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Exhibit 9.1
VOTING TRUST AGREEMENT
This constitutes a Voting Trust Agreement ("Agreement") made on December
27, 1999, by and between XXXXX X. XXXXX residing at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 ("Xxxxx"), XXXXX X. XXXXX residing at 0000 Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxx") and XXXXXXX X. XXXXX, XX.
residing at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000
("Xxxx")(collectively the "Kellys"), and XXXXX X. XXXXX, XXXXX X. XXXXX, and
XXXXXXX X. XXXXX, XX., as Voting Trustees (each individually a "Trustee" and
collectively, the "Trustees").
RECITALS
A. Xxxxx, Xxxxx and Xxxx Xxxxx are brothers and the founders of Telergy,
Inc., a New York corporation engaged in the telecommunications business
(hereafter, "Telergy" or the "Corporation"). Collectively they own Telergy
shares which represent a majority of the total shareholder votes outstanding.
B. The authorized common stock of Telergy consists of: (i) 9,999,900
shares of Class A Common Stock, each with one vote per share, 3,389,745 shares
of which are currently issued and outstanding, and (ii) 100 shares of Class C
Common Stock, each with 90,000 votes per share and all of which are issued and
outstanding.
C. The Kellys own Telergy Common shares as follows:
Class A Class C Total Votes
------- ------- -----------
Xxxxx 481,921 50 4,981,921
Xxxxx 484,951 50 4,984,951
Xxxx 482,879 -- 482,879
----------
10,449,751
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Hereafter, all Telergy shares now or hereafter owned by the Kellys are
referred to as "Telergy Shares."
D. The Kellys wish to combine and unify their voting power in order to
secure the continuity and stability of the Corporation's policy and management.
Further, the Kellys wish to ensure that their Telergy Shares will be voted
collectively even if one or more of the brothers is unable to act whether by
reason of death or otherwise. Accordingly, the Kellys have created this Voting
Trust.
E. Each of the Kellys has agreed to act as a Voting Trustee. This
Agreement provides for the appointment of Successor Trustees only in the event
that none of the Kellys is willing or able to perform his duties as Trustee.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, receipt of which is
acknowledged, the parties agree as follows:
1. CREATION OF VOTING TRUST. The Kellys hereby establish a Voting Trust
as provided in this Agreement and in furtherance thereof, each shall deliver
certificates representing all of their Telergy Shares to the Trustees, duly
endorsed for transfer to the Trustees. The Trustees shall deliver these
certificates to Telergy for cancellation, and new stock certificates shall be
issued to: "Xxxxx X. Xxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, as Trustees
under a Voting Trust Agreement dated December 27, 1999, a copy of which is on
file at the principal office of the Corporation." The Trustees shall ensure that
the foregoing transfers are properly noted on the records of the Corporation as
required by New York Business Corporation Law Section 621.
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2. VOTING TRUST CERTIFICATES. Promptly after the Trustees
receive the new stock certificates, the Trustees shall issue and deliver to each
Xxxxx Voting Trust Certificates for the Telergy Shares deposited by him with the
Trustees. These Voting Trust Certificates shall be in substantially the form of
the attached Exhibit A, the terms of which are incorporated by reference in this
Agreement.
3. VOTING. The Trustees shall have the exclusive right to vote
the Telergy Shares, to give written consents in lieu of a meeting of
shareholders as permitted by law and the Certificate of Incorporation and
By-Laws of Telergy, as amended, and to vote in person or by proxy at any and all
meetings of the shareholders of the Corporation, for whatever purpose called or
held, and in any and all proceedings, whether at meeting of the shareholders or
otherwise, wherein the vote or written consent of shareholders may be required
or authorized by law. The Trustees are authorized to vote or consent with
respect to all matters on which a shareholder may vote or consent including, but
not limited to, a merger, sale of assets, liquidation or other extraordinary
matter. So long as there are three Trustees, the consent of at least two of the
Trustees shall be required to authorize any vote or consent. If less than three
Trustees are serving, the remaining Trustees must act unanimously.
4. DIRECTORS. The Trustees are hereby directed to vote all
shares subject to this Voting Trust Agreement for the election of Xxxxx and
Xxxxx as Directors of the Corporation, provided they are able to serve, and the
Trustees hereby agree to vote accordingly.
