EXHIBIT 9.1
================================================================================
VOTING TRUST AGREEMENT
dated as of April 14, 1993
by and among
NATIONAL AUTO/TRUCKSTOPS HOLDINGS CORPORATION,
UNITED STATES TRUST COMPANY OF NEW YORK
in its capacity as the Voting Trustee
and
THE OPERATOR STOCKHOLDERS NAMED HEREIN
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................. 2
ARTICLE II ISSUANCE OF SHARES....................................... 6
ARTICLE III VOTING RIGHTS AND POWERS................................. 7
ARTICLE IV RECEIPT OF ADDITIONAL STOCK CERTIFICATES................. 16
ARTICLE V DIVIDENDS AND DISTRIBUTIONS.............................. 17
ARTICLE VI SUBSCRIPTION FOR ADDITIONAL
SECURITIES OF THE COMPANY................................ 18
ARTICLE VII TRANSFER................................................. 19
ARTICLE VIII COMPENSATION; EXPENSES................................... 23
ARTICLE IX EXCULPATION; INDEMNIFICATION OF
VOTING TRUSTEE........................................... 23
ARTICLE X APPOINTMENT OF CUSTODIAN; SUCCESSOR
VOTING TRUSTEE; QUALIFICATIONS OF
VOTING TRUSTEE........................................... 24
ARTICLE XI TERMINATION.............................................. 27
ARTICLE XII PERMITTED AND NON-OPERATOR TRANSFEREES................... 29
ARTICLE XIII POWER OF ATTORNEY........................................ 30
ARTICLE XIV MISCELLANEOUS............................................ 31
14.1 Lost, Stolen or Destroyed Certificates................... 31
14.2 Filing of Agreement with the Company; Avail-
ability for Inspection by Operator
Stockholders............................................. 32
14.3 Transfer Restrictions in Stockholders'
Agreement................................................ 32
14.4 Compliance with Securities Laws.......................... 32
14.5 Notice................................................... 33
14.6 Amendment................................................ 34
14.7 Waiver................................................... 35
i
14.8 Benefit and Binding Effect............................... 36
14.9 Entire Agreement......................................... 36
14.10 Severability............................................. 36
14.11 Governing Law............................................ 37
14.12 Variations of Pronouns................................... 37
14.13 Counterparts............................................. 37
14.14 Third-Party Beneficiaries.................................37
ii
VOTING TRUST AGREEMENT
----------------------
VOTING TRUST AGREEMENT, dated as of April 14, 1993, by and among
NATIONAL AUTO/TRUCKSTOPS HOLDINGS CORPORATION, a Delaware corporation (the
"Company"), UNITED STATES TRUST COMPANY OF NEW YORK, a New York Corporation, in
its capacity as the voting trustee (the "Voting Trustee"), and each of the
holders of shares of the Class A Common Stock, par value $.01 per share (the
"Class A Common Stock"), of the Company listed on Schedule I attached hereto
(each an "Operator Stockholder" and, collectively and together with the
Permitted Transferees and Non-Operator Transferees (as these terms are
hereinafter defined), the "Operator Stockholders").
W I T N E S S E T H:
WHEREAS, each Operator Stockholder as of the date hereof is the
record and beneficial owner of the number of shares of Class A Common Stock
appearing opposite his name on Schedule I; and
WHEREAS, the Company and the Operator Stockholders deem it necessary
and advisable that the Voting Trustee be the record owner of the shares on the
terms and conditions set forth herein in order to assure that, among other
things, the Operator Stockholders vote with a single voice with respect to all
matters submitted to the vote of the
2
stockholders of the Company, other than the election of
directors.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 As used in this Agreement, the following terms have the
following meanings:
"BY-LAWS" shall mean the By-laws of the
Company.
"CERTIFICATE OF INCORPORATION" shall mean the Restated
Certificate of Incorporation of the Company.
"CLOSING" means the closing of the offering of the Shares
pursuant to the Private Placement Memorandum.
"CONTROL," with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the owner ship of voting securities, by contract or otherwise.
"INDEPENDENT OPERATOR DIRECTOR" means that director of the
Company elected by the Operator Stockholders in accordance with this Agreement,
the Certificate of Incorporation and the Stockholders' Agreement who is added to
the Board pursuant to Section 5.4 of the Certificate of Incorporation, and any
successor thereto.
3
"NON-OPERATOR TRANSFEREE" means any transferee of Class A
Common Stock pursuant to a transaction permitted under Section 7.2(b) of this
Agreement.
"OPERATOR" means an independent operator of an auto/truckstop
facility who is an Operator Stockholder or any person who owns or, concurrently
with the purchase of Shares acquires, either (x) a 20% or greater interest in an
auto/truckstop facility having a Franchise or Lease Agreement (as those terms
are defined in the Certificate of Incorporation) with the Company or a
subsidiary of the Company or (y) in the case of an interest in an auto/truckstop
facility held by the transferring Operator Stockholder which, as of the date of
this Agreement, is less than a 20% interest, the whole of such interest.
"OPERATOR AFFILIATE" means, with respect to any Person who is
or was an Operator, (i) any person directly or indirectly controlling,
controlled by or under common control with, such Person who is or was an
Operator, (ii) a person owning or controlling more than 50% of the outstanding
voting securities of such Person who is or was an Operator and (iii) any parent,
spouse, ex-spouse or child (or any trust for the benefit of any parent, spouse,
ex-spouse or child) of any of the foregoing.
