Exhibit 9.05
VOTING TRUST AGREEMENT
August 30, 1996
This VOTING TRUST AGREEMENT (this "Trust Agreement") is made by and between
Xxxxx X. Xxxxxx ("Xxxxxx") and A. Xxxx Xxxx (the "Trustee").
Xxxxxx owns in the aggregate 4 shares (the "Stock") of the common stock of
Clearview Cinema Group, Inc., a Delaware Corporation (the "Company"). The Stock
is subject to a Stockholders and Registration Rights Agreement dated as of May
29, 1996 (the "Stockholders Agreement"), among the Company, the Trustee and the
other parties named therein.
In accordance with Section 218 of the General Corporation Law of the State
of Delaware, Xxxxxx 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, Xxxxxx 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 Xxxxxx 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 Xxxxxx a Voting Trust
Certificate for the number of shares of the Stock deposited by Xxxxxx, 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, Xxxxx X. Xxxxxx, or registered
assigns, will be entitled to receive, on August 30, 2016, or upon the
earlier termination of the Trust Agreement, but only upon surrender of this
certificate, a certificate or certificates for 16 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 Xxxxx
X. Xxxxxx, as stockholders of the Company and A. Xxxx Xxxx, as Trustee,
dated as of August 30, 1996, 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 August 30, 1996
[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 Stockholders and Registration Agreement dated May 29, 1996
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 Xxxxxx pursuant to the Warrants, Xxxxxx 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 Xxxxxx
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. Xxxxxx, 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 them (but not specifically described within the Trust Agreement) with
the Trustee. 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 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 Xxxxxx (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 Xxxxxx in
the Stockholders Agreement, or (c) pursuant to the right of participation
granted to Xxxxxx in 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 Xxxxxx (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), Xxxxxx 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 Xxxxxx 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 Xxxxxx, to the
address that is provided by Xxxxxx and, in the case of the Trustee to:
A. Xxxx Xxxx
0 Xxxxxxx Xxxxx
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, Xxxxxx and their 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.
--------------------------------
Xxxxx X. Xxxxxx
