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EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT ("Agreement") made this 30th day of March,
1999, by and among the individuals set forth on Schedule I attached hereto
(collectively, the "Shareholders"); and Xxxxxxxx X. Xxxxxx, and his successors
in trust (the "Trustee").
WITNESSETH:
WHEREAS, the Shareholders deem it necessary and advisable, and in their
best interests, to deposit all of their voting stock in High Speed Access Corp.,
and any stock issued in lieu or in substitution thereof (the "Stock") with the
Trustee; and
WHEREAS, the Shareholders have agreed upon the person of the Trustee,
and upon the terms and conditions of this Agreement; and
WHEREAS, the Trustee has consented to act under this Agreement for the
purposes herein provided;
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree as follows:
1. Transfer of Stock to Trustee. Shareholders shall deposit with the
Trustee certificates for the number of shares of Stock as set forth on Schedule
I. All such stock certificates shall be so endorsed or accompanied by such
instruments of transfer as to enable the Trustee to cause such certificates to
be transferred into the name of the Trustee, as hereinafter provided. On receipt
by the Trustee of the certificates for the Stock and the transfer of the same
into the name of the Trustee, the Trustee shall hold the same subject to the
terms of this Agreement and shall thereupon issue and deliver to each
Shareholder a voting trust certificate or certificates for the Stock deposited
by such Shareholder, in substantially the form attached hereto as Exhibit A. All
certificates for Stock transferred and delivered to the Trustee pursuant to this
Agreement shall be surrendered by the Trustee to the Company and cancelled, and
new certificates therefor shall be issued to and held by the Trustee in the name
of "Xxxxxxxx X. Xxxxxx, as Voting Trustee pursuant to a certain Voting Trust
Agreement dated March 30, 1999."
2. Transfer of Certificates. The sale, transfer, or other disposition of
the voting trust certificates shall be subject to the same restrictions,
including a right of first refusal, as are imposed on the Stock by that certain
Shareholders' Agreement among the shareholders of the Company dated as of
November 25, 1998. The voting trust certificates shall be transferable at the
principal office of the Trustee in Xxxxxx-Xxxxx, Pennsylvania (and at such other
office as the Trustee may designate by an instrument in writing signed by him
and sent by mail to the registered holders of voting trust certificates), on the
books of the Trustee, by the registered owner thereof, either in person or by
attorney thereto duly authorized, on surrender thereof, and (a) only on
compliance with the conditions and restrictions contained in the Shareholders'
Agreement and (b)
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according to the rules established for that purpose by the Trustee. The Trustee
may treat the registered holder as owner thereof for all purposes whatsoever,
but he shall not be required to deliver stock certificates hereunder without the
surrender of such voting trust certificates. If a voting trust certificate is
lost, stolen, mutilated, or destroyed, the Trustee, in his discretion, may issue
a duplicate of such certificate on receipt of: (i) evidence of such fact
satisfactory to him; (ii) indemnity satisfactory to him; (iii) the existing
certificate, if mutilated; and (iv) his reasonable fees and expenses in
connection with the issuance of a new trust certificate. The Trustee shall not
be required to recognize any transfer of a voting trust certificate not made in
accordance with the provisions hereof, unless the person claiming such ownership
has produced indicia of compliance with the terms of the Shareholders' Agreement
and of title satisfactory to the Trustee and has deposited with the Trustee
indemnity satisfactory to him.
3. Termination Procedure. On the termination of this Agreement at any
time, the Trustee, within 20 days after such termination, shall mail written
notice of such termination to the registered owners of the voting trust
certificates at the addresses appearing on the transfer books of the Trustee.
From the date specified in any such notice (which date shall be fixed by the
Trustee), the voting trust certificates shall cease to have any effect, and the
holders of such voting trust certificates shall have no further rights under
this Agreement other than to receive certificates for shares of Stock or other
property distributable under the terms hereof on the surrender of such voting
trust certificates. Within 30 days after the termination of this Agreement, and
except as otherwise provided under the terms hereof, the Trustee shall deliver
certificates for the number of shares of Stock held by the registered holders of
all voting trust certificates, provided that such voting trust certificates are
properly endorsed and surrendered at the office of the Trustee.