"OPERATOR DIRECTORS" means those directors of the Company
elected by the Operator Stockholders in
4
accordance with this Agreement, the Certificate of Incorporation and the
Stockholders' Agreement, but excluding the Specified Director (as defined in the
Certificate of Incorporation) and the Independent Operator Director.
"PERMITTED TRANSFEREE" means any transferee of Shares or
Voting Trust Certificates pursuant to a trans action permitted under Section
7.2(a) of this Agreement.
"PERSON" means any individual, partnership, corporation, joint
venture, association, joint-stock com pany, trust, unincorporated organization,
union, business association, firm, government or agency or political subdi
vision thereof, or other entity.
"PRIVATE PLACEMENT MEMORANDUM" means the Confidential Private
Placement Memorandum, dated December 12, 1992, as amended, supplemented and
restated, pursuant to which the Company offered the Shares to the Operator
Stockholders.
"RESELLER STOCKHOLDER" means an Operator Stockholder (i) that
beneficially owns or operates or is an Operator Affiliate of a person that owns
or operates an independent marketer/reseller auto/truckstop facility and (ii)
that does not lease and operate or is not an Operator Affiliate of a person that
leases and operates an operator auto/truckstop facility.
5
"SHARES" means (i) the shares of Class A Common Stock
originally issued to and held by the Voting Trustee hereunder and (ii) all
additional shares of the capital stock of the Company or any successor of the
Company issued to and held by the Voting Trustee pursuant to Arti cle IV or
Article VI.
"STOCKHOLDERS' AGREEMENT" means the Stock holders' Agreement,
dated as of April 14, 1993, as amended, by and among the Company and each of the
stockholders of the Company, substantially in the form attached hereto as
Exhibit A.
"SUBSCRIPTION AGREEMENT" means the subscription agreement
accompanying the Private Placement Memorandum pursuant to which Operator
Stockholders subscribed for the Shares.
1.2 The words "HEREOF," "HEREUNDER" and "HEREIN" and words of like
import, refer to this Agreement as a whole and not solely to any particular
Article or Section hereof. References herein to any "ARTICLE," "EXHIBIT,"
"SCHEDULE" or "SECTION" refer to such article or section of or Exhibit or
Schedule to this Agreement.
6
1.3 The following terms are defined in the following Sections of
this Agreement:
TERM SECTION
---- -------
Class A Common Stock Recitals
Company Recitals
Director Ballot Section 3.2(b)
Director Determination Date Section 3.2(d)
Director Election Section 3.2(a)
Director Election Notice Section 3.2(b)
Operator Stockholder Recitals
Proposal Section 3.1(a)
Proposal Ballot Section 3.1(c)
Proposal Determination Date Section 3.1(c)
Proposal Notice Section 3.2(c)
Qualified Candidate Section 3.2(c)
Securities Act Section 14.4
Voting Trust Certificate Section 2.2
Voting Trustee Recitals
ARTICLE II
ISSUANCE OF SHARES
2.1 Each of the Operator Stockholders agrees that the Company shall
issue and deliver to the Voting Trustee a certificate or certificates
representing the shares of Class A Common Stock for which such Operator
Stockholder was issued by the Company in connection with that Operator
Stockholder's subscription pursuant to his Subscription Agreement. Such
certificate or certificates shall be issued to and held by the Voting Trustee in
the name of United States Trust Company of New York, as Voting Trustee. Upon
receipt by the Voting Trustee of such certificate or certi ficates, the Voting
Trustee shall hold the Shares, as
7
stockholder of record, subject to the terms and conditions of this Agreement.
2.2 Promptly after the Closing, the Voting Trustee shall issue or
cause to be issued to each Operator Stockholder, in exchange for the Shares
delivered to the Voting Trustee pursuant to Section 2.1, a Voting Trust
Certificate, substantially in the form of Exhibit B (the "Voting Trust
Certificate"), representing in the aggregate the number of Shares that the
respective Operator Stockholder was issued by the Company in connection with
that Operator Stockholder's subscription pursuant to his Subscription Agreement.
Except as otherwise provided herein (including, without limitation, Article
III), all options, rights of purchase and other powers and privileges affecting
the Shares represented by the Voting Trust Certificates (including, without
limitation, those provided for in the Stockholders' Agreement) shall attach to
the Voting Trust Certificates that represent the Shares.
ARTICLE III
VOTING RIGHTS AND POWERS
3.1 (a) In accordance and only in accordance with the terms of this
Section 3.1, the Operator Stockholders hereby grant the Voting Trustee and the
Voting Trustee shall have full power and authority to vote in person or by proxy
all of the Shares at all meetings of the
8
stockholders of the Company or to give written consents in lieu of voting such
Shares in respect of any and all matters on which the stockholders of the
Company are entitled or required by statute or otherwise to vote or consent,
other than the election and removal of directors (each, a "Proposal").
(b) Without limiting the generality of Section 3.1(a), the
Voting Trustee shall vote such Shares in accordance and only in accordance with
this Section 3.1 for, or in ratification of, or against, any amendment to the
Amended and Restated Certificate of Incorporation or By-laws of the Company, any
recapitalization, reorganization, increase or reduction of capital or shares,
merger, consolidation, partial or total liquidation, dissolution or any sale or
mortgage of assets, in whole or in part, of the Company.
