EXHIBIT 9.1
VOTING TRUST AGREEMENT
Among
SHAREHOLDERS OF
DENVER AND EPHRATA
TELEPHONE AND TELEGRAPH COMPANY
And
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W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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AS
VOTING TRUSTEES
Dated: As of November 19, 1992
VOTING TRUST AGREEMENT
Agreement made as of the 19th day of November, 1992, between the
undersigned holders of common shares of Denver and Ephrata Telephone and
Telegraph Company, a Pennsylvania corporation (the "Shareholders"), and ▇▇▇
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WITNESSETH:
BACKGROUND
WHEREAS, each Shareholder presently owns issued and outstanding shares
of the common stock of Denver and Ephrata Telephone and Telegraph Company (the
"Company"); and
WHEREAS, most of the Shareholders who have executed this
Voting Trust Agreement (the "Agreement") are also parties to a Voting Trust
Agreement dated November 20, 1982 (the "1982 Agreement") and were also parties
to a Voting Trust Agreement dated November 22, 1972 (the "1972 Agreement") and
were parties to the original Voting Trust Agreement dated November 23, 1962 (the
"Original Agreement"); and
WHEREAS, a majority of the Voting Trustees under this Agreement are
Voting Trustees under the 1982 Agreement; and
WHEREAS, each of the Shareholders believes that the continuation of a
voting trust with respect to the Company's Shares (as hereinafter defined) will
ensure continuity and stability of the management and business policy of the
Company by giving the voting rights in respect of his or her shares of common
stock of the Company to the Voting Trustees;
WHEREAS, the Voting Trustees are willing to accept such voting rights
and to exercise such voting rights under the terms and conditions hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto, intending to be
legally bound hereby, have agreed and do hereby agree with each other as
follows:
Section1. Establishment of the Voting Trust. There is hereby
established a voting trust pursuant to which each of the Shareholders shall
transfer their Shares to the Voting Trustees for the purpose of vesting in the
Voting Trustees certain rights pertaining to the Shares upon the terms and
conditions and for the period stated in this Agreement.
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Section 2. Deposit of Shares and Issue of Voting Trust Certificates.
Each of the Shareholders hereby delivers and directs the Voting Trustees to
retain, as a deposit subject to the terms of this Agreement, all shares of the
common stock of the Company (the "Shares") except as hereinafter provided, and
all funds being held on his behalf pursuant to the 1982 Agreement. Each
Shareholder also agrees to deliver to the Voting Trustees on November 19, 1992
or as soon thereafter as practicable all Voting Trust Certificates which were
issued to him pursuant to the 1982 Agreement, duly endorsed in blank or to the
Voting Trustees, or accompanied by proper instruments of assignment and transfer
thereof duly endorsed in blank or to the Voting Trustees, in either case duly
stamped as required by any state or federal law applicable thereto. Upon the
delivery to the Voting Trustees of the Voting Trust Certificates issued pursuant
to the 1982 Agreement, the Voting Trustees will issue or cause to be issued and
delivered to the order of each Shareholder Voting Trust Certificates
substantially in the form hereinafter set forth representing the number of
Shares deposited hereunder by such Shareholder.
Each Shareholder (except as hereinafter provided) further agrees to
deliver or cause to be delivered to the Voting Trustees, as a deposit hereunder,
certificates for all Shares which he now holds and all Shares which he may
hereafter purchase or otherwise acquire during the period of this Agreement.
During the period of this Agreement, the Voting Trustees may, in their
sole discretion, accept from any other Shareholder, delivery of certificates for
his Shares, duly endorsed in blank or to the Voting Trustees, or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank or
to the Voting Trustees, in either case duly stamped as may be required by
applicable law, or at the direction of the Company or of any other person
entitled to receive Shares of the Company, accept delivery from the Company of
the Certificated for such Shares upon issuance thereof, and thereupon such
holder or person (including a person designated by the Company) shall become a
party to and participate in the terms, conditions and privileges of this
Agreement, and the Voting Trustees, in respect of all Shares so accepted by and
vested in them shall issue and deliver to such holder or person, Voting Trust
Certificates under this Agreement for a like number of Shares; provided,
however, that the Voting Trustees shall in no case accept delivery of any such
Share certificates from or issue Voting Trust Certificates to any such holder or
person under circumstances which, in the opinion of counsel for the Voting
Trustees, would require registration of the offering of Voting Trust
Certificates under the Federal Securities Act of 1933, as amended (the
"Securities Act of 1933") or the Pennsylvania Securities Act of 1972 (the
"Pennsylvania Securities Act").