5. DIVIDENDS. The Trustees shall receive and hold, subject to
the terms of this Agreement, all stock dividends, stock splits and similar share
distributions declared and paid on the Telergy Shares deposited under this
Agreement and, in the case of any distributions of new Telergy Common stock,
shall issue and deliver Voting Trust Certificates for the additional
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shares to the beneficial owner of the shares with respect to which the
distribution was made. The Trustees shall distribute all cash dividends declared
and paid on the Telergy Shares to the registered holders of Voting Trust
Certificates representing the shares as shown on the books of the Trustees.
6. DISSOLUTION OF CORPORATION. In the event of the dissolution or total
or partial liquidation of the Corporation, whether voluntary or involuntary,
the Trustees shall receive the moneys, securities, rights, or property to which
each registered holder of Voting Trust Certificates is entitled, and shall
distribute the same among the registered holders of Voting Trust Certificates
in proportion to their respective interests in the Voting Trust as shown on the
books of the Trustees, and upon such distribution all further obligations or
liability of the Trustees in respect of such moneys, securities, rights, or
property shall cease.
7. TERM. This Agreement shall become effective as of its date and shall
continue in effect for a period of ten (10) years from that date subject,
however, to the prior termination of this Agreement by the execution and filing
with the Corporation of an agreement of termination executed by all the parties
to this Agreement.
8. RENEWAL OF AGREEMENT. This Agreement may be renewed for successive
ten (10) year periods or such other term as may be permitted by law provided,
however, that the then Voting Trust Certificate holders desiring to extend and
renew the Agreement give their written consent to each such renewal within the
time period specified by law prior to the termination date. A copy of each
extension agreement and the consents to the extension shall be filed with the
Corporation.
9. SUCCESSOR TRUSTEES. If a Trustee resigns, dies or is otherwise unable
or unwilling to perform his duties as Trustee, the remaining Trustees may, but
are not required to,
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appoint a successor Trustee. If none of the Trustees is able to continue to
serve as Voting Trustee so there is no Trustee hereunder, one or more Successor
Trustees may be appointed by the management committee of the law firm of Bond,
Xxxxxxxxx & King, LLP, or any successor to that firm.
The words "Voting Trustee" or "Trustee" as used in this
Agreement shall mean the Trustee named herein and any duly appointed Successor
Trustee.
10. COMPENSATION AND REIMBURSEMENT OF TRUSTEES. The Trustees shall
serve without compensation. The Trustees shall have the right to incur and pay
such reasonable expenses and charges and to employ such professional counsel as
they deem necessary and proper in the performance of their duties. Any charges
or expenses incurred by the Trustees may be charged pro rata to the holders of
the Voting Trust Certificates.
11. LIMITATION OF LIABILITY. No Trustee shall be liable by reason of
any matter or thing in any way arising out of or in relation to this Agreement
except for loss or damage suffered by the Voting Trust Certificate holders by
reason of the Trustee's willful misfeasance or gross negligence. No Trustee
shall be required to give a bond or other security for the faithful performance
of his duties.
12. INSPECTION. The Trustee shall keep available for inspection by
the holders of Voting Trust Certificates at the East Syracuse, New York offices
of the Corporation, correct and complete books and records of account relating
to this Voting Trust, and a record containing the names and addresses of all
persons who are Voting Trust Certificate holders and the number and class of
shares represented by the certificates held by them and the dates they became
the owners of Voting Trust Certificates.
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13. FILING. The Trustees shall file a duplicate of this Agreement at the
office of the Corporation.
14. EXCEPTED TRANSACTIONS.
(a) Nothing in this Agreement shall disqualify a Trustee or a
Successor Trustee from voting for himself to serve the Corporation or any of
its subsidiaries or affiliates as officer or director or in any other
capacity, or from voting for himself to receive compensation for these services.
(b) Nothing in this Agreement shall disqualify a Trustee or a
Successor Trustee from dealing or contracting with the Corporation or any of
its subsidiaries or affiliates as a vendor, purchaser, or otherwise, nor shall
any transaction or contract be affected or invalidated by reason of the fact
that the Trustees or any firm or corporation of which the Trustees is a member,
shareholder, director, or employee is in any way interested in the transaction
or contract; nor shall the Trustees be liable to account to the Corporation or
to any shareholder of the Corporation for any profits realized by, from, or
through any transaction or contract by reason of the fact that he or any firm or
corporation of which he is a member, shareholder, director, or employee is
interested in the transaction or contract.
15. WITHDRAWAL OF SHARES. A Voting Trust Certificate holder shall not
have the right to withdraw any Telergy Shares deposited pursuant to this
Agreement without the prior written consent of all of the parties to this
Agreement.