(c) Upon receipt of notice of any Proposal, the Voting Trustee
shall notify promptly each of the Operator Stockholders of such Proposal (the
"Proposal Notice"). The Proposal Notices shall be prepared by the Company or, in
the case that the Company has not approved the Proposal, by the stockholder
making such Proposal and shall include the text of each Proposal and a ballot
(each, a "Proposal Ballot" and collectively, the "Proposal Ballots"), which
shall also be prepared by the Company, on
9
which each Operator Stockholder may indicate whether he votes to approve or
disapprove each Proposal. Each Operator Stockholder shall be entitled to that
number of votes on each Proposal as the number of votes to which the Shares
beneficially owned by such Operator Stockholder are entitled. The Proposal
Notice shall request each Operator Stockholder to return the Proposal Ballot to
the Voting Trustee promptly, but in any event such that the Ballot shall be
received not later than twenty days following the date of mailing of the
Proposal Notice (the "Proposal Determination Date").
(d) Within two business days following the Proposal
Determination Date, the Voting Trustee shall review the Proposal Ballots and
tabulate the number of Shares voted to approve or disapprove each Proposal. If
the number of votes to approve a Proposal is greater than fifty percent (50%) of
the total number of possible votes represented by all Shares, then the Voting
Trustee shall vote ALL of the Shares in favor of such Proposal. If the number of
Shares voted to approve a Proposal is less than or equal to fifty percent (50%)
of the total number of Shares, then the Voting Trustee shall vote ALL of the
Shares against such Proposal.
3.2 (a) In accordance and only in accordance with the terms of this
Section 3.2, the Operator Stockholders hereby grant the Voting Trustee and the
Voting
10
Trustee shall have full power and authority to vote in person or by proxy all of
the Shares at all meetings of the stockholders of the Company or to give written
consents in lieu of voting such Shares in respect of the election of the
Operator Directors or the Independent Operator Director of the Company (the
"Director Election").
(b) Upon receipt of notice of any Director Election, the
Voting Trustee shall notify promptly each of the Operator Stockholders of such
Director Election (the "Director Election Notice"). The Director Election
Notices, which shall be prepared by the Company, shall include a ballot (the
"Director Ballot"), which shall also be prepared by the Company and which shall
contain, among other things, (i) the name of the person nominated by the
existing Operator Directors to fill each Operator Director (or Independent
Operator Director) position to be elected at such meeting or pursuant to such
process, (ii) certain biographical information with respect to each such nominee
provided to the Company by such nominee for the inclusion therein and (iii)
additional space for each Operator Stockholder to write in the name of a person,
other than such nominee, that such Operator Stockholder desires to elect to fill
each such Operator Director (or Independent Operator Director) position.
11
(c) Any nominee to serve as Operator Director must be an
Operator Stockholder and beneficially own not less than 6,250 shares of Class A
Common Stock (a "Qualified Candidate" with respect to any Operator Director
position) and any nominee to serve as an Independent Operator Director must be a
person who is not (i) an independent auto/truckstop operator which owns its
facilities or which leases or subleases its facilities from the Subsidiary (as
defined in the By-laws of the Company) and who is a party to a Franchise
Agreement, Lease Agreement or a Motor Fuel Purchase Agreement (as such terms are
defined in the By-laws of the Corporation), (ii) an Operator Affiliate or
employee of any such operator, (iii) any person who had previously been an
Operator Director, (iv) an employee of the Corporation or any of its
subsidiaries, or (v) an Affiliate (as defined in the Stockholders' Agreement) of
any of the foregoing (each a "Qualified Candidate" with respect to any
Independent Operator Director position). In addition, if with respect to any
record date for the election of directors one of the director positions to be
filled is that of the "Reseller Director" (who shall be initially ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and, thereafter, any Operator Director nominated and elected in
accordance with this sentence), and the Reseller Stockholders beneficially own
in the aggregate at least twenty-five percent (25%) of the
12
Shares, then the Operator Directors will designate a Reseller Stockholder as one
of the individuals nominated and recommended by the Board of Directors to be an
Operator Director and only a Reseller Director shall be a Qualified Candidate
with respect to that position.
(d) Each Operator Stockholder shall be entitled to one vote
for each vacancy on the Board of Directors to be filled in the election for each
vote to which the Shares beneficially owned by such Operator Stockholder are
entitled (but shall not be entitled to cumulative voting). The Director Election
Notice shall request each Operator Stockholder to return the Director Ballot to
the Voting Trustee promptly, but in any event so that the Ballot shall not be
received by the Voting Trustee later than twenty days following the date of
mailing of the Director Election Notice (the "Director Determination Date").
Immediately following the Director Determination Date, the Voting Trustee shall
aggregate the number of votes for each person on the Director Ballots and vote
all Shares in such number and for such persons as indicated on the Director
Ballots so that the Qualified Candidate (or if more than one position is to be
filled at such election, the Qualified Candidates) who receive the most votes
constituting more than 50% of the total votes cast by all Shares voted shall be
elected to the Board of Directors;
13
provided that if the number of Qualified Candidates receiving over 50% of the
vote is less than the number of Operator Director or Independent Operator
Director positions to be filled in the election, the Voting Trustee shall hold a
run-off between the two Qualified Candidates who receive the most votes under
50% for each position remaining open. The Company shall prepare and deliver to
the Voting Trustee all notices, ballots and other documentation required in
connection with such run-off election.