The issue of each Voting Trust Certificate, together with the address
of the registered owner thereof, shall be recorded in transfer books to be kept
by the Voting Trustees for that purpose.
By accepting Voting Trust Certificates issued hereunder, each holder
thereof agrees that the Shares represented by the Voting Trust Certificates
issued to and
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accepted by him, shall be held by the Voting Trustees upon and subject to all
the trusts, terms and conditions of this Agreement.
The provisions contained in this Section requiring that all Shares now
owned or hereafter acquired by any party hereto be delivered to the Voting
Trustees and held by them subject to this Agreement shall apply to each party
who is either an officer or director of the Company; provided, however, that
each such officer or director shall retain in his own possession, free from the
provisions of this Agreement, ten (10) Shares, and provided, further, that the
delivery of such Shares by any director or officer in exchange for Voting Trust
Certificates shall not be required if in the opinion of counsel the issuance of
such Voting Trust Certificates to the director or officer would require
registration of the offering of Voting Trust Certificates under the Securities
Act of 1933 or the Pennsylvania Securities Act.
Section 3. Registration of Stock. The Voting Trustees are hereby fully
authorized and empowered to have registered in their names any and all Shares
issued to, transferred to, or deposited with them hereunder, and also to cause
any further transfers thereof to be made which may become necessary through any
change in the Voting Trustees or otherwise, as hereinafter provided.
Section 4. Form of Voting Trust Certificates. The text and form of all
Voting Trust Certificates issued hereunder and the form of assignment thereof
shall be substantially as follows, with appropriate omissions, variations, and
insertions therein as may be required.
(Form of Voting Trust Certificate)
No. Shares
DENVER AND EPHRATA TELEPHONE AND TELEGRAPH COMPANY
Incorporated under the Laws of the Commonwealth of Pennsylvania
Voting Trust Certificate
Issued under Voting Trust Agreement dated as of November 19, 1992
This is to certify that there have been deposited with the undersigned
Voting Trustees, under the Voting Trust Agreement hereinafter referred to,
certificates for ____ shares of common stock of the par value of Five Dollars
($5.00) per share, expressed to be fully paid, of Denver and Ephrata Telephone
and Telegraph Company, and that ___________________ is entitled to the benefits
specified in said Voting Trust Agreement arising from the deposit of said
shares. This certificate is issued pursuant to, and the rights of the holder
hereof are subject to, and the holder hereof by accepting delivery hereof
consents to the terms and conditions of, a certain Voting Trust Agreement dated
as of November 19, 1992, between certain shareholders of Denver and Ephrata
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Telephone and Telegraph Company and the undersigned Voting Trustees. This
certificate, together with the rights represented thereby, is transferable only
to the books of the undersigned Voting Trustees, by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed, and upon compliance with the terms and conditions of the aforesaid
Voting Trust Agreement.
This certificate shall not be valid unless signed by a Voting Trustee
as duly authorized agent of the Voting Trustees.
IN WITNESS WHEREOF, the Voting Trustees have executed this Certificate
by their duly authorized agent this ____ day of _________, 19__.
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VOTING TRUSTEES
By
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VOTING TRUSTEE
DULY AUTHORIZED AGENT
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
PENNSYLVANIA SECURITIES ACT OF 1972 IN RELIANCE ON AN EXCLUSION FROM
REGISTRATION UNDER SUCH ACT, AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT UNDER SUCH ACT SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(ii) IN THE OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE ACCEPTABLE TO
THE VOTING TRUSTEES, REGISTRATION UNDER SUCH ACT IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED TRANSFER.
THIS VOTING CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE FEDERAL
SECURITIES ACT OF 1933 ON THE BASIS OF THE EXEMPTION FROM REGISTRATION AFFORDED
BY SECTION 3 (a) (11) THEREOF, AND MAY NOT BE TRANSFERRED TO PERSONS OTHER THAN
BONA FIDE RESIDENTS OF THE COMMONWEALTH OF PENNSYLVANIA UNDER THE VOTING TRUST
AGREEMENT OF 1982 UNLESS AND UNTIL (i) A REGISTRATION STATEMENT UNDER SUCH ACT
SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) IN THE OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE ACCEPTABLE TO THE VOTING TRUSTEES,
REGISTRATION UNDER SUCH ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED
TRANSFER.
