so deposited and transferred by such Stockholder. All such Voting Trust
Certificates shall be in substantially the form of Exhibit A hereto.
(b) Each registered holder of a Voting Trust Certificate shall be
entitled to receive copies of all notices of meetings, annual or periodic
reports to stockholders or other materials distributed by the Corporation
generally to the holders of any class of securities of which any outstanding
shares constitute Restricted Securities ("Stockholder Information"), and the
Trustee shall, upon his receipt from the Corporation of any Stockholder
Information in respect of Restricted Securities held subject to this Agreement,
promptly mail copies of such Stockholder Information to each such holder of a
Voting Trust Certificate at his or her address as shown on the books of the
Trustee. Each Stockholder acknowledges and agrees that the rights and powers of
the Trustee hereunder, including, without limitation, those rights and powers
set forth in Section 11 below, shall not be affected by any failure of the
Trustee to comply with the provisions of this subsection 3(b).
4. Provisions Regarding Transfer of Beneficial Shares.
--------------------------------------------------
(a) During the term of this Agreement, neither Stockholder shall, except
as otherwise permitted by Section 4(b) and 4A below, sell, assign, convey,
pledge, encumber, hypothecate, subject to any call, option or agreement to
purchase or otherwise transfer any of the Beneficial Shares standing in his or
her name, or any interest therein, or agree or purport to do any of the
foregoing.
(b) Notwithstanding the foregoing, the following transactions shall not
be deemed to be prohibited by this Section 4 (each a "Permitted Transfer"):
(i) A transfer by either Stockholder made for estate planning
purposes to a trust for the benefit of such Stockholder or of
any member of his or her family or directly to any member of
his or her family; provided, however, that any Beneficial
--------
Shares so transferred shall remain subject to this Voting
Trust Agreement for as long as such Agreement remains in
force.
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<PAGE>
(ii) Subject to Section 4(d) below, a transfer of Beneficial Shares
by either Stockholder in a bona fide transfer for value to a
---- ----
third party unaffiliated with the transferor (a "Sale"), in
which event the transferee shall hold the Beneficial Shares so
transferred free of the Voting Trust created hereby and shall
be entitled to receive from the Corporation a certificate
registered in such name as the transferee shall designate. The
Trustee hereby agrees to issue and deliver to the Corporation
or its transfer agent such certificates and instructions and
to take such other actions as may be necessary on his part to
effect the Sale and registration in the name of a permitted
transferee pursuant to this subsection 4(b)(ii).
(iii) A pledge of Beneficial Shares to a bank or other financial
institution as collateral security for the obligations of
either Stockholder under an arrangement with such bank or
financial institution in which the Stockholder simultaneously
establishes both put and call positions with respect to the
Common Stock of the Corporation (a "Collateralized Collar")
shall be deemed to constitute a Sale pursuant to subsection
4(b)(ii) above. Upon receipt by the Trustee of written notice
from the Stockholder that he or she intends to enter into a
Collateralized Collar, setting forth the terms of such
Collateralized Collar, such Stockholder shall be entitled to
receive a certificate representing the pledged shares
registered in such name as he or she shall designate and free
of any restrictive legend (except as otherwise required by
law). The bank or other financial institution, and any of its
transferees, shall hold the pledged shares free of the Voting
Trust and any other restrictions on transfer or voting of the
pledged shares created by this agreement.
(c) It shall be a further condition to any transfer made pursuant to
subsection 4(b)(i) above that the transferee, if not already a party to this
Agreement, shall execute and deliver to the Trustee an instrument in form and
substance satisfactory to the Trustee evidencing the agreement of such
transferee to become a party to and be bound by this Agreement. SHD agrees, as a
further condition to any transfer made by her pursuant to subsection 4(b)(iii)
above, that to the extent that she has the power to direct the voting of any
shares of Common Stock held by any bank or other financial institution pursuant
to a Collateralized Collar she will direct that such shares be voted in
accordance with the written instructions of the Voting Trustee; provided, that
such bank or financial institution shall not have any obligation to determine
independently whether such any direction given by SHD is in conformity with any
instructions of the Voting Trustee.
(d) Notwithstanding the foregoing, and except as otherwise set forth in
subsection 4(e) and (f) below, the aggregate number of shares of Common Stock
transferred by SHD by Sale (including Beneficial Shares transferred pursuant to
subsection 4(b)(ii) or (iii) above) during any calendar quarter prior to the
termination or expiration of this Agreement shall not exceed the greater of (i)
27,500, or (ii) the aggregate number of shares of Common Stock transferred by
Sale by RLD or by any donee of RLD (including Beneficial Shares transferred
pursuant to subsection 4(b)(ii) or (iii) above) during such quarter (the
"Limitation Amount").
