EXHIBIT 9.1
VOTING TRUST AGREEMENT
THIS IS A VOTING TRUST AGREEMENT, dated as of September 30, 1997,
among the entities and individuals listed on Exhibit A attached hereto
(individually, a "Shareholder" and collectively, the "Shareholders"), and Xxxxxx
0. Xxxxxx XX and Xxxxxxx X. Xxxxxxx, and their successors appointed as provided
in this Agreement, as Voting Trustees (the "Voting Trustees").
Background
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A. California Pizza Kitchen, Inc., a California corporation (the
"Company"), is duly organized and validly existing under the laws of the State
of California. Pursuant to an Agreement and Plan of Merger, dated as of July 1,
1997, as amended (the "Merger Agreement"), among the Company, Bruckmann, Xxxxxx,
Xxxxxxxx & Co., L.P. ("BRS"), C.P. Kitchen Acquisition Corp., CPK Acquisition
Corp. and Xxxxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxx, the Shareholders will acquire
an aggregate of 1,887,200 shares of Class A Common Stock, par value $.01 per
share ("Class A Common Stock"), or Class B Common Stock, par value $.01 per
share ("Class B Common Stock" and, together with Class A Common Stock, "Common
Stock"), of the Company.
B. The Voting Trustees are representatives of BRS.
C. In consideration of the premises and of the mutual undertakings of the
parties hereinafter set forth, a voting trust (the "Trust") in respect of the
shares of Common Stock of the Company owned by the Shareholders is hereby
created and established, subject to the following terms and conditions, to all
and every one of which the parties hereto expressly assent and agree.
Terms
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In consideration of the mutual agreements contained herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Deposit of Common Stock.
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(a) Transfer of Shares. Each Shareholder agrees that, immediately
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following the merger contemplated under the Merger Agreement, he or it will
transfer and assign, or cause to be transferred and assigned, to the Voting
Trustees all of the shares of Common Stock of the Company then owned by him or
it (the "Shares") and will deposit or cause to be deposited hereunder, with the
Voting Trustees, the certificates for such Shares, all of which certificates, if
not registered in the name of the Voting Trustees at the time of such deposit,
shall be duly endorsed in blank or accompanied by proper instruments of
assignment and transfer thereof duly executed in blank.
(b) All Shares of Common Stock. The provisions of this Agreement shall
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apply to any and all shares of Common Stock of the Company that (i) may be
issued in respect of, in exchange for, or in substitution of any Shares
transferred to the Voting Trustees pursuant to
paragraph (a) hereof, or (ii) are hereafter acquired by any Shareholder at any
time, whether upon exercise of options, warrants or rights or upon conversion of
securities or otherwise, and each Shareholder agrees that until the termination
of this Agreement, no shares of Common Stock of the Company shall be held by
such Shareholder, but all such shares shall be deposited with the Voting
Trustees in accordance with the terms and conditions of this Agreement.
2. Voting Trust Certificates.
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(a) Issue of Certificates. The Voting Trustees shall from time to
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time issue to each Shareholder, with respect to the shares of Common Stock of
the Company owned by such Shareholder and so deposited hereunder, a Voting Trust
Certificate or Voting Trust Certificates, each in the form of Exhibit B hereto,
for the number of shares of Common Stock equal to that deposited hereunder by
such Shareholder, which Certificate(s) shall refer to the provisions of this
Agreement and be registered on the books of the Trust in such Shareholder's
name.
(b) Transfer of Certificates. No Shareholder shall, directly or
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indirectly, except pursuant to the terms of this Agreement and the Securities
Holders Agreement, dated as of the date hereof (the "Securities Purchase
Agreement"), among the Company, BRS, Xxxxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxx,
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition ("Transfer") of, any or all of such
Shareholder's Shares or any interest therein or any Voting Trust Certificates or
interest therein; provided, however, that in any event no Shareholder shall
Transfer any Shares or Voting Trust Certificates unless the transferee is a
signatory to this Agreement or the transferee executes an instrument reasonably
satisfactory to the Voting Trustees whereby such transferee becomes a signatory
to, and bound by, this Agreement.