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(Form of Assignment of Voting Trust Certificate)
FOR VALUE RECEIVED, ______________________ hereby sell, assign and
transfer unto ___________________ all rights with respect to __________ Shares
of Common Stock of the par value of Five Dollars ($5.00) per share represented
by the within Voting Trust Certificate, and do hereby irrevocably constitute and
appoint ___________________ Attorney, to transfer a Voting Trust Certificate
representing such shares on the books of the within named Voting Trustees with
full power of substitution in the premises.
Dated _____________, 19__
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REQUIREMENTS: The signature (s) to this assignment must correspond with
the name(s) as written upon the face of the certificate in every particular
without alteration or enlargement or any change whatever. The signature(s)
should be guaranteed by a commercial bank or trust company organized under the
laws of the United States of America or of any State or Commonwealth thereof. If
it is impractical to secure such guarantee, the signature(s) should be
acknowledged formally before a notary public, who must certify under his seal
with date that he knows the person(s) signing to be the person(s) named on the
face of the certificate.
IMPORTANT: Before signing, please read and comply carefully with the
requirements printed above.
Section 5. Transfer of Voting Trust Certificates. The Voting Trust
Certificates issued hereunder have not been registered under the Securities Act
of 1933 in reliance upon one or more exemptions under the Act, including the
exemption afforded by Section 3 (a)(11) thereof. Neither have the Voting Trust
Certificates issued hereunder been registered under the Pennsylvania Securities
Act in reliance on an exclusion from registration thereunder. No Voting Trust
Certificate, therefore, shall be transferable at any time unless, in the opinion
of counsel for the Voting Trustees, such transfer will not constitute a
violation of either the Securities Act of 1933 or the Pennsylvania Securities
Act.
Subject to the immediately preceding paragraph, the Voting Trust
Certificates, and any and all right, title and interest of the holders thereof
in and to the Shares represented thereby, shall be transferable by delivery of
such certificates when duly assigned in writing by the registered owner thereof,
either in person or by attorney
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duly authorized, but until transferred on the books of the Voting Trustees in
accordance with rules established for that purpose by them, the Voting Trustees
may treat the registered owner as the absolute owner thereof for all purposes
whatsoever, and the Voting Trustees shall not be required to deliver new Voting
Trust Certificates hereunder without the surrender of the Voting Trust
Certificates which are to be transferred. All transfers of Voting Trust
Certificates, together with the address of the transferee, shall be recorded by
the Voting Trustees in the transfer books. Every transferee of a Voting Trust
Certificate or Certificates issued hereunder shall, by the acceptance of such
Voting Trust Certificate or Certificates, be bound hereby and entitled to the
benefits hereof with like effect as though an original party hereto, and shall
be embraced within the meaning of the term "Shareholder" or "holder of Voting
Trust Certificates" whenever used herein, unless the context shall otherwise
require. In connection with, and as a condition of, asking or permitting any
transfer of any Voting Trust Certificate under any provision of this Agreement,
the Voting Trustees may require the payment of a sum sufficient to pay, or
reimburse them for, any stamp tax or other governmental charge in connection
therewith, and also such expenses as are properly chargeable against the stock
represented by such Voting Trust Certificates hereunder and under the terms of
said Voting Trust Certificate.
For the purpose of determining the persons entitled, as holders of
Voting Trust Certificates,
(1) to participate in the payment or distribution by the Voting
Trustees of any dividend, or
(2) to request the Voting Trustees to subscribe for any additional
shares of the Company offered for subscription to Shareholders, or
(3) to take any other action required or permitted by this Agreement,
the transfer books may be closed by the Voting Trustees at any time not more
than thirty (30) days prior to the date fixed for such payments or distribution,
vote or consent, request or other action. In lieu of providing for the closing
of the books against transfers of Voting Trust Certificates for any such
purpose, the Voting Trustees may, if they deem it advisable, fix a date, not
exceeding thirty (30) days prior to the date fixed for such payment or
distribution, vote or consent, request or other action, as record date for such
purpose; and in that event, the Voting Trust Certificate holders of record at
the close of business on such date shall exclusively be entitled to participate
in the payment or distribution of such dividend, to vote or consent in respect
to any action of the Voting Trustees, to make requests to subscribe for such
additional Shares, or to take such other action, as the case may be.