- 3 -
<PAGE>
The Limitation Amount shall be adjusted for any stock dividend, stock dividend,
stock split, consolidation, reverse stock split, consolidation, reclassification
or other similar transaction effected by the Corporation with respect to its
Common Stock after the date hereof. Subject to subsection 4(f) below, in the
event that the number of Beneficial Shares actually transferred by SHD pursuant
to subsection 4(b)(ii) or (iii) above during any calendar quarter is less than
the Limitation Amount in respect of such calendar quarter, then the unused
balance of the Limitation Amount shall be carried forward to the next calendar
quarter and the Limitation Amount for such subsequent calendar quarter shall be
increased by the amount of such unused balance. The limitation set .forth in
this paragraph (the "Volume Limitation") shall terminate and be of no further
force and effect upon the earlier to occur of the following:
(i) If the Average Share Price, (as hereinafter defined),
determined as of the last day of any of the eighteen-month
periods beginning on January 1, 1996; July 1, 1997; January 1,
1999; July 1, 2000; January 1, 2002; and July 1, 2003 and
January 1, 2005 (each a"Measurement Period"), shall not have
increased at a 10% compound annual rate in comparison to the
Average Share Price determined as of the first day of such
Measurement Period; or
(ii) The fifth anniversary of the date hereof; provided, that
--------
(iii) in the event of the death of SHD prior to such fifth
anniversary, the Volume Limitation shall (to the extent
terminated pursuant to subsection 4(d)(i) above) be reinstated
and, notwithstanding the provisions of such subsection, shall
continue in force as to all SHD Shares then subject to this
Agreement and the trust created hereby until the occurrence of
such fifth anniversary.
For purposes of this paragraph, the "Average Share Price" determined as of any
date shall mean the average of the closing prices of the Common Stock, as
reported by the NASDAQ National Market, or by such other automated quotation
system or national or regional stock exchange on which the Common Stock is then
publicly traded, on each of the twenty (20) business days preceding such date
(adjusted as necessary to give effect to any stock split, reverse stock split,
stock dividend, recapitalization or other similar transaction affecting the
Common Stock occurring during the relevant Measurement Period).
(e) RLD agrees that, if, at any time prior to the fifth anniversary of
the date of this Agreement and thereafter during the lifetime of SHD, any public
offering of the Corporation's Common Stock that includes shares to be sold for
the account of selling stockholders (a "Secondary Offering") shall be effected
and if any shares shall be included in such Secondary Offering for the account
of RLD (whether constituting Beneficial Shares or not), then in such event RLD
will use his best efforts to cause to be included in the Secondary Offering such
number of the SHD Shares as SHD may request in writing within twenty (20) days
of the receipt from the Company of written notice that it intends to effect such
Secondary Offering (the "Registrable SHD Shares"). Unless all the Registrable
SHD shares are included in the Secondary Offering, the number of shares to be
included for the
- 4 -
<PAGE>
account of RLD in such Secondary Offering shall not exceed the number of
Registrable SHD shares or such lesser number of shares as is actually included
in the Secondary Offering for the account of SHD.
(f) The Stockholders acknowledge that they have been advised that their
sales of Common Stock may be required to be aggregated for purposes of the
volume limitations of Rule 144 promulgated by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended ("Rule 144"). Each
Stockholder agrees that he or she (i) will notify the other in writing prior to
any Sale of Common Stock (including any transfer of Beneficial Shares pursuant
to subsection 4(b)(ii) or (iii) above, and whether or not such Sale is subject
to Rule 144), and (ii) will not, without the prior written consent of the other,
effect any such Sale of Common Stock that would cause the aggregate number of
shares of Common Stock so transferred by such Stockholder during any three-month
period to exceed one-half of the aggregate number that would be permitted to be
sold by both Stockholders during such three-month period under Rule 144(e). The
Stockholders further acknowledge that they have been advised that each
collateralized option written by them in connection with the establishment of a
Collateralized Collar pursuant to subsection 4(b)(iii) above may be deemed to
constitute a separate sale of the underlying shares for purposes of the volume
limitations of Rule 144, and agree that each such option will be counted as a
separate Sale for purposes of the Limitation Amount referred to in subsection
4(d) above.
(g) In the event that during any calendar quarter the number of
Beneficial Shares transferred by SHD pursuant to subsection 4(b)(ii) and (iii)
above exceeds the number of Beneficial Shares transferred by RLD pursuant to
such subsection during such quarter (including, in each case, any Beneficial
Shares sold in a Secondary Offering), then on the first day of the calendar
quarter there shall automatically be released from the trust created hereby and
distributed to RLD in his own name a number of Beneficial Shares that is equal
to such excess.
(h) The Trustee shall keep a record of Voting Trust Certificates and
shall be entitled to rely conclusively upon said record as to the identity and
address of the holders of Voting Trust Certificates. The Trustee may treat the
registered holder of each Voting Trust Certificate as the owner thereof and of
the Beneficial Shares evidenced thereby for all purposes whatsoever, but the
Trustee shall not be required to deliver certificates for Restricted Securities
as required hereunder without the surrender of the corresponding Voting Trust
Certificates. In addition, the Trustee shall not be required to recognize any
transfer of any Voting Trust Certificate or Beneficial Share not made in
accordance with the provisions hereof unless the person claiming such ownership
shall produce indicia of title satisfactory to the Trustee and shall deposit
with the Trustee an indemnity satisfactory to the Trustee.