3. Replacement of Certificates.
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(a) Issue of Replacement Certificates. In case any Voting Trust
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Certificate shall be mutilated, lost, destroyed or stolen, the Voting Trustees
may issue and deliver in exchange therefor and upon cancellation of the
mutilated Voting Trust Certificate, or in lieu of the lost, destroyed or stolen
Voting Trust Certificate, a new Voting Trust Certificate or Voting Trust
Certificates representing a like number of shares of Common Stock, upon the
production of evidence of such loss, destruction or theft, satisfactory to the
Voting Trustees, and upon receipt of an indemnity satisfactory to the Voting
Trustees, and upon compliance also with such other reasonable conditions as the
Voting Trustees may prescribe.
4. Certificates for Securities held by Voting Trustees.
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(a) Surrender of Certificates. The certificates for Common Stock of
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the Company deposited with the Voting Trustees shall, if not registered in the
name of the Voting Trustees at the time of deposit, be surrendered to the
Company and cancelled and new certificates therefor issued to and in the name of
the Voting Trustees. Notation shall be made on the face of all certificates
issued in the name of the Voting Trustees that they are issued pursuant
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to this Agreement, and such fact shall also be noted in the records of stock
ownership of the Company.
(b) Securities Held in Trust. All shares of Common Stock deposited
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with the Voting Trustees hereunder shall be held in trust for the Shareholders
and their respective heirs, executors, administrators and assigns, and used and
applied by the Voting Trustees and its successors in office for the purposes of
and in accordance with this Agreement and shall remain subject to the Securities
Purchase Agreement.
(c) Transfer of Shares. The Voting Trustees may cause any shares of
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Common Stock at any time held by them under this Agreement to be transferred to
any name or names other than the name of the Voting Trustees herein named, if
such transfer becomes necessary by reason of any change in the person holding
the office of Voting Trustees as hereinafter provided.
5. Dividends: Subscription Rights.
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(a) Dividends. The Company is hereby authorized and directed, and the
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Company hereby agrees, to pay all distributions and dividends that are paid in
cash, stock (other than voting stock) or other property directly to the
registered holder of the Voting Trust Certificate evidencing the shares of
Common Stock of the Company on which such distributions or dividends are
declared. All shares of voting stock issued as dividends on shares of Common
Stock of the Company that are subject to this Agreement shall also be subject to
this Agreement. The stock certificates for such shares shall be issued in the
name of and delivered to the Voting Trustees to be held hereunder, subject to
all of the provisions hereof, and the Voting Trustees shall issue additional
Voting Trust Certificates in respect of such shares to the Shareholders entitled
thereto.
(b) Distributions of Capital Stock. In case the Company shall at any
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time issue any stock or other securities to which the holders of the capital
stock of the Company shall be entitled to subscribe by way of preemptive right
or otherwise, or any Shareholder shall be otherwise entitled to purchase any
shares of capital stock of the Company, the Voting Trustees shall promptly give
notice of such right so to subscribe or purchase and of the terms thereof to
such Shareholder at his or its address registered with the Voting Trustees; and
such Shareholder upon providing the Voting Trustees with funds in the requisite
amount, shall have the right, subject to such reasonable regulations as may be
prescribed by the Voting Trustees, to instruct the Voting Trustees to subscribe
for or purchase such stock or other securities, or any part thereof; and to the
extent that such Shareholder shall fail to exercise such rights the Voting
Trustees shall be entitled, in their absolute discretion, to permit such rights
so to subscribe or purchase to lapse. Upon receiving proper instructions in
writing, the Voting Trustees shall subscribe for or purchase such stock or other
securities (but only out of funds provided by such Shareholder for the purpose)
and shall distribute the same to such Shareholder, except that any shares of
voting stock of the Company, when so subscribed for or purchased and received by
the Voting Trustees, shall not be distributed but shall be held hereunder,
subject to all the provisions hereof, and the Voting Trustees shall issue new or
additional Voting Trust Certificates in respect of such shares to such
Shareholder.
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6. Actions by Voting Trustees.