Section 6. Power in Trustees to Vote Shares, Etc. Until the actual
delivery of Share certificates by the Voting Trustees to those entitled thereto
upon the termination of this Agreement and the surrender to the Voting Trustees
of Voting Trust Certificates issued hereunder, the Voting Trustees, and their
successors, shall possess in respect of any and all Shares held hereunder, and
shall be entitled in their discretion to
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exercise, all rights and powers of every nature of absolute owners of said
Shares, including without limitation the right to vote for every purpose and to
consent to any corporate act of the Company; it being expressly stipulated that
no voting right in respect of such Shares passes by or under the Voting Trust
Certificates or by or under any agreement to the holders thereof by implication
or otherwise. And without limiting in any manner the generality of the
foregoing, the Voting Trustees are hereby specifically authorized at any time
and from time to time to vote, or to give or withhold consent in respect of, any
and all such Shares so held by them hereunder, for the election of Directors of
the Company, to amend the Articles of Incorporation of the Company, to increase
or decrease the authorized number of Shares of the Company, to create new
classes of shares of the Company with preferences over the then-existing shares
or otherwise, to change or convert the shares of any class of the Company into
other shares or classes, to increase the indebtedness of the Company, to merge
or consolidate the Company, together with all or any of its franchises, assets,
business, properties and goodwill, into or with any other corporation, and to
mortgage, lease, sell or otherwise dispose of all or any of its franchises,
assets, business, properties and goodwill, all upon such terms and conditions as
to them may seem advisable.
Section 7. Merger, Consolidation, Etc. If the Company shall be merged
with and into, or consolidated with, or shall sell all of its assets to any
other corporation, the Voting Trustees shall have authority to collect and
receive the full consideration, if any, either in shares, money, securities or
other property, to which the holders of the Shares then held be the Voting
Trustees may become entitled, and, upon the receipt of such consideration, shall
have authority to surrender or exchange the Shares then held by them hereunder,
if and as required by the terms of such merger, consolidation or sale.
In the event that the Company is the surviving corporation in any
merger or consolidation, to the extent that such consideration shall consist of
shares having voting power, the Voting Trustees shall require the same to be
issued in their names and the same shall be retained by the Voting Trustees in
substitution for the Shares then held by them hereunder, said substituted shares
to be held under and subject to the terms of this Agreement.
In the event that the Company is not the surviving corporation in any
merger or consolidation, the Voting Trust shall continue in accordance with this
Agreement to the extent that such consideration shall consist of shares of the
surviving corporation having voting power, and the Voting Trustees shall require
the same to be issued in the names and retained by the Voting Trustees in
substitution for the Shares then held by them hereunder, said substituted shares
to be held under and subject to the terms of this Agreement, unless the holders
of at least a majority of the Voting Trust Certificates outstanding at the time
of the vote on the merger or consolidation vote to terminate the Voting Trust,
in which case the Voting Trustees shall distribute the shares received upon
consummation of the merger or consolidation to the holders of the Voting Trust
Certificates according to their respective interests upon presentation, if the
Voting Trustees shall so require, of the Voting Trust Certificates, whereupon
the Voting Trust Agreement shall forthwith terminate.
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To the extent that such consideration shall consist of shares, money,
securities or property, other than shares of stock having voting power, the
Voting Trustees, after deducting therefrom or upon being paid, such amounts as
may be properly chargeable hereunder against the holders of Voting Trust
Certificates, shall forthwith distribute the same among such holders according
to their respective interests, but only upon presentation, if the Voting
Trustees shall so require, of such Voting Trust Certificates for endorsement
thereon of the making of such distribution. If no part of such consideration
shall consist of shares having voting power, such distribution shall be made
forthwith to the holders of Voting Trust Certificates, but only upon surrender
by them to the Voting Trustees of their respective Voting Trust Certificates,
whereupon this Agreement shall forthwith terminate.
In the event of the receipt by the Voting Trustees as aforesaid of
shares having voting power and the continuation of the Voting Trust the
corporation issuing such substituted shares shall thereafter be considered to be
the Company for all purposes hereunder and the Voting Trustees may in their
discretion issue, all holders of Voting Trust Certificates shall accept, new and
appropriate Voting Trust Certificates similar in tenor to, and in exchange for,
those theretofore outstanding, but calling for such substituted shares instead
of the Shares theretofore held hereunder.