4. Dividends. The holder of each voting trust certificate shall be
entitled to receive payments equal to the cash dividends, if any, received by
the Trustee on a like number of shares of Stock as designated by each such
voting trust certificate less his pro rata share of expenses as provided in
paragraph 12 hereof. If any dividend for the Stock deposited with the Trustee is
paid in whole or in part in stock, the Trustee shall likewise hold, subject to
the terms of this Agreement, the certificates for Stock which are received by
him on account of such dividend, and the holder of each voting trust certificate
representing the Stock on which such dividend has been paid shall be entitled to
receive a voting trust certificate issued under this Agreement for the number of
shares of Stock received as a dividend. If any dividend for the Stock deposited
with the Trustee is paid other than in cash or in the Stock of the Company, then
the Trustee shall distribute the same among the holders of voting trust
certificates. Such distribution shall be made to the holders of voting trust
certificates ratably in accordance with the number of shares represented by
their respective voting trust certificates. Holders entitled to receive the
dividends discussed above shall be those registered as such on the transfer
books of the Trustee at the close of business on the record date fixed by the
Company to determine those holders of its Stock entitled to receive such
dividends.
5. Dissolution of Company. In the event of the dissolution or total or
partial liquidation of the Company, whether voluntary or involuntary, the
Trustee shall receive the moneys, securities, rights, or other property to which
the holders of the Stock of the Company
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deposited hereunder are entitled, and shall distribute the same among the
registered holders of voting trust certificates in proportion to their
interests, as shown on the books of the Trustee.
6. Reorganization of Company. If the Company is merged into or
consolidated with another company, or all or substantially all of the assets of
the Company are transferred to another company, or all of the shares of the
Company are exchanged for the shares of another company, then in connection with
such transfer the term "Company" for all purposes of this Agreement shall be
taken to include such successor Company, and the Trustee shall receive and hold
under this Agreement any stock of such successor Company received on account of
the ownership, as Trustee hereunder, of the Stock held hereunder prior to such
merger, consolidation, transfer, or share exchange. Voting trust certificates
issued and outstanding under this Agreement at the time of such merger,
consolidation, transfer, or share exchange may remain outstanding, or the
Trustee may, in his discretion, substitute for such voting trust certificates
new voting trust certificates in appropriate form, and the term "Stock" as used
herein shall be taken to include any Stock which may be received by the Trustee
in lieu of all or any part of the Stock of the Company.
7. Rights of Trustee. Until the actual delivery to the holders of voting
trust certificates issued hereunder of stock certificates or such other property
which under the terms hereof may be delivered in lieu of said stock certificates
and until the surrender of the voting trust certificates for cancellation, the
Trustee shall have the right to exercise, in person or by his nominees or
proxies, all Shareholder rights and powers with respect to all Stock deposited
hereunder, including the right to vote thereon and to take part in or consent to
any corporate or stockholder's action of any kind whatsoever. The right to vote
shall include the right to vote for the election of directors and in favor of or
against any resolution or proposed action of any character whatsoever that may
be presented at any meeting or that may require the consent of Shareholders of
the Company. In voting the Stock held by him either in person or by his nominees
or proxies, the Trustee shall exercise his sole discretion in voting for
directors of the Company, and shall otherwise, insofar as he may as a
stockholder of the Company, take such part or action in respect to the
management of its affairs as he may in the his discretion deem advisable, and he
shall not be personally responsible with respect to any action taken pursuant to
his vote in any matter or act committed or omitted to be done; provided such
commission or omission does not amount to wanton misconduct or gross negligence.
8. Resignation of Trustee. The Trustee (and any successor Trustee) may at
any time resign by mailing to the registered holders of voting trust
certificates a written resignation effective 10 days thereafter or on the prior
acceptance thereof.
9. Appointment of Successor Trustees. On the death of Xxxxxxxx X. Xxxxxx,
or upon his resignation as Trustee, Xxxxxx X. Xxxx, III, if he is willing and
not then disabled, shall be the successor Trustee. If Xxxxxx X. Xxxx, III is not
willing to serve as successor Trustee, or is then disabled, or if he has
predeceased the Trustee, then Shareholders representing a majority of the number
of shares of Stock standing in the name of the Trustee hereunder shall have the
right to designate another successor Trustee as hereinafter provided. Any
designation of a successor Trustee shall be made by filing in the principal
office of the Company in Louisville, Kentucky, a
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written notice of appointment of such successor Trustee, duly executed and
acknowledged by Shareholders. The rights, powers, and privileges of the Trustee
named hereunder shall be possessed by any successor Trustee, with the same
effect as though such successor or successors had originally been parties to
this Agreement.
10. Term. This Agreement shall terminate at any time on the execution and
acknowledgment of a deed of termination by the registered holders of all the
voting trust certificates outstanding under this Agreement, duly filed in the
principal office of the Company in Louisville, Kentucky.
