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EXHIBIT 9.1
COMMON STOCK VOTING TRUST AND TRANSFER AGREEMENT
COMMON STOCK VOTING TRUST AND TRANSFER AGREEMENT (the "Agreement"),
dated as of February 24, 1998, among the stockholders named on
Schedule I hereto (individually, a "Stockholder" and collectively, the
"Stockholders") as holders of shares of common stock, par value $.01 per share
(the "Common Stock"), of American Restaurant Group, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxxxxx, as voting trustee (in such capacity and
his successor(s) in such capacity being referred to as the "Trustee") in the
voting trust created hereunder.
WHEREAS, the Stockholders are the owners of shares of Common Stock
and desire to (i) grant to the Trustee the right to vote their shares of Common
Stock, (ii) to create a voting trust in respect of all of such shares and any
additional shares of Common Stock hereafter acquired by the Stockholders during
the term of this Agreement, (iii) limit the free disposition of such shares of
Common Stock by the Stockholder and such Stockholder's permitted transferees for
designated periods and (iv) provide Xxxxx X. Xxxxxxx (together with his
successors, "Xxxxxxx") (and Xxxxxxx'x designees) under certain circumstances
described herein, with the option to acquire the shares of Common Stock at a
price determined in a designated manner applicable to the particular
circumstances, all upon the terms hereinafter provided.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Stockholders, the Company (for the purposes of
paragraphs 10 and 13 hereof) and the Trustee hereby agree as follows:
1. Transfer of Stock to Trustee. Each of the Stockholders agrees
that by executing this Agreement, it is subjecting such Stockholder's shares of
Common Stock to the voting trust described herein and the other terms and
conditions of this Agreement. Each Stockholder who shall become a party to this
Agreement subsequent to the date hereof agrees that by executing this Agreement
such Stockholder subjects its shares of Common Stock to the voting trust
described herein and to the other terms and conditions of this Agreement. Each
Stockholder agrees that such Stockholder will subject any shares of Common Stock
that such Stockholder may acquire from the Company in a transaction not
registered under the Securities Act of 1933, as amended (the "Act"), while this
Agreement shall be in effect, to the voting trust described herein and to the
terms and conditions of this Agreement. The shares of Common Stock subject to
the voting trust and this Agreement are collectively referred to herein as the
"Shares".
2. Creation of Voting Trust; Legends on Share Certificates. There is
hereby created a voting trust with respect to all of the Shares. All
certificates of Shares now issued or in the future are issued which are subject
to this Agreement shall bear an appropriate legend reflecting that the Shares
represented by each such certificate are subject to the terms of this Agreement,
and that any transfer of ownership or voting rights with respect to such Shares
must be made in compliance with this Agreement.
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3. Powers and Duties of Trustee. (a) The Trustee shall have the full
and unqualified right and power in his discretion, as long as any Shares are
subject to the provisions of this Agreement, (i) to vote the Shares either in
person or by proxy, for every purpose for which the Shares may be voted
according to the Company's Certificate of Incorporation, or to give written
consent in lieu of voting thereon to any corporate act of the Company
(including, without limitation, the election of the directors of the Company who
may be elected by holders of the Shares, any amendment or amendments of the
Certificate of Incorporation of the Company, the merger or consolidation of the
Company into or with any other corporation or corporations, the sale of all or
any part of the assets of the Company and the liquidation or dissolution of the
Company), (ii) to waive notice of any regular or special meeting of stockholders
of the Company, (iii) to call meetings of stockholders, (iv) to subject the
voting of the Shares to the terms of any stockholder agreement with other
stockholders of the Company and (v) to exercise all stockholders' rights and
powers with respect to the Shares; provided, however, that if the Company shall
be party to a merger, consolidation or other transaction as the result of which
the holders of its Common Stock are entitled by law to surrender their shares of
stock and receive in exchange therefor the fair market value thereof, the
Trustee will, as soon as he is notified by the Company of the existence of such
rights, notify the Stockholders of the transaction and of the existence of such
rights and take appropriate steps to perfect and preserve such rights for those
of the Stockholders who desire to exercise the same. The right to vote the
Shares and the manner of voting them shall be determined by the Trustee in his
sole discretion.
(b) Nothing herein contained shall disqualify the Trustee from
serving as such if he does any of the following, nor shall anyone serving in
such capacity be incapacitated from doing any of the following: (i) dealing or
contracting with the Company or any of its affiliates, either as a vendor, or
purchaser, or (ii) serving the Company or any of its affiliates as an officer or
director, or in any other capacity, and receiving compensation therefor.
