Exhibit 9.02
VOTING TRUST AGREEMENT
June 20, 1995
This VOTING TRUST AGREEMENT (this "Trust Agreement") is made by and between
Xxxxxxx X. Xxxx ("Rush") and A. Xxxx Xxxx (the "Trustee").
Rush owns in the aggregate 20 shares (the "Stock") of the common stock of
Clearview Cinema Group, Inc., a Delaware Corporation (the "Company"). The Stock
is subject to an Investment and Stockholders Agreement dated December 21, 1994,
among the Company, the Trustee and the other parties named therein pursuant to
an Agreement, of even date herewith, executed by Rush, in which Rush joined and
agreed to be bound by the terms and conditions of the Investment and
Stockholders Agreement.
In accordance with Section 218 of the General Corporation Law of the State
of Delaware, Rush desires to enter into this Voting Trust Agreement with respect
to the Stock, and the Trustee is willing to accept the voting rights in respect
of the Stock and to serve as the voting trustee under the terms and conditions
hereof.
The parties hereto, intending to be legally bound hereby, agree as follows:
1. Simultaneously with the execution and delivery hereof, Rush shall
deliver the certificates representing the Stock, duly executed for transfer, to
Mayo to be held under this Trust Agreement.
2. (A) Promptly after the delivery required by paragraph 1, the Trustee
shall deliver the certificates representing the Stock to the Company for
transfer and shall cause the shares represented thereby to be transferred to his
name as Trustee under this Trust Agreement. The new certificates representing
the Stock registered in the name of the Trustee shall be delivered to the
Trustee by the Company, and the Trustee shall hold those certificates in his
custody.
(B) The Trustee shall hold the shares of the Stock transferred to him
hereunder, and all other shares of the common stock that Rush shall transfer to
him, in trust for the purposes and subject to the terms and conditions of this
Trust Agreement.
3. At the same time as the delivery by the Trustee of the certificates to
the Company in accordance with the provisions of paragraph 2, the Trustee shall
issue to Rush a Voting Trust Certificate for the number of shares of the Stock
deposited by Rush which Voting Trust Certificate shall be in substantially the
following form:
[Front Side]
CLEARVIEW CINEMA GROUP, INC.
(a Delaware corporation)
Certificate No. _____ _____ Shares
VOTING TRUST CERTIFICATE
THIS IS TO CERTIFY that, subject to the provisions hereof and of
the Trust Agreement as hereinafter defined, Xxxxxxx X. Xxxx, or
registered assigns, will be entitled to receive, on June 20, 2015, or
upon the earlier termination of the Trust Agreement, but only upon
surrender of this certificate, a certificate or certificates for _____
shares of common stock of Clearview Cinema Group, Inc., a Delaware
corporation (hereinafter called the "Company"), or of any other
corporation into which shares of common stock of the Company shall
have been reclassified or converted, or for which they shall have been
exchanged.
Until the expiration or termination of the Trust Agreement, the
undersigned Trustee shall pay or deliver all cash dividends, and
certain other distributions mentioned in the Trust Agreement, on or in
respect of the common stock from time to time held by the undersigned
Trustee thereunder, to the person who, on the record date for the
determination of stockholders entitled to receive the dividends and
other distributions, was the registered owner of this Voting Trust
Certificate.
This certificate has been issued under and pursuant to the
provisions of a Voting Trust Agreement (the "Trust Agreement"), by and
between Xxxxxxx X. Xxxx, as a stockholder of the Company and A. Xxxx
Xxxx, as Trustee, dated as of June 20, 1995, as the same may be
amended from time to time. The Trust Agreement more fully defines and
sets forth the rights and obligations of the owner and holder of this
certificate and of the Trustee and is incorporated in and made a part
of this Voting Trust Certificate with the same effect as if set forth
in full.
Subject to any restriction contained on the reverse side of this
certificate, this Voting Trust Certificate is transferable by its
registered owner, in person or by duly authorized attorney, on the
books to be maintained for that purpose by the undersigned Trustee,
upon the terms and conditions provided in the Trust Agreement.
WITNESS THE DUE EXECUTION HEREOF on this ______ day of
________________, 199_.
________________________(SEAL)
A. Xxxx Xxxx
Trustee under Voting Trust
Agreement, dated June 20, 1995,
1995.
[Reverse side]
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or any state Blue Sky or
securities laws. These securities cannot be resold without registration
under such Act or applicable state securities laws or an exemption
therefrom.
