EXHIBIT 4.8
FORM OF STOCKHOLDER AGREEMENT
AGREEMENT made as of the 15th day of September, 1997, by and among the
persons whose names are set forth on Schedule A attached hereto (collectively
referred to herein as the "Stockholders") and NE Restaurant Company, Inc., a
Delaware corporation (hereinafter referred to as the "Corporation"), with its
principal executive office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Corporation has entered into a Stockholder Agreement, as
amended, dated as of December 31, 1993, with the stockholders of the
Corporation as of such date (the "Existing Agreement");
WHEREAS, the Stockholders wish to acquire certain shares of the Common
Stock, $.01 par value (the "Common Stock"), of the Corporation as of the date
hereof;
WHEREAS, the Stockholders have agreed to be bound by the provisions of the
Existing Agreement and the Corporation wishes to bind the Stockholders to
substantially such provisions;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
ARTICLE I
Transfer Restrictions
---------------------
1.1. Restrictions on Transfer.
------------------------
(a) Each Stockholder severally agrees with each other Stockholder and
with the Corporation that he will not directly or indirectly sell, assign,
transfer, pledge, hypothecate, or in any manner whatsoever, whether voluntarily
or by operation of law, dispose of or encumber ("transfer") any shares of
Common Stock now owned by him or which he may at any time hereafter own,
acquire or be entitled to, except as hereinafter expressly provided, and
subject further to the limitations set forth in Sections 1.1 (b) through (d)
below and the right of first refusal of the Corporation set forth in Article
IV.
(b) No transfer may be made without the consent of the Corporation if
the transfer would require filing of a registration statement under the
Securities Act of 1933 or registration or notice subject to review under any
state securities or blue sky laws or regulations or violate any applicable
federal or state securities or blue sky laws (including any investment
suitability standards) or regulations applicable to the Corporation or the
Common Stock. The Corporation may rely upon the advice of counsel in making any
determination under this paragraph (b).
(c) The Stockholders further understand and agree that,
notwithstanding any other provision of this Agreement, a proposed transfer may
be subject to (i) the prior approval of applicable liquor licensing
authorities, one or more of the Corporation's landlords, and/or the
Corporation's franchisor, Xxxxxxx International, Inc., and (ii) the right of
first refusal of Xxxxxxx International, Inc. as may be set forth in the
Franchise Agreements or the Development Agreement between the Corporation and
Xxxxxxx International, Inc. as such Agreements may be
amended from time to time, as if such right of first refusal were set forth
herein. The Corporation may rely upon the advice of counsel in making any
determination under this paragraph (c). If approval or consent of any such
entities is required prior to a transfer, such transfer shall not be effective
until all such approvals and consents are obtained.
(d) The Corporation may require as a condition of any transfer that
the assigning Stockholder assume all costs incurred by the Corporation in
connection therewith, including, but not limited to, legal fees and accounting
fees and any filings or other actions required to be taken with respect to the
Corporation's liquor licenses or any action take in connection with obtaining
approvals or consents as described in (c) above. As a further condition of a
transfer, the Corporation may require that the assigning Stockholder furnish an
opinion of counsel satisfactory to the Corporation that the proposed transfer
does not violate the provisions of paragraphs (b) and (c) above. Any transfer
in contravention of any of the provisions of this Section 1.1 shall be void and
ineffectual for all purposes and shall not bind, or be recognized by, the
Corporation.
1.2. Gifts of Common Stock. Notwithstanding anything contained in this
----------------------
Agreement to the contrary, any individual Stockholder may make a gift or gifts
to his spouse or children, or to a trust for the benefit of his spouse or
children, of up to an aggregate of twenty-five percent (25%) of the shares of
Common Stock owned by such Stockholder on the date hereof, subject to the
provisions of Section 1.1 (b) through (d) of this Agreement, provided, however,
that if a Stockholder desires to transfer by way of gift his shares of Common
Stock to one or more of his children who are then minors, such shares shall be
placed in trust for the benefit of said child or children for the duration of
such minority, and provided further that no such gift of any such shares shall
be deemed to be effective for purposes of transferring ownership of such shares
unless and until such spouse, child or trustee agrees in writing to hold such
shares subject to and otherwise to be bound by the terms of this Agreement, as
fully as if he were a signatory hereto, and any such shares shall be deemed for
all purposes under this Agreement to be still owned by the Stockholder and be
subject to the terms of this Agreement. The rights granted by this Section 1.2
shall be personal to the individual Stockholders originally a party to this
Agreement and not available to any transferee who was not an original
Stockholder.
