REPURCHASE AGREEMENT AND MUTUAL GENERAL RELEASE
THIS REPURCHASE AGREEMENT AND MUTUAL GENERAL RELEASE (this "Agreement") is
made and entered into as of this 1st day of December, 1998 by and among
Interiors, Inc., a Delaware corporation ("Interiors"), Windsor Art, Inc., a
Missouri corporation ("Windsor"), Bentley International, Inc., a Missouri
corporation ("Bentley"), Xxxxx X. Xxxxxx, an individual ("Xxxxxx"), and Xxx
Xxxx, an individual ("Xxxx"). Unless otherwise defined herein, all capitalized
terms set forth herein shall have the meaning ascribed to them in that certain
Stock Purchase Agreement dated July 7, 1998 (the "Stock Purchase Agreement"), by
and between Interiors and Bentley.
RECITALS
A. Pursuant to the Stock Purchase Agreement, (i) Interiors purchased
from Bentley the Shares, (ii) Interiors issued to Bentley the First Promissory
Note, (iii) Interiors and Bentley entered into the Securities Purchase
Agreement, (iv) Interiors, Bentley, Xxxxxx and Xxxx entered into the Windsor
Voting Trust, (v) Interiors, Windsor and Xxxxxx entered into that certain
Consulting Agreement dated July 30, 1998 (the "Consulting Agreement"), (vi)
Interiors, Bentley and U.S. Bank Trust (the "Escrow Agent") entered into the
Escrow Agreement, (vii) Interiors executed in favor of Bentley that certain
Pledge Agreement dated July 30, 1998 (the "Pledge Agreement"), and (viii) Xxxx
and Xxxxxx Xxxx executed in favor of Bentley that certain Continuing Guaranty
dated July 30, 1998 (the "Guaranty").
B. Pursuant to the Securities Purchase Agreement, (i) Interiors
purchased 150,000 shares of common stock of Bentley (the "Bentley Shares"), (ii)
Interiors purchased a warrant to purchase up to 300,000 shares of common stock
of Bentley (the "Bentley Warrant") and (iii) Bentley received an aggregate of
1,500,000 shares of Class A common stock of Interiors, registered in the name of
the Escrow Agent and subject to the terms of the Escrow Agreement (the
"Interiors Shares").
C. In connection with the consummation of the transactions
contemplated by the Securities Purchase Agreement, (i) Interiors, Bentley and
Xxxx entered into that certain Interiors, Inc. Voting Trust Agreement No. 1
dated July 30, 1998 (the "Interiors Voting Trust") and (ii) Interiors, Bentley
and Xxxxxx entered into that certain Bentley International, Inc. Voting Trust
Agreement No. 1 dated July 30, 1998 (the "Bentley Voting Trust").
D. Pursuant to the terms and conditions set forth herein, the parties
desire to execute releases and terminate certain agreements among them.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto do hereby agree as follows:
1.Non-Admission. The parties hereto acknowledge that this Agreement reflects
their desire to resolve certain aspects of their relationship in an orderly and
amicable fashion. The parties in no way acknowledge any fault or liability to
any other party hereto or any other person or entity and this Agreement shall
not in any way be construed as an admission by any party or any other person or
entity of any fault or liability to any other party hereto or any other person
or entity.
2. Payments and Deliveries by Interiors. The parties hereto agree that
Interiors shall do the following upon the execution of this Agreement:
(a) Interiors shall pay or cause to be paid to Bentley (i) via
wire transfer of immediately available funds the sum of $2,440,000 and (ii) via
company check the sum of $1,738.08 (representing accrued interest on $2,440,000
from November 29, 1998 through the date hereof at a rate of 13% per annum);
(b) Interiors shall pay or cause to be paid to Xxxxxx (i) via wire
transfer of immediately available funds the sum of $125,000 and (ii) via company
check the sum of $89.04 (representing accrued interest on $125,000 from November
29, 1998 through the date hereof at a rate of 13% per annum);
(c) Interiors shall transfer to Xxxxxx the Bentley Warrant;
(d) Interiors shall execute any directions, stock powers, assignments,
cancellations or other documents or instruments and take all actions reasonably
required to cause (i) 110,000 of the Bentley Shares to be transferred to Xxxxxxx
Xxxxxxxxx ("Xxxxxxxxx"), the President of Windsor, in satisfaction of Bentley's
obligation to convey an equivalent number of such shares to Xxxxxxxxx pursuant
to the terms of a Bonus Agreement dated October 26, 1998 between Xxxxxxxxx and
Bentley (the "Bonus Agreement") and (ii) 40,000 of the Bentley Shares to be
transferred to Xxxxxx;
(e) Interiors shall execute any directions, stock powers, assignments,
cancellations or other documents or instruments and take all actions reasonably
required to cause the Interiors Shares to be transferred to Windsor from the
Escrow Account;
3. Payments and Deliveries by Windsor. The parties hereto agree that, upon
the execution of this Agreement:
(a) Windsor shall sell to Bentley all furnishings and furniture located in
the condominium described in Section 3.2(c) of the Consulting Agreement for the
sum of $100 and deliver a xxxx of sale for the same to Bentley;
(b) Windsor shall pay to Xxxxxx via company check (i) the sum of $8,888.88
(representing all accrued and unpaid amounts owing to Xxxxxx under the
Consulting Agreement through the date hereof) and (ii) the sum of $2,600.00
(representing all unreimbursed expenses owing to Xxxxxx under the Consulting
Agreement through the date hereof); and
(c) Windsor shall pay to Bentley via company check the sum of $1,866.40
(representing reimbursement to Bentley for certain medical insurance premiums
paid by Bentley through the date hereof which should have been paid by Windsor
pursuant to the Consulting Agreement).
4. Payments and Deliveries by Bentley. The parties hereto agree that Bentley
shall do the following upon the execution of this Agreement:
(a) Bentley shall execute any directions, stock powers, assignments,
cancellations or other documents or instruments and take all actions reasonably
required to cause the Shares to be released to Interiors;
(b) Bentley shall execute any directions, stock powers, assignments,
cancellations or other documents or instruments and take all actions reasonably
required to cause the Interiors Shares to be transferred to Windsor from the
Escrow Account;
(c) Bentley shall cancel and deliver to Interiors the First Promissory
Note; and
(d) Bentley shall pay to Windsor the sum of $100 in connection with the
purchase by Bentley from Windsor of the furnishings and furniture described in
Section 3(a) hereof (which amount may be offset against amounts owed by Windsor
to Bentley as set forth in Section 3(c) hereof).
5. Termination of Agreements. The parties hereto agree that, upon the
execution of this Agreement, the following agreements shall be terminated and
canceled and have no further force or effect, and the parties hereto shall have
no further rights, duties or obligations thereunder or with respect thereto:
(a) The Securities Purchase Agreement;
(b) The Escrow Agreement;
(c) The Consulting Agreement;
(d) The Pledge Agreement;
(e) The Guaranty;
(f) The Windsor Voting Trust;
(g) The Bentley Voting Trust; and
(h) The Interiors Voting Trust.
6. Cancellation of Certain Interiors Warrants. The parties hereto agree that,
upon the execution of this Agreement, all warrants to purchase shares of Class A
common stock of Interiors granted to designee(s) of Xxxxxx pursuant to Section
3.3 of the Consulting Agreement shall be canceled and be of no further force or
effect. To the extent that Xxxxxx has failed to designate any such person(s)
prior to the date hereof, such designation right shall be terminated.
Notwithstanding anything in this Section 6 to the contrary, Xxxxxx shall be
entitled to retain ownership of, and to exercise all of his rights under, that
certain warrant to purchase up to 50,000 shares of Class A common stock of
Interiors dated July 30, 1998 and evidenced by Interiors' Warrant Certificate
No. W-1.
7. Assumption of Obligation by Interiors. Interiors hereby unconditionally
assumes the obligation of Bentley under the Bonus Agreement to convey to
Xxxxxxxxx 100,000 shares of Class A common stock of Interiors (the "Bonus
Shares"). Interiors agrees that it shall issue such shares to Xxxxxxxxx within
ten (10) business days after the date hereof. Interiors further agrees that it
will indemnify and hold harmless Bentley and each of its beneficiaries,
successors, assigns, agents, directors, officers, employees, representatives,
attorneys and affiliates (and agents, directors, officers, employees,
representatives and attorneys of such affiliates)), or any of them, from any and
all losses, liabilities, obligations, costs, expenses, damages or judgments of
any kind or nature whatsoever (including reasonable attorneys' fees) arising out
of or related to any breach by Interiors of its obligation to issue the Bonus
Shares under this Section 7. In addition, in the event that Interiors fails to
convey to Xxxxxxxxx the Bonus Shares with ten (10) business days after the date
hereof, Interiors agrees that, in any action filed by Bentley relating to any
breach by Interiors of its obligation to issue the Bonus Shares under this
Section 7, it shall stipulate to a judgment against it in an amount equal to
$150,000.00.
8. No Further Terminations or Amendments. Except as expressly set forth