16. PRIOR AGREEMENTS CANCELLED. This Agreement supercedes all existing
Voting Trust Agreements among any of the parties relating to their Telergy
Shares, and all such voting trust agreements shall be deemed terminated as of
this date.
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17. ENTIRE AGREEMENT. This Agreement expresses the entire agreement
between the parties and may not be changed or modified except in writing
executed by all the parties to this Agreement.
18. NOTICES. Any notice to or communication with the holders of the
Voting Trust Certificates shall be deemed sufficiently given or made if
addressed to the holders at their respective addresses appearing on the
transfer books of the Trustees. Any notice to the Trustees shall be sent c/o
Telergy, Inc., Xxx Xxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000 and shall be
marked "Personal and Confidential."
19. BINDING EFFECT. This Agreement shall benefit and bind the respective
parties, and their heirs, personal and legal representatives, successors and
assigns.
20. NON-WAIVER. No delay or failure by a party to exercise any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
consented to in a signed writing by that party.
21. SEVERABILITY. Any term or provision of this Agreement that is found
to be invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions of
this Agreement or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
22. SUCCESSOR CORPORATION. If Telergy is reincorporated in the State of
Delaware, this Voting Trust Agreement shall automatically continue and all
shares issued to the Trustees or any of the Kellys in connection with such
reincorporation shall be subject to this Agreement.
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23. GOVERNING LAW. This Agreement is intended by the parties to be
governed by and construed in accordance with the laws of the State of New York
except that if Telergy becomes a Delaware corporation, the laws of the State of
Delaware shall govern
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Shareholders and the Trustee have executed this
Agreement, to evidence their respective acceptance of this Voting Trust, all as
of the day and year first above written.
SHAREHOLDERS
/s/ Xxxxx X. Xxxxx
_________________________
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
_________________________
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
_________________________
Xxxxxxx X. Xxxxx
VOTING TRUSTEES
/s/ Xxxxx X. Xxxxx
_________________________
Xxxxx X. Xxxxx, Trustee
/s/ Xxxxx X. Xxxxx
_________________________
Xxxxx X. Xxxxx, Trustee
/s/ Xxxxxxx X. Xxxxx
_________________________
Xxxxxxx X. Xxxxx, Trustee
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STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA)
On December 27, 1999, before me personally came Xxxxx X. Xxxxx, to me known
and known to me to be the same person described in and who executed the within
instrument, individually and as Trustee, and he duly acknowledged to me that he
executed the same.
/s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA)
On December 27, 1999, before me personally came Xxxxx X. Xxxxx, to me known
and known to me to be the same person described in and who executed the within
instrument, individually and as Trustee, and he duly acknowledged to me that he
executed the same.
/s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA)
On December 27, 1999, before me personally came Xxxxxxx X. Xxxxx, to me
known and known to me to be the same person described in and who executed the
within instrument, individually and as Trustee, and he duly acknowledged to me
that he executed the same.
[STATE OF NEW YORK DEPARTMENT OF STATE SEAL] /s/ Xxxxxx X. Xxxxxxxxxxx
XXXXXX X. XXXXXXXXXXX _____________________________
NOTARY PUBLIC, STATE OF NEW YORK Notary Public
NO. 0350084
QUALIFIED IN ONONDAGA COUNTY
MY COMMISSION EXPIRES 6-30-2000
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EXHIBIT A
TELERGY, INC.
VOTING TRUST CERTIFICATE
This certifies that _____________________ has deposited ________ Class A
Common and ________ Class C Common shares of Telergy, Inc., a New York
corporation (the "Corporation"), with the undersigned Voting Trustees pursuant
to a Voting Trust Agreement dated December 27, 1999, between Xxxxx X. Xxxxx,
Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxx as Shareholders, and Xxxxx X. Xxxxx, Xxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx as Trustees. A copy of the Voting Trust Agreement
is on file in the office of the Corporation, Xxx Xxxxxxx Xxxxx, Xxxx Xxxxxxxx,
Xxx Xxxx 00000.
This Certificate and the interests represented by this Certificate are
transferable on the books of the Trustees and upon its surrender properly
endorsed. The holder of this Certificate takes it subject to all the terms and
conditions of the Voting Trust Agreement.
By acceptance of this Certificate, the holder acknowledges that he has
acquired it for investment purposes and not with a view to distribution.
IN WITNESS WHEREOF, the Trustees have signed this Certificate on
__________________.
_______________________________
Xxxxx X. Xxxxx, Trustee
_______________________________
Xxxxx X. Xxxxx, Trustee
_______________________________
Xxxxxxx X. Xxxxx, Trustee
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