4. Dividends and Distributions. All dividends on and distributions
in respect of any of the Shares (other than dividends, distributions or other
payments made in shares of any voting stock of the Company) shall be paid to the
Stockholders. Dividends, distributions or other payments made in shares of any
voting stock of the Company shall be subject to the voting trust described
herein and the other terms and conditions of this Agreement.
5. Transfer of Shares. (a) No Stockholder shall, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of (herein a "Transfer") any of the Shares or any beneficial interest in
any of the Shares, and no such Transfer shall be valid or effective, unless such
Transfer is made subject to the terms of this Agreement and the transferee of
such Restricted Shares agrees in writing to be bound by the provisions of this
Agreement.
(b) If the Stockholder receives a bona fide offer to purchase any or
all of the Shares held by him from a third party for cash consideration (any
such offer to purchase being referred to herein as an "Offer" and any such third
party making an Offer being referred to herein as an "Offeror") and the
Stockholder wishes to accept such Offer, the Stockholder shall cause the Offer
to be reduced to writing and shall notify Xxxxxxx in writing
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of his wish to accept the Offer and otherwise comply with the provisions of this
Section. The Stockholder's notice shall contain an irrevocable offer to sell
such Shares to Xxxxxxx (in the manner set forth below) at a purchase price equal
to the price contained in and on the same terms and conditions of, the Offer and
shall be accompanied by a true copy of the Offer (which shall identify the
Offeror). At any time within 30 days after the date of the receipt by Xxxxxxx of
the Stockholder's notice, Xxxxxxx may give notice of his election to purchase
(or to have his designee purchase) all of the Shares covered by the Offer and 10
days after the giving of such notice, Xxxxxxx (or his designee) shall have the
right and option to purchase all of the Shares covered by the Offer at the same
price and on the same terms and conditions as the Offer by delivering a
certified bank check or checks in the appropriate amount to the Stockholder
against delivery of certificates representing the Shares so purchased,
appropriately endorsed by the Stockholder. If at the end of a 30-day period
following the giving of such notice by Xxxxxxx, Xxxxxxx has not tendered the
purchase price for such Shares in the manner set forth above, the Stockholder
may during the succeeding 45-day period sell not less than all of the Shares
covered by the Offer to the Offeror on terms no less favorable to the
Stockholder than those contained in the Offer. No sale may be made to any
Offeror unless the Offeror agrees in writing with Xxxxxxx to be bound by the
provisions of this Agreement. Promptly after such sale, the Stockholder shall
notify Xxxxxxx of the consummation thereof and shall furnish such evidence of
the completion and time of completion of such sale and of the terms thereof as
may reasonably be requested by Xxxxxxx. If, within 45 days following the
expiration of the 30-day period for Xxxxxxx to give notice of his intention to
purchase the Shares as set forth in this paragraph, the Stockholder has not
completed the sale of such Shares pursuant to the Offer as aforesaid, all the
restrictions on Transfer contained in this Agreement shall again be in effect
with respect to such Shares.
(c) If Xxxxxxx is entitled to purchase Shares pursuant to an Offer,
Xxxxxxx may designate a third party to purchase such Shares.
(d) The restrictions on Transfer set forth in this Section 5,
including without limitation, the Stockholder's obligation pursuant to paragraph
(b) above to give Xxxxxxx a right of first refusal prior to selling its Shares,
shall automatically terminate with respect to Shares upon the closing of a
Public Offering of Common Stock.
(e) As used herein, the term "Public Offering" shall mean a public
offering by the Company of shares of Common Stock held by Xxxxx Xxxxxxx (or if
Xxxxx Xxxxxxx is no longer the Chairman of the Board of Directors and Chief
Executive Officer of the Company, his successor in such capacity) pursuant to a
registration statement (other than with respect to an employee benefit plan)
effective under the Act.
6. Options Effective Upon the Termination of Employment of the
Stockholder. (a) If, at any time prior to the earlier of August 15, 2005 or the
closing of a Public Offering of Common Stock, the Stockholder's active
employment with the Company is voluntarily or involuntarily terminated by the
Company or the Stockholder for any reason whatsoever (including by reason of
death or Disability), Xxxxxxx (or his designee) shall have the option (any such
option being referred to herein as a "Call"), subject to the terms and
conditions hereof, to acquire not less than all of the Shares of the
Stockholder. Xxxxxxx shall give the
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Stockholder written notice within 90 days of the date of the Stockholder's
termination of employment of his intention to exercise his Call. The purchase
price to be paid for the Shares to be purchased pursuant to the Call shall be
determined in accordance with the provisions of Section 7(a) hereof. The closing
of the purchase pursuant to the Call shall take place at the principal office of
the Company on a business day designated by Xxxxxxx which shall be no later than
90 days following the date on which Xxxxxxx gave the Stockholder notice of his
intention to exercise the Call (or, if applicable, such later date as the Fair
Market Value of the Stock subject to the Call shall have been determined in
accordance with the definition thereof in Section 7(d)). The purchase price
shall be paid by delivering a certified or official bank check or checks to the
Stockholder, against delivery of certificates representing the Shares so
purchased, appropriately endorsed by the Stockholder.
