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EXHIBIT 10.4.8
STOCKHOLDERS' VOTING AGREEMENT
Stockholders' Voting Agreement, dated as of September 23, 1998, by and
between John Martin ("Martin") and Joseph Teresi ("Teresi").
WHEREAS, Newriders, Inc., a Nevada corporation ("Newriders"), Easyriders,
Inc., a Delaware corporation and wholly-owned subsidiary of Newriders ("Newco
#1"), Easyriders Sub II, Inc., a California corporation and wholly-owned
subsidiary of Newco #1 ("Newco #3"), Teresi and several companies owned by
Teresi (the "Paisano Companies") entered into a stock contribution agreement
(the "Paisano Agreement") whereby Teresi will contribute to Newco #1 all of the
outstanding shares of capital stock of the Paisano Companies in exchange for
6,483,507 shares of common stock of Newco #1, a promissory note of Newco #3 in
the principal amount of $15,000,000 payable at closing, assumption of $7,000,000
of debt and three notes in an aggregate principal amount of $13,000,000 (the
"Teresi Notes"), as part of a transaction described in Section 351 of the
Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, Newriders, Newco #1, William Prather and Marna Prather
(collectively, "Prather"), Martin and M & B Restaurants, L.C., a Delaware
limited liability company, d/b/a El Paso Barbeque Company entered into an LLC
interest contribution agreement (the "El Paso Agreement") whereby Martin and
Prather will contribute to Newco #1 all of their limited liability company
interests in El Paso in exchange for an aggregate of 2,000,000 shares of common
stock of Newco #1, as part of a transaction described in Section 351 of the
Code;
WHEREAS, Newriders, Newco #1 and Easyriders Sub, Inc., a Nevada corporation
and wholly-owned subsidiary of Newco #1 ("Newco #2), will enter into an
Agreement and Plan of Merger and Reorganization (the "Agreement and Plan of
Merger and Reorganization") whereby (i) Newco #2 will merge into Newriders, (ii)
the common stock of Newco #2 held by Newco #1 will be converted into one share
of Newriders common stock (constituting all of the outstanding capital stock of
Newriders) and (iii) the common stock of Newriders not held by Newco #1 will be
converted into common stock of Newco #1 on a one-for-one basis, all as part of a
transaction described in Sections 351, 368(a)(1)(A) and 368(a)(2)(E) of the
Code;
WHEREAS, immediately following consummation of the transactions
contemplated by the Paisano Agreement, the El Paso Agreement and the Agreement
and Plan of Merger and Reorganization, Martin and Teresi will be the beneficial
owners of, and be entitled to vote, approximately 5,132,947 and 6,993,507 shares
of common stock of Newco #1, respectively (along with all other voting
securities of Newco #1 beneficially owned by Martin and Teresi, respectively,
and all voting securities of Newco #1 purchased by (whether through open market
purchases, privately negotiated transactions or otherwise) or which otherwise
become beneficially owned by Martin and Teresi, respectively, after the date
hereof, the "Shares");
WHEREAS, Martin desires to vote his Shares in favor of Teresi's Director
Designees (as defined below) and Teresi desires to vote his Shares in favor of
Martin's Director Designees; and
WHEREAS, Martin desires to appoint Teresi as his attorney in fact and proxy
and Teresi desires to appoint Martin as his attorney in fact and proxy, with
respect to the Shares each is entitled to vote at any meeting of stockholders of
Newco #1 or by written consent of the holders of voting securities of Newco #1
without a meeting, on, and only on, the election and removal of directors of
Newco #1;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
SECTION 1. Election of Directors.
(a) Each of Martin and Teresi shall be entitled to designate to the other
four individuals to be voted for and to serve on the board of directors of Newco
#1 (each a "Director Designee") (provided that such individuals have not been
involved in any legal proceedings of the type specified in Item 401(f) of
Regulation S-K). Each of Martin and Teresi shall, and shall use his best efforts
to cause each of their respective affiliates (as used in this Agreement,
"affiliate" shall include, without limitation, any person or entity which,
directly or indirectly, controls, is controlled by or under common control with
such person or entity, members of any individual's immediate family and any
trusts, the trustee and all beneficiaries of which are such persons or members
of such individual's immediate family), to (i) nominate for election and
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(ii) vote all of his Shares entitled to vote thereon for the election of the
other party's Director Designees at any meeting of stockholders of Newco #1 or
by written consent of the holders of voting securities of Newco #1 without a
meeting.
(b) If at any time either Martin or Teresi shall notify Newco #1 of such
party's desire to have one or more of their respective Director Designees
removed, each of Martin and Teresi shall, and shall use his best efforts to
cause each of their respective affiliates to, subject to all applicable
requirements of law, vote all of his Shares entitled to vote thereon for the
removal of such director at any meeting of the stockholders of Newco #1 or by
written consent of the holders of voting securities of Newco #1 without a
meeting.
(c) Whenever any Director Designee ceases to serve on the board of
directors of Newco #1 (whether by reason of death, resignation, removal or
otherwise), the successor director shall be acceptable to the party who
designated the Director Designee creating the vacancy. In the event the board of
directors of Newco #1 fills a vacancy with a person not acceptable to the party
who designated the Director Designee creating the vacancy, Martin and Teresi
agree to immediately jointly request the Secretary of Newco #1 to call a special
meeting of stockholders of Newco #1 for the election of directors.
(d) Martin and Teresi agree to jointly request the Secretary of Newco #1 to
call a special meeting of stockholders of Newco #1 if either Martin or Teresi
requests such a meeting.
SECTION 2. Irrevocable Proxy. Each of Martin and Teresi hereby irrevocably
constitutes and appoints the other as his attorney in fact and proxy pursuant to
the provisions of Section 212(c) of the Delaware General Corporation Law, with
full power of substitution, to vote all of such party's Shares entitled to vote
thereon for the election or removal of the other party's Director Designees at
any meeting of stockholders of Newco #1 or by written consent of the holders of
voting securities of Newco #1 without a meeting and to execute and deliver any
and all consents, instruments or other agreements or documents in order to take
any and all such actions in connection with or in furtherance of the obligations
of each of Martin and Teresi set forth in this Section 2. THIS PROXY AND POWER
OF ATTORNEY IS IRREVOCABLE, SUBJECT TO SECTION 3, AND COUPLED WITH AN INTEREST.
Each of Martin and Teresi hereby revokes all other proxies and powers of
attorney with respect to their Shares that he may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by each of
Martin and Teresi with respect thereto. All authority herein conferred or agreed
to be conferred shall survive the death or incapacity of Martin or Teresi and
any obligation of Martin and Teresi under this Agreement shall be binding upon
the heirs, personal representatives, successors and assigns of Martin and
Teresi.
SECTION 3. Termination. This Agreement shall terminate on the date the
outstanding principal of, and any and all accrued but unpaid interest on, the
Teresi Notes is repaid in full or the date on which Teresi advises the Secretary
of Newco #1 that he elects to waive the benefit of this Agreement, whichever
first occurs.
SECTION 4. Transfer of Shares. During the term of this Agreement, the
parties shall be free to transfer their Shares to any person, except that no
such transfer shall be made unless prior thereto the other party to this
Agreement shall have been notified of such proposed transfer and the transferee
shall have agreed in writing to be bound by the provisions of this Agreement as
if a party named herein.
SECTION 5. Legend. A copy of this Agreement shall be filed with the
Secretary of Newco #1 and shall be kept at its principal executive office. Upon
the execution of this Agreement, each of the parties hereto shall cause each
certificate representing Shares to carry a legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A STOCKHOLDERS' VOTING AGREEMENT, DATED AS OF ,
1998, AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT AS THEREIN PROVIDED. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
OFFICES OF THE COMPANY.
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SECTION 6. Notices. All notices and other communications shall be effective
(a) upon receipt if (i) hand delivered or (ii) sent by facsimile transmission
and confirmed by mail, (b) the third day after mailing, postage prepaid return
receipt requested and (c) one day after sending by recognized "over-night"
delivery service. Any notice not contemplated above shall be effective upon
receipt. For the purposes of this Section 6, the addresses of the parties to
which notices shall be sent shall be as follows:
If to Martin:
John Martin
18931 Glenmont Terrace
Irvine, California 92612
with a copy to:
Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP
2603 Main Street, Suite 1300
Irvine, California 92614
Attention: Alan Wiener, Esq.
If to Teresi:
Joseph Teresi
c/o Paisano Publications
28210 Dorothy Drive
Agoura Hills, California 91310
with a copy to:
Joseph J. Jacobs
6380 Sweet Maple Lane
Boca Raton, Florida 33433
Each of the parties hereto may change the address to which such
communications are to be directed by notice to the other parties as provided in
this Section 6.
SECTION 7. Complete Agreement. This is the complete agreement between the
parties with respect to the subject matter hereof and supersedes all prior
negotiations and agreements with respect thereto. There are no representations,
warranties, covenants, conditions, terms, agreements, promises, understandings,
commitments or other arrangements with respect to the subject matter hereof
other than those expressly set forth herein.
SECTION 8. Governing Law. This Agreement shall be governed by, construed
under and enforced in accordance with, the laws of the State of California
without regard to any conflict of law principles thereof.
SECTION 9. Binding Agreement; Successors. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and each
of their respective successors, assigns, heirs and other representatives.
SECTION 10. Headings. The section headings herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement, nor are they deemed to constitute a part of this Agreement.
SECTION 11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SECTION 12. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable and actual attorneys' fees (including any such fees incurred in
connection with enforcement of any judgments) in addition to his costs and
expenses and any other available remedies.
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SECTION 13. Waiver; Amendment. Any waiver of any provision or breach of
this Agreement must be in writing, executed by the waiving party. No waiver of
any provision or breach of this Agreement shall be a waiver of any other
provision or breach of this Agreement or any subsequent breach. Any amendment or
modification of this Agreement must be in writing and executed by all of the
parties hereto.
SECTION 14. Specific Performance. Each of the parties hereto acknowledges
that money damages would be both incalculable and an insufficient remedy for any
breach of this Agreement by a party hereto and that any such breach would cause
the other party hereto irreparable harm. Accordingly, each party hereto agrees
that in the event of any actual or threatened breach of this Agreement by any
party hereto, the other parties hereto shall be entitled to specific
performance. Such remedy shall not be the exclusive remedy for any breach of
this Agreement, but shall be in addition to all other remedies available at law
or equity to such party.
SECTION 15. Interpretation. The parties hereto agree that each party has
participated in the drafting and preparation of this Agreement, and,
accordingly, in any construction or interpretation of this Agreement, the same
shall not be construed against any party by reason of the source of drafting.
SECTION 16. Further Assurances. Each party shall execute and deliver such
further instruments and take such further actions as the other party may
reasonably request in order to carry out the intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written.
/s/ JOHN MARTIN
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John Martin
/s/ JOSEPH TERESI
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Joseph Teresi
ACKNOWLEDGMENT OF STOCKHOLDERS' VOTING AGREEMENT
Easyriders, Inc. hereby acknowledges the existence of the foregoing
Stockholders' Voting Agreement.
EASYRIDERS, INC.
By: /s/ WILLIAM E. PRATHER
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Name: William E. Prather
Title: Chief Executive Officer,
President and Director
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