1.3. Certain Transfers. Notwithstanding anything contained in this Agreement
-----------------
to the contrary, but subject to the provisions of Section l.l(b) through (d),
any partnership that is a Stockholder may assign any or all of its Common Stock
in the Corporation to its partners as a distribution to its partners not for
consideration.
1.4. Corporate Acts. The Corporation shall not transfer on its books any
---------------
certificates for shares of Common Stock owned by any Stockholder, nor issue any
certificate in lieu of such shares, nor issue any new shares of Common Stock
unless it has been satisfied of compliance with each and every condition hereof
affecting such shares or certificates.
ARTICLE II
Departing Stockholders
----------------------
2.1. Corporation's Option. If any Stockholder (the "Departing Stockholder")
---------------------
shall cease to be employed by the Corporation or any of its subsidiaries on a
full time basis for any reason, including without limitation death or
Disability (as defined in Section 2.2 hereof), the Corporation shall have an
option for a period of ninety (90) days commencing on the date of cessation of
full time employment to purchase all of the shares of Common Stock then owned
by the Departing Stockholder (the "Subject Shares"). Upon written demand by the
Corporation to
-2-
the Departing Stockholder or his Legal Representative (as defined in Section
3.1 hereof), he or his estate shall sell and the Corporation shall purchase all
of the Subject Shares. In the event cessation of full time employment occurs at
the request of the Corporation for Cause (as defined in Section 2.2 hereof),
the purchase price of the Subject Shares shall be the greater of (a) the
purchase price originally paid for the Subject Shares by the Departing
Stockholder or (b) the Book Value thereof (as defined in Section 5.2 hereof).
In the event cessation of full time employment occurs at the request of the
Corporation without Cause, by voluntary act of, or by death or by reason of the
Disability of the Departing Stockholder, the purchase price of the Subject
Shares shall be the Fair Market Value thereof (as defined in Section 5.3
hereof).
2.2. Definitions. (a) "Cause" as used herein shall mean any of the following
-----------
committed by the Stockholder, directly or indirectly:
(i) Commission by the Stockholder of an act of dishonesty involving
the Corporation;
(ii) Failure by the Stockholder to perform a material portion of his
or her duties (not otherwise excused by the Disability of the Stockholder), or
material breach by the Stockholder of any representation, warranty or agreement
of the Stockholder made in any Employment Agreement between the Stockholder and
the Corporation, which continues for a period of thirty (30) days after written
notice from the Corporation to the Stockholder to that effect;
(iii) Commission by the Stockholder of an act of gross incompetence
in the course of his or her employment with the Corporation;
(iv) The Stockholder's use of drugs or alcohol which interferes with
the Stockholder's performance of his or her duties or responsibilities to the
Corporation; or
(v) If the Stockholder is found guilty or pleads nolo contendere
---------------
to the commission of a felony or serious misdemeanor offense.
(b) "Disability" as used herein shall mean one hundred and eighty (180)
consecutive days or two hundred ten (210) days out of twelve (12) consecutive
months of inability, due to physical or mental cause, of the Stockholder to
perform his usual and regular duties for the Corporation.
2.3. Expiration of Options. If at the end of the specified option periods
----------------------
the Corporation has not exercised its option, the Departing Stockholder shall
remain subject to the terms and conditions of this Agreement.
ARTICLE III
Death; Insolvency
-----------------
3.1. Death. In the event of the death of a Stockholder, the deceased
------
Stockholder's estate, personal representatives, heirs or legatees (hereinafter
collectively referred to as the "Legal Representative") may retain such shares
of Common Stock; provided that the holder or holders thereof agree in writing
delivered to the Corporation to hold such shares subject to and otherwise to be
bound by the terms of this Agreement, as fully as if he were a signatory
hereto; and further provided that the right to retain shares shall be personal
to the heirs and legatees of the individual Stockholders originally party to
this Agreement and shall not be available to any other heirs or
-3-
legatees. In addition, the Legal Representative shall have the option for a
period of ninety (90) days after the appointment of such Legal Representative
to require the Corporation to purchase, and the Corporation shall be required
to purchase, all or any part of the deceased Stockholder's Common Stock at the
Fair Market Value thereof. Notwithstanding the above, the obligation of the
Corporation to purchase such Common Stock shall be subject at all times to a
determination by the Board of Directors of the Corporation, acting within its
discretion reasonably exercised, that no legal or contractual impediment exists
to such purchase by the Corporation with respect to which the Board may rely on
advice of counsel) and that such purchase and the payment of the purchase price
therefor shall not constitute an inadvisable application of available corporate
funds. Such option shall be exercised only be a written notice sent to the
Corporation within such ninety (90) day period.