(b) If Xxxxxxx is entitled to purchase Shares pursuant to a Call,
Xxxxxxx may designate a third party to purchase such Shares.
7. Purchase Price. (a) The purchase price (which shall be determined
on the date the Call is exercised) for any Shares purchased by Xxxxxxx pursuant
to Section 6 shall be the greater of (x) Stockholder Cost, (y) Adjusted Book
Value and (z) Fair Market Value.
(b) Xxxxxxx may satisfy his obligation to make any payments
hereunder, including payments for the purchase of Shares upon the exercise of
any Call or otherwise hereunder, with cash or by certified or bank check.
(c) As used in this paragraph 7, the term "Adjusted Book Value" of a
Share shall mean, as of any date of determination, (i) the consolidated book
value of the Company applicable to the Company's Common Stock on such date as
determined in accordance with generally accepted accounting principles divided
by (ii) the number of outstanding shares of Common Stock plus the number of
shares of Common Stock issuable in respect of outstanding options, warrants and
convertible securities but such shares shall only be added if including shares
relating to any option, warrant or convertible security would cause the Adjusted
Book Value of a Share to decrease after adding to the amount in clause (i) the
aggregate exercise or conversion price per share of Common Stock, as the case
may be, of any such option, warrant or convertible security, which amount shall
be added to the amount in clause (i) to the extent such warrant, option or
convertible security is so included.
(d) As used herein, the term "Fair Market Value" of a Share means,
as of any date of determination, (i) the average of the daily market prices
(determined as set forth in the next sentence) for a share of Common Stock, if
any, for 30 consecutive business days commencing 45 business days before such
date or (ii) if no such market exists, the fair market value of a share of
Common Stock as determined by an opinion of an investment banking firm
reasonably acceptable to the Company. The market price for each such business
day shall be the average of the last sale prices on such date on all domestic
stock exchanges on which the Common Stock may then be listed, or, if no sale
takes place on such day on any such exchange, the average of the closing bid and
asked prices on such day as officially quoted on such exchanges, or, if the
Common Stock is not then listed or admitted to trading on any domestic stock
exchange, the last sale price on the National Association of Securities
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Dealers Automatic Quotation Systems ("NASDAQ") market, or, if the Common Stock
is not then listed on the NASDAQ market, the market price for each such business
day shall be the average of the reported bid and asked prices on such day in the
over-the-counter market, as furnished by the National Quotation Bureau, Inc.,
or, if such firm at the time is not engaged in the business of reporting such
prices, as furnished by any similar firm then engaged in such business and
selected by the Company or, if there is no such firm, as furnished by any member
of the National Association of Securities Dealers, Inc., selected by the
Company.
(e) As used in this paragraph 7, the term "Stockholder Cost" shall
mean the purchase price paid by the Stockholder for such Shares.
8. Termination. Upon the earlier of (i) August 15, 2005 or (ii) the
date on which there shall have been no Trustee in office and no successor
Trustee elected or serving for a period of 120 days in accordance with paragraph
11 hereof, this Agreement shall terminate and be of no further force and effect.
9. Merger, Dissolution or Liquidation. If the Company shall merge
into or be consolidated with another Company or substantially all of the assets
of the Company should be transferred to another corporation, and such other
corporation is a subsidiary or affiliate of the Company, this Agreement shall
continue in effect and the term "Company" shall be deemed to refer to such
successor corporation, and each Stockholder shall hold in accordance with this
Agreement any securities received by him from such successor corporation on
account of his ownership of the Shares and subject such securities to the voting
trust described herein.
10. Compensation of Trustee. The Trustee shall not be entitled to
any compensation for services rendered as such but shall be entitled to
reimbursement as hereinafter set forth for reasonable expenses and charges which
may be incurred as Trustee, including but not limited to the employment of such
agents, attorneys and counsel as the Trustee may deem necessary and proper for
the carrying out of this Agreement, and all taxes or other governmental charges
actually paid as a result of the transfer or issuance of any Common Stock or in
respect of any dividends, distributions or other rights in respect of such
stock. Any such charges or expenses incurred shall be reimbursed to the Trustee
by the Company.