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(a) Proxy. A proxy may not be given with respect to the shares
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of stock subject hereto to any person other than the Voting Trustees, unless the
Voting Trustees consent in writing to such proxy.
(b) Agents. The Voting Trustees may at any time or from time to
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time appoint an agent or agents and may delegate to such agent or agents the
performance of any administrative duty of the Voting Trustees, including,
without limitation, the appointment of a domestic bank or other institution to
act as custodian of the shares of Common Stock of the Company held by it
hereunder. The fees of such agent or agents shall constitute an expense of the
Voting Trustees.
7. Liability of Voting Trustees: Indemnification.
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(a) No Liability. The Voting Trustees assume no liability as a
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shareholder, their interest hereunder being that of trustee only. In voting the
stock represented by the stock certificates deposited hereunder (which they may
do either in person or by proxy as aforesaid), the Voting Trustees will vote and
act in all matters in accordance with their good faith judgment and the terms of
this Agreement; but they assume no responsibility or liability in respect of any
action taken by them or taken in pursuance of their vote so cast, and the Voting
Trustees shall not incur any responsibility or liability as trustee or otherwise
by reason of any error of fact or law, mistake of judgment, or of any matter or
thing done or suffered or omitted to be done under this Agreement, except for
their own individual willful misconduct.
(b) Agents. The Voting Trustees shall not be answerable for the
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default or misconduct of any agent or attorney appointed by them in pursuance
hereof if such agent or attorney shall have been selected with reasonable care.
(c) Expenses. The Voting Trustees shall not be entitled to any
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compensation for their services hereunder.
(d) Indemnity. The Shareholders hereby jointly and severally
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agree that they will at all times protect, indemnify and save harmless the
Voting Trustees from any loss, cost or expense of any kind or character
whatsoever incurred in connection with this Trust except those, if any, arising
from the willful misconduct of the Voting Trustees, and will at all times
themselves undertake, assume full responsibility for, and pay all costs and
expenses of any suit or litigation of any character, including any proceedings
before any governmental agency, with respect to the Shares of Common Stock or
this Agreement and, if the Voting Trustees shall be made a party thereto, the
shareholders will pay all costs and expenses, including counsel fees, to which
the Voting Trustees may be subject by reason thereof. The Voting Trustees may
consult with counsel and other advisors, and the opinions of such counsel and
advisors shall be full and complete authorization and protection in respect of
any action taken or omitted or suffered by the Voting Trustees hereunder in good
faith and in accordance with such opinions.
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(e) Notwithstanding any other provision hereof, the provisions of
this Section 7 shall survive the termination of this Agreement.
8. Voting Discretion.
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(a) Voting Discretion. Except as otherwise provided herein, until the
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termination of this Agreement and the actual delivery to the Shareholders of
certificates for shares of Common Stock in exchange for Voting Trust
Certificates hereunder, the Voting Trustees shall possess and shall be entitled
in their discretion, not subject to any review, to exercise in person or by
proxy, in respect of any and all shares of Common Stock at any time deposited
under this Agreement, all rights and powers of every name and nature, including
the right to vote thereon or to consent to any and every act of the Company, in
the same manner and to the same extent as if the Voting Trustees were the
absolute owner of such stock in their own right.
(b) Permitted Actions. Without limiting the generality of the
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foregoing paragraph (a), the Voting Trustees are, among other things,
specifically authorized to vote for, consent to or authorize any of the
following:
(i) the election, removal or replacement of directors of the
Company,
(ii) the sale or disposal in the normal course of business of
any part or parts of the property, assets or business of the Company;
(iii) any changes or amendments in or to the Articles of
Incorporation or Bylaws of the Company;
(iv) any loans to officers, directors or shareholders of the
Company;
(v) any indemnification of officers, directors or agents of
the Company;
(vi) the entering into or submitting of a bid in connection
with the negotiation of or application for any contract that the Company may not
enter into or submit without the approval of the shareholders;
(vii) any other action that, by the terms of the General
Corporation Law of the State of California or the Articles of Incorporation or
Bylaws of the Company, permits or requires a vote of the holders of the capital
stock of the Company, and
(viii) any action with respect to any of the foregoing that any
shareholder might lawfully take.