(i) If any Voting Trust Certificate is lost, stolen, mutilated, damaged
or destroyed, the Trustee shall issue a duplicate of such certificate upon
receipt of: (i) evidence of such fact satisfactory to him; (ii) an indemnity
satisfactory to him; (iii) the existing certificate, if mutilated or damaged;
and (iv) the Trustee's reasonable fees and expenses in connection with the
issuance of a replacement Voting Trust Certificate.
- 5 -
<PAGE>
4A. Sales of Beneficial Shares in Certain Circumstances.
---------------------------------------------------
Notwithstanding any other provision of this Agreement to the
contrary, the parties hereto may sell their entire respective
interests in the Beneficial Shares as follows:
(A) A sale of the entire interest of the Beneficial Shares
approved by the Stockholders in connection with a tender or
exchange offer for all the common shares of the Company
(collectively a "Takeover");
(B) A sale of the entire interest of the Beneficial Shares in
connection with a Takeover by any party hereto for a price,
which a Qualified Investment Bank has opined is fair from a
financial point of view. A Qualified Investment Bank is any
investment bank mutually acceptable to the parties hereto. The
parties hereto agree not to unreasonably withhold their
approval of any investment bank proposed by either of them;
provided, however, that any party who wishes to sell his or
her entire interest in Beneficial Shares at a price approved
as fair by a Qualified Investment Bank shall be required to
offer in writing to sell his or her entire interest in
Beneficial Shares to the other party hereto (the "Offer") for
a period of ten (10) business days at the price approved as
fair by the Qualified Investment Bank or such higher price, if
any, as may be offered in connection with the Takeover prior
to acceptance of the Offer in writing (the "Buy-Out Option").
If the consideration offered in connection with any Takeover
includes securities, the securities shall be valued for
purposes of this Buy-Out Option by the Qualified Investment
Bank as of the date of the Offer. The Offer shall be accepted
only by a writing, delivered to the selling Stockholder's
address for notice within the ten (10) business day period,
unconditionally committing to consummate the purchase within
thirty (30) days or less of the acceptance.
5. Assent to Agreement. Every person from time to time holding a
-------------------
Voting Trust Certificate or Certificates, whether a Stockholder or one claiming
through or under a Stockholder, by the fact of such person's acceptance of such
Voting Trust Certificate or Certificates, shall be deemed to have assented and
agreed to all of the provisions of this Agreement.
6. Dividends.
---------
(a) Prior to the expiration or earlier termination of this Agreement, the
holders of Voting Trust Certificates shall be entitled to receive payments equal
to the cash dividends, if any, received by the Trustee from the Corporation,
ratably in proportion to their respective number of Beneficial Shares then
outstanding. In lieu of receiving such cash dividends and paying the same to the
holders of Voting Trust Certificates, the Trustee may instruct the Corporation
in writing to pay such cash dividends directly to the holders of Voting Trust
Certificates. Upon such instructions being given by the Trustee to the
Corporation, and unless explicitly limited or until revoked by the Trustee, all
liability of the Trustee with respect to such cash dividends shall terminate.
The Trustee may at any time revoke such
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<PAGE>
instructions and by written notice to the Corporation direct it to make dividend
payments to the Trustee. The Corporation shall not be liable to any holder of
Voting Trust Certificates or to any person claiming to be entitled to any such
cash dividends by reason of following any written instructions of the Trustee.
(b) If any dividend in respect of Restricted Securities owned of record
by the Trustee is paid, in whole or in part, in capital stock of the
Corporation, then (i) the Trustee shall hold, subject to the terms of this
Agreement, the certificate or certificates for shares of such stock which are
received by him on account of such dividend; and (ii) the holder of each Voting
Trust Certificate shall be entitled to receive a Voting Trust Certificate issued
under this Agreement for the number of shares of capital stock received as such
dividend in respect of such holder's Beneficial Shares.
(c) Holders entitled to receive the dividends described above shall be
those registered as holders of Voting Trust Certificates on the books of the
Trustee at the close of business on the record date fixed by the Corporation for
determining those holders of its capital stock entitled to receive such
dividends or, if the Corporation has fixed no such record date, then on the date
fixed by the Trustee for the purpose of determining the holders of Voting Trust
Certificates entitled to receive such payment or distribution, those registered
as such at the close of business on the date so fixed by the Trustee; provided,
--------
that if no such record date is set by the Corporation or the Trustee, then in
such event the record date for determining the holders of Voting Trust
Certificates entitled to receive such payment or distribution shall be the close
of business on the day preceding such payment or distribution.