3.2. Insolvency. If at any time a Stockholder becomes insolvent (as
----------
hereinafter defined), the Corporation shall have the option to purchase all or
any part of the Common Stock of such insolvent Stockholder at the greater of
(a) the purchase price originally paid for the Subject Shares by the Departing
Stockholder or (b) the Book Value thereof (as defined in Section 5.2 hereof)
for a period of ninety (90) days following such insolvency. Upon written demand
by the Corporation to such insolvent Stockholder such Stockholder shall sell
and the Corporation shall purchase all of the shares of Common Stock owned by
such Stockholder. In addition, an insolvent Stockholder shall have the option
for a period of ninety (90) days after the insolvency to require the
Corporation to purchase, and the Corporation shall be required to purchase, all
or any part of the insolvent Stockholder's Common Stock at the greater of (a)
the purchase price originally paid for the Subject Shares by the Departing
Stockholder or (b) the Book Value thereof. Notwithstanding the above, the
obligation of the Corporation to purchase such Common Stock shall be subject at
all times to a determination by the Board of Directors of the Corporation,
acting within its discretion reasonably exercised, that no legal or contractual
impediment exists to such purchase by the Corporation (with respect to which
the Board may rely on advice of counsel) and that such purchase and the payment
of the purchase price therefor shall not constitute an inadvisable application
of available corporate funds. Such option shall be exercised only by a written
notice sent to the Corporation within such ninety (90) day period. As used
herein, a Stockholder shall be deemed "insolvent" upon the occurrence of any of
the following: admission by a Stockholder in writing of his inability to pay
his debts as they become due; or the making of an assignment for the benefit of
Stockholder's creditors; or the filing by a Stockholder of a voluntary petition
in bankruptcy or of any answer or petition seeking any reorganization,
arrangement, composition or other insolvency relief under the present or any
future bankruptcy act or any other applicable Federal, state or other
insolvency statute, law or regulation; or the suffering of an adjudication as a
bankruptcy; or the commencement of any proceeding against a Stockholder under
any such act or statute, law or regulation which proceeding shall remain
unstayed for a period of thirty (30) days after the commencement thereof; or
the appointment of a receiver, trustee or liquidator in respect of all or any
part of the assets of a Stockholder; or the attachment of, or appointment of a
receiver or trustee for or in respect of, any property of a Stockholder, which
attachment or appointment remains unstayed for a period of thirty (30) days.
ARTICLE IV
Right of First Refusal
----------------------
4.1 No Limitation on Restrictions of Transfer. The provisions of this
-----------------------------------------
Article IV shall in no way limit the Restrictions on Transfer set forth in
Article I, including, without limitation, the approval rights or rights of
first refusal of Xxxxxxx International, Inc. referenced in Section
-4-
1.1(c). No transfer shall be permitted under this Article IV if it does not
otherwise comply with Section 1.1(b) through (d).
4.2. Corporation's Option. If any Stockholder (the "Selling Stockholder")
---------------------
shall for any reason whatsoever (except a transfer pursuant to Sections 1.2,
1.3 or 3.1 above) wish to sell or transfer any shares of Common Stock and shall
have a bona fide purchaser or transferee for such Common Stock, he shall notify
the Corporation of all terms and conditions of such proposed sale or transfer,
including the identity of the bona fide buyer or transferee and a copy of the
offer and the Corporation shall have an option for a period of thirty (30) days
commencing on the date of its receipt of such notice to purchase all or any
part of the shares of Common Stock which the Selling Stockholder proposes to
sell or transfer on the same terms as are provided for in the notice. The
Corporation shall send a written notice to the Selling Stockholder of its
decision to exercise or not exercise the option, as the case may be, prior to
the expiration of said thirty (30) day option period. If the sales price for
such stock is other than cash or securities having a readily determinable
value, then the Board of Directors of the Corporation shall determine the cash
equivalent thereof.
4.3. Selling Stockholder's Sale to Third Party. If the option in Section 4.2
------------------------------------------
is not exercised with respect to all shares of the Common Stock which the
Selling Stockholder proposes to sell or transfer, then, in such event, the
Selling Stockholder shall be entitled, for a period of ninety (90) days from
the date on which the option provided in Section 4.2 herein terminated, to sell
the unsubscribed Common Stock for which he provided notice in the manner
specified in the Selling Stockholder's notice on the terms and conditions
specified therein. If the Selling Stockholder does not sell such Common Stock
within such ninety (90) day period and in the manner and on the terms and
conditions and to the purchaser named therein, the Selling Stockholder's Common
Stock shall remain fully subject to the restrictions contained in this
Agreement.
ARTICLE V
Value
-----
5.1. Value Date. The Book Value or the Fair Market Value per share of the
-----------
Common Stock shall be determined as set forth herein as of the last day of the
quarter immediately preceding the event giving rise to the valuation
requirement in this Agreement.
5.2. Book Value. As used herein, the term Book Value shall mean the net
-----------
asset value of the Corporation per share of Common Stock as determined in
accordance with generally accepted accounting principles applied on a basis
consistent with the past practices of the Corporation. If Book Value is
determined at the end of a fiscal year it shall be determined by the then
acting independent public accountants of the Corporation and if Book Value is
determined at the end of any quarterly period, it shall be determined by the
Chief Financial or Chief Accounting Officer of the Corporation. The Book Value
shall be set forth in a report (hereinafter called the "Book Value Report")
prepared by such accountants or officer and delivered to the Corporation and
all Stockholders or their Legal Representatives as promptly as practicable
after the date as of which Book Value is determined, and shall be binding and
conclusive on the parties hereto.
5.3. Fair Market Value. The Fair Market Value shall be determined by
------------------
agreement of the disposing Stockholder or his Legal Representative and the
Corporation within fifteen (15) days after written request therefor from one to
the other. In the event such Fair Market Value cannot be so determined within
such time period, each party shall select an experienced investment banking
firm by notice to the other within ten (10) days after written request by
either. In the
-5-
event both parties do not select the same firm, the two (2) firms selected
shall select a third experienced investment banking firm which shall, within
thirty (30) days after selection, determine the Fair Market Value of the Common
Stock. Fair Market Value shall be the amount which the selected firm determines
would be paid per share by a third party to acquire the stock of the
Corporation proposed to be sold, assuming the payment of the purchase price in
cash at closing, pursuant to open and competitive bidding conducted by a
knowledgeable and experienced investment banking firm, assuming complete
cooperation by management, with appropriate reduction for the fact that the
Common Stock being valued constitutes a minority interest and that there is no
public market for such stock. In the event the investment banking firm selected
provides a range of values as opposed to a single value, the Fair Market Value
shall be the median of the range of values. The report of Fair Market Value
shall be deemed the Fair Market Value Report. The cost of any determination of
Fair Market Value shall be borne equally by the Corporation and the disposing
party.
ARTICLE VI
Closing
-------
The closing of any purchase of Common Stock pursuant to this Agreement (a
"Closing"), shall be made as follows:
(a) Unless otherwise agreed upon in writing by the Stockholder
(or his Legal Representatives, as the case may be) and the
Corporation, a Closing shall take place in the principal
executive offices of the Corporation at eleven o'clock in the
morning on the fifteenth (15th) business day after the later
of (i) the full exercise of their respective options, or ii)
receipt by the Corporation of the Book Value or Fair Market
Value Report, if required; provided, however that this period of
time may be changed if approved by the Corporation in order to
provide reasonable time in which to obtain the approval or
consent, if any, required from third parties as set forth in
Section 1.1(c) or for other reasons.
(b) The Stockholder shall deliver to the purchaser at the
Closing the certificates representing his shares of Common
Stock, free and clear of any and all liens and encumbrances
whatsoever (and shall deliver a written warranty and
representation to such effect), and duly endorsed for transfer
to each purchaser or accompanied by stock powers duly endorsed
for transfer to such purchaser, together with all applicable
stock transfer tax stamps affixed or payment provided therefor
and such other documents as may be necessary to effectuate the
transfer, against delivery of a check drawn in an amount equal
to the applicable purchase price or the terms and conditions of
a third party offer, as the case may be. In the event that
Common Stock is to be sold by Legal Representatives of a
deceased Stockholder, the estate shall obtain or cause to be
obtained state tax waivers, if necessary, and shall execute any
and all necessary documents required to carry out the terms of
this Agreement.