3.2 (e) Notwithstanding any other provision contained in this
Agreement (and provided, in each case, that the Voting Trustee is first
furnished with security in such amount and kind as it may deem necessary to be
paid for its costs and expenses relating to the actions taken in this Section
3.2(e), including the costs and expenses of its counsel) the Voting Trustee
shall not distribute a Director Election Notice or a Director Election Ballot
and, without further consultation with the Operator Stockholders, (i) upon any
vote held to determine the election or removal of the Specified Director, the
Voting Trustee shall vote all Shares to elect as the Specified Director the
person appointed by the Board of Directors of the Company as Chief Executive
Officer ("CEO") or to remove the Specified Director in the case the Board of
Directors removes such person as CEO, (ii) at the 1994, 1995 and 1996 annual
14
meetings to reelect the initial Operator Directors, the Voting Trustee shall
vote all Shares represented by the Voting Trust Certificates to reelect ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ at the 1994 annual meeting for one additional one-year term, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ at the 1994 and 1995 annual meeting for two additional one-year terms
and ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇. Crew at the 1994, 1995 and 1996 annual meeting for
three additional one-year terms and (iii) in the case of any person elected as
an Operator Director pursuant to Section 3.2(a)-(d) above (except in the case of
an Independent Operator Director), the Voting Trustee shall vote all Shares
represented by the Voting Trust Certificates for the Operator Director's
reelection at each of the next two annual meetings of shareholders of the
Company; PROVIDED, HOWEVER, that notwithstanding clause (ii) and (iii) above,
the Voting Trustee shall act pursuant to Sections 3.2(a)-(d) if any Operator
Director has requested in writing the Voting Trustee not to reelect him or if
that person has resigned, been removed or died or if he is not then a Qualified
Candidate.
3.3 Upon the receipt of written notice signed by the beneficial
holders of a majority of the Shares repre sented by the then outstanding Voting
Trust Certificates to remove, with or without cause, any Operator Director as a
director of the Company, the Voting Trustee shall take any
15
and all action necessary to remove such Operator Director as a director of the
Company, provided that the Voting Trustee is first furnished with security in
such amount and kind as it may deem necessary to be paid for its costs and
expenses relating thereto, including the costs and expenses of its counsel.
Absent such notice, the Voting Trustee shall not have the power or authority to
remove, with or without cause, any Operator Director as a director of the
Company. In the event of any vacancy of any Operator Director or any Independent
Operator Director, as a result of a removal, resignation or otherwise, the
Voting Trustee shall take any and all action necessary in accordance with this
Agreement to elect a person to fill such position pursuant to Section 3.2(a)-(d)
for the remainder of the term (including the remainder additional terms pursuant
to Section 3.2(e)) of the Operator Director or Independent Operator Director
being replaced.
3.4 Each Operator Stockholder shall be bound by any vote or consent
of the Voting Trustee made in accordance with this Agreement as if made by such
Operator Stockholder directly.
3.5 The Voting Trustee's power to vote the Shares and give consents
in respect thereof pursuant to this Agreement shall be irrevocable for the term
of this Agree ment. The Voting Trustee may exercise any power or perform
16
any act hereunder by an agent or attorney duly authorized and appointed by it.
3.6 Any record date that shall be fixed by the Company for any
purpose shall be deemed to be the record date fixed by the Voting Trustee as the
record date for the purpose of determining which holders of Voting Trust Certi
ficates are entitled to take any action or receive any right, payment or
dividend pursuant to this Agreement.
ARTICLE IV
RECEIPT OF ADDITIONAL STOCK CERTIFICATES
4.1 In the event that the Voting Trustee shall receive any shares of
the capital stock having voting rights or securities convertible or exchangeable
for voting stock or warrants to purchase voting stock (such shares, securities
and warrants collectively referred to as "Shares") of the Company or any
successor of the Company issued by way of dividend, split-up, recapitalization,
reorganization, merger, consolidation or any other change or adjustment in
respect of the Shares held by it pursuant to this Agreement, the Voting Trustee
shall hold the certificates representing such Shares, subject to the terms of
this Agreement and shall issue, or cause to be issued, Voting Trust Certificates
representing such Shares to the respective registered holders of each Voting
Trust Certificate outstanding at the close of business on the
17
record date fixed for determining the persons entitled to any such Shares in
proportion to their respective interests.
4.2 Any stock or securities of the Company or any successor of the
Company issued to the Voting Trustee that are not Shares shall be delivered to
the respective registered holders of each Voting Trust Certificate outstanding
at the close of business on the record date fixed for determining the persons
entitled to any such shares in proportion to their respective interests.
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
5.1 All dividends and other distributions paid in cash or property
(other than Shares) on any Shares, less the amount of any taxes or other
governmental charges that are borne by the Voting Trustee in connection
therewith, shall be paid by the Voting Trustee to the registered holders of
Voting Trust Certificates in proportion to their respective interests.
5.2 The Voting Trustee may in its discretion, from time to time,
instead of receiving and distributing such dividends and distributions described
in Section 4.2 and 5.1 of this Agreement, authorize the Company (or, if the
Voting Trustee at any time holds hereunder any stock other than capital stock of
the Company, it may authorize the corporation declaring such dividends or
distributions) to
18
make payment thereof directly to the registered holders of Voting Trust
Certificates, as if such registered holders were owners of record of the Shares
represented by their Voting Trust Certificates.