7. Subscription Rights. In case any stock or other securities of
-------------------
the Corporation are offered for subscription to the holders of Restricted
Securities deposited hereunder, the Trustee, promptly upon receipt of notice of
such offer, shall mail a copy thereof to each of the holders of Voting Trust
Certificates. Upon receipt by the Trustee of a request from any registered
holder of a Voting Trust Certificate or Certificates to subscribe on such
holder's behalf, accompanied by the sum of money required to pay for such stock
or securities or a promise to pay such sum, the Trustee shall make such
subscription and payment, or a promise to make such payment, and instruct the
Corporation to issue to the Trustee certificates for such shares or securities
so subscribed for in the name of "Robert L. Daniels, as Trustee under the 1996
Daniels Voting Trust." Upon receiving from the Corporation the certificates for
shares or securities so subscribed for, the Trustee shall issue to such
purchasing holder a Voting Trust Certificate in respect thereof.
8. Dissolution of the Corporation. In the event of the dissolution
------------------------------
or liquidation of the Corporation, whether voluntary or involuntary, or any
other return of capital to the holders of securities of the Corporation, the
Trustee shall receive the moneys, securities, rights or property to which the
holders of the Restricted Securities held hereunder are entitled, and shall
distribute the same among the registered holders of the Voting Trust
Certificates ratably in accordance with their respective number of Beneficial
Shares then outstanding, or the Trustee may in his discretion deposit such
moneys, securities, rights or property with any bank or -trust company doing
business in the United States, with authority and instructions to distribute the
same as above provided, and upon such deposit all further
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<PAGE>
obligations or liabilities of the Trustee in respect of such moneys, securities,
rights or property so deposited shall terminate.
9. Reorganization or Recapitalization of the Corporation.
-----------------------------------------------------
(a) In case the Corporation is merged into or consolidated with another
corporation or entity, or all or substantially all of the assets of the
Corporation are transferred to another corporation or entity, then in connection
with such merger, consolidation or transfer (i) the term "Corporation" for all
purposes of this Agreement shall be taken to include such successor corporation
or entity; (ii) the Trustee shall receive and hold under this Agreement any
stock of such successor corporation or entity which is received on account of
his ownership as Trustee hereunder of the Restricted Securities held hereunder
prior to such merger, consolidation or transfer; and (iii) the Trustee may, in
his discretion, substitute for Voting Trust Certificates, new voting trust
certificates in appropriate form, and the terms "Common Stock" and "Restricted
Securities" as used herein shall be taken to include any shares of stock which
may be received by the Trustee in lieu of all or part of the shares of Common
Stock or the Restricted Securities, respectively.
(b) In the event that the Corporation shall effect a stock split, reverse
stock split, consolidation, reclassification or other similar transaction in
respect of any class of its capital stock constituting Restricted Securities
held by the Trustee hereunder, the Trustee shall issue to the holders of Voting
Trust Certificates additional or substitute Voting Trust Certificates
representing such number and class of Beneficial Shares as are issuable in
respect of such Restricted Securities by reason of such transaction; provided,
in the case of substitute Voting Trust Certificates, that there shall have been
surrendered to the Corporation for cancellation the original Voting Trust
Certificate or Certificates in respect of which such substitute Voting Trust
Certificates are to be issued. In the event that the Restricted Securities
include securities of more than one class or series, the Trustee may cause
Voting Trust Certificates designated as belonging to more than one class or
series to be issued to the holder of Beneficial Shares so that each such Voting
Trust Certificate corresponds to Restricted Securities of a particular class or
series.
10. Additions to Trust Property. From time to time the Trustee may,
---------------------------
in his discretion, receive additional certificates for Restricted Securities
either from a Stockholder or from any other stockholder of the Corporation who
becomes a signatory hereto, and all such certificates shall be treated as if
originally transferred and deposited hereunder. Upon any such receipt of
addition certificates for Restricted Securities, the Trustee shall cause
additional Voting Trust Certificates representing beneficial interests in such
Restricted Securities to be issued to the beneficial owners of such Restricted
Securities to reflect the transfer and deposit of such Restricted Securities in
trust hereunder.
11. Rights and Powers of the Trustee: Death or Disability.
-----------------------------------------------------
(a) The Trustee shall have full legal title to, and be the record owner
of, the Restricted Securities held hereunder. The Trustee may, but shall not be
obliged to, deposit any stock certificate representing Restricted Securities
with a bank, securities firm or other financial institution for safekeeping in
the name of the Trustee as record owner.
- 8 -
<PAGE>
(b) Until the actual delivery to the holders of Voting Trust Certificates
of stock certificates representing Restricted Securities issued in exchange
therefor, and until the surrender of the Voting Trust Certificates for
cancellation upon such delivery, the Trustee shall have the right, subject to
the provisions of this paragraph, (i) to exercise, in person or by his nominee
or proxy, all voting rights and powers in respect of all Restricted Securities
held hereunder, (ii) to take part in or consent to any corporate or
stockholders' action of any kind whatsoever, and (iii) to file applications
with, and otherwise deal with, any Federal or state regulatory agencies with
respect to all matters arising out of or relating to the Restricted Securities.
The right to vote shall include the right to vote in favor of, or against, or to
withhold any vote in respect of, any resolution or proposed action of any
character whatsoever which may be presented at any meeting or which may require
the consent of stockholders of the Corporation, as the Trustee, in his sole
discretion, shall deem appropriate.
