Exhibit 9.8
VOTING TRUST AGREEMENT
February 13, 1998
This VOTING TRUST AGREEMENT (this "Trust Agreement") is made by and
between the undersigned ("Stockholder") and A. Dale Mayo (the "Trustee").
Stockholder has acquired 14,782 shares (the "Stock") of the common
stock of Clearview Cinema Group, Inc., a Delaware corporation (the "Company"),
pursuant to that certain Asset Purchase Agreement dated as of February 13, 1998
by and among the Company, CCC Claridge Cinema Corp., Claridge Cinema's Inc., and
Craig Zeltner.
In accordance with Section 218 of the General Corporation Law of the
State of Delaware, the Stockholder desires to enter into this Voting Trust
Agreement with respect to the Stock, and the Trustee is willing to accept the
voting rights in respect of the Stock and to serve as the voting trustee under
the terms and conditions hereof.
The parties hereto, intending to be legally bound hereby, agree as
follows:
1. Simultaneously with the execution and delivery hereof, the
Stockholder shall deliver the certificates representing the Stock, duly executed
for transfer, to Trustee to be held under this Trust Agreement.
2. (A) Promptly after the delivery required by paragraph 1, the
Trustee shall deliver the certificates representing the Stock to the Company for
transfer and shall cause the shares represented thereby to be transferred to his
name as Trustee under this Trust Agreement. The new certificates representing
the Stock registered in the name of the Trustee shall be delivered to the
Trustee by the Company, and the Trustee shall hold those certificates in his
custody.
(B) The Trustee shall hold the shares of the Stock transferred to
him hereunder, and all other shares of the common stock that the Stockholder
shall transfer to him, in trust for the purposes and subject to the terms and
conditions of the Agreement.
3. At the same time as the delivery by the Trustee of the certificates
to the Company in accordance with the provisions of paragraph 2, the Trustee
shall issue to the Stockholder a Voting Trust Certificate for the number of
shares of the Stock deposited by the Stockholder, which Voting Trust Certificate
shall be in substantially the following form:
[Front Side]
CLEARVIEW CINEMA GROUP, INC.
(a Delaware corporation)
Certificate No. _____ _____ Shares
VOTING TRUST CERTIFICATE
THIS IS TO CERTIFY that, subject to the provisions hereof and of the
Trust Agreement as hereinafter defined,_________________, or registered assigns,
will be entitled to receive upon the termination of the Trust Agreement, but
only upon surrender of this certificate, a certificate or certificates for _____
shares of common stock of Clearview Cinema Group, Inc., a Delaware corporation
(hereinafter called the "Company"), or of any other corporation into which
shares of common stock of the Company shall have been reclassified or converted,
or for which they shall have been exchanged.
Until the expiration or termination of the Trust Agreement, the
undersigned Trustee shall pay or deliver all cash dividends, and certain other
distributions mentioned in the Trust Agreement, on or in respect of the common
stock from time to time held by the undersigned Trustee thereunder, to the
person who, on the record date for the determination of stockholders entitled to
receive the dividends and other distributions, was the registered owner of this
Voting Trust Certificate.
This certificate has been issued under and pursuant to the provisions
of a Voting Trust Agreement (the "Trust Agreement"), by and between
_____________, as a stockholder of the Company and A. Dale Mayo, as Trustee,
dated as of ______________, 1998, as the same may be amended from time to time.
The Trust Agreement more fully defines and sets forth the rights and obligations
of the owner and holder of this certificate and of the Trustee and is
incorporated in and made a part of this Voting Trust Certificate with the same
effect as if set forth in full.
Subject to any restriction contained on the reverse side of this
certificate, this Voting Trust Certificate is transferable by its registered
owner, in person or by duly authorized attorney, on the books to be maintained
for that purpose by the undersigned Trustee, upon the terms and conditions
provided in the Trust Agreement.
WITNESS THE DUE EXECUTION HEREOF on this ______ day
of ______________, 1998.
________________________(SEAL)
A. Dale Mayo
Trustee under Voting Trust
Agreement, dated
_______________, 1998.
[Reverse side]
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state Blue Sky or securities laws. These securities cannot
be resold without registration under such Act or applicable
state securities laws or an exemption therefrom.
