Exhibit 1
VOTING TRUST AGREEMENT dated as of the 2nd day of February, 1983,
among XXXXX X. XXXX (the "Shareholder") an individual residing at 0 Xxxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, a shareholder of BENIHANA OF TOKYO, INC., a
New Xxxx corporation with its principal offices at 0000 Xxxxxxxxx 00xx Xxxxxxx,
Xxxxx, Xxxxxxx 00000, XXXXX X. XXXX, KATSU AOKI residing at 1-1 Muromachi
Nihonbashi Chuoku Tokyo, Japan, and XXXXXX X. XXXXXXXX, residing at 00 Xxxxxxxx
Xxxx, Xxxx Xxxxx, X.X. 00000 as trustees (hereinafter collectively referred to
as the "Trustees") and BENIHANA OF TOKYO INC. ("BOT).
W I T N E S S E T H:
WHEREAS, the parties, for their own interests and for the interest of the
corporation, wish to promote harmony and continuity with respect to the conduct
of the affairs of BOT;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties agree as follows:
1. Creation of Voting Trust:
The Shareholder is the owner of 200 shares of common stock of BOT (the
"Shares"). The Shares are currently pledged and deposited pursuant to a Stock
Pledge Agreement dated August 29, 1980 by and between the Shareholder, CITIZENS
BANK AND TRUST COMPANY, a Kentucky banking Corporation with its principal office
and place of business in Louisville, Kentucky and SOUTHEAST FIRST
NATIONAL BANK OF MIAMI, a national banking institution with its principal office
and place of business in Miami, Florida (the "Secured Parties"). The Shareholder
hereby assigns to the
Trustees all of his right, title and interest in and to the Shares and
represents that he has informed the Secured Parties of this Agreement and has
asked them to deliver the stock certificate evidencing the Shares and accept in
its stead the voting trust certificate to be issued by the Trustees pursuant to
this Agreement He acknowledges that such voting trust certificates shall be
subject to the Pledge. The Shareholder hereby authorizes the Trustees to effect
the substitution of the Stock Certificate held by the Secured Parties for the
voting trust certificate.
The stock certificate deposited with the Trustees by the Secured Parties
shall be surrendered by the Trustees to BOT for cancellation and a new
certificate shall be issued to and held by the Trustees as voting trustees. The
Shares of stock represented by such certificate shall thereafter be held by the
Trustees subject to the terms of this Agreement.
2. Voting Trust Certificate
(a) The voting trust certificate to be issued and delivered by the
Trustees, as hereinabove provided, shall be in substantially the following form,
the terms of which are incorporated herein by reference:
VOTING TRUST CERTIFICATE Xx. 0
000 Xxxxxx
XXXXXXXX OF TOKYO, INC.
(a New York corporation)
VOTING TRUST CERTIFICATE
THIS CERTIFIES THAT XXXXX X. XXXX has
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deposited 200 shares of common stock, zero par value, of BENIHANA
OF TOKYO, INC, a New York corporation, with the undersigned
Trustees pursuant to a Voting Trust Agreement dated as of
February 2, 1983 by and among XXXXX X. XXXX, Shareholder, the
undersigned as Trustees and Benihana of Tokyo, Inc. a copy of
which Voting Trust Agreement is on file in the offices of
Benihana of Tokyo, Inc at 0000 Xxxxxxxxx 00xx Xxxxxxx, Xxxxx,
Xxxxxxx. This certificate and the interest represented hereby is
transferable on the books of said Trustees upon its surrender
properly endorsed. The holder of this certificate takes the same
subject to all the terms and conditions of the aforesaid Voting
Trust Agreement and, by acceptance of this certificate, assents
thereto and agrees to be bound thereto with like effect as if
such Voting Trust Agreement had been signed by him in person.
IN WITNESS WHEREOF, the Trustees have signed this certificate
this 2nd day of February, 1983.
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XXXXX X. XXXX, TRUSTEE
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KATSU AOKI, TRUSTEE
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XXXXXX X. XXXXXXXX, TRUSTEE
Any certificate referring to this Agreement prior to any amendment shall be
deemed to apply to this Agreement as amended and/or restated.
3. Investment Purpose: The Shareholder represents that he acquired the
shares represented by the voting trust
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certificate for investment and not with a view to distribution or
resale. The Shareholder further agrees that the voting trust
certificate shall contain the following legend:
The shares and interest represented by this voting trust
certificate have not been registered under the Securities Act of
1933. The shares and interest have been acquired for investment
and may not be sold or transferred in the absence of an effective
Registration Statement therefore under the Securities Act of 1933
or an opinion, satisfactory to counsel for the Trustee and to
counsel for BOT that registration is not required under said Act.