Section 8. Concerning the Voting Trustees. The Voting Trustees are
authorized and empowered to construe this Agreement, and their construction of
the same, made in good faith, shall be final, conclusive and binding upon all
holders of Voting Trust Certificates and all other parties interested. The
Voting Trustees may, in their discretion, consult with legal counsel to be
selected and employed by them, and anything done or suffered to be done in good
faith, by the Voting Trustees, or their agents, in accordance with the opinion
of counsel, shall be conclusive in favor of the Voting Trustees and their
agents, upon all holders of Voting Trust Certificates and all other parties
interested. No Voting Trustee shall incur any responsibility by reason of any
error of judgment or of law or by reason of any matter or thing done of suffered
or omitted under this agreement, except for his own willful and individual
malfeasance.
Each Shareholder authorizes the Voting Trustees at any one time and
from time to time, in their discretion, to request the Company to pay directly
to such Shareholder any and all money, Shares, securities or other property
payable by way of dividend or otherwise, by the Company to him with respect to
Shares called for by such Shareholder's Voting Trust Certificate.
Any Voting Trustee may act as a director of the Company, as an officer
of the Company, or both, as well as of any controlled or subsidiary corporation
and he, any firm of which he may be a member, any corporation of which he may be
a shareholder, director, officer or other employee, may contract with the
Company as well as with any controlled or subsidiary corporation or be or become
pecuniarily interested in any matter or transaction to which the Company as well
as any controlled or subsidiary corporation may be a party or in which the
Company or such controlled or subsidiary corporation
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may in any way be concerned, as fully as though he were not a Voting Trustee,
and may individually own any Shares, bonds, notes or other securities issued by
the Company.
The Voting Trustees herein appointed, and their successors, from time
to time, may become parties to this Agreement as holders of Voting Trust
Certificates and, to the extent of the Shares deposited hereunder and
represented by such Voting Trust Certificates, they shall be entitled in all
respects to the same rights and benefits and subject to the same obligations as
other holders of Voting Trust Certificates.
Section 9. Disposition of Dividends. Prior to the delivery of
certificates for Shares in exchange for Voting Trust Certificates as herein
provided, the holder of each Voting Trust Certificate shall be entitled, subject
as hereinafter provided, to receive from time to time payments equal to the
dividends payable in money, if any, received by the Voting Trustees upon the
number of Shares equal to that called for by such Voting Trust Certificate. If
any dividend in respect of the deposited Shares shall be paid in fully paid
Shares having voting power, the Voting Trustees shall likewise hold subject to
the terms of this Agreement the Certificates for such Shares which shall be
received by them on account of such dividend, and the holders of each Voting
Trust Certificate shall be entitled to receive one or more additional Voting
Trust Certificates issued under this Agreement to represent the Shares received
by the Voting Trustees in payment of the stock dividend upon the number of
Shares called for by such Voting Trust Certificates. If any dividend in respect
of the deposited Shares shall be paid otherwise than in money or in fully paid
Shares having voting power, the Voting Trustees shall distribute the same in
kind ratably among the holders of the outstanding Voting Trust Certificates,
upon payment by each such holder of a sum sufficient to reimburse the Voting
Trustees for any stamp tax or other governmental charge required to be paid in
connection with such distribution, and, if the Voting Trustees so require, upon
presentation of such Voting Trust Certificate for endorsement thereon of the
making of such distribution; provided that the Voting Trustees, in respect of
any dividend payable in Shares, shall not be required to deliver Voting Trust
Certificates or share certificates calling for a fraction of a share, but may,
in lieu thereof, deliver, in respect of fractional interests, scrip certificates
in such form as the Voting Trustees may, in their unrestricted discretion,
determine.
Section 10. Rights to Subscribe to Additional Shares. In case the
Company shall offer to holders of any of its Shares held hereunder any right or
rights to subscribe for additional shares of any class, then, in such case, upon
receiving from the holder of any Voting Trust Certificate, prior to the time
limited by the Company for subscription and payment, a request to subscribe in
his behalf and the money required to pay for his subscription (not in excess of
the ratable amount of shares subscribable in respect of the Shares represented
by such Voting Trust Certificate), the Voting Trustees will make such
subscription and payment. Upon receiving from the Company the certificates for
the shares so subscribed for, the Voting Trustees will, if the same be fully
paid shares having voting power, issue one or more Voting Trust Certificates in
respect thereof, and, if the same be shares of some other class, transfer the
certificated therefor to the subscriber, on payment of a sum sufficient to
reimburse the Voting Trustees for any stamp tax or other governmental charge or
other expense to which the Voting Trustees
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may have been put, or for which they have or will become liable, in connection
with such subscription.