(c) Notwithstanding the provisions of paragraph 11(b), in the event the
Corporation shall seek the approval of its shareholders for any proposal for a
merger, liquidation, dissolution or consolidation of the Corporation (the
"Proposed Transaction"), the power of the Trustee to vote the Restricted
Securities shall be subject to the following limitation.
(i) If both Stockholders agree, the Trustee shall vote all such
securities with respect to the Proposed Transaction in
accordance with such agreement;
(ii) If the Stockholders do not agree and a Qualified Investment
Bank has opined that the consideration offered in the Proposed
Transaction is fair from a financial point of view, the
Trustee shall vote the Restricted Securities in accordance
with the directions of the Stockholders, in proportion to
their beneficial ownership interests; provided, however, that
the Stockholder choosing to support such Proposed Transaction
shall be required to offer in writing to sell his or her
entire interest in the Restricted Securities to the other
Stockholders (the "Offer") for a period of ten (10) business
days before the date on which such vote is to be taken at the
consideration offered in the Proposed Transaction (the "Buy-
Out Option"). If the consideration offered includes
securities, the securities shall be valued for purposes of
this Buy-Out Option by the Qualified Investment Bank as of the
date of the Offer. The Offer shall be accepted only by a
writing, delivered to the selling Stockholder's address for
notice within the ten (10) business day period,
unconditionally committing to consummate the purchase within
thirty (30) days or less of the acceptance.
(d) In the event that the Trustee should die or suffer a Disability
during the term of this Agreement, his executor (in case of death) or legal
representative (in case of Disability) shall serve as Trustee hereunder. The
term "Disability" shall mean, for purposes of this Agreement, (i) the
adjudication of the Trustee by a court of competent jurisdiction as
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<PAGE>
an incompetent, or (ii) the imposition by a court of competent jurisdiction of a
conservatorship over the affairs of the Trustee.
12. Compensation of the Trustee.
---------------------------
(a) The Trustee shall serve without compensation. The Trustee and each of
his agents shall be reimbursed by the owners of the Beneficial Shares ratably
according to the respective number of Beneficial Shares then outstanding for all
out-of-pocket expenses reasonably incurred by him or any of them in the
performance of his or their respective duties under this Agreement.
(b) Nothing contained herein shall disqualify or incapacitate the Trustee
from serving the Corporation or any of its subsidiaries as an officer, director
or agent acting in any other capacity, holding any shares of any class of stock
in the Corporation or any such subsidiary, becoming a creditor of the
Corporation or any such subsidiary, or in any other way dealing with or
receiving compensation from the Corporation or any such subsidiary.
13. Standard of Liability.
---------------------
(a) The Trustee hereunder shall not under any circumstances or in any
event be held liable (as stockholder, Trustee or otherwise) or accountable out
of his personal assets by reason of any error of judgment or mistake of fact or
law or other mistake, if such Trustee was acting in good faith, or in reliance
on the opinion of qualified legal counsel (who may be counsel for the
Corporation) selected in good faith, nor shall the Trustee be held liable by
reason of the act or omission of any agent, proxy, attorney, co-trustee, or
person to whom he may reasonably delegate his powers hereunder; provided, that
--------
where any provision of this Agreement by its terms applies equally to RLD and to
SHD, nothing in the preceding sentence shall be deemed to authorize the Trustee
to interpret or apply such provision in an inconsistent manner where the
interests of RLD and SHD, respectively, are concerned.
(b) Without limiting the generality of the foregoing, each Stockholder
acknowledges that he or she has been advised that he or she individually will be
responsible for filing any reports required pursuant to Section 16 of the
Securities Exchange Act of 1934 ("Section 16") in respect of his or her
beneficial ownership of Restricted Securities and acknowledges and agrees that
the Trustee in his capacity as such shall have no duty or responsibility with
respect to compliance by either Stockholder with Section 16 or with any other
requirements of federal or state securities law relating to beneficial ownership
or transfer of any Restricted Securities or Beneficial Shares.
(c) In no event shall the Trustee have any liability whatsoever, whether
arising in contract, in tort or otherwise, to any Stockholder, holder of a
Voting Trust Certificate or other person arising out of any vote or consent
lawfully cast or given by him, or withheld by him, in respect of any Voting
Stock held subject to this Agreement.
14. Certificate of Trustee. Any certificate in writing executed by
----------------------
the Trustee setting forth the existence of any fact the existence of which is
necessary to authorize the
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<PAGE>
execution of any instrument or the taking of any action by the Trustee, or
setting forth any other facts in relation to the trust created hereby, shall, as
to all persons acting in good faith in reliance thereon, be conclusive evidence
of the truth of the statements made in such certificate and of the existence of
the facts therein stated to exist.
15. Amendments. This Agreement may be amended only by a written
----------
instrument signed by (i) all of the registered holders of Voting Trust
Certificates then outstanding, and (ii) the Trustee. Any amendment shall be sent
to all holders of Voting Trust Certificates by the Trustee.