ARTICLE VI
SUBSCRIPTION FOR ADDITIONAL SECURITIES OF THE COMPANY
6.1 In case any shares or other securities of the Company are
offered for subscription to the Voting Trustee as the record owner of the
Shares, promptly upon receipt of notice of such offer, the Company shall prepare
the notices of such offer to the holders of the Voting Trust Certificates and
the Voting Trustee shall deliver such notice to each holder of Voting Trust
Certificates. Upon receipt by the Voting Trustee, but not later than two
business days prior to the last day fixed by the Company for subscription and
payment, of a request so to subscribe from such holder accompanied by the
requisite sum of money and appropriate form required to subscribe for such
shares or securities, the Voting Trustee shall deliver, or cause to be
delivered, such subscription and payment. If any of the shares or other
securities are not subscribed to by any holder of a Voting Trust Certificate,
the Voting Trustee shall, upon request from one or more other holders of a
Voting Trust Certificate accompanied by the requisite amount of money and
appropriate form, deliver or cause to be
19
delivered the subscription and payment in the name of such other holders;
PROVIDED that, if the other holders shall have requested to subscribe to more
than the numbers of shares or securities that were not subscribed to by the
original offerees, such requests shall be allocated and filled PRO RATA in
proportion to the number of Shares owned by the requesting holder.
6.2 If the shares or other securities subscribed for pursuant to
Section 6.1 are Shares of the Company, the certificates therefor shall be issued
to and held by the Voting Trustee, as stockholder of record, subject to the
terms and conditions of this Agreement, and the Voting Trustee shall issue or
cause to be issued to the subscribing holder a Voting Trust Certificate in
respect thereof. If the Shares or other securities so subscribed for are not
Shares of the Company, the certificates therefor shall be issued to the
subscribing holder and the Voting Trustee shall mail or deliver such
certificates, or cause them to be mailed and delivered, to such holder.
ARTICLE VII
TRANSFER
7.1 The right, title and interest in and to any Voting Trust
Certificate issued hereunder and the Shares represented thereby shall be
transferable only (i) as provided in this Article and in Section 14.4 hereof and
20
(ii) on the register of the Voting Trustee, to be kept at the offices of the
Voting Trustee, upon surrender of any such Voting Trust Certificate properly
endorsed and stamped for transfer, in accordance with rules and regulations that
the Voting Trustee may from time to time make, by the registered holder thereof
in person or by attorney duly authorized. The Voting Trustee shall not be
obligated to recognize any person as the owner of any Voting Trust Certificate
issued hereunder other than the person in whose name such certificate shall be
registered on the register of the Voting Trustee.
7.2 Neither the Voting Trust Certificates nor the Shares represented
by the Voting Trust Certificates shall, either directly or indirectly, be
transferred, sold, assigned, mortgaged, hypothecated, pledged, encumbered,
given, placed in trust, or otherwise voluntarily or involuntarily disposed of
(such action collectively referred to in this section by the verb "transfer" in
its appropriate form) by the Operator Stockholder holding such Voting Trust
Certificates or Shares except that:
(a) subject to Section 7.3 hereof, any Operator Stockholder may,
directly or indirectly, transfer his Voting Trust Certificates
(and his interest in Shares represented thereby) to (i) any
Operator Affiliate thereof or (ii) any other Operator or
Operator Affiliate which does not (and immediately following
the transfer will not), together with its affiliates, own more
than a percentage equal to a fraction, the numerator of which
is
21
62,500 and the denominator of which is the aggregate number of
shares of Class A Common Stock outstanding on the date hereof
of the outstanding shares of the Company on a fully diluted
basis (each such transferee a "Permitted Transferee");
(b) subject to Section 7.3 hereof, any Operator Stockholder as of
the date of this Agreement (together with his Operator
Affiliates) may, directly or indirectly, transfer his Voting
Trust Certificates (and his interest in Shares represented
thereby) to any person other than a Permitted Transferee
provided (i) that person does not (and immediately following
the transfer will not), together with its affiliates,
beneficially own more than a percentage equal to a fraction,
the numerator of which is 62,500 and the denominator of which
is the aggregate number of shares of Class A Common Stock
outstanding on the date hereof of the outstanding shares of
the Company on a fully diluted basis and (ii) such Operator
Stockholder (collectively with his Operator Affiliates) has
not, in one or more transactions, whether or not related,
transferred a number of shares of Class A Common Stock in
excess of 35% of the number of Class A Common Stock held by
such Operator Shareholder as of the date of this Agreement to
transferees who are not Permitted Transferees (each such
transferee a "Non- Operator Transferee"); PROVIDED, HOWEVER,
that no transfers may be made to a Non- Operator Transferee
if, as a result thereof, there would be a Specified Reduction
(as defined in the Certificate of Incorporation); and
(c) notwithstanding anything contained in Section 7.3 hereof,
Voting Trust Certificates and Shares held by Non-Operator
Transferees may be transferred without regard for the
restrictions contained in Section 7.2(b)(ii).
The Voting Trustee shall not be required to give effect to any
transfer of the Voting Trust Certificates or the Shares unless it receives a
certificate (a copy of which
22
certificate the transferor of Voting Trust Certificates shall forward to the
Company) and upon which certificate the Voting Trustee is entitled to rely,
signed by the transferee certifying (i) the name and address of the transferee,
(ii) whether such transferee is a Permitted Transferee or a Non-Operator
Transferee and an explanation of how the transferee falls within the definition
of Permitted Transferee or Non-Operator Transferee, (iii) whether or not such
transferee is a Reseller Stockholder and (iv) whether the transferor is an
Operator or former Operator.