(c) In the event that a Stockholder sells his Common Stock to a
purchaser who would not otherwise be bound by this Agreement,
such purchaser, as a condition to his purchase, shall agree to
be bound by the terms of this Agreement. The Corporation and the
Stockholders agree that upon the request of such purchaser, the
Corporation and the Stockholders shall cause the issuance to
such purchaser of certificates of Common Stock equal to the
number of shares of Common Stock so purchased. Prior to any sale
to a purchaser who is not a Stockholder of the
-6-
Corporation, the Selling Stockholder, purchaser or transferee
Stockholder, as the case may be, must satisfy counsel to the
Corporation that the proposed sale of his Common Stock will not
violate (i) the Securities Act (or any similar federal statute
then in effect) or any of the rules and regulations promulgated
thereunder; and (ii) any applicable state securities laws.
ARTICLE VII
Legend on Certificates
----------------------
The Stockholders and the Corporation agree to cause a legend in the form set
forth below, to be conspicuously noted on the face or reverse of all
certificates representing Common Stock presently owned by the Stockholders or
which may hereafter be issued during the term of this Agreement:
This Certificate and all rights thereby represented are subject
to all of the terms, provisions and conditions of a certain
Stockholder Agreement made and entered into the 15th day of
September, 1997, and any amendments thereto, by and among this
Corporation and certain of its Stockholders, and may not be
sold, assigned, transferred, pledged, hypothecated or in any
manner whatsoever disposed of or encumbered except in accordance
with the terms and provisions of said agreement, a copy of which
is on file and available for inspection at the office of the
Corporation.
The Corporation and the Stockholders will use their best efforts to prevent
the issuance by the Corporation of any Common Stock, unless the foregoing
legend shall be conspicuously noted on the certificate. Any person who in the
future owns shares of Common Stock, as a condition to the receipt of such
stock, must agree to be bound by and to execute this Agreement. A copy of this
Agreement shall at all times be kept in the principal office of the
Corporation.
ARTICLE VIII
Term of Agreement
-----------------
This Agreement and all restrictions on the shares of Common Stock created
hereby shall commence on the date hereof and shall terminate on the occurrence
of any of the following events:
(a) A single Stockholder becoming the owner of all of the
outstanding Common Stock which is then subject to this
Agreement;
(b) A public offering of the Common Stock of the Corporation
pursuant to a registration statement declared effective under
the Securities Act;
(c) The execution of a written instrument by the Corporation and
all persons who then own shares subject to this Agreement which
terminates the same;
(d) The liquidation and dissolution of the Corporation.
-7-
ARTICLE IX
Specific Performance
--------------------
Due to the fact that the Common Stock cannot be readily purchased or sold in
the open market, and for other reasons, the parties will be irreparably damaged
in the event that this Agreement is not specifically enforced. In the event of
a breach or threatened breach of the terms, covenants and/or conditions of this
Agreement by any of the parties hereto, the other parties shall, in addition to
all other remedies, be entitled to a temporary or permanent injunction, without
showing any actual damage, and/or a decree for specific performance in
accordance with the provisions hereof.
ARTICLE X
Miscellaneous
-------------
10.1 Further Executions. The parties hereto shall each execute and deliver
------------------
or cause to be executed and delivered to the others such further instruments
and documents and shall take such other action as may be reasonably required to
more effectively carry out the intent and purposes of this Agreement and the
transactions contemplated hereby. Notwithstanding the foregoing, the
Stockholders agree to enter into the Existing Agreement if requested to do so
by the Corporation.
10.2. Binding on Successors. This Agreement shall be binding upon and inure
----------------------
to the benefit of the Corporation and its successors and the Stockholders and
their Legal Representatives and successors. The Corporation may assign all of
its rights hereunder. The Stockholders, by the signing hereof, direct their
Legal Representatives, where applicable, to open their estates promptly in the
courts of proper jurisdiction and to execute, procure and deliver all documents
including, but not limited to, appropriate court orders, letters testamentary
or letters of administration and estate and inheritance tax waivers, as shall
be required to effectuate the purposes of this Agreement. Except as otherwise
expressly provided herein, nothing contained herein shall confer or is intended
to confer on and, third party or entity which is not a party to this Agreement
any rights under this Agreement.
10.3. Additional Shares. Except as otherwise provided, this Agreement shall
------------------
apply to all stock of any class issued by the Corporation to Stockholders
hereafter and the Corporation and each Stockholder agree that all such stock
shall contain the appropriate legend reflecting same.
10.4. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties relating to the subject master hereof. This Agreement
cannot be changed or terminated orally. This Agreement may be amended, the
parties may take any action herein prohibited or omit to take action herein
required to be performed by them, and any breach of or compliance with any
covenant, agreement, warranty or representation may be waived, only if the
written consent or waiver is obtained of Stockholders holding not less than
two-thirds of the outstanding shares of Common Stock of the Corporation;
provided, however, if any such amendment or waiver adversely affects only the
Stockholders (and not all Stockholders equally), the holders of a majority of
the shares of Common Stock owned by the Stockholders must approve such
amendment or waiver. The descriptive headings of the several sections of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
10.5. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to principles of conflicts of law. The parties hereto agree and
intend that the proper and exclusive forum for
-8-
the litigation of any disputes or controversies arising out of, or related to,
this Agreement shall be the courts of the Commonwealth of Massachusetts and of
any Federal Court located in such state. The Corporation and the Stockholders
agree that they will not commence or move to transfer any action or proceeding,
arising out of or relating to this Agreement, in or to any court other than one
located in such state. The Corporation and the Stockholders irrevocably consent
to the service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the parties at the addresses provided herein, such service
to become effective thirty (30) days after such mailing. Nothing contained in
this Section shall affect the right of the Corporation to serve process in any
other manner permitted by law or commence legal proceedings or otherwise
proceed against the other parties in any other jurisdiction. In the event that
any Stockholder should commence or maintain any action arising out of or
related to this Agreement in a forum other than the courts of the Commonwealth
of Massachusetts, the Corporation shall be entitled to request the dismissal of
such action, and the Corporation and the Stockholders stipulate that such
action shall be dismissed.
10.6. Severability. In the event that any one or more of the provisions of
-------------
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement and this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein.
10.7. Notices. All notices, statements and other communications provided for
--------
by this Agreement shall be in writing and shall be deemed to have been given
when actually delivered to the party to which notice is given when hand
deliver, when received if sent by telecopier or by same day or overnight
recognized commercial courier service or when mailed postage paid by registered
or certified mail, return receipt requested, addressed to the party to which
notice is given at its address on file with the Corporation or at its address
set forth in a notice given by such party in accordance with the provisions
hereof; provided, however, that any notice of change of address shall be
effective only upon receipt.
10.8. Waivers. A waiver on the part of any of the parties hereto of any
-------
term, provision or condition of this Agreement or breach thereof shall not
constitute a precedent, nor bind any party hereto to a waiver of any other
term, provision or condition of this Agreement or any other or succeeding
breach of the same or any other term, provision or condition hereof.
10.9. Pronouns. Whenever the context requires, the use in this Agreement of
--------
a pronoun of any gender shall be deemed to refer also to any other gender, and
the use of the singular shall be deemed to refer also to the plural.
10.10. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original but all of which shall be
deemed one and the same instrument.
10.11 Certain Votes. Each Stockholder hereby agrees to cast his or her vote
--------------
as Xxxxxxxx X. Xxxxxxxx or such other individual who shall become the Operating
Principal for the Corporation (as defined in any and all Franchise Agreements
and Development Agreements between Xxxxxxx International, Inc., the Corporation
and certain other parties, as such Agreements may be amended from time to time)
shall direct, in the event (and only in the event) that the Stockholders are
entitled to cast votes on a matter relating to action which the Corporation is
required to take or omit to take under the express terms of any such Agreement.
-9-
Stockholder Agreement
---------------------
Signature Page
--------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
NE RESTAURANT COMPANY, INC.
By:
----------------------------------
Xxxxxxxx X. Xxxxxxxx
Chairman and Treasurer
Corporate Seal
ATTEST:
-----------------------------
Xxxx Xxxxxxx, Clerk
NAME AND ADDRESS OF STOCKHOLDER
---------------------------------
Address (please print):
---------------------------------
---------------------------------
---------------------------------
---------------------------------
-10-