16. Sale and Transfer of Restricted Securities. Except pursuant to a
------------------------------------------
Permitted Transfer, the Trustee shall not sell, hypothecate, pledge, assign or
otherwise transfer legal title to any Restricted Securities held hereunder.
17. Term and Termination; Distribution of Trust Property; Provisions
----------------------------------------------------------------
for Voting.
- ----------
(a) The Restricted Securities held pursuant to this Agreement shall be
released from the trust created hereby and distributed to the Stockholders upon
the satisfaction of certain conditions, as follows:
(i) Upon the expiration or termination of this Agreement and the
trust created hereby pursuant to subsection 17(d) or (e) below, all Restricted
Securities shall be distributed to the registered holders of the Voting Trust
Certificates representing such Restricted Securities, and each such holder shall
be entitled to receive from the Corporation a certificate representing such
Restricted Securities registered in the name of such holder.
(ii) Notwithstanding the foregoing, the Trustee shall make no
distribution pursuant to Section 17(a)(i) to SHD or to any transferee of SHD in
a transfer pursuant to subsection 4(b)(i) above unless there shall have been
delivered to RLD in his individual capacity the irrevocable proxy and transfer
restriction agreement of SHD or of such transferee in the form attached hereto
as Exhibit B (each a "Proxy").
(b) Following the expiration or termination of this Agreement and the
delivery to RLD of the foregoing Proxy or Proxies, SHD and any transferee of SHD
(other than an Unrestricted Transferee, as defined in subsection 17(b)(i) below)
(each a "Restricted Transferee"), shall be entitled to sell, assign, convey,
pledge, encumber, hypothecate, subject to any call, option or agreement to
purchase or otherwise transfer any Restricted Securities or any interest
therein, on the following conditions:
(i) SHD and any Restricted Transferee may transfer Restricted
Securities free of the Proxy and any other restrictions set forth in this
Agreement, on the condition that any such transfer shall be made in a
transaction and to a person permitted by subsection 4(b)(ii) or (iii) above
(each an "Unrestricted Transferee"). Without limiting the generality of the
foregoing sentence, the term "Unrestricted Transferee" shall also include a
transferee unaffiliated with SHD who purchases Restricted Securities for value
in a bona fide transaction with a bank or financial institution which is selling
---- ----
such Restricted Securities pursuant to the exercise of its rights as a secured
party with respect to Restricted Securities
- 11 -
<PAGE>
pledged to it as collateral security in a transaction effected in compliance
with subsection 17(b)(ii) below. The Corporation will issue, or will cause its
transfer agent to issue, a certificate or certificates representing the
Restricted Securities so transferred registered in the name of such Unrestricted
Transferee free of the restrictions set forth herein and the legend referred to
in subsection 17(c) below, provided that (i) the Transferee effecting such
--------
transfer shall have certified to the Corporation in writing that the condition
set forth in the preceding sentence has been met, and (ii) any certificate
issued to SHD or such Restricted Transferee to represent the balance of any
Restricted Securities not so transferred shall remain subject to the Proxy and
bear the legend set forth in subsection 17(c) below.
(ii) SHD and any Restricted Transferee may transfer Restricted
Securities in a transaction not meeting the conditions set forth in subsection
17(b)(i) above only on the condition that the transferee of SHD or such
Restricted Transferee shall have delivered to RLD a Proxy and transfer
restriction agreement in the form attached hereto as Exhibit B (and shall be
deemed to be a "Restricted Transferee" for purposes of this Agreement).
(c) Any certificate representing Restricted Securities issued to SHD or
any Restricted Transferee of SHD shall have endorsed thereon, in addition to any
other required legends, a legend in substantially the following form:
The securities represented by this certificate are subject to
restrictions on transfer and upon voting set forth in an Irrevocable
Proxy dated __________, 199_, delivered by the original holder of
this certificate.
(d) This Agreement and the trust created hereby shall expire upon the
soonest to occur of (i) the written agreement of all holders of outstanding
Voting Trust Certificates and the Trustee, or (ii) the fifth anniversary of the
date hereof.
(e) In addition, this Agreement and the trust created hereby, and the
restrictions on voting and transfer provided in subsections 17(b) and (c) above
(as evidenced by any Proxy delivered to RLD hereunder or otherwise), shall
terminate and be of no further force and effect upon the earliest to occur of
the following:
(i) when RLD shall cease to be the beneficial owner of at least
920,000 shares of Common Stock or when SHD and any Restricted
Transferees of SHD shall cease to be the beneficial owners of
an aggregate of at least 230,000 shares of Common Stock (in
each case as adjusted for any stock dividend, stock split,
consolidation, reverse stock split, reclassification or other
similar transaction effected by the Corporation with respect
to its Common Stock after the date hereof);
(ii) upon the death of RLD;
(iii) the Corporation is acquired by way of the sale of all or
substantially all its assets or a merger or consolidation of
the Corporation with any other corporation or entity (other
than a merger or consolidation which
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<PAGE>
would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to represent,
either by remaining outstanding or by being converted into
voting securities of the surviving entity, more than 50% of
the combined voting power of the voting securities of the
Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or a merger or
consolidation effected to implement a recapitalization or re-
incorporation of the Corporation in which no material change
in voting control of the Corporation takes place).