In addition, the securities represented by this certificate are subject to
an Investment and Stockholders Agreement dated December 21, 1994 among the
Company and the parties named therein, as the same may be modified from
time to time, and may not be sold, offered, transferred, assigned, pledged,
hypothecated or otherwise disposed of except in compliance with the
provisions of that agreement.
4. The Voting Trust Certificate issued under this Trust Agreement shall be
transferable in the same manner, with the same effect, and subject to the same
restrictions as certificates for shares of the Stock. The Voting Trust
Certificate shall be transferable only at the principal executive office of the
Company or at any other place that the Company may maintain for its corporate
books and records.
5. The Trustee has no authority to sell or otherwise dispose of or encumber
any of the Stock.
6. The Trustee shall possess and be entitled, subject to the provisions of
this Agreement, to exercise all the rights and powers of an absolute owner of
all the shares of Stock
deposited under this Trust Agreement, including without limitation the right to
receive dividends on the Stock (subject to paragraph 7 below) and the right to
vote, consent in writing, or otherwise act with respect to any corporate or
stockholders' action, to increase or reduce the capital stock of the Company, to
classify or reclassify any of the shares as now or hereafter authorized into
preferred or common stock or other classes of stock with or without par value,
to amend the Certificate of Incorporation or by-laws of the Company, to merge or
consolidate the Company with other corporations, to sell all or any part of its
assets, to create any mortgage lien on any of its property, or for any other
corporate act or purpose. Except as otherwise provided herein, no voting right
shall pass to others by or under the Voting Trust Certificate or by or under
this Trust Agreement or by or under any agreement express or implied. All shares
of Stock shall be voted as directed by the Trustee and shall be deemed to be
represented for the purposes of determining a quorum.
7. (A) All dividends paid on the Stock from time to time held under this
Trust Agreement, except stock dividends, shall be remitted by the Trustee,
promptly upon receipt, to the person or persons who, on the record date for the
determination of stockholders entitled to receive the dividends, were the record
owners of the Voting Trust Certificates representing the shares on which the
dividends were declared.
(B) Dividends paid in shares of common stock of the Company shall be
retained by the Trustee and added to the Stock held under this Trust Agreement.
The Trustee shall promptly issue to the appropriate persons Voting Trust
Certificates representing any Stock that the Trustee shall receive as a dividend
and retain in accordance with the provisions of this paragraph 7. Those Voting
Trust Certificates shall be in the form as set forth in this Trust Agreement,
with any changes that are appropriate.
(C) All warrants or rights to subscribe to any class of voting stock of
the Company ("Warrants") that shall be received by the Trustee in respect or on
account of the Stock held under this Trust Agreement shall be distributed by the
Trustee to the holders of the Voting Trust Certificates in the same manner as he
is required to distribute cash dividends under this Trust Agreement. If any
voting stock is purchased by Rush pursuant to the Warrants, Rush shall
immediately deliver the certificates representing all the shares of stock so
purchased, duly executed for transfer, to the Trustee to be added to the Stock
held under the Trust Agreement. The Trustee shall promptly issue to Rush Voting
Trust Certificates representing any Stock that shall be so delivered to and held
by the Trustee in accordance with the provisions of this paragraph 7. The Voting
Trust Certificates shall be in the form as set forth in this Trust Agreement,
with any changes that are appropriate. No sale or other transfer of any of the
Warrants shall be made without
first offering the Company a prior opportunity to purchase the Warrants for a
reasonable amount.
8. Rush, at any time from and after the date of this Trust Agreement, shall
deposit with the Trustee any additional capital stock of the Company purchased
or owned by him (whether or not specifically described within the Trust
Agreement), including but not limited to any additional capital stock acquired
by Rush pursuant to the Convertible Note issued to Rush by the Company on June
20, 1995. Additional shares of Stock so deposited shall become subject to all
the terms and conditions of this Trust Agreement to the same extent as if it
were originally deposited under this Trust Agreement.
9. (A) If, as the result of any split-up, combination or reclassification
of any Stock held by the Trustee under this Trust Agreement, or as the result of
any merger, consolidation, reorganization or sale of assets to which the Company
shall be a party, the Stock held by the Trustee under this Trust Agreement shall
be reclassified, converted into or become exchangeable for any other securities,
either of the Company or of any other corporation, the Trustee shall exchange or
surrender the Stock held by it for those other securities and shall deliver the
certificates evidencing the same to the Company or other appropriate agency in
exchange or surrender. The Trustee shall hold the securities received upon the
exchange or surrender for the purposes and upon the same conditions as are
provided in this Trust Agreement in respect of the shares of the Stock.
