EXHIBIT 9.2
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into
this 31st day of December, 2001, by and among MR. J. XXXXXXX XXXXXX, SR. and
XXX. XXXXXXXX X. XXXXXX (The "Shareholders"), who are holders of Common Shares,
without par value (the "Common Shares"), of XXXXXX SOFTWARE, INC., an Ohio
corporation (the "Company"), and XX. XXXXXXXXXXX X. XXXXXX (the "Voting
Trustee"), as follows:
1. Deposit of Shares: Shareholders hereby agree that they will
forthwith and immediately deposit with the Voting Trustee the certificate or
certificates for 178,600 of the Common Shares of the Company held by the
Shareholders, together with proper assignment or assignments thereof in blank or
to the Voting Trustee.
2. Voting Trust Certificate: Upon the deposit with the Voting Trustee,
by the Shareholders, of the certificate or certificates for the appropriate
number of Common Shares held by them in the manner provided in Section 1, the
Voting Trustee will promptly deliver to the Shareholders a voting trust
certificate or certificates (the "Voting Trust Certificate or Certificates") in
substantially the form attached hereto as Exhibit A, for the number of Common
Shares so deposited by the Shareholders.
3. Transferability of Voting Trust Certificates; Investment
Representations: Voting Trust Certificates shall be transferable only as therein
and herein provided, and any such transfers shall also be subject to the
restrictions of the Shareholders' Agreement dated January 31, 2001, as amended,
among the Company and certain of the holders of its outstanding shares of
capital stock, including the Shareholders (the "Shareholders' Agreement"). Any
transfers made in compliance with the preceding sentence shall vest in the
transferee all rights and interests of the transferor in and under the Voting
Trust Certificate or Certificates transferred and under this Agreement, and upon
such transfer and the payment of all transfer taxes, if any, the Voting Trustee
will deliver or cause to be delivered to the transferee a Voting Trust
Certificate or Certificates for the same number of Common Shares of the Company
as represented by the Voting Trust Certificate so transferred. Until such
transfer, the Voting Trustee and the Company may treat the registered holder of
a Voting Trust Certificate as the owner thereof for all purposes.
4. Power and Authority of Voting Trustee: Legal title to all Common
Shares of the Company deposited hereunder shall be vested in the Voting Trustee
and may be transferred to the Voting Trustee or to his nominee or nominees on
the books of the Company. The Voting Trustee shall have all right and power to
exercise all voting and consent rights of such Common Shares in connection with
any matter presented to the shareholders of the Company.
5. Restriction Against Encumbrance: The Voting Trustee shall not sell,
pledge, hypothecate, mortgage or place any lien or charge upon the Common Shares
subject to this Agreement.
6. Dividends and other Distributions:
(a) The registered holder of each Voting Trust Certificate shall
be entitled, until distribution of the Common Shares represented thereby as
hereinafter provided, to receive from time to time payments equal to the
dividends or any other distributions with respect to such Common Shares, except
for distributions by way of a share split or share dividend or other share
distribution of certificates for Common Shares of the Company, if any, received
by the Voting Trustee upon a like number of Common Shares as is specified in or
represented by such Voting Trust Certificate.
(b) The Voting Trustee may, in his discretion, from time to time,
instead of receiving and distributing any dividend declared on the Common Shares
subject hereto, authorize the Company to make payment thereof directly to the
registered holders of the outstanding Voting Trust Certificates.
7. Share Dividends: In case the Voting Trustee shall receive any share
certificates of the Company issued by way of dividends upon Common Shares held
by him under this Agreement or otherwise, the Voting Trustee shall hold such
additional shares likewise subject to the terms of this Agreement, and shall
issue Voting Trust Certificates representing such additional shares to those
entitled thereto.
8. Term: The voting trust created under this Agreement shall continue
in full force and effect force until December 27, 2011 (or until such extended
date as hereinafter provided); provided, however, the voting trust created under
this Agreement (a) may be terminated at any time by the action of the Voting
Trustee, or (b) shall be terminated immediately upon any termination of the
Shareholders' Agreement in accordance with the terms thereof. On December 27,
2011 (or such earlier or later date as this Agreement is terminated), the Common
Shares held by the Voting Trustee hereunder shall be distributed to the
registered holders of Voting Trust Certificates upon presentation and surrender
of Voting Trust Certificates therefor accompanied by properly executed transfers
thereof to the Voting Trustee.