18. Notices and Distributions.
-------------------------
(a) Unless otherwise specifically provided in this Agreement, any notice
to or communication with the holders of Voting Trust Certificates shall be
deemed to be sufficiently given or made if in writing and given by prepaid,
first class, registered or certified mail, or by a nationally recognized
overnight delivery service, or by personal delivery, to such holders at their
addresses appearing on the books of the Trustee. Any notice to the Trustee
hereunder shall be sufficient if in writing and given by first class, registered
or certified mail, or by a nationally recognized overnight delivery service, or
by personal delivery, as follows:
If to SHD:
Susan H. Daniels
33 Circuit Road
Brookline, Massachusetts 02167
If to RLD:
Robert L. Daniels
4 Heartbreak Hill
Ipswich, Massachusetts 01938
Every notice so given shall in the case of mailing, or personal delivery, when
actually delivered and in the case of the effective, overnight delivery service,
on the business day following its dispatch by means of such service.
(b) All distributions of cash, securities or other property hereunder by
the Trustee to the holders of Voting Trust Certificates may be made, in the
discretion of the Trustee in person, by mail, or where appropriate, by wire
transfer to any bank or fund account of which the receiving holder has notified
the Trustee in the manner provided for herein.
19. Miscellaneous.
-------------
(a) This Agreement shall be governed by, and construed and enforced in
accordance with, the substantive laws of The Commonwealth of Massachusetts,
without reference to its
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<PAGE>
principles of conflict of law.
(b) If any provision of this Agreement shall be determined to be invalid,
illegal or otherwise unenforceable by any court of competent jurisdiction, the
validity, legality and enforceability of the other provisions of this Agreement
shall not be affected thereby. Any invalid, illegal or unenforceable provision
of this Agreement shall be severable, and after any such severance, all other
provisions hereof shall remain in full force and effect.
(c) This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their heirs, legal representatives, successors and
permitted assigns. This Agreement may not be assigned by any party without the
written consent of each other party.
(d) This Agreement and the documents referred to in it and to be
delivered pursuant to it constitute the entire agreement of the parties
pertaining to its subject matter and supersede all prior agreements,
understandings negotiations and discussions of the parties, whether written or
oral, with respect to the subject matter hereof.
(e) The headings contained in this Agreement are for reference only and
shall not affect the meaning or interpretation of this Agreement.
(f) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
(g) The rights and remedies of the parties hereto shall be cumulative and
in addition to all other rights and remedies such parties may have, at law, in
equity, by contract or otherwise.
(h) The parties hereto agree to execute such further instruments and to
take such further actions as may reasonably be necessary to carry out the intent
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an
instrument under seal as of the date first above written.
ROBERT L. DANIELS
- ------------------------------------------
Robert L. Daniels, individually
SUSAN H. DANIELS
- ------------------------------------------
Susan H. Daniels
ROBERT L. DANIELS
- ------------------------------------------
Robert L. Daniels, as Trustee
and not individually
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<PAGE>
Commonwealth of Massachusetts
County of Suffolk August 28, 1996
There personally appeared before me Robert L. Daniels and acknowledged the
foregoing Voting Trust Agreement to be his free act and deed.
MARK W. EAGLE
-----------------------------------
Notary Public
My commission expires: December 8, 2000
Commonwealth of Massachusetts
County of Suffolk August 28, 1996
There personally appeared before me Susan H. Daniels and acknowledged the
foregoing Voting Trust Agreement to be her free act and deed.
MARK E. EAGLE
-----------------------------------
Notary Public
My commission expires: December 8, 2000
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<PAGE>
EXHIBIT A
---------
VOTING TRUST CERTIFICATE
THE 1996 DANIELS VOTING TRUST
No.____________________ __________
Shares
THIS IS TO CERTIFY THAT________________________________________ is the
owner of _______________ (____________________) Beneficial Shares in The 1996
Daniels Voting Trust under that certain 1996 Daniels Voting Trust Agreement
dated as of August 19, 1996 executed by and among Susan H. Daniels, Robert L.
Daniels, and Robert L. Daniels as Trustee, and relating to the Common Stock,
$.01 par value per share of Project Software & Development, Inc. (the
"Corporation"), which stock is held by the undersigned subject to the provisions
of said Agreement.
Said Beneficial Shares are transferable only in accordance with and subject
to the provisions of said Voting Trust Agreement and then only on the books of
the Trustee under said Voting Trust Agreement by the record holder either in
person or by his duly authorized attorney upon surrender of this Certificate
duly endorsed or assigned, subject to such transfer rules as such Trustee may
from time to time establish. The securities represented by this certificate have
been acquired for investment and have not been registered under the Securities
Act of 1933, as amended. Such securities may not be sold, transferred, pledged
or hypothecated unless the registration provisions of said Act have been
complied with or unless the Corporation has received an opinion of its counsel
that such registration is not required.