In the event that a Registration Statement becomes effective
covering the shares or counsel to BOT renders a written opinion,
reasonably satisfactory to counsel for the Trustees that
registration is not required under said Act, this voting trust
certificate may be exchanged for a certificate free from this
legend.
4. Transfer or Replacement of Voting Trust Certificate.
(a) The Trustees shall maintain a register of the voting trust
certificate and holder thereof at the office of Xxxxxxxx Xxxxxx & Xxxxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. The registered holder of the voting trust
certificate, in person or by proxy, may transfer upon the records of the
Trustees, to any other person or persons, his rights as voting trust certificate
holder with respect to all of the stock represented thereby, by surrendering
such voting trust certificate, properly endorsed or with assignment separate
from such certificate, duly executed, accompanied by any applicable transfer tax
stamps. The Trustees may treat the holder of record of the voting trust
certificate, or when presented duly endorsed in blank, the bearer thereof, as
the owner for all purposes whatsoever and shall not
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be affected by any notice to the contrary; provided, however, that the Trustees
shall not be required to deliver any voting trust certificate without the
surrender of the prior voting trust certificate relating thereto.
(b) In case of loss, theft, destruction or mutilation of the voting
trust certificate, the holder thereof shall immediately notify the Trustees who
may, in their discretion, issue and deliver to such holder a new voting trust
certificate for the same number of shares of stock upon (i) surrender of the
mutilated certificate, or (ii) in case of the los$, theft or destruction
thereof, upon satisfactory proof of such loss, theft or destruction and the
deposit of an indemnity bond in such form, content and amount and with such
sureties as the Voting Trustees may require.
5. Dividends and Distributions:
(a) Until the actual delivery of a stock certificate or other
securities to the holder of the voting trust certificate in exchange for his
voting trust certificates, each holder of a voting trust certificate issued
hereunder shall be entitled to receive from the Trustees promptly after the
Trustees' receipt thereof, payments in cash collected by the Trustees on the
shares of stock deposited hereunder and standing in the names of the Trustees,
and shall in addition, be entitled to receive promptly after receipt by the
Trustees, all dividends or other distributions declared on the stock or payable
by BOT in a form other than in cash or "voting stock" of BOT.
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If any dividend in respect of the stock deposited with the Trustees is
paid in whole or in part in any "voting stock" (i.e., any security of BOT or
its affiliates which (i) at the time of this issuance carries the right to
vote at any meeting of stockholders or (ii) may upon the occurrence of
certain events acquire the right to vote at any meeting of stockholders or
(iii) may be converted into or exchanged for or contains the right to acquire
a security which carries the right to vote at any meeting of the
stockholders) of if there is any distribution of voting stock or split in
respect of such voting stock, the Trustees shall likewise hold the
certificates for the voting stock received by them on account of such
distribution, dividend or split, and the holder of the voting trust
certificate representing stock in respect of which such distribution or split
has been made or dividend paid, shall receive a voting trust certificate from
the Trustees issued under this Agreement for the number of shares and class
of such voting stock received as such dividend, distribution or split.
If any dividend in respect of the stock deposited with the Trustees is paid
other than in cash or voting stock of BOT, then the Trustees shall distribute
such dividend to the holder of the voting trust certificate registered as such
at the close of business on the day fixed by the Company for determination of
shareholders entitled to receive such distribution.
6. Issuance of New Stock: In the event BOT shall at any time
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issue any stock or other securities to which the holder of
the voting trust certificate shall be entitled to subscribe or to purchase, the
Trustees shall, promptly upon receipt of notice of any offer of any such shares
or securities, mail a copy thereof to the holder of the voting trust
certificate. Upon receipt by the Trustees, at least five (5) days prior to the
last date fixed by BOT for subscription and payment, of a written request from
the holder of the voting trust certificate to subscribe in his behalf,
accompanied by the funds required to pay for such stock or securities, the
Trustees shall make such subscription and payment and, upon receipt from BOT of
the certificate for shares or securities so subscribed for, shall issue to such
holder a voting trust certificate in respect thereof, if the same be common
stock of the class or type deposited with the Trustees hereunder or other voting
stock of BOT, but if the same be securities other than such stock, the Trustees
shall mail or deliver such securities to the voting trust certificate holder or,
in lieu thereof, may instruct BOT to make delivery directly to such holder.