11. Compensation and Reimbursement of Trustee. The Trustee shall serve
without compensation, and shall have the right to incur and pay reasonable
expenses and charges as he may deem necessary and proper for carrying this
Agreement into effect. Nothing contained herein shall disqualify the Trustee or
successor Trustees, or incapacitate him or them from serving the Company or any
of its subsidiaries as officer or director, or in any other capacity, or in any
such capacity receiving compensation.
12. Notice. Unless otherwise specifically provided in this Agreement, any
notice to or communication with the holders of the voting trust certificates
hereunder shall be deemed to be sufficiently given or made if delivered by
regular or registered mail addressed to such holders at their respective
addresses appearing on the transfer books of the Trustee, and deposited in any
post office or post office box. The addresses of the holders of voting trust
certificates, as shown on the transfer books of the Trustee, shall in all cases
be deemed to be the addresses of voting trust certificate holders for all
purposes under this Agreement, without regard to what other or different
addresses the Trustee may have for any such holder on any other books or records
of the Trustee. Every notice so given shall be effective, whether or not
received, and two days after the date of mailing shall be the date such notice
is deemed give for all purposes. Any notice to the Trustee hereunder shall be
sent by registered mail to the Trustee, addressed to him at such addresses as
may from time to time be furnished in writing to the Company by the Trustee, and
if no such address has been so furnished by the Trustee, then to the Trustee in
care of the Company at the principal office of the Company in Louisville,
Kentucky.
13. Transferees. Any transferee of the Stock shall become a party hereto
by executing this Agreement or an amendment thereto and by depositing the Stock
to be made subject to this Agreement with the Trustee.
IN WITNESS WHEREOF, the Trustee and the Shareholders have executed
this Agreement as of the date first written above and have stated the number of
shares of common stock of the Company deposited respectively by them.
TRUSTEE
/s/ XXXXXXXX X. XXXXXX
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XXXXXXXX X. XXXXXX
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SHAREHOLDERS
/s/ XXXXXX X. XXXX, III
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XXXXXX X. XXXX, III
/s/ XXXXXX X. XXXX
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XXXXXX X. XXXX
/s/ XXXXXXXX XXXXXXX
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XXXXXXXX XXXXXXX
/s/ XXXX XXXXXX
--------------------------------
XXXX XXXXXX
/s/ XXXXXXXX X. XXXXXX
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XXXXXXXX X. XXXXXX
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SCHEDULE I
Number of Shares
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Xxxxxx X. Xxxx III 816,000
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx , Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxxxx X. Xxxx 51,000
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx , Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxx Xxxxxx 51,000
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx , Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxxxxxx Xxxxxxx 51,000
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx , Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxxxxxx X. Xxxxxx 51,000
Xxxxxxxx , Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
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AMENDED EXHIBIT A TO VOTING TRUST AGREEMENT BY AND AMONG
XXXXXX X. XXXX, III, XXXXXX X. XXXX, XXXXXXXX XXXXXXX,
XXXXXXXX X. XXXXX AND XXXXXXXX X. XXXXXX, TRUSTEE
SHAREHOLDER NUMBER OF SHARES CERTIFICATE NUMBER
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Xxxxxx X. Xxxx, III 571,200 10
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Xxxxxxxx X. Xxxxx, Trustee 244,800 11
for Xxxxxx X. Xxxx, XX
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Xxxxxx X. Xxxx 42,000 12
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Xxxxxx X. Xxxxxxxx and 2,000 13
Xxxx Xxxxxxxx
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Xxxxxx Xxxx Xxxxxx and 2,000 14
Xxxxxx Xxxxxx
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Xxxxxx Xxxx Xxxxxx, Trustee 2,000 15
for Lara Xxx Xxxx
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Xxxxxx X. Xxxxxxxx, Trustee 2,000 16
for Xxxxx Xxx Xxxx
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Xxxxxx Xxxx 500 17
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Xxxxxx Xxxx 500 18
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Xxxx X. Xxxxxx 36,000 19
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Xxxxxxx X. Xxxxxx 5,000 20
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Xxxxxxx X. Xxxxxx 5,000 21
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Xxxx X. Xxxxxx 5,000 22
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Xxxxxxxx Xxxxxxx 41,000 23
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Xxxx Xxxxxxx 5,000 24
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Xxxxxxxxxxx Xxxxxxx 5,000 25
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Xxxxxxxx X. Xxxxxx 41,000 26
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Xxxxxxxx X. Xxxxxx, XX 10,000 27