The Voting Trustees, in respect of any shares subscribed for as above
provided, shall not be required to deliver Voting Trust Certificates or share
certificates calling for a fraction of a share, but may, in lieu thereof,
deliver, in respect of fractional interests, scrip certificates in such form as
the Voting Trustees may, in their uncontrolled discretion, determine. The Voting
Trustees shall not, in any event, be required to accord to the holders of scrip
certificated the opportunity to exercise, or to dispose of, any rights of
subscription to Shares which at any time during the continuance of this
Agreement may accrue in respect of Shares held by the Voting Trustees.
Section 11. Number of Trustees and Appointment of Successors. The
number of Voting Trustees under this Agreement shall be five. Any Voting Trustee
may at any time resign, by delivering to the other Voting Trustees his
resignation in writing, to take effect ten days thereafter, unless sooner
accepted by the remaining Voting Trustee or Trustees.
There shall at all times be five Voting Trustees hereunder. If any
Voting Trustee (including any successor Voting Trustee) shall fail to qualify or
cease to act as such, a majority of the remaining Voting Trustees may elect his
successor who shall, upon written acceptance, become successor Voting Trustee.
Any vacancy or vacancies among the Voting Trustees not filled pursuant
to the foregoing paragraph of this Section 11 shall be filled by such person or
persons as may be designated in writing by the registered owners of a majority
in interest of the Voting Trust Certificates then outstanding. Pending such
designation and the written acceptance of the person or persons so designated,
the Voting Trustees, if any, remaining in office shall have power to act.
The term "Voting Trustees," as used herein and in said Voting Trust
Certificates, shall apply to all successor Voting Trustees elected as aforesaid,
after their appointment, as fully as if they had each been specifically named
herein as Voting Trustees. Notwithstanding any change in their personnel, the
Voting Trustees for the time being may adopt and issue Voting Trust Certificates
in the name of the original Voting Trustees.
Section 12. Trustees' Manner of Action. The Voting Trustees shall act
only pursuant to resolutions duly adopted by a majority of the Trustees at
meetings of the Voting Trustees called as herein set forth. The presence in
person at any such meeting of a majority of the Voting Trustees then holding
office shall constitute a quorum for the transaction of any business. Notice of
meetings of the Voting Trustees shall be given either by prepaid United States
mail or by telephone at least three days prior to the date of the meeting.
Notice of any meeting may be waived by waiver of notice executed before, at, or
after such meeting.
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The Voting Trustees may, but shall not be required to, exercise the
votes to which they are entitled hereunder at any meeting of Shareholders by
proxy, who shall be one of the Voting Trustees. The written authority to such
proxy shall be executed by no less than a majority of the Voting Trustees
holding office at the time.
With respect of matters not otherwise provided for herein, the Voting
Trustees may adopt regulations consistent with the terms hereof, including
regulations as to the manner of execution of Voting Trust Certificates.
Section 13. Compensation and Expense of Trustees. The Voting Trustees
shall not receive any compensation for their services as such, but shall be
entitled to reimbursement for all expenses and liabilities incurred in the
administration of the trust. They may, from time to time, out of the dividends
received by them or other funds held by them hereunder, deduct the expenses and
liabilities incurred by them, and pay the compensation and expenses of legal
counsel, secretary and other agents of the Voting Trustees, as fixed by them,
and may, from time to time, require each of the holders of Voting Trust
Certificates issued hereunder to pay, within ten days of receipt of notice
thereof, his pro rata shares of such expenses, compensation and liabilities for
the next ensuing twelve-month period, as estimated by the Voting Trustees. In
addition, the Voting Trustees shall have a lien therefor upon the Shares
deposited hereunder.
Section 14. Replacing Lost, Destroyed or Stolen Certificates. The
voting Trustees shall have authority to replace any Voting Trust Certificates
which shall have been lost, destroyed or stolen. Any person so claiming shall
make affidavit or affirmation to the fact that a Voting Trust Certificate
registered in his name on the books of the Voting Trustees has been lost,
destroyed or stolen as the case may be, giving the circumstances and approximate
time of loss or destruction. He shall also give to the Voting Trustees a bond of
indemnity or other security satisfactory to the Voting Trustees. Provided said
affidavit or affirmation and said bond or security be satisfactory to the Voting
Trustees, they shall thereupon deliver or cause to be delivered to such a person
at his expense, a new Voting Trust Certificate of the same tenor and calling for
the same number of Shares as the one alleged to have been lost, destroyed or
stolen.