(B) Upon any exchange or surrender, the Trustee may, if he considers it
to be advisable, issue new Voting Trust Certificates in lieu of and in exchange
for the outstanding Voting Trust Certificates. The Voting Trust Certificates
shall be in the form set forth in this Trust Agreement, with any changes that
are appropriate.
10. (A) The Trustee may serve as a director or officer of the Company or
any successor corporation, and he or any firm of which he may be a member, or
any corporation of which he may be a stockholder, director or officer, may
contract with the Company or any successor corporation, or be pecuniarily
interested in any transaction to which the Company or any successor corporation
may be a party, or in which it may be interested, as fully as though he were not
a Trustee.
(B) The Trustee shall not be liable to any stock- holder or the
registered owner or holder of any Voting Trust Certificate for any error of
judgment or for any neglect, default, negligence (including gross negligence)
except for his own willful and deliberate malfeasance.
(C) The Trustee shall not receive any compensation for his services
as Trustee, and he shall not be required to
give any bond or security for the discharge of his duties as Trustee.
(D) The Trustee hereby accepts the trust hereunder, subject to all
the terms and conditions contained in this Trust Agreement, and he agrees to
exercise the powers and perform the duties of Trustee as set forth in this Trust
Agreement.
11. (A) The trust created by this Trust Agreement is expressly declared to
be irrevocable.
(B) (i) This Trust Agreement shall terminate with respect only to the
shares of Stock that are sold by Rush (a) from and after the date the Company
consummates an underwritten public offering, pursuant to Rule 144 promulgated
under the Securities Act of 1933, as amended, (b) pursuant to the registration
rights granted to Rush in Section 10 of the Stockholders Agreement, or (c)
pursuant to the right of participation granted to Rush in Section 9.7 of the
Stockholders Agreement. A termination of this Trust Agreement as to any shares
of Stock sold pursuant to clauses (a), (b) or (c) of the preceding sentence
shall not affect any shares of Stock continuing to be owned by Rush (the
"Remaining Shares"), and this Trust Agreement shall continue in force with
respect to the Remaining Shares until terminated pursuant to Paragraph
11(B)(ii).
(ii) This Trust Agreement shall terminate upon the earlier of (a) the
twentieth anniversary hereof, (b) written notice of termination by the Trustee,
or (c) the death of the Trustee.
(C) (i) In the event of any proposed sale of Stock pursuant to clauses
(a), (b) or (c) of the first sentence of Paragraph 11(B)(i), Rush shall notify
the Trustee of the proposed sale and of the number of shares to be sold, and,
upon receipt of (a) confirmation, in a form reasonably requested by the Trustee,
of the consummation of the sale and (b) the Voting Certificate(s) representing
the purchased Stock, the Trustee shall deliver or request that the Company
deliver to the purchaser stock certificates for the purchased Stock, and, if
necessary, shall deliver to Rush a Voting Certificate for the Remaining Shares.
(ii) In the event of termination of this Trust Agreement pursuant to
Paragraph 11(B)(ii), as soon as practicable after the termination, the Trustee
shall deliver to or upon the order of the registered owners of the Voting Trust
Certificates, and upon surrender thereof, the shares of Stock represented
thereby, together with any other shares of voting stock of the Company subject
to this Trust Agreement.
12. Any notice or other communication required or permitted by this Trust
Agreement to be given by any party hereto
shall be in writing, and any communication and payment or delivery of securities
required to be made by any party to any other party shall be sent by first class
prepaid mail, certified or registered, return receipt requested, addressed in
the case of Rush, to the address that is provided by Rush and, in the case of
the Trustee to:
A. Xxxx Xxxx
c/o Clearview Cinema Group, Inc.
Seven Waverly Place
Madison, New Jersey 07940
or in any other manner as any party shall hereafter designate by notice to the
other party.
13. This Trust Agreement shall be legally binding upon, and shall inure to
the benefit of, Rush and his respective heirs, legal representatives, successors
and assigns.
14. The validity and effectiveness of this Trust Agreement shall be
governed by, and its provisions shall be construed and enforced in accordance
with, the laws of the State of Delaware.
15. If, for any reason, any provision or part of this Trust Agreement is
held invalid, that invalidity shall not affect any other provision or the rest
of provision of this Trust Agreement, as the case may be, and each provision or
part shall, to the full extent consistent with law, continue in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
as of the day and year first above written.
-------------------------
Xxxxxxx X. Xxxx
--------------------------
A. Xxxx Xxxx
