**EXHIBIT 4.9**

 

STOCKHOLDERS’AGREEMENT

 

AGREEMENT dated as of the 14thday of March, 2000 by and among NE Restaurant Company, Inc., a Delawarecorporation (hereinafter referred to as the “Corporation”), and each of theparties listed on Exhibit A attached hereto (hereinafter, with any otherparties who have executed this Agreement or a counterpart hereof, collectivelyreferred to as the “Stockholders” or individually as a “Stockholder”).

 

WITNESSETH :

 

WHEREAS, the Corporation isauthorized to issue a total of 8,000,000 shares of Common Stock, $.01 par value(“Common Stock” or the “Stock”);

 

WHEREAS, a total of2,986,622 shares of Common Stock are issued and outstanding as of the datehereof;

 

WHEREAS, the Stockholdersown all of the issued and outstanding shares of Stock of the Corporation as ofthe date hereof;

 

WHEREAS, each of theStockholders listed on Exhibit A has entered into either the StockholderAgreement, dated as of December 31, 1993, as amended (the “OriginalAgreement”), by and among certain of the Stockholders and the Corporation orthe Stockholder Agreement, dated as of September 15, 1997 (the “EmployeeAgreement”), by and among the employee Stockholders of the Corporation and theCorporation;

 

WHEREAS, the Corporation andthe Stockholders listed on Exhibit A desire to combine the Original Agreementand the Employee Agreement into one Agreement between the Corporation and allof the Stockholders, and to modify same all upon the terms and conditions setforth in this Agreement;

 

NOW, THEREFORE, inconsideration of the mutual promises and covenants contained herein and forother good and valuable consideration, receipt and sufficiency of which ishereby acknowledged, the Corporation and the Stockholders agree as follows.

 

ARTICLE1

 

DEFINITIONS

 

1.1           For purposes of this Agreement, the following terms shallhave the indicated respective meanings (other capitalized terms are definedelsewhere in this Agreement):

 

“Affiliate” withrespect to any person means any person controlled by, controlling or undercommon control with such person.

 

“Cause”, with respectto an Employee Stockholder, means any of the following committed by an EmployeeStockholder, directly or indirectly:

 

(i)            Commission by the Employee Stockholder of an act ofdishonesty involving the Corporation;

 

(ii)           Failure by the Employee Stockholder to perform a materialportion of his duties (not otherwise excused by the disability of the EmployeeStockholder), or material breach by the Employee Stockholder of anyrepresentation, warranty or agreement of the Employee Stockholder made in anyagreement between the Employee Stockholder and the Corporation, which continuesfor a period of thirty (30) days after written notice from the Corporation tothe Employee Stockholder;

 

(iii)          Commission by the Employee Stockholder of an act of grossincompetence in the course of his employment with the Corporation;

 

(iv)          The Employee Stockholder’s use of drugs or alcohol whichinterferes with the Employee Stockholder’s

 

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performance of his duties or responsibilitiesto the Corporation; or

 

(v)           The Employee Stockholder is found guilty or pleads *nolocontendere* to the commission of a felony or serious misdemeanoroffense.

 

“Board of Directors”means the Board of Directors of the Corporation.

 

“Employee Stockholder”means a Stockholder who is an employee of the Corporation on the date hereof oron the date on which such Stockholder acquires any Stock.

 

“Exchange Act” meansthe Securities Exchange Act of 1934, as amended, or any similar Federalstatute, and the rules and regulations of the Securities and ExchangeCommission issued under the Exchange Act, as they each may, from time to time,be in effect.

 

“Franchise Agreement”means any franchise, development or other agreement between the Corporation andany of its franchisors, as any such agreement may be amended from time to time.

 

“Immediate Family Member”with respect to any individual means the spouse, sibling, parent, child,grandchild or great-grandchild of such individual.

 

“Permitted Transfers”means any of the following transfers of Stock by a Stockholder:

 

(i)            any transfer involving thedistribution by any Stockholder which is a general or limited partnership toany of its partners as of the date hereof;

 

(ii)           any transfer involving the distributionby any Stockholder which is a corporation to any of its stockholders as of thedate hereof;

 

(iii)          any transfer involving thedistribution by any Stockholder which is a trust to any of its beneficiaries;

 

(iv)          any transfer involving thedistribution by any Stockholder which is a limited liability company to any ofits members as of the date hereof;

 

(v)           any transfers by will or intestatesuccession;

 

(vi)          any transfer to a Stockholder,provided that such transfer is approved by a majority of the Board ofDirectors;

 

(vii)         any transfer to any Immediate FamilyMember of any Stockholder, to any trust for the benefit of one or moreImmediate Family Members of any Stockholder or to any limited partnership ownedor controlled by any Stockholder or Immediate Family Member of any Stockholder;

 

(viii)        any transfer to any Affiliate of anyStockholder as of the date hereof; and

 

(ix)           any transfer unanimously approved byall of the members of the Board of Directors then in office;

 

provided that any such transfer is made incompliance with all securities and other laws applicable thereto.

 

“Securities Act”means the Securities Act of 1933, as amended.

 

“Selling Stockholder”means a Stockholder proposing to transfer such Stockholder’s Stock.

 

“Subsidiary” meansany corporation, association, trust, partnership or business entity of whichthe Corporation shall at any time own, directly or indirectly, at least fiftypercent (50%) or more of the voting or equity interest therein.

 

“Voting Stock” meansthe Common Stock.

 

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ARTICLE2

 

RESTRICTIONON TRANSFERS

 

2.1           General.  NoStockholder may transfer any interest in the Stock (whether by way of gift,sale, transfer, assignment, pledge, hypothecation, grant of security interestor otherwise), unless there shall have first been compliance with Section 2.2,and, if applicable, Article 3, and unless the transferee agrees in writing tobe bound by this Agreement.

 

2.2           Conditions to Transfers.  (a)              No transfermay be made without the consent of the Corporation if the transfer wouldrequire filing of a registration statement under the Securities Act orregistration or notice subject to review under any state securities or blue skylaws or regulations or violate any applicable federal or state securities orblue sky laws (including any investment suitability standards) or regulationsapplicable to the Corporation or the Common Stock.  The Corporation may rely upon the advice of counsel in making anydetermination under this paragraph (a).

 

(b)           The Stockholders further understand and agree that,notwithstanding any other provision of this Agreement, a proposed transfer maybe subject to (i) the prior approval of applicable liquor licensingauthorities, one or more of the Corporation’s landlords, one or more oftheCorporation’s lenders or bondholders and/or any franchisor of the Corporationand (ii) the right of first refusal of any franchisor as may be set forth inany Franchise Agreement, or otherwise, as if such right of first refusal wereset forth herein.  The Corporation mayrely upon the advice of counsel in making any determination under thisparagraph (b).  If approval or consentof any such entities is required prior to a transfer, such transfer shall notbe effective until all such approvals and consents are obtained.

 

(c)           The Corporation may require as a condition of any transferthat the assigning Stockholder assume all costs incurred by the Corporation inconnection therewith, including, but not limited to, legal fees and accountingfees and any filings or other actions required to be taken with respect to theCorporation’s liquor licenses or any action take in connection with obtainingapprovals or consents as described in paragraph (b) above.  As a further condition of a transfer, theCorporation may require that the assigning Stockholder furnish an opinion ofcounsel satisfactory to the Corporation that the proposed transfer does notviolate the provisions of paragraphs (a) and (b) above.

 

2.3.          Transfers In Violation.  Any sale, assignment, transfer, pledge, hypothecation, grant ofsecurity interest or disposition of any Stock, by gift or otherwise, which isin violation of any provision of this Agreement shall be void and of no effect,and shall not be recognized by the Corporation as transferring any interest inany of the Stock.  The Corporation shallnot transfer any Stock unless and until it has received reasonable assurance ofcompliance with this Agreement in connection with such transfer.

 

ARTICLE3

 

RIGHTOF FIRST REFUSAL

 

3.1           Right of First Refusal.  Except for a Permitted Transfer, a Selling Stockholder may notsell, assign, transfer, pledge, grant a security interest in or otherwisedispose of any shares of Stock, or any interest therein now held or hereafteracquired, without first giving written notice (a “Proposed Sale Notice”) to theCorporation and all other Stockholders (the “Offeree Stockholders”).  The Proposed Sale Notice shall include thename of the Selling Stockholder and the proposed transferee and all materialterms of the proposed transfer and shall be accompanied by a copy of the bonafide written offer to purchase such Stock (the “Offered Shares”).  Any such offer must be for cash (which mayinclude obligations to make deferred cash payments which may be represented bya note).  The Proposed Sale Notice tothe Corporation and the Offeree Stockholders shall be deemed for all purposesto give each of the Corporation and the Offeree Stockholders a first right ofpurchase (sometimes referred to as a right of first refusal) to purchase all,but not less than all, of the Offered Shares as provided in this Article3.  If the Corporation and the OffereeStockholders decline or fail to exercise their first right of purchase topurchase all of the Offered Shares within the time provided in Sections 3.2 and3.3, respectively, the Selling Stockholder may, within thirty (30) days fromthe date the last to expire of such rights terminates in accordance with thisAgreement, transfer the Offered Shares upon terms that are no more favorable tothe transferee than as set forth in the Proposed Sale Notice; provided, however,that the transferee agrees to become a party to and bound by the terms of thisAgreement as a Stockholder hereunder. If such sale is not consummated within the thirty (30) day periodprovided in this Section 3.1, the Selling Stockholder shall not be free to sellany shares of Stock without again complying with the provisions

 

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of this Article 3.

 

3.2           Corporation First Right of Purchase.  Upon receipt of a Proposed Sale Notice, theCorporation shall have a first right to purchase any or all of the OfferedShares at the price and in the manner specified herein, before any other actionis taken to sell, assign, transfer, pledge, grant a security interest in orotherwise dispose of the Stock.  Suchright shall continue for a period of thirty (30) days from the receipt of theProposed Sale Notice.  If theCorporation elects to exercise its first right of purchase, the Corporationshall so notify the Selling Stockholder and the Offeree Stockholders,specifying the number of Offered Shares that the Corporation has elected topurchase and the remaining Offered Shares (the “Remaining Shares”) for sale tothe Offeree Stockholders.

 

3.3           Stockholder Second Right of Purchase.  If the Corporation does not elect topurchase all of the Offered Shares, the Offeree Stockholders shall have a rightto purchase the Remaining Shares, at the price and in the manner specifiedherein, before any other action is taken to sell, assign, transfer, pledge,grant a security interest in or otherwise dispose of the Offered Shares.  Such right shall continue for a periodending ten (10) days after the Offeree Stockholder receives the Corporation’snotice to the Selling Stockholder and the Offeree Stockholders that theCorporation has not elected to purchase all the Offered Shares (the “OfferTermination Date”).  If an OffereeStockholder elects to exercise its right of purchase, the Offeree Stockholdershall so notify the Selling Stockholder and the Corporation of the number ofshares of Stock that the Offeree Stockholder has elected to purchase.  If the Offeree Stockholders do not elect topurchase all the Remaining Shares, the Corporation shall have the further rightto elect to purchase, not later than five (5) business days after the OfferTermination Date, the Remaining Shares which the Offeree Stockholders have notelected to purchase.  If more than oneof the Offeree Stockholders elects to purchase more than all the RemainingShares, the Remaining Shares shall be allocated among the Offeree Stockholderspro rata according to their then respective percentage interests in theoutstanding Stock of the Corporation, or as such Offeree Stockholders may agreein writing.  If the Corporation and theOfferee Stockholders have not elected to purchase all of the Offered Shares bythe Offer Termination Date with respect to the Offeree Stockholders and by five(5) business days thereafter with respect to the Corporation, the Corporationand the Offeree Stockholders shall be deemed not to have elected to purchaseany Offered Shares hereunder.

 

3.4           Terms of Purchase Price.  The price and terms upon which the Corporation and the OffereeStockholders may purchase the Stock if they elect to exercise their first rightof purchase, exercisable within the periods specified in Sections 3.2 and 3.3,shall be the price and terms set forth in the Proposed Sale Notice.

 

3.5           Tender and Payment.  All shares of Stock which the Corporation and the OffereeStockholders have elected to purchase hereunder shall be tendered at theprincipal office of the Corporation within a reasonable date and time agreed toby the Selling Stockholder and the Corporation and Offeree Stockholders, asapplicable (and in any event within fifteen (15) days after the Corporation andthe Offeree Stockholders have elected to purchase the Offered Shares) bydelivery of certificates representing such shares, endorsed in blank and inproper form for transfer against payment of the purchase price.  The purchase price shall be payable in cashor by certified or bank check or wire transfer, or in accordance with deferredpayment provisions, if any, set forth in the Proposed Sale Notice.

 

ARTICLE4.

 

RIGHTOF REPURCHASE ON TERMINATION OF

EMPLOYEESTOCKHOLDER OR TRANSFER EVENT

 

(i)                                     a Stockholdervoluntarily files a petition under any bankruptcy or insolvency law or apetition for the appointment of a receiver, or makes an assignment for thebenefit of creditors;

 

(ii)                                  a Stockholderis subjected involuntarily to such a petition or assignment, or any creditor orother person obtains an attachment or other legal or equitable interest in anyStock of a Stockholder, and such involuntary petition, assignment or attachmentis not discharged within thirty (30) days after creation; or

 

(iii)                               a Stockholderis subject to a judgment, court order or decree or by operation of law isotherwise required to transfer Stock in other than a Permitted Transfer;

 

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A Stockholder shall, within ten (10) days of the occurrence of aTransfer Event give written notice thereof to the Corporation.

 

(b)                                                                                 Upon receipt ofwritten notice of occurrence of a Transfer Event, the Corporation shall have aright to purchase any or all of the shares of Stock to which such TransferEvent relates (the “Transfer Shares”) at the lower of Fair Value, as defined inSection 5.1, or the original purchase price of such shares before any otheraction is taken to sell, assign, transfer, pledge, grant a security interest inor otherwise dispose of the Transfer Shares. Such  right shall continue for a period of one hundred twenty (120)days from the receipt of written notice of a Transfer Event, and in any eventshall continue for fifteen (15) days from the date of the receipt by theCorporation of an appraisal made pursuant to Section 5.1.

 

(c)                                                                                  If theCorporation does not elect to purchase all of the Transfer Shares,all other Stockholders shall have a right to purchase the remaining TransferShares, at the price specified in Section 4.2(b) and in the manner specifiedherein.  Such right shall continue for aperiod ending ten (10) days after the Stockholder receives the Corporation’snotice that the Corporation has not elected to purchase all the TransferShares.  If a Stockholder elects toexercise its right of purchase, the Stockholder shall so notify the Corporationand the holder of such Transfer Shares of the number of Transfer Shares thatthe Stockholder has elected to purchase. If more than one of the Stockholders elects to purchase more than allthe remaining Transfer Shares, the remaining Transfer Shares shall be allocatedamong the Stockholders pro rata according to their then respective percentageinterests in the outstanding Stock of the Corporation, or as such Stockholdersotherwise may agree in writing.  If theCorporation and the Stockholders shall be deemed not to have elected topurchase any Transfer Shares hereunder, and the legal representative, beneficiary,trustee, assignee, receiver or other transferee who obtained the TransferShares by reason of the Transfer Event may retain the Transfer Shares, subjectto the provisions of this Agreement.

 

DETERMINATIONOF FAIR VALUE

 

5.1           Determination of Fair Value.               When used with reference to the Stock, Fair Value forStock shall be determined by agreement of the purchasing and selling partieswithin fifteen (15) days after written request therefore from one party to theother.  In the event such Fair Valuecannot be so determined within such time period, each party shall select anexperienced investment banking firm or independent appraiser by notice to theother within ten (10)  days afterwritten request by either.  In the eventboth parties do not select the same firm, the two (2) firms selected shallselect a third experienced investment banking firm or independent appraiserwhich shall, within thirty (30) days after selection, determine the Fair Valueof the Stock.  Fair Value shall be theamount which the selected firm determines would be paid per share by a thirdparty to acquire the stock of the Corporation proposed to be sold, assuming thepayment of the purchase price in cash at closing, pursuant to open andcompetitive bidding conducted by a knowledgeable and experienced investmentbanking firm, assuming a reasonable time (up to 12 months) to accomplish suchsale and complete cooperation by management, with appropriate reduction for thefact that the Stock being valued constitutes a minority interest and that thereis no public market for such Stock.  Inthe even the investment banking firm or independent appraiser selected providesa range of values as opposed to a single value, the Fair Value shall be themedian of the range of values.  Thedetermination of Fair Value by such appraiser or investment banking firm willbe final and binding on all parties concerned. All costs of such determination shall be borne equally be the purchasingand selling parties.

 

ARTICLE6

 

MISCELLANEOUS

 

6.1           Agreement to Vote on Franchise Matters.  Each Stockholder hereby agrees to vote allcapital stock of the Corporation held by such Stockholder and entitled to votein the manner that the Chairman of the Board of Directors of the Corporationshall direct,  in the event (and only inthe event) that the Stockholders are entitled to cast votes on any matterrelating to action which the Corporation is required to take or omit to takeunder the express terms of any Franchise

 

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Agreement.

 

6.2           Certificates Legended.  Upon the execution of this Agreement, and during the term of thisAgreement, each certificate evidencing Stock held by a Stockholder ortransferee shall be conspicuously legended as follows:

 

The shares of stockevidenced by this certificate have not been registered under the Securities Actof 1933 or applicable state securities law, and accordingly, the stock may notbe transferred, sold, pledged, hypothecated or otherwise disposed of in theabsence of registration under such Act and such laws or pursuant to anexemption therefrom.  In addition, theshares are subject to the restrictions of, and are transferable only uponcompliance with the provisions of, a Stockholders’ Agreement between thecorporation and the holders of certain securities of the corporation.  A copy of said Agreement is on file in theoffice of the corporation, and a copy thereof will be mailed to the holderhereof without charge upon receipt of a written request therefore.

 

6.3           Additional Parties.  Transferees or successors or additional holders of Stock maybecome parties to this Agreement by endorsing a schedule attached hereto or byexecuting a counterpart of this Agreement. An original copy of this Agreement and of any counterpart subsequentlyexecuted shall be kept by the Secretary of the Corporation.

 

6.4           Shares of Stock. This Agreement shall apply to all shares of Stock of the Corporation nowor hereafter owned by the Stockholders or any transferees of the Stockholders,including dividends of shares of Stock and any shares of Stock received withrespect to shares of Stock of the Corporation as the result of a merger,consolidation, tax-free exchange, or other transaction in which theStockholders or their transferees receive shares of Stock in exchange for, orwith respect to, Stock.

 

6.5           Stock Transfer Record.  The Corporation shall not effect or record any transfer of sharesof Stock in its stock transfer records unless such transfer is in compliancewith the provisions of this Agreement. If a Stockholder desires to make a transfer, such Stockholder shallfurnish to the Corporation such evidence of compliance with this Agreement asmay be reasonably required by the Board of Directors of, or counsel for, theCorporation.

 

6.6           Successors and Assigns.  This Agreement shall be binding upon the parties hereto and theirheirs, representatives, successors and assigns.

 

6.7           Notices. All notices to a party hereto shall be in writing and shall be deemed tohave been adequately given if delivered in person (including, withoutlimitation, by courier, Federal Express, or other overnight messenger service),or mailed by United States certified mail, postage prepaid, return receiptrequested, addressed as follows:

 

If to the Corporation:

 

NE Restaurant Company, Inc.

5 Clock tower Place, Suite200

Maynard, MA 01754

Attention:  General Counsel

 

If to a Stockholder:

 

The address for suchStockholder previously provided to the Corporation by such Stockholder and onfile at the Corporation’s corporate office or to such other address as anyparty may from time to time designate for itself by notice in writing given tothe other parties hereto.

 

6.8           Term and Termination.  This Agreement and all obligations of the parties hereunder otherthan Section 6.12 which shall survive the termination of this Agreement, shallterminate on the earlier of:

 

(i)            if the Corporationis merged into or consolidated with another corporation or sells or transferssubstantially all of its assets to any other party or corporation (and the restrictionsherein contained shall not apply to that transaction) if the holders of votingsecurities of the Corporation immediately prior to such merger, consolidationor sale do not continue to own at least fifty-one percent

 

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(51%)of the voting securities of the surviving entity;

 

(ii)           if the Corporationconsummates a public offering of the Common Stock pursuant to a registrationstatement declared effective under the Securities Act;

 

(iii)          upon mutual writtenagreement in accordance with Section 6.9 hereof;

 

(iv)          if the Corporationvoluntarily files a petition under any bankruptcy or insolvency law or apetition for the appointment of a receiver, or makes an assignment for thebenefit of creditors; or

 

(v)           if the Corporationis subjected involuntarily to such a petition or assignment, and suchinvoluntary petition or assignment is not dissolved within one hundred twenty(120) days of creation.

 

6.9           Waiver and Amendments.  The parties may terminate, amend or modify this Agreement in suchmanner as may be agreed upon, with the written consent of the holders oftwo-thirds (66 2/3%) of the aggregate outstanding shares of Voting Stock ownedby the Stockholders; provided, however, that no amendment to this Agreementshall be valid as to a Stockholder that materially increases any of suchStockholder’s obligations hereunder without the written consent of suchStockholder.  No party shall be deemedto waive any rights hereunder, unless such waiver is in writing and signed bysuch party.  A waiver in writing on oneoccasion shall not be construed as a consent to or a waiver of any right orremedy on any future occasion.

 

6.10         Entire Agreement. This Agreement shall supercede and replace the Original Agreement andthe Employee Agreement which are hereby terminated and shall constitute theentire agreement between the parties, and all premises, representations,understandings, warranties and agreements with reference to the subject matterhereof have been expressed herein or in the documents incorporated herein byreference.

 

6.11         Applicable Law; Severability.  This Agreement shall be governed by andconstrued and enforced in accordance with the internal laws of the State ofDelaware.  Wherever possible, eachprovision of this Agreement shall be interpreted in such manner as to beeffective and valid under applicable law, but if any provision hereof shall beprohibited by or invalid under any such law, that provision shall beineffective only to the extent of such prohibition or invalidity, withoutinvalidating or nullifying the remainder of that provision or any otherprovisions of this Agreement.

 

6.12         Confidentiality. The Stockholders each agree that they will keep confidential and notdisclose or divulge any confidential, proprietary or secret information whichthey may obtain from the Corporation; provided, however, that ontheir request of any regulatory body having jurisdiction over the Stockholderor if otherwise required by law, the Stockholder may disclose such matters thatonly to the extent required by such regulatory body or law; provided, further,that a Stockholder may make such disclosures on a confidential basis to its ortheir members, partners or beneficiaries as may be necessary under its or theirorganizational documents or as the Stockholder may deem reasonablyadvisable.  The Stockholders eachfurther agree that this Section 6.12 shall survive the termination of thisAgreement.

 

6.13         Specific Performance.  Due to the fact that the Stock cannot be readily purchased orsold in the open market, and for other reasons, the parties will be irreparabledamaged in the event that this Agreement is not specifically enforced.  In the event of a breach or threatenedbreach of the terms, covenants and/or conditions of this Agreement by any ofthe parties hereto, the other parties shall, in addition to all other remedies,be entitled to a temporary or permanent injunction, without showing any actualdamage, and/or a decree for specific performance in accordance with theprovisions hereof.

 

6.14         Counterparts. This Agreement may be executed in multiple counterparts, each of whichshall be deemed in original but all of which together shall constitute one andthe same instrument.

 

6.15         Effect of Headings. Any table of contents, title of an article or section heading hereincontained is for convenience or reference only and shall not affect the meaningof construction of any of the provisions hereof.

 

[Remainderof Page Intentionally Left Blank]

 

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StockholderAgreement

SignaturePage

 

 

IN WITNESS WHEREOF, eachStockholder has hereunto set his hand and the Corporation has authorized thisinstrument to be signed by its officers thereunto duly authorized, effective asan instrument under seal.

 

 
| THE CORPORATION: | NE RESTAURANT COMPANY,  INC.     |
|------------------|----------------------------------|
|             |                             |
|             | By:                              |   |
|             |                             | Benjamin R. Jacobson, |
|             |                             | Chairman of the Board |
|             |                             |
| STOCKHOLDER:     | NAME AND ADDRESS OF  STOCKHOLDER |
|             |                             |
|             |                             |
|             |                             |
|             |                             |
|             |                             |
|             |                             |
|             |                             |
|             | By:                              |   |
|             |                             |
|             | Title:                           |   |
|                  |                                  |  |  |

 

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EXHIBITA

 
| Stockholder | Address |
|-------------|---------|

 

 

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