The rights, privileges and interests of the holders of Beneficial Shares in
said Trust are set forth in said Voting Trust Agreement and acceptance of this
Certificate constitutes assent and agreement to all of the provisions of said
Voting Trust Agreement.
IN WITNESS WHEREOF this Certificate has been executed by the undersigned
this day of __________, 1996.
------------------------------
As Trustee under said Voting
Trust and not individually
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<PAGE>
EXHIBIT B
---------
PROJECT SOFTWARE & DEVELOPMENT, INC,
IRREVOCABLE PROXY
____________________, 199_
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Robert L. Daniels ("RLD") proxy of the undersigned, for and in the
name, place and stead of the undersigned, at any meeting of stockholders of
Project Software & Development, Inc. (the "Corporation") or in connection with
any matter as to which the consent of stockholders of the Corporation is sought,
to vote or to consent to any corporate or collective action in connection with
all shares of Common Stock of the Corporation which the undersigned may
beneficially own, and to grant to others proxies therefor with or without power
of substitution. The undersigned hereby revokes all proxies, if any, hitherto
given by the undersigned to others with respect to such shares. The power hereby
granted, being coupled with an interest, shall be irrevocable and durable and
shall not be terminated or otherwise affected by any act or deed of the
undersigned (or by any other person, firm or corporation) or by operation of
law, whether by death, disability or incapacity of the undersigned or by the
occurrence of any other event or events after the execution hereof; provided, in
any event, that the restrictions on transfer and the following power granted in
this Proxy shall terminate upon the first to occur of the following:
(i) when RLD shall cease to be the beneficial owner of at least 920,000
shares of Common Stock or when SHD shall cease to be the beneficial
owner of at least 230,000 shares of Common Stock (in each case as
adjusted for any stock dividend, stock split, consolidation, reverse
stock split, reclassification or other similar transaction effected
by the Corporation with respect to its Common Stock, after
December 1, 1995);
(ii) upon the death of RLD;
(iii) the Corporation is acquired by way of the sale of all or
substantially all its assets or a merger or consolidation of the
Corporation with any other corporation or entity (other than a merger
or consolidation which would result in the voting securities of the
Corporation outstanding immediately prior thereto continuing to
represent, either by remaining outstanding or by being converted into
voting securities of the surviving entity, more than 50% of the
combined voting power of the voting securities of the Corporation or
such surviving entity outstanding immediately after such merger or
consolidation, or a merger or consolidation effected to implement a
recapitalization or reincorporation of the Corporation in which no
material change in voting control of the Corporation takes place).
- 17 -
<PAGE>
In consideration of the receipt by undersigned of the shares of Common
Stock in respect of which this proxy is given, the undersigned hereby covenants
and agrees with the aforesaid RLD that the undersigned will not sell, assign,
convey, pledge, encumber, hypothecate, subject to any call, option or agreement
to purchase or otherwise transfer any of the shares of Common Stock in respect
of which this proxy is given except as permitted by Section 17(b) of the 1996
Daniels Voting Trust Agreement.
This proxy shall be given effect under the laws of The Commonwealth of
Massachusetts as an instrument under seal.
WITNESS my hand and seal this __________ day of __________, 199_
By:
------------------------------
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<PAGE>
EXHIBIT 2
AGREEMENT
AGREEMENT dated as of the 6th day of September, 1996, between Robert L.
Daniels, Susan H. Daniels and Robert L. Daniels, as Trustee of the 1996 Daniels
Voting Trust, a voting trust created under the laws of the Commonwealth of
Massachusetts.
WHEREAS, pursuant to paragraph (f) of Rule 13d-1 promulgated under
Subsection 13(d)(1) of the Securities and Exchange Act of 1934, as amended the
"1934 Act", the parties hereto have decided to satisfy their filing obligations
under the 1934 Act by a single joint filing;
NOW, THEREFORE, the undersigned hereby agree as follows:
1. The Statement on Schedule 13D with respect to Project Software &
Development, Inc. to which this Agreement is attached as Exhibit 2 is filed on
behalf of Robert L. Daniels, in his individual capacity, Susan H. Daniels and
Robert L. Daniels, as Trustee of the 1996 Daniels Voting Trust.
2. Each of Robert L. Daniels, Susan H. Daniels and Robert L. Daniels, as
Trustee of the 1996 Daniels Voting Trust (each a "Filing Person") is responsible
for the completeness and accuracy of the information concerning such Filing
Person and is not responsible for the completeness or accuracy of the
information concerning any other Filing Person (except to the extent that such
Filing Person knows or has reason to believe that any of such information with
respect to any such other Filing Person is inaccurate).
3. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of The Commonwealth of Massachusetts, without giving
effect to its principles of conflicts of laws.
IN WITNESS WHEREOF, the undersigned hereunto set their hands as of the date
first above written.
1996 DANIELS VOTING TRUST
By: ROBERT L. DANIELS
--------------------------
Robert L. Daniels, as
Trustee
SUSAN H. DANIELS
------------------------------
Susan H. Daniels
ROBERT L. DANIELS
------------------------------
Robert L. Daniels
- 1 -