11. Trustee. (a) The Trustee may resign at any time by mailing to
the Company and to each of the registered holders of Shares a written
resignation to take effect twenty days thereafter or upon the prior acceptance
thereof. The Trustee shall have the right to designate a successor trustee to
succeed him effective upon his resignation by notice in writing sent by
certified mail, return receipt requested, to the Company and to each of the
registered holders of the Shares. Such successor trustee shall, by acceptance of
such trust, become party hereto with like effect as though an original party
hereto and shall be deemed to be the Trustee hereunder.
(b) Upon the death or other incapacity of the Trustee or his
inability or refusal to serve hereunder or his resignation without designating a
successor Trustee, Xxxxx X.
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Xxxxxxx, or his designee, shall be the Trustee. If for any reason whatsoever
there is no Trustee hereunder and Xxxxx X. Xxxxxxx is not willing or able to
serve as Trustee, then the Stockholders holding a beneficial interest in a
majority of the Shares shall designate the Trustee.
12. Amendment. This Agreement may be amended from time to time by a
written instrument executed by the Trustee and Stockholders (or their
successors) holding a beneficial interest in at least 66-2/3% of the Shares held
by all Stockholders, provided that any amendment to the first sentence of
paragraph 4 hereof and any amendment which extends the date on which this
agreement shall terminate pursuant to paragraph 8 hereof shall require the
consent of the Trustee and each of the Stockholders (or his successor). Upon any
Transfer, pursuant to paragraphs 5(a) and 5(c) hereof, by a Stockholder of his
beneficial interest in Restricted Shares, the transferee of such beneficial
interest and the Trustee shall execute a supplement hereto by which such
transferee agrees to be bound by the terms of this Agreement, and from and after
the execution of such supplement the transferee shall be deemed to be a
Stockholder.
13. Liability of Trustee. The Trustee shall not be liable by reason
of any matter arising out of or in relation to this Agreement, except for such
loss or damage as the holders of Shares may suffer by reason of the Trustee's
willful misconduct, and, without limiting the foregoing, the Trustee shall not
be liable for any action taken, or omitted to be taken, by him in reliance upon
and in conformity with, the advice of counsel. The Trustee shall be indemnified
and held harmless by the Company from and against any and all liabilities,
costs, claims, suits and proceedings (including reasonable attorneys' fees)
arising out of the Trustee's actions pursuant to this Agreement, except for such
Trustee's willful misconduct. The Trustee shall not be required to give a bond
or other security for the faithful performance of his duties as such.
14. Benefits. This agreement shall inure to the benefit of and be
binding upon the Trustee and each of the Stockholders and their respective
heirs, legal representatives, successors and assigns.
15. Construction of Agreement. The Trustee is authorized and
empowered to construe this Agreement, and his construction of the same in good
faith shall be final, conclusive and binding upon him, the Stockholders and any
other interested party.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Notices. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid:
(a) if the Trustee, to him in care of:
American Restaurant Group, Inc.
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000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
(b) if to a Stockholder, to him at the address set forth below his
signature to the Common Stock Subscription Agreement between such
Stockholder and the Company or at such other address as any party hereto
shall have specified by notice in writing to the other parties hereto.
18. Counterparts. This Agreement may be executed in any number of
counterparts, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Common
Stock Voting Trust and Transfer Agreement as of the date first written above.
/s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Trustee
STOCKHOLDERS:
/s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/Xxxx Xxxxx Xxxxxxx
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Xxxx Xxxxx Xxxxxxx
/s/Xxxxx X. Xxxxxxx
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Xxxxxxx Family Limited Partnership
By: Xxxxx X. Xxxxxxx
/s/Xxxxxxx X. XxXxxxxxx, Xx.
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Xxxxxxx X. XxXxxxxxx, Xx.
/s/Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
/s/Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
For purposes of paragraphs 10 and 13
hereof, accepted and agreed to as of the
day and year first above written.
AMERICAN RESTAURANT GROUP, INC.
By: /s/Xxxxxxx X. XxXxxxxxx, Xx.
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Title: V.P. & Chief Financial Officer
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Schedule I
Stockholders Number of Initial Shares
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Xxxxx X. Xxxxxxx
Xxxxxxx Family Limited Partnership
Xxxxxxx X. XxXxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