Section 15. Termination of Agreement. A majority of the Voting Trustees
holding office at the time may terminate this Agreement at any time. Within five
days after such termination, notice thereof shall be given by the Voting
Trustees to the registered owners of all outstanding Voting Trust Certificates.
This Agreement shall continue in effect for a period of five (5) years
from the date hereof, unless sooner terminated as above described, in this
section 15, or by reason of distribution of the proceeds of a merger,
consolidation or sale of all of the assets of the Company, as hereinbefore
provided in Section 7 hereof.
Section 16. Delivery of Shares Certificates Upon Termination. Upon any
termination of this Agreement, except a termination by reason of the
distribution of the proceeds of a merger, consolidation or sale as hereinbefore
provided, and upon surrender
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to the Voting Trustees of the Voting Trust Certificates issued hereunder and
then outstanding, or any of them, the Voting Trustees shall deliver or cause to
be delivered to the respective registered owners of the Voting Trust
Certificates so surrendered, certificates for the Share (or for shares having
voting power substituted therefor upon a prior merger, consolidation or sale as
hereinbefore in Section 7 provided) represented thereby, in accordance with the
terms of said Voting Trust Certificates and of the Agreement; provided, however,
that no holder of a Voting Trust Certificate shall be entitled to receive any of
the shares represented thereby until he shall have paid his pro rata share of
all expenses and other liabilities of the Voting Trustees hereunder which shall
not have been paid or provided for.
Section 17. Notices to Holders of Voting Trust Certificates. All
notices to be given hereunder to holders of Voting Trust Certificates shall be
deposited in the United States mail, postage prepaid, addressed to the
registered owners of such Voting Trust Certificates at their respective
addresses as shown on the transfer books to be kept by the Voting Trustees as
hereinbefore provided. All notices so given by mail shall be taken and
considered as though personally served on the day after the date of such
mailing. No other manner or notice shall be required to be given under any
provision of this Agreement to any owner or holder of any Voting Trust
Certificates or Certificates issued hereunder, but such notices may in addition
be served or published in such manner and in such newspapers as the Voting
Trustees shall determine.
Section 18. When Agreement Shall Become Effective. This Agreement shall
become effective on November 19, 1992, if each of the five Voting Trustees and
one or more of the Stockholders shall have executed a counterpart hereof, and
shall be dated as of its effective date. Prior to such time, no voting or other
rights pertaining to Shares shall vest in any of the Voting Trustees by reason
hereof, and any Shareholder may, prior to such time, by written notice delivered
to the Voting Trustees, withdraw herefrom notwithstanding that such Shareholder
may have delivered or caused to be delivered to the Voting Trustees certificates
for Shares.
Section 19. Covenants, Representatives and Warranties and
Acknowledgements by Shareholders. By accepting Voting Trust Certificates each
Shareholder and each person to whom Voting Trust Certificates are issued at the
request of the Company upon its issuance of shares to the Voting Trustees, as
set forth in Section 1, represents and warrants that his acceptance of Voting
Trust Certificates issued hereunder is solely for his own account for the
purpose of investment and not with the intent or any view to the sale or other
distribution thereof, and covenants that he will not sell or otherwise transfer
Voting Trust Certificates in violation of the Securities Act of 1933 or the
Pennsylvania Securities Act.
Each shareholder represents and warrants that at the time the Trustees
solicited his or its participation in the voting trust created hereby and at the
time of the issuance of Voting Trust Certificates to him or it by the Trustees
hereunder, his principal residence was located in the Commonwealth of
Pennsylvania or, if such Shareholder is a
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partnership, trust or other form of business organization, its principal office
was situated within the Commonwealth of Pennsylvania.
Each Shareholder which is a partnership, trust or other form of
business organization represents and warrants that it was not organized for the
specific purpose of acquiring Voting Trust Certificates issued hereunder.
Each Shareholder hereby acknowledges that:
(i) the Voting Trust Certificates issued hereunder to the Shareholders
have not been registered under the Securities Act of 1933 on the basis of the
so-called "intrastate" offering exemption from registration afforded by Section
3(a)(11) of the Securities Act of 1933, and consequently Voting Trust
Certificates may only be offered and issued by the Trustees to persons who are
bona fide residents of the Commonwealth of Pennsylvania, and who acquire the
Voting Trust Certificates for investment and not with the intent to transfer.
Consequently, any other sale or transfer of such Voting Trust Certificates may
only be made upon the registration of the Voting Trust Certificates under the
Securities Act of 1933 unless some exemption from registration under the
Securities Act of 1933 becomes or is available;
(ii) the Voting Trust Certificates have not been registered under the
Pennsylvania Securities Act on the basis of an exclusion from registration
available for the initial issuance of Voting Trust Certificates to the original
participants in this Voting Trust and, consequently, any sale or other transfer
of such Voting Trust Certificates may only be made upon the registration of the
Voting Trust Certificates under the Pennsylvania Securities Act unless an
exemption from registration under the Pennsylvania Securities Act becomes or is
available;
(iii) the Shareholder has received a copy of an Offering Circular dated
September 23, 1991, relating to the Voting Trust Certificates to be issued
hereunder, and a copy of this Voting Trust Agreement, and he has been afforded
the opportunity to ask questions of the Voting Trustees and the Company and to
acquire, and such Shareholder has received to his satisfaction, such additional
information, in addition to the Offering Circular and Voting Trust Agreement, as
he has requested, and after receiving such material has been afforded the
opportunity to decide whether or not to participate in the Voting Trust; and
(iv) the Voting Trustees shall register transfers of Voting Trust
Certificates issued hereunder only if such Voting Trust Certificates have been
registered under the Securities Act of 1933, the Pennsylvania Securities Act and
the applicable securities laws of any other appropriate jurisdiction or when the
request for transfer is accompanied by an opinion of counsel, which opinion and
counsel are satisfactory to the Voting Trustees, to the effect that the sale or
other proposed transfer does not require registration under the Securities Act
of 1933, the Pennsylvania Securities Act or the securities laws of any other
jurisdiction, and such Shareholder agrees that the following
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legends to such effect shall be placed on his Voting Trust Certificates and a
stop transfer order placed in the Trustees' records with respect thereto:
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
PENNSYLVANIA SECURITIES ACT OF 1972 IN RELIANCE ON AN EXCLUSION FROM
REGISTRATION UNDER SUCH ACT, AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT UNDER SUCH ACT SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(ii) IN THE OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE ACCEPTABLE TO
THE VOTING TRUSTEES, REGISTRATION UNDER SUCH ACT IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED TRANSFER.
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE FEDERAL
SECURITIES ACT OF 1933 ON THE BASIS OF THE EXEMPTION FROM REGISTRATION AFFORDED
BY SECTION 3(a)(11) THEREOF, AND MAY NOT BE TRANSFERRED TO PERSONS OTHER THAN
BONA FIDE RESIDENTS OF THE COMMONWEALTH OF PENNSYLVANIA UNLESS AND UNTIL (i) A
REGISTRATION STATEMENT UNDER SUCH ACT SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) IN THE OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
ACCEPTABLE TO THE VOTING TRUSTEES, REGISTRATION UNDER SUCH ACT IS NOT REQUIRED
IN CONNECTION WITH SUCH PROPOSED TRANSFER.
Section 20. Construction. Construction of this Agreement shall be under
the laws of the Commonwealth of Pennsylvania and in each instance the singular
shall be deemed to include the plural; the plural, the singular; each gender
shall include all genders; and a reference to any person, association or
corporation always shall be deemed to include their respective heirs, personal
representatives, successors and assigns.
Section 21. Execution in Counterparts. This Agreement may be signed
upon any number of counterparts with the same effect as if all signatures upon
said counterparts had been upon one and the same document.
Section 22. Agreement Not Applicable to Preferred Shares. Nothing
contained herein shall affect or be applicable to non-voting preferred shares of
the Company now or hereafter issued and the terms "Shares" and "Shareholders"
wherever used herein shall refer only to common shares and the holders of such
Shares respectively.
Section 23. Headings No Part Hereof. Any headings preceding the text of
the several Sections hereof are inserted solely for convenience of reference and
shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
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IN WITNESS WHEREOF, the undersigned Voting Trustees have executed this
Agreement as of November 19, 1992.
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