9. Termination: If, on or after the termination of this Agreement, the
Voting Trustee shall deposit with any trust company of the State of Ohio share
certificates, properly endorsed, for the number of Common Shares of the Company
represented by the Voting Trust Certificates outstanding, with authority in
writing to the trust company to deliver all such share certificates in exchange
for Voting Trust Certificates when and as surrendered for exchange as herein
provided, then all further liability of the Voting Trustee for the delivery of
share certificates in exchange for Voting Trust Certificates, or otherwise
hereunder, shall cease and determine.
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10. Certain Relationships of the Voting Trustee: The Voting Trustee may
act as, and receive compensation as, a director, officer, agent or member of any
committee of the Company or any controlled subsidiary or affiliated company, or
be otherwise associated therewith; and he, or any firm of which he may be a
member, or any corporation or association of which he may be a shareholder,
director or officer, or any firm, corporation or association in which he may be
otherwise directly or indirectly interested, may to the extent permitted by law,
and without liability in any way or under any circumstances by reason thereof,
contract with the Company or with any controlled subsidiary or affiliated
company, or have or acquire a pecuniary interest in any matter or transaction to
which the Company or any controlled subsidiary or affiliated company may be a
party or in which the Company or any controlled subsidiary or affiliated company
may in any way be concerned, as fully as though he were not the Voting Trustee.
The Voting Trustee may be interested in the Common Shares or any other shares of
capital stock of, or otherwise interested in, the Company.
11. Voting of Shares: In voting the Common Shares deposited hereunder or
otherwise acting hereunder, the Voting Trustee shall exercise his best judgment
in the interests of the Company to the end that its affairs shall be properly
managed, and its interests shall be properly promoted, but the Voting Trustee
assumes no responsibility in respect thereto or for any action taken or omitted
to be taken by him as permitted under this Agreement.
12. Successor to Voting Trustee:
(a) The Voting Trustee may at any time resign by delivering to the
Company his resignation in writing to take effect ten (10) days thereafter. In
case of the death, resignation or inability to act (through mental or physical
incapacity) of any Voting Trustee, a successor Voting Trustee shall be appointed
by the resigning Voting Trustee or, in the case of death or inability to act, by
the Company.
(b) Any successor Voting Trustee appointed in accordance with the
foregoing shall from the time of such appointment be deemed a Voting Trustee
hereunder, and shall have all the estate, title, rights and powers of a Voting
Trustee hereunder, and all acts shall be done and all instruments shall be
executed which shall be necessary or reasonably requested for the purpose of
effecting such succession and of constituting such successor Voting Trustee at
the time of his appointment one of the owners of record of all of the Common
Shares deposited or held hereunder.
13. Exoneration, Compensation and Expenses: No Voting Trustee, as
shareholder, Voting Trustee or otherwise, shall be liable for any error of
judgment or mistake of law or other mistake, or for any act or omission of any
agent or attorney, or for any misconstruction of this Agreement or for any
action of any sort taken or omitted thereunder or believed by him to be in
accordance with the provisions and intents hereof or otherwise, or for anything
save only his own individual willful misconduct. The Voting Trustee shall serve
as such without compensation.
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14. Notice: Any notice to be given to the holders of Voting Trust
Certificates hereunder shall be sufficiently given if mailed to such of the
registered holders of Voting Trust Certificates as shall have furnished their
addresses to the Voting Trustee, and at such addresses.
15. Extension of Term: The term of this Voting Trust Agreement may be
extended for additional periods of not more than ten (10) years each, by the
holders of Voting Trust Certificates representing a majority of the Common
Shares held hereunder, either by a writing signed by such holders, or at a
meeting called for the purpose by any holder of a Voting Trust Certificate upon
like notice as is required for a special meeting of the shareholders of the
Company.
16. Separability Clause: The invalidity or unenforceability of any term
or provision of this Agreement or of the Voting Trust Certificates shall in no
way impair or affect the balance thereof, which shall remain in full force and
effect.
17. Execution: This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute but one and the same instrument.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to the conflicts
of laws principles thereof.
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IN WITNESS WHEREOF, the Voting Trustee and the Shareholders have executed
and delivered this Agreement on the day and year first above written.
/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
("Voting Trustee")
/s/ J. Xxxxxxx Xxxxxx, Sr.
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J. Xxxxxxx Xxxxxx, Sr.
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
("Shareholders")
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