Exhibit 9.9
VOTING TRUST AGREEMENT
April 30, 1998
This VOTING TRUST AGREEMENT (this "Trust Agreement") is made
by and between each of the undersigned (each, a "Stockholder") and A. Xxxx Xxxx
(the "Trustee").
Stockholder owns the number of shares (the "Stock") of the
common stock of Clearview Cinema Group, Inc., a Delaware Corporation (the
"Company") identified on the signature page hereto.
In accordance with Section 218 of the General Corporation Law
of the State of Delaware, Stockholder 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,
Stockholder shall deliver the certificates representing the Stock, duly executed
for transfer, to Trustee 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
Stockholder shall transfer to him, in trust for the purposes and subject to the
terms and conditions of the 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 Stockholder a Voting Trust Certificate for the number
of shares of the Stock deposited by Stockholder, 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, ____________,
or registered assigns, will be entitled to receive upon the 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 _____________, as a stockholder of the Company and A.
Xxxx Xxxx, as Trustee, dated as of ___________, 1997, 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_.
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________________________(SEAL)
A. Xxxx Xxxx
Trustee under Voting Trust
Agreement, dated
_______________, 1997.
[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.
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.
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(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 Stockholder pursuant to the
Warrants, Stockholder 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 Stockholder 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. Stockholder, at any time from and after the date of this
Trust Agreement, must deposit any additional capital stock of the Company
purchased or owned by him (but not specifically described within the Trust
Agreement) with the Trustee and such 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;
provided, however, that any shares of capital stock of the Company purchased by
such stockholder in a public market shall not be subject to this Voting 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.
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(B) The Trustee shall not be liable to any stockholder 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 Stockholder (a) pursuant to Rule
144 promulgated under the Securities Act of 1933, as amended, or (b) pursuant to
the registration rights granted to Stockholder in the Registration Rights
Agreement. A termination of this Trust Agreement as to any shares of Stock sold
pursuant to clauses (a) or (b) of the preceding sentence shall not affect any
shares of Stock continuing to be owned by Stockholder (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) or (b) of the first sentence of Paragraph 11(B)(i),
Stockholder 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 Stockholder 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
Stockholder, to the address that is provided by Stockholder and, in the case of
the Trustee to:
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X. Xxxx Xxxx
00 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
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, Stockholder and their respective heirs, legal
representatives, and permitted 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.
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Xxxx Xxxxxx; No. of Shares 32,051
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Xxxx Xxxxxx; No. of Shares 16,026
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Xxxxxx Xxxxxx; No. of Shares 16,026
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Xxxxxx Xxxxxxxx; No. of Shares 12,820
Trustee:
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A. Xxxx Xxxx
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