EXHIBIT 9.2
AMENDMENT
TO THE
VOTING TRUST AGREEMENT
DATED NOVEMBER 19, 1992
This Amendment made as of the 31st day of December, 1995, between the
undersigned holders of common shares of Denver and Ephrata Telephone and
Telegraph Company, a Pennsylvania corporation (the "Shareholders"), and Xxx
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx Swiegart, W. Xxxxx Xxxxxxxx, Xxxxxx X. Xxxxxxx and
Xxxx Xxxx (the "Voting Trustees").
WITNESSETH:
BACKGROUND
WHEREAS, each of the Shareholders has executed the Voting Trust
Agreement dated November 19, 1992 (the "Agreement"); and
WHEREAS, the Voting Trustees have recommended to the Shareholders that
the following amendments be made to the Agreement; and
WHEREAS, each of the Shareholders believes that the following
amendments will assist in ensuring 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 to the Voting Trustees; and
WHEREAS, the Voting Trustees are willing to accept such voting rights
and to exercise such voting rights under the terms and conditions hereof.
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 to hereby agree with each other as
follows:
AMENDMENTS
SECTION 1. SECTION 2 OF THE AGREEMENT. Section 2, Paragraph 2 of the Agreement
shall be amended by adding the following sentences to the end of the paragraph:
; except, however, any shares of common stock purchased
pursuant to the Denver and Ephrata Employee Stock Purchase
Plan, Employee Stock Ownership Plan, Dividend Reinvestment
Plan or other similar plan may be held by such plan and not
deposited hereunder until distributed or delivered to the
Shareholder. Notwithstanding the foregoing, the Voting
Trustees, in their sole discretion, may
determine whether shares acquired by the Shareholders after
June 29, 1993 are subject to the terms of this Agreement.
SECTION 2. SECTION 15 OF THE AGREEMENT. Section 15, Paragraph 2 of the
Agreements shall be amended by deleting from the first sentence "five (5) years"
and replacing it with "ten (10 years."
SECTION 3. SECTION 24 OF THE AGREEMENT. Section 24 shall be added to the
Agreement as follows:
24. REDEMPTION, REPURCHASE OR OTHER PURCHASE.
Notwithstanding anything in this Agreement to the contrary,
the Voting Trustees shall be vested with authority to release
from the Voting Trust, in their sole discretion, any common
stock for repurchase or redemption by the Company or purchase
by a Company-related stock plan, such as the Denver and
Ephrata Employee Stock Purchase Plan, Employee Stock Ownership
Plan, Dividend Reinvestment Plan or similar plan, from a
Shareholder who requests such release in writing and provides
a resolution of the Board of Directors of the Company or
Trustee of a plan authorizing such repurchase, redemption or
purchase.
SECTION 4. OTHER PROVISIONS. All other provisions of the Agreement are hereby
ratified and shall remain in their entirety.
SECTION 5. 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 as amended 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 amended hereby and at the
time of the issuance of Voting Trust Certificates as amended to him or it by the
Trustees hereunder, his principal residence was located in the Commonwealth of
Pennsylvania or, if such Shareholder is a 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 and
amended hereby.
Each Shareholder hereby acknowledges that:
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(i) The Voting Trust Certificates issued hereunder and amended hereby
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 the
amended 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 amended Voting Trust Certificates for investment and not with
the intent to transfer. Consequently, any other sale or transfer of such amended
Voting Trust Certificates may only be made upon the registration of the amended
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 amended 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 amended Voting Trust Certificates may only be made upon
the registration of the amended 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 and an Amended Offering Circular dated December 31, 1995 (the
"Offering Circulars"), relating to the amended Voting Trust Certificates to be
issued hereunder and amended hereby, and a copy of the Agreement and this
Amendment (the "Agreement, as amended"), 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 Circulars and Agreement, as amended, as
he has requested, and after receiving such material has been afforded the
opportunity to decide whether or not to participate in the Agreement, as
amended; and
(iv) the Voting Trustees shall register transfers of amended Voting
Trust Certificates issues hereunder and amended hereby only if such amended
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 legends to such effect shall be placed on
his amended Voting Trust Certificates and a stop transfer order placed in the
Trustees' records with respect thereto:
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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 6. 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 7. 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 8. 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 9. 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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