7.3 As a condition to any transfer permitted pursuant to this
Article, each transferee that is not a party hereto shall, prior to such
transfer, agree in writing to be bound by all of the provisions of this
Agreement applicable to the transferor (except as provided in Section 7.2(c))
and no such transferee shall be permitted to make any transfer other than in
accordance with the terms of this Agreement. Except as otherwise provided
herein, each transferee shall be entitled to the rights and privileges provided
hereunder applicable to the transferred Voting Trust Certificates or Shares
represented thereby, as the case may be, including the right to transfer such
Voting Rights Certificates or Shares represented thereby, as the case may be,
and shall be subject to all of the obligations with respect to such Voting Trust
Certificates or Shares
23
represented thereby, as the case may be, to the extent of the original
transferor under this Agreement.
7.4 Notwithstanding anything else contained in this Agreement, any
transfer is void and of no effect unless made in compliance with this Article 7.
ARTICLE VIII
COMPENSATION; EXPENSES
Compensation for the services of the Voting Trustee shall be paid by
the Company, and the Voting Trustee shall be entitled to reimbursement by the
Company for reasonable expenses and charges that may be incurred as Voting
Trustee, including but not limited to, the employment of such agents, attorneys
and counsel as the Voting Trustee may deem necessary and proper for the carrying
out of this Agreement, and all taxes or other governmental charges incurred in
connection with the initial transfer or issuance of any Shares or Voting Trust
Certificates to the Operator Stockholders who are Operator Stockholders as of
the date hereof.
ARTICLE IX
EXCULPATION; INDEMNIFICATION OF VOTING TRUSTEE
The Voting Trustee shall not be liable by reason of any matter
arising out of or in relation to this Agree ment, except for such loss or damage
as the holders of the
24
Voting Trust Certificates may suffer by reason of the Voting Trustee's gross
negligence or willful misconduct. The Voting Trustee shall be entitled to rely
on information and documents furnished to it by the Company and on certificates
furnished by Operating Stockholders, prospective transferees and candidates for
election as director, as to their qualifications, status or actions hereunder.
The Voting 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) (collectively, "Expense") arising out of
any accusation, allegation, complaint, claim, demand, investigation, cause of
action made or brought against the Voting Trustee or any compulsory process to
which the Voting Trustee is subject in connection with the Voting Trustee's
actions or inaction under this Agreement, except for any Expense resulting from
or arising out of such Voting Trustee's gross negligence or willful misconduct.
ARTICLE X
APPOINTMENT OF CUSTODIAN; SUCCESSOR VOTING TRUSTEE;
QUALIFICATIONS OF VOTING TRUSTEE
10.1 The Voting Trustee may designate a custodian to act for and on
behalf of the Voting Trustee hereunder. If a custodian is designated by the
Voting Trustee, such person shall be empowered, at the direction of the Voting
25
Trustee acting in any manner consistent with this Agreement, to deal with the
Shares and the Voting Trust Certificates on the Voting Trustee's behalf as if
the custodian were the Voting Trustee, and the custodian's actions taken in
accor dance with the Voting Trustee's instructions consistent with this
Agreement shall be deemed to be those of the Voting Trustee.
10.2 In the event that the Voting Trustee, for any reason, shall be
removed by a vote of the beneficial holders of a majority of the votes
represented by all of the Shares or shall fail or be unable to continue to serve
as voting trustee, whether by reason of its resignation or otherwise, a
successor voting trustee shall be elected by the beneficial holders of a
majority vote of the Shares represented by the then outstanding Voting Trust
Certificates, or in the event such holders are unable to agree on a successor
voting trustee, by majority vote of the Operating Directors or, if they are
unable to agree, by the Chief Executive Officer of the Company; PROVIDED,
HOWEVER, that no vote to remove a Voting Trust shall be effective until a new
Voting Trustee has been elected and no resignation shall be effective until the
earlier of (x) the election of a new Voting Trustee or (y) 30 days after the
resigning Voting Trustee gives notice of such resignation. The rights, powers,
privileges and obligations of the Voting
26
Trustee named hereunder shall be possessed by any successor voting trustee with
the same effect as though such successor had originally been a party to this
Agreement. The words "Voting Trustee" as used in this Agreement shall mean the
Voting Trustee or any successor voting trustee acting hereunder.
10.3 Nothing herein contained shall disqualify the Voting Trustee or
successor voting trustee from serving in such capacity if it 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 franchisee, vendor, purchaser or otherwise, nor shall
any transaction or contract be affected or invalidated by reason of the fact
that the Voting Trustee or any person affiliated with the Voting Trustee is in
any way interested in such transaction or contract; nor shall the Voting Trustee
be liable to account to the Company or to any stockholder thereof for any
profits realized by, from or through any transaction or contract by reason of
the fact that the Voting Trustee or any firm or corporation affiliated with the
Voting Trustee is interested in such transaction or contract; or (ii) ser ving
the Company or any of its affiliates as an officer or director, or in any other
capacity, and receiving compensa tion therefor.
27
10.4 The Voting Trustee may be a party to this Agreement as an
Operator Stockholder, and, to the extent of the Shares of which it is the
beneficial owner, the Voting Trustee shall in all respects be entitled to the
same rights and benefits hereunder as other Operator Stockholders that are
parties hereto. The Voting Trustee shall be entitled to be a holder of capital
stock or other securities of the Company or otherwise interested in the purchase
or sale of such stock or other securities or any property owned by the Company
or in which the Company has or may have any inter est.