9. Termination of this Agreement.
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(a) Termination. This Agreement shall terminate with respect to any
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shares of Common Stock of the Company (i) as to which a registration statement
shall have been filed
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pursuant to the Securities Act promptly upon the effectiveness thereof or (ii)
upon the Voting Trustees' delivery of written notice of termination to the
Shareholders. In addition, this Agreement shall terminate in the event of a sale
by the Company, pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or their successor forms) under the
Securities Act of 1933, as amended, of any stock for gross offering proceeds of
at least $20 million.
(b) Irrevocable. Subject to paragraph (a) hereof, during the term of
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this Agreement, the Trust hereby created shall be irrevocable and no shares of
Common Stock of the Company held by the Voting Trustees pursuant to the terms
of this Agreement shall be transferred to or upon the order of the holder of a
Voting Trust Certificate evidencing the beneficial ownership thereof prior to
the termination of this Agreement.
(c) Termination By Law. Unless terminated sooner (i) pursuant to
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paragraph (a) hereof as to all shares of Common Stock held by the Voting
Trustees, or (ii) by operation of law, this Agreement shall terminate without
any action of or notice by or to the Voting Trustees, the Company or the
Shareholders ten years from the day preceding the date hereof.
10. Delivery of Certificates for Common Stock upon Termination of this
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Agreement.
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(a) Certificates. Upon termination of this Agreement, the Voting
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Trustees, in exchange for and upon surrender of any Voting Trust Certificates
then outstanding, shall, in accordance with the terms hereof, deliver
certificates for shares of Common Stock in the amount called for by such Voting
Trust Certificate and either registered in the name of the holder thereof or
duly endorsed in blank or accompanied by proper instruments of assignment and
transfer thereof duly executed in blank to the holder thereof, and the Voting
Trustees may require the holder of such Voting Trust Certificate to surrender
the same for such exchange.
(b) Obligations of Trustee. After any termination of this Agreement
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as above provided with respect to all shares of Common Stock, and delivery by
the Voting Trustees of any stock or other property then held hereunder in
exchange for outstanding Voting Trust Certificates as provided in this Section
10, all further obligations or duties of the Voting Trustees under this
Agreement or any provision hereof shall cease.
11. Resignation: Successor Trustee.
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The Voting Trustees may resign at any time by providing the Company
and each Shareholder with written notice to such effect. If for any reason
either of Xxxxxx 0. Xxxxxx or Xxxxxxx X. Xxxxxxx shall cease to serve as Voting
Trustees hereunder, his immediate successor in such capacity shall be an officer
of Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc. as is designated by BRS. Each such
successive designated person shall, upon assuming the duties hereunder upon a
vacancy occurring in the office of any of the Voting Trustees, be a Voting
Trustee.
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12. Interests Allowed as Voting Trustees.
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The Voting Trustees may be a creditor or shareholder of the Company
and may act as a director, officer or employee of, or consultant or advisor to,
the Company and receive compensation therefor. In addition, the Voting Trustees
and any firm of which they may be a member, and any of their affiliates, may
contract with the Company or have a pecuniary interest in any matter or
transaction to which the Company may be a party, or in which the Company may be
in any way concerned.
13. Effect of Agreement upon Representatives, Successors and Assigns.
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This Agreement shall inure to the benefit of and be binding upon the
Voting Trustees and each Shareholder and their respective legal representatives,
successors and assigns.
14. Miscellaneous.
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(a) Notices. All notices to be given to the owners of Voting Trust
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Certificates shall be given by mailing the same in a sealed postpaid envelope to
the registered owners of Voting Trust Certificates addressed to their respective
addresses as shown on the books of the Trust, and any notice whatsoever when
mailed by or on behalf of the Voting Trustees to such registered owners of
Voting Trust Certificates as herein provided shall have the same effect as
though personally served on all holders of Voting Trust Certificates. All
notices to be given to the Voting Trustees shall be given by serving a copy
thereof upon them personally or by mailing the same in a sealed postpaid
envelope addressed to them at the address set forth below or to such other
address as they shall from time to time in writing designate.
(b) Filing of Agreement. Until the termination of this Agreement, one
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original counterpart hereof shall be filed with the Secretary of the Company at
the principal office of the Company and such counterpart shall be open to the
inspection of any holder of any Voting Trust Certificate or any shareholder of
the Company daily during business hours.
(c) Amendment. If at any time it is deemed advisable for the parties
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hereto to amend or revoke this Agreement, it may be amended or revoked by an
agreement executed by the Voting Trustees, the Company and the holder or holders
of all of the Voting Trust Certificates.
(d) Acknowledgment of Obligations. The Voting Trustees accept the
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trust created hereby subject to all the terms and conditions herein contained.
(e) Entire Agreement. This Agreement contains the entire agreement
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among the parties hereto and supersedes all prior agreements and understandings,
oral and written, among the parties hereto with respect to the subject matter
hereof.
(f) Section Headings. The section headings contained herein are
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included for convenience of reference only and shall not constitute a part of
this Agreement for any purpose.
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(g) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
(h) Applicable Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York applicable to
contracts to be performed entirely within such State, except to the extent that
the laws of the State of California apply mandatorily hereto.
(i) Severability. Any section, clause, sentence, provision,
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subparagraph or paragraph of this Agreement held by a court of competent
jurisdiction to be invalid, illegal or ineffective shall not impair, invalidate
or nullify the remainder of this Agreement, but the effect thereof shall be
confined to the section, clause, sentence, provision, subparagraph, or paragraph
so held to be invalid, illegal or ineffective.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
VOTING TRUSTEES
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx*
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Xxxxxxx X. Xxxxxxx
Address: c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXX SBIC, L.P.
By Xxxxxx Xxxx SBIC Investments L.L.C.
By /s/ [ILLEGIBLE]
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Name:
Title:
/s/ Xxx X. Xxxxxx
_______________________________
Xxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
_______________________________
Xxxxx X. Xxxxxx
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/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/ H. Xxxxxx Xxxxx III
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H. Xxxxxx Xxxxx III
/s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx, III
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Xxxxxxx X. Xxxxxxxx, III
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/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
GLEACHER IV, L.P.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx Xxxxx
Title: General Partner
*By Xxxxxx X. Xxxxxx, as attorney-in-fact.
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Exhibit A
Shareholders
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Xxxxxx Xxxx SBIC, L.P.
Xxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxx Xxxx
Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxx
Gleacher IV, L.P.
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Exhibit B
THIS VOTING TRUST CERTIFICATE HAS BEEN ISSUED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND NO INTEREST THEREIN MAY BE TRANSFERRED
EXCEPT IN COMPLIANCE, ESTABLISHED TO SATISFACTION OF THE ISSUER, WITH SAID ACT
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER BY THE SECURITIES AND
EXCHANGE COMMISSION.
THIS VOTING TRUST CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT
TO THE PROVISIONS OF A SECURITIES HOLDERS AGREEMENT ON FILE WITH THE COMPANY.
VOTING TRUST CERTIFICATE
CALIFORNIA PIZZA KITCHEN, INC.
No._____
Class:______
Shares:_____
This certificate is evidence that _____________
has deposited _______ ( ) shares of [Class A] Common Stock of California Pizza
Kitchen, Inc., a California corporation (the "Company"), with the Voting
Trustees hereinafter named in accordance with the terms of the Voting Trust
Agreement (the "Agreement") dated as of September __, 1997, among the Company,
each of the Shareholders listed on the signature pages thereof and the person
whose name appears below as Voting Trustees (the "Trustees").
This certificate and the interest represented hereby
is transferable on the books of the Trust only in accordance with the terms of
the Agreement and any holder of this Certificate takes the same subject to all
of the terms and conditions of such Agreement.
IN WITNESS WHEREOF, the Trustees have signed this
certificate as of this ___th day of____________.
VOTING TRUSTEES
__________________________________
Name:
__________________________________
Name:
