Exhibit 9.1
DEJA NEWS 1995 VOTING TRUST AGREEMENT
Background
(a) This agreement ("Agreement") is made as of the first day of November, 1995,
between several stockholders of Deja News, Inc., a Texas corporation (the
"Company"), whose names are subscribed below and all other shareholders of the
Company who shall join in and become parties to this Agreement (collectively,
"Subscribers")
(b) The Subscribers are owners of shares of the Common Stock of the Company in
the amount set opposite their respective signatures hereto.
(c) The Subscribers, in order to better assure the safe and competent management
of the Company in the interests of all the shareholders thereof, intend to
create a trust (the "Trust") according to the terms and conditions of this
Agreement.
Operating Provisions
1. Transfer of Stock to Trustee. Each of the Subscribers by execution of the
stock power in the form attached hereto as Exhibit A assigns and delivers to
Xxxxxx X. Xxxxxx, as trustee (the "Trustee"), any certificate held by such
Subscriber representing shares of Common Stock owned by him and shall do all
things necessary for the transfer of his shares to the Trustee on the books of
the Company.
2. Other Shareholders. Every shareholder in the Company may become a party to
this Agreement by executing same and assigning and delivering the certificate or
certificates of his shares of Common Stock to the Trustee in the manner provided
in the preceding paragraph.
3. Trustee to Hold Subject to Agreement. The Trustee shall hold the shares of
Common Stock so transferred to him for the common benefit of the Subscribers
under the terms and conditions hereof.
4. Issuance of Stock Certificate to Trustee. The Trustee shall surrender to the
proper officers of the Company for cancellation all certificates of Common Stock
which shall be assigned and delivered to him as herein provided, and in their
stead shall procure new certificates to be issued to him as Trustee under this
Agreement.
5. Voting Trust Certificates. The Trustee shall issue to each of the Subscribers
a Voting Trust Certificate for the number of shares represented by the
certificates of stock by him transferred to the Trustee. Each such Voting Trust
Certificate shall state that it is issued under this Agreement, and shall set
forth the nature and proportional amount of the beneficial interest thereunder
of the person to whom it is issued, and shall be assignable, subject to the
provisions of the Shareholder's Agreement
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Deja News 1995 Voting Trust Agreement
dated August 31, 1995, as amended, after the manner of certificates of stock on
books to be kept by the Trustee. The Trustee shall keep a list of the shares so
transferred to the Trust, and shall also keep a record of all Voting Trust
Certificates issued or transferred on his books, which records shall contain the
names and addresses of the Voting Trust Certificate holders and the number of
shares represented by each such certificate. Such list and record shall be open
at all reasonable times to inspection by the holder of any Voting Trust
Certificate. Any transferee of a Voting Trust Certificate shall succeed to all
the rights hereunder of the transferor. The Voting Trust Certificate shall be in
substantially the following form:
This is to certify that the undersigned Trustee has received a certificate
or certificates issued in the name(s) of ______________ evidencing
ownership of ____ shares of Common Stock of Deja News, Inc., a Texas
corporation (the "Company"), and that such shares are held subject to all
the terms and conditions of that certain Deja News 1995 Voting Trust
Agreement (the "Agreement"), dated as of November 1, 1995, by and among
Xxxxxx X. Xxxxxx, as Trustee, and certain shareholders in Deja News, Inc.
(the trust being created by such Agreement being herein referred to as the
"Trust"). During the period beginning November 1, 1995 and ending upon
termination of the Agreement in accordance with its terms, said Trustee or
his successor, shall, as provided in said Agreement, possess and be
entitled to exercise the vote and otherwise represent all of the said
shares for all purposes according to the terms of such Agreement, it being
agreed that no voting right other than as expressly provided in the
Agreement shall pass to the holder hereof by virtue of the ownership of
this certificate.
Upon termination of the Trust, this certificate shall be surrendered
to the Trustee by the holder hereof upon delivery to such holder of a
stock certificate representing a like number of shares.
IN WITNESS WHEREOF, the undersigned Trustee has executed this
certificate as of the ___ day of __________, ________.
---------------------------
Trustee
6. Restrictions on Transfer of Voting Trust Certificate. Each of the Subscribers
agrees that during the term of this Agreement, said Trustees' Certificate will
not be sold or transferred except with the written approval of Subscribers
representing a majority of the shares held by the Trust. Said Trustee's
Certificates shall be regarded as stock of Deja News, Inc., within the meaning
of any provision of the Bylaws of the Company imposing conditions and
restrictions upon the sale of stock of the Company.
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Deja News 1995 Voting Trust Agreement
7. Trustees to Vote Stock. It shall be the duty of the Trustee, and he
shall have full power and authority, to vote the stock held by the Trust at any
meeting of the shareholders of the Company, or in connection with written action
of the shareholders without a meeting, as fully as any Subscriber might do if
personally present. At least fifteen days prior to the date of any shareholders'
meeting of the Company (or at least fifteen days prior to the due date for any
action of shareholders by written consent without a meeting), the Trustee shall
inform the Subscribers by written notice (which may be transmitted by certified
mail, return receipt requested; by facsimile; or by a national express delivery
service providing written proof of delivery), of the election of directors,
shareholders' resolution, or other action upon which a vote of shareholders is
required, and the Trustee's recommendation for action thereon, together with a
form for the Subscriber to oppose the recommended action if so desired. If
Subscribers representing a majority of the shares held by the Trust express in
writing to the Trustee, on or before the date which is five days prior to such
shareholder meeting or due date for written shareholder action, their opposition
to the action recommended by the Trustee, the Trustee shall vote all the shares
of the Trust against such action. In all other cases, the Trustee shall vote all
of the shares held by the Trust in favor of the action recommended by the
Trustee. In the case of election of directors of the Company, the Trustee shall
vote all shares held by the Trust in favor of each candidate so recommended by
the Trustee unless Subscribers representing a majority of shares held by the
Trust direct the Trustee, in a writing delivered to the Trustee by the date
which is five days prior to the shareholder vote, to vote in favor of another
candidate for the same director's position. For purposes of this paragraph 7,
notices from the Trustee are deemed to be delivered on the date of mailing,
delivery to an express delivery service, or facsimile transmission, and notices
to the Trustee are deemed delivered on the date of receipt by the Trustee.
8. Trustee's Liability. The Trustee shall use his best judgment in voting upon
the stock transferred to him, but shall not be liable for any vote cast or any
vote given by him in good faith and in the absence of gross negligence or
willful breach of this Agreement.
9. Dividends. The Trustee shall collect and receive all dividends that may
accrue upon the shares of stock subject to this Trust, and, subject to deduction
as provided in the following paragraph, shall divide the same among the Trust
Certificate holders in proportion to the number of shares respectively
represented by their Trust Certificates.
10. Trustee's Indemnity. The Trustee shall be entitled to be indemnified fully
out of the dividends coming to his hands against all costs, charges, expenses
and other liabilities properly incurred by him in the exercise of any power
conferred upon him by this instrument. The subscribers, and each of them, hereby
covenant with the Trustee that in the event of the monies and securities in the
Trustee's hands are insufficient for that purpose, the Subscribers and each of
them will in proportion to the amount of their respective shares, but only to
the extent of their share of any dividends or other distributions received or to
be received by them with respect to shares held of formerly held by the
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Deja News 1995 Voting Trust Agreement
Trust plus any proceeds received or to be received by them from sale of their
shares held or formerly held in the Trust. indemnify and hold harmless the
Trustee from and against any and all claims, losses or damages which the Trustee
may incur by reason of anything the Trustee does in good faith under this
Agreement in the absence of gross negligence or willful breach of this
Agreement.
11. Substitute or Successor Trustee. In the event the Trustee dies, resigns or
becomes disabled, or in the event Subscribers representing a majority of the
shares held by the Trust elect in writing to replace the Trustee, the
Subscribers will by affirmative written consent representing a majority of
shares held by the Trust appoint a successor Trustee, which Trustee shall be
vested with all the duties, powers, authority and rights previously held by the
original Trustee. Any such successor Trustee shall prior to taking office
execute this Agreement as then in effect.
12. Continuance and Termination of Trust. The Trust hereby created shall be
continued until the earlier of two years following consummation of a public
offering of Common Stock of the Company or December 31, 1999. If not sooner
terminated, the Trust may also be terminated at any time upon the affirmative
written consent Subscribers representing a majority of shares held by the Trust.
Upon termination of the Trust, the Trustee shall, upon the surrender of the
Voting Trust Certificates by the respective holders thereof, assign and transfer
to them the number of shares thereby represented.
IN WITNESS WHEREOF, the Subscribers have hereunto set their hands and set
opposite their respective signatures the number of shares held by them
respectively, and the Trustee, in acceptance of their subscription hereto, has
set his hand.
/s/ Xxxxxx X. Xxxxxx 11/27/95
--------------------------------------
Xxxxxx X. Xxxxxx, Trustee
SUBSCRIBERS:
Shares Held: 734,048 /s/ Xxxxxx X. Xxxxxx 11/27/95
------- --------------------------------------
Xxxxxx X. Xxxxxx, shareholder (joint
tenant With Xxxxxx X. Xxxxxx)
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Deja News 1995 Voting Trust Agreement
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, shareholder (joint
tenant with Xxxxxx X. Xxxxxx)
Shares Held: 40,789 /s/ Xxxxx X. Xxxxxx
------ --------------------------------------
Xxxxx X. Xxxxxx shareholder (joint
tenant with Xxxxx X. Xxxxxx)
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, shareholder (joint
tenant with Xxxxx X. Xxxxxx)
Shares Held: 80,764 /s/ Xxxxxxx X. Xxxx
------- --------------------------------------
Xxxxxxx X. Xxxx, shareholder
Shares Held: 32,633 /s/ Xxxxxxxx Xxxx
------- --------------------------------------
Xxxxxxxx Xxxx, shareholder (joint
tenant with Xxxxxxxxx Xxxx)
/s/ Xxxxxxxxx Xxxx
--------------------------------------
Xxxxxxxxx Xxxx, shareholder (joint
tenant with Xxxxxxxx Xxxx)
Shares Held: 32,633
------- /s/ Castor Fu
--------------------------------------
Castor Fu
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Deja News 1995 Voting Trust Agreement
Shares Held: 32,633 /s/ Xxxxx Xx
------ --------------------------------------
Xxxxx Xx
Shares Held: 46,500 /s/ Xxxxxx Xxxxxxxx
------- -------------------------------------
Xxxxxx Xxxxxxxx
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