ARTICLE XI
TERMINATION
11.1 This Agreement and the voting trust created hereby shall be
effective and remain in full force and effect until the occurrence of the
earliest of the following events:
(a) the tenth anniversary of the date of this Agreement
PROVIDED, HOWEVER, that prior to such tenth anniversary, Operator Stockholders,
other than Non-Operator Transferees, owning in the aggregate at least 65% of the
Shares may agree (together with, if one or more Non-Operator Transferees so
elects, Non-Operator Transferees) in a supplement to this Agreement to extend
this Agreement and the Voting Trust for an additional period of not more than
28
ten years, in which event this Agreement and the Voting Trust shall not then
terminate, but any Shares as to which the owner has not agreed to remain subject
to this Agreement shall be deemed not to be subject to such extended Agreement
and, upon surrender to the Voting Trustee of the Voting Trust Certificates, such
Voting Trust Certificates shall be cancelled and the certificates representing
such Shares shall be delivered to such owners; or
(b) upon the vote of the Operator Stock holders who
beneficially own more than seventy-five percent (75%) of the total number of
votes represented by all outstanding Shares.
11.2 Upon the termination of this Agreement, the Voting Trustee
shall (a) promptly cause any and all certifi ▇▇▇▇▇ for Shares and other Shares
issued to the Voting Trustee to be canceled and (b) in exchange for, and upon
the surrender of, the Voting Trust Certificates representing such Shares or
other Shares, deliver or cause to be delivered stock certificates to the holder
of such Voting Trust Certificates in accordance with the instructions of the
registered holders of such Voting Trust Certificates.
11.3 The death, disability or incompetency of a holder of a Voting
Trust Certificate during the term of this Agreement shall in no way affect the
validity or enforce ability of this Agreement or the Voting Trust Certificates
29
issued pursuant hereto, which shall remain in full force and effect.
11.4 If the Company shall acquire any Voting Trust Certificates, the
Company may thereupon, at its option, deliver such Voting Trust Certificates to
the Voting Trustee and shall receive in exchange the Class A Common Stock or
other securities represented by such Voting Trust Certificates. Upon such
exchange the Voting Trust Certifi ▇▇▇▇▇ so delivered shall be canceled. Any
Voting Trust Certificates held by the Company shall not be deemed to be
outstanding.
ARTICLE XII
PERMITTED AND NON-OPERATOR TRANSFEREES
The parties hereto agree that upon execution of a counterpart of
this Agreement, a Permitted Transferee or a Non-Operator Transferee shall become
a party hereto and be deemed to be an Operator Stockholder for all purposes
herein as if such Permitted Transferee or Non-Operator Transferee had originally
executed this Agreement, and this Agreement shall continue to remain in full
force and effect.
30
ARTICLE XIII
POWER OF ATTORNEY
13.1 Each of the Operator Stockholders hereby irrevocably
constitutes and appoints the Voting Trustee, singly and with full power of
substitution, his true and lawful attorney-in-fact, and empowers and authorizes
such attorney in his name, place and ▇▇▇▇▇ to make, execute and deliver,
acknowledge, swear to, file and record in all necessary or appropriate places
(a) the Stockholders' Agree ment substantially in the form attached hereto and
any amendments thereto, (b) any amendments to this Agreement adopted in
accordance with the terms hereof (including, but not limited to, the admission
of Permitted Transferees and Non-Operator Transferees as parties to this
Agreement and the Stockholders' Agreement) and (c) such documents as may be
necessary or appropriate to carry out the intent and purposes of this Agreement
and the Stockholders' Agreement.
13.2 The foregoing grant of authority (a) is a special power of
attorney coupled with an interest in favor of the Voting Trustee and as such
shall be irrevocable and shall survive an Operator Stockholder's death,
incompetence or incapacity (or, if the Operator Stockholder is a cor poration,
association, partnership, joint venture or trust, shall survive the merger,
dissolution or other termination of the existence of the Operator Stockholder);
(b) may be
31
exercised for an Operator Stockholder by a facsimile signa ture of the Voting
Trustee or by listing all of the Operator Stockholders and executing any
instrument with a single signature of the Voting Trustee acting as
attorney-in-fact for all of them; and (c) shall survive the assignment by any
Operator Stockholder of the whole or any portion of his interest in the Shares
or the Voting Trust Certificates representing such Shares.
13.3 Each Operator Stockholder hereby agrees to be bound by all of
the actions and representations of the Voting Trustee as attorney-in-fact and to
waive any and all defenses that may be available to him to contest, negate or
disaffirm the actions of any of the Voting Trustee or its successors under this
power of attorney, and each Operator Stockholder hereby ratifies and confirms
all acts that such attorney-in-fact may take as attorney-in-fact hereunder in
all respects as though performed by such Operator Stock holder.
ARTICLE XIV
MISCELLANEOUS
14.1 LOST, STOLEN OR DESTROYED CERTIFICATES. Upon notice by the
holder of any Voting Trust Certificate of any loss, theft or destruction of such
certificate, the Voting Trustee may, in its discretion, cause a new certifi cate
or certificates to be issued to such holder in respect
32
of the same number of Shares, upon satisfactory proof of such loss, theft or
destruction, and, in the discretion of the Voting Trustee, upon the deposit of a
bond in such form, content and amount and with sureties as the Voting Trustee
may require.
14.2 FILING OF AGREEMENT WITH THE COMPANY; AVAIL ABILITY FOR
INSPECTION BY OPERATOR STOCKHOLDERS. Executed copies of this Agreement, as
amended or supplemented, shall be filed by the Company in the principal office
of the Company and in the registered office of the Company in the State of
Delaware and shall be open to the reasonable inspection of any Operator
Stockholder or beneficiary of the trust under this Agreement, during daily
business hours, in accordance with the provisions of the General Corporation Law
of the State of Delaware.
14.3 TRANSFER RESTRICTIONS IN STOCKHOLDERS' AGREEMENT. Each Operator
Stockholder hereby acknowledges and agrees that the transfer of both the Shares
and the Voting Trust Certificates is restricted by the terms of this Agreement
and the Stockholders' Agreement.
14.4 COMPLIANCE WITH SECURITIES LAWS. The Voting Trustee and each
Operator Stockholder hereby acknowledges and agrees that the Voting Trust
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities laws
33
and, therefore, cannot be sold unless subsequently regis tered under the
Securities Act and any applicable state securities laws or unless an exemption
from such registra tion is available. Notwithstanding anything to the contrary
contained herein, the Company or the Voting Trustee or both of them may require,
as a condition precedent to any transfer of Voting Trust Certificates permitted
pursuant to this Agreement and the Stockholders' Agreement, the delivery by the
transferor of an opinion of counsel, reasonably satisfactory to the Company or
the Voting Trustee, as the case may be, to the effect that such transfer is
permitted under the Securities Act and any applicable state securities laws.
14.5 NOTICE. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be made by
hand delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or overnight air courier guaranteeing next day
delivery: (a) in the case of the Company, to National Auto/Truckstops Holdings
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Atten tion:
Chief Financial Officer), (b) in the case of the Voting Trustee, to ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: Corporate Trust), and (c) in the
case of any Operator Stockholder, to the address designated for corre spondence
in such Operator Stockholder's Subscription Agree ment (or to such other address
as may be designated by such party by notice to the Company and the Voting
Trustee pursuant to this Section 14.5). Except as otherwise provided in this
Agreement, each such notice shall be deemed given at the time delivered by hand,
if personally deliv ered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
14.6 AMENDMENT. No amendment of any provision of this Agreement
shall be valid unless (a) signed in writing signed by the Voting Trustee and (b)
upon the vote of (i) the Operator Stockholders who beneficially own more than
fifty percent (50%) of the votes represented by the then outstanding Shares;
PROVIDED, HOWEVER, that no amendment, modification or waiver of any material
provision of this Agreement shall be valid or effective except upon a vote
approving such amendment by the holders of preferred stock of the Company (and
the holders of the Class B Common Stock of the Company issued upon conversion of
such preferred stock) who beneficially own more than 50% of such outstanding
shares of stock. For purposes of the foregoing, (i) material provisions of this
Agreement shall include, but
34
shall not be limited to, the provisions of Sections 2.1, 3.1 (other than any
reduction of the 20-day period referred to therein), 3.2(a), 3.4, 3.5, 4.1, 6.2,
Article VIII, Article IX, Article XIII, Section 14.6 and Section 14.14 (and the
related definitions contained in Article I) and (ii) the provisions of Article
VII shall not be deemed to be a material provision of the Agreement.
Notwithstanding the foregoing, in no case will the consent of the Company be
required and no consent of any party hereto will be required in connection with
any amendment hereof to add any person as an Operator Stockholder.
14.7 WAIVER. No failure or delay on the part of the Voting Trustee
or the Operator Stockholders or any of them in exercising any right, power or
privilege hereunder, and no course of dealing among the Company, the Voting
Trustee and the Operator Stockholders or any of them shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the simultaneous or later exercise of any other
right, power or privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights and remedies that the Voting Trustee
or the Operator Stock holders or any of them would otherwise have. No notice to
or demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar
35
or other circumstances or constitute a waiver of the rights of the Voting
Trustee or the Operator Stockholders or any of them to take any other or further
action in any circum stances without notice or demand.
14.8 BENEFIT AND BINDING EFFECT. This Agreement shall be binding
upon and shall inure to the benefit of the Company, the Voting Trustee and their
respective successors and assigns, and each of the Operator Stockholders, and
their respective executors, administrators and personal representatives and
heirs and assigns. The acceptance by any Operator Stockholder of a Voting Trust
Certificate shall bind him and his representatives and assigns as a party to
this Agreement to the same extent as if such representatives and assigns had
executed a copy of this Agreement as one of the original Operator Stockholders,
and, if at any time requested by the Voting Trustee, any such representative or
assign shall execute a copy of this Agreement.
14.9 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect of the subject matter hereof
and supersedes all prior agree ments, discussions and understandings.
14.10 SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited
36
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
14.11 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
14.12 VARIATIONS OF PRONOUNS. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, single or plural, as the
context may require.
14.13 COUNTERPARTS. This Agreement may be exe cuted 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.
14.14 THIRD-PARTY BENEFICIARIES. Nothing in this Agreement shall be
deemed to cause any right in any party not a person hereto and this instrument
shall not be construed in any respect to be a contract in whole or in part for
the benefit of any third party, except that the holders of the Class B Common
Stock, the Convertible Preferred Stock, Series I and the Convertible Preferred
Stock, Series II of the Company shall be considered third-party beneficiaries of
this Agreement and shall be able to enforce the same as if parties hereto.
37
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
NATIONAL AUTO/TRUCKSTOPS HOLDINGS
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
UNITED STATES TRUST COMPANY
OF NEW YORK, as Voting Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
Title: Assistant Vice President