7. Dissolution, Merger or Consolidation of BOT:
(a) In the event of the dissolution or total or partial liquidation of
BOT, whether voluntary or involuntary, the Trustees shall receive the monies,
securities rights or property to which the holder of the
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voting trust certificate is entitled, and shall distribute the same to the
registered holder of the voting trust certificate and, upon such distribution,
all further obligations or liability of the Trustees in respect of such monies,
securities, rights or property so received shall cease.
(b) In case BOT is merged into or consolidated with another
corporation or all or substantially all of the assets of BOT are transferred to
another corporation, then, in connection with such transfer, the term "BOT" for
all purposes of this Agreement shall be taken to include such successor
corporation, and the Trustees shall receive and hold under this Agreement any
voting stock of such successor corporation recieved on account of the ownership,
as Trustees hereunder, of the stock held hereunder prior to such merger,
consolidation or transfer. Voting trust certificates issued and outstanding
under this Agreement at the time of such merger, consolidation or transfer may
remain outstanding or the Trustees mayl in their discretion, substitute for such
voting trust certificates new voting trust certificates in appropriate form.
Nothing herein contained shall be deemed to require the Trustees to vote for, or
cause a dissolution of BOT if all, or substantially all, of its assets are sold.
In such event BOT may enter into a new business, operate as a holding company or
engage in any other lawful activity.
8. Rights and Powers of Trustees:
(a) Until delivery to the holder of the voting trust certificate
issued hereunder of stock certificates in exchange therefor, and until the
surrender of the voting trust
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certificate for cancellation, the Trustees shall have the
exclusive right to exercise all of the rights of shareholders
except as expressly provided herein, all with the same force and
effect as if the Trustees were the beneficial owners of the
common stock deposited with them including but not limited to the
exclusive right to vote the shares deposited hereunder in such
manner as they may determine in their discretion, or to give
written consent in lieu of voting thereon, subject to any
limitation on the right to vote contained in the Certificate of
Incorporation of BOT as same may have been amended, or other
certificate filed pursuant to law, in person or by proxy, at any
and all meetings of the shareholders which may be required or
authorized by law. Such right of the Trustees to vote the shares
deposited hereunder shall be exercised by majority decision and
shall include but not be limited to the right to vote with
respect to all of the following matters:
(i) Election of directors.
(ii) Mortgaging and pledging of all or substantially all of the
property of BOT.
(iii) Transfer, lease or sale of all or substantially all of the
property of BOT for cash, securities or other property.
(iv) Dissolution of BOT
(v) Split-up, consolidation, merger, reorganization of BOT or a
change of corporate structure of BOT.
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(vi) Amending the By-laws of BOT
(vii) Amendment of the Certificate of Incorporation for any
purpose, including increase of the authorized capital stock of the corporation
or the classification or reclassification of such capital stock.
The right of the Trustees to exercise the rights of a shareholder shall
also include, but not be limited to, the right, but only with the consent of the
holder of the voting trust certificate, to seek an appraisal of the common stock
deposited with them pursuant to any statutory right of appraisal and to
surrender such common stock in return for the appraised value thereof.
(b) BOT shall give prompt notice to the registered holder of the
voting trust certificate of all regular or special meetings of the shareholders
of BOT and of all proceedings other than meetings of shareholders wherein the
consent of shareholders are requested or required. Notwithstanding the grant to
the Trustees of the right to vote the shares deposited hereunder, the
registered holder of the voting trust certificate shall be entitled to attend
any such meetings of shareholders of BOT and to participate in the deliberations
thereat, and BOT agrees to permit the registered holder of the voting trust
certificate to attend such meetings of shareholders and to participate.
(c) Except in connection with a split-up, consolidation, merger,
reorganization, recapitalization or dissolution approved by the Trustees or
transfer pursuant to
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paragraph 4 hereof, the Trustees shall have no right to sell, assign, convey,
transfer, donate or otherwise dispose of or contract to dispose of, or mortgage,
pledge, hypothecate or otherwise encumber, any shares of the common stock or any
other securities of BOT or any successor corporation now or hereafter subject to
the voting trust.
9. Successor Trustee: In the event of the death, resignation or inability
to act of one of the Trustees, the remaining two, jointly, shall succeed to all
of his or her rights, powers and duties, or, if they so choose, shall select a
third person to serve as Successor Trustee. In the event of the death,
resignation or inability to act of two of the Trustees the voting trust created
by this Agreement shall terminate.
10. Additional Rights and Liabilities of Trustees:
(a) The Trustees shall not be required to give any bond or other
security for the faithful discharge of their duties, and shall not incur any
liability as stockholder, Trustee, or otherwise, and each Trustee shall be
liable only for his or her own willful misfeasance and for his or her own bad
faith and shall not be answerable for any misfeasance or nonfeasance of the
other Trustees or of any attorney, auditor, appraiser, accountant, agent or
employee selected by him or her with reasonable care.