4. The Voting Trust Certificate issued under this Trust Agreement shall
be transferable in the same manner, with the same effect, and subject to the
same restrictions as certificates for shares of the Stock. The Voting Trust
Certificate shall be transferable only at the principal executive office of the
Company or at any other place that the Company may maintain for its corporate
books and records.
5. The Trustee has no authority to sell or otherwise dispose of or
encumber any of the Stock.
6. The Trustee shall possess and be entitled, subject to the provisions
of this Agreement, to exercise all the rights and powers of an absolute owner of
all the shares of Stock deposited under this Trust Agreement, including without
limitation the right to receive dividends on the Stock (subject to paragraph 7
below) and the right to vote, consent in writing, or otherwise act with respect
to any corporate or stockholders' action, to increase or reduce the capital
stock of the Company, to classify or reclassify any of the shares as now or
hereafter authorized into preferred or common stock or other classes of stock
with or without par value, to amend the Certificate of Incorporation or by-laws
of the Company, to merge or consolidate the Company with other corporations, to
sell all or any part of its assets, to create any mortgage lien on any of its
property, or for any other corporate act or purpose. Except as otherwise
provided herein, no voting right shall pass to others by or under the Voting
Trust Certificate or by or under this Trust Agreement or by or under any
agreement express or implied. All shares of Stock shall be voted as directed by
the Trustee and shall be deemed to be represented for the purposes of
determining a quorum.
7. (A) All dividends paid on the Stock from time to time held under
this Trust Agreement, except stock dividends, shall be remitted by the Trustee,
promptly upon receipt, to the person or persons who, on the record date for the
determination of stockholders entitled to receive the dividends, were the record
owners of the Voting Trust Certificates representing the shares on which the
dividends were declared.
(B) Dividends paid in shares of common stock of the Company shall
be retained by the Trustee and added to the Stock held under this Trust
Agreement. The Trustee shall promptly issue to the appropriate persons Voting
Trust Certificates representing any Stock that the Trustee shall receive as a
dividend and retain in accordance with the provisions of this paragraph 7. Those
Voting Trust Certificates shall be in the form as set forth in this Trust
Agreement, with any changes that are appropriate.
(C) All warrants or rights to subscribe to any class of voting
stock of the Company ("Warrants") that shall be received by the Trustee in
respect or on account of the Stock held under this Trust Agreement shall be
distributed by the Trustee to the holders of the Voting Trust Certificates in
the same manner as he is required to distribute cash dividends under this Trust
Agreement. If any voting stock is purchased by the Stockholder pursuant to the
Warrants, the Stockholder shall immediately deliver the certificates
representing all the shares of stock so purchased, duly executed for transfer,
to the Trustee to be added to the Stock held under the Trust Agreement. The
Trustee shall promptly issue to the Stockholder Voting Trust Certificates
representing any Stock that shall be so delivered to and held by the Trustee in
accordance with the provisions of this paragraph 7. The Voting Trust
Certificates shall be in the form as set forth in this Trust Agreement, with any
changes that are appropriate. No sale or other transfer of any of the Warrants
shall be made without first offering the Company a prior opportunity to purchase
the Warrants for a reasonable amount.
8. The Stockholder, at any time from and after the date of this Trust
Agreement, must deposit any additional capital stock of the Company purchased or
owned by him (but not specifically described within the Trust Agreement) with
the Trustee and such additional shares of Stock so deposited shall become
subject to all the terms and conditions of this Trust Agreement to the same
extent as if it were originally deposited under this Trust Agreement; provided,
however, that any shares of capital stock of the Company purchased by such
stockholder in a public market shall not be subject to this Voting Trust
Agreement.
9. (A) If, as the result of any split-up, combination or
reclassification of any Stock held by the Trustee under this Trust Agreement, or
as the result of any merger, consolidation, reorganization or sale of assets to
which the Company shall be a party, the Stock held by the Trustee under this
Trust Agreement shall be reclassified, converted into or become exchangeable for
any other securities, either of the Company or of any other corporation, the
Trustee shall exchange or surrender the Stock held by it for those other
securities and shall deliver the certificates evidencing the same to the Company
or other appropriate agency in exchange or surrender. The Trustee shall hold the
securities received upon the exchange or surrender for the purposes and upon the
same conditions as are provided in this Trust Agreement in respect of the shares
of the Stock.