(b) The certificate representing the stock received by
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the Trustee hereunder and transferred into their names may be deposited with any
agent of the Trustees or with any bank or trust company in the Borough of
Manhattan, City of New York, which may be selected by the Trustees in their
discretion, and the Trustees shall not be liable for any loss of such
certificates by such agent or depository.
(c) The Trustees shall serve without compensation but nothing
herein contained shall disqualify them from receiving compensation for
services rendered in the capacity of an officer, director, agent, attorney or
employee, of BOT. The Trustees may employ counsel and such other agents,
consultants or employees as they, in their discretion, may deem necessary#
and they shall be entitled to charge to and receive reimbursement from BOT
for all advances or disbursements made by them, as well as for all actual
expenses incurred or paid for any services rendered by such counsel,
consultants, agents an employees in connection therewith.
(d) Any Trustee may act as a director or officer of BOT, and he or
she, or any firm or corporation in which he or she may be pecuniarily
interested, may deal in or with the stock, notes, bonds or other obligations
or securities of BOT or the voting trust certificates to be issued hereunder,
and may contract with BOT or be or become pecuniarily interested in any
matter or transaction to which BOT may be a party or in which it may in any
way be concerned, as fully as though he or she were not a Trustee under this
Agreement.
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11. Term and Termination:
(a) The voting trust hereby declared and created shall continue
until the occurrence of any one of the following events whichever shall first
occur:
(i) A consolidation, merger or sale of substantially all of
BOT's assets or other reorganization to which BOT is a party if the
securit'ies issued to all of the shareholders of BOT in such reorganization
account in the aggregate for less than five (5%) percent of the voting power
of the issuing corporation;
(ii) The expiration of ten (10) years from the date hereof;
(iii) The death of two or more the Trustees named herein.
(iv) The final denial or refusal to grant any requisite
approvals or consents by any governmental authorities having jurisdiction
over the business of BOT (including approvals or consents from the
appropriate state liquor authorities or agencies). The term "final" as used
herein shall mean that all appeals from such adverse decisions have been
exhausted or the time to take any appeals from such decision have expired
without any appeals pending.
(b) 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 voting
trust certificate holder gives his written consent to such renewal at any time
within six months
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before each termination date. A copy of each extension agreement and the consent
thereto shall be filed with the corporation.
(c) This Agreement may be terminated, amended or modified at any time
by an agreement in writing signed by all of the parties hereto and may be
terminated by the Trustees at any time, by their giving written notice of such
termination to the other parties hereto.
(d) The payment of any transfer taxes required upon the transfer to
or from the Trustees of the shares of common stock of BOT or the voting trust
certificates covered hereby, and all other expenses in connection with the
performance xxxxxx shall be made by BOT. Upon the termination of this
Agreement as hereinabove provided, the Trustees upon receipt from the
registered holder of the voting trust certificate of such certificate, duly
endorsed, together with payment by BOT of a sum sufficient to pay all
required transfer tax stamps and to reimburse the Trustees for any unpaid
expenses or charges to which they are entitled under this Agreement, as well
as for any stamp tax or governmental charge in connection with the delivery
hereinafter described, shall deliver to BOT the certificate for the shares
issued to them as such Trustees, shall receive new certificates issued in the
name of the registered holder of the voting trust certificate for two hundred
shares of common stock and shall deliver such new certificate for such shares
to the holder.
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12. General Provisions:
(a) All notices and designations hereunder shall be given in writing,
sent by registered or certified mail, return receipt requested, to all of the
parties hereto, to the addresses hereinabove stated, or to such other address as
any party may designate in writing to the others. A copy of all notices shall be
delivered to BOT at its principal office.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
(d) The paragraph headings are for convenience only and shall not be
deemed to affect in any way the language of the provisions to which they refer.
(e) This agreement contains the entire agreement between the
parties and may not be orally modified or terminated. Except where the
context indicates otherwise, the term "Trustees" as used in this Agreement
shall refer to the voting trustees hereunder and/or the successor voting
trustee then in office.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this agreement as of the day and year first above written.
BENIHANA OF TOKYO, INC
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By:/s/ Xxxxx X. Xxxx
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/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX, Shareholder
/s/ Xxxxx X. Xxxx
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XXXXX X.IAOKI, Trustee
/s/ Katsu Aoki
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KATSU AOKI, Trustee
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, Trustee
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