(B) Upon any exchange or surrender, the Trustee may, if he
considers it to be advisable, issue new Voting Trust Certificates in lieu of and
in exchange for the outstanding Voting Trust Certificates. The Voting Trust
Certificates shall be in the form set forth in this Trust Agreement, with any
changes that are appropriate.
10. (A) The Trustee may serve as a director or officer of the Company
or any successor corporation, and he or any firm of which he may be a member, or
any corporation of which he may be a stockholder, director or officer, may
contract with the Company or any successor corporation, or be pecuniarily
interested in any transaction to which the Company or any successor corporation
may be a party, or in which it may be interested, as fully as though he were not
a Trustee.
(B) The Trustee shall not be liable to any stockholder or the
registered owner or holder of any Voting Trust Certificate for any error of
judgment or for any neglect, default, negligence (including gross negligence)
except for his own willful and deliberate malfeasance.
(C) The Trustee shall not receive any compensation for his services
as Trustee, and he shall not be required to give any bond or security for the
discharge of his duties as Trustee.
(D) The Trustee hereby accepts the trust hereunder, subject to all
the terms and conditions contained in this Trust Agreement, and he agrees to
exercise the powers and perform the duties of Trustee as set forth in this Trust
Agreement.
11. (A) The trust created by this Trust Agreement is expressly declared
to be irrevocable.
(B) (i) This Trust Agreement shall terminate with respect only to
the shares of Stock that are sold by the Stockholder (a) pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended, or (b) pursuant to the
registration rights granted to the Stockholder in the Registration Rights
Agreement. A termination of this Trust Agreement as to any shares of Stock sold
pursuant to clauses (a) or (b) of the preceding sentence shall not affect any
shares of Stock continuing to be owned by the Stockholder (the "Remaining
Shares"), and this Trust Agreement shall continue in force with respect to the
Remaining Shares until terminated pursuant to Paragraph 11(B)(ii).
(ii) This Trust Agreement shall terminate upon the earlier of
(a) the twentieth anniversary hereof, (b) written notice of termination by the
Trustee, or (c) the death of the Trustee.
(C) (i) In the event of any proposed sale of Stock pursuant to
clauses (a) or (b) of the first sentence of Paragraph 11(B)(i), the Stockholder
shall notify the Trustee of the proposed sale and of the number of shares to be
sold, and, upon receipt of (a) confirmation, in a form reasonably requested by
the Trustee, of the consummation of the sale and (b) the Voting Certificate(s)
representing the purchased Stock, the Trustee shall deliver or request that the
Company deliver to the purchaser stock certificates for the purchased Stock,
and, if necessary, shall deliver to the Stockholder a Voting Certificate for the
Remaining Shares.
(ii) In the event of termination of this Trust Agreement pursuant
to Paragraph 11(B)(ii), as soon as practicable after the termination, the
Trustee shall deliver to or upon the order of the registered owners of the
Voting Trust Certificates, and upon surrender thereof, the shares of Stock
represented thereby, together with any other shares of voting stock of the
Company subject to this Trust Agreement.
12. Any notice or other communication required or permitted by this
Trust Agreement to be given by any party hereto shall be in writing, and any
communication and payment or delivery of securities required to be made by any
party to any other party shall be sent by first class prepaid mail, certified or
registered, return receipt requested, addressed in the case of the Stockholder,
to the address that is provided by the Stockholder and, in the case of the
Trustee to:
A. Dale Mayo
97 Main Street
Chatham , New Jersey 07928
or in any other manner as any party shall hereafter designate by notice to the
other party.
13. This Trust Agreement shall be legally binding upon, and shall inure
to the benefit of, the Stockholder and their respective heirs, legal
representatives, and permitted successors and assigns.
14. The validity and effectiveness of this Trust Agreement shall be
governed by, and its provisions shall be construed and enforced in accordance
with, the laws of the State of Delaware.
15. If, for any reason, any provision or part of this Trust Agreement
is held invalid, that invalidity shall not affect any other provision or the
rest of provision of this Trust Agreement, as the case may be, and each
provision or part shall, to the full extent consistent with law, continue in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement as of the day and year first above written.
CLARIDGE CINEMAS INC.:
By:
------------------------
Trustee:
---------------------------
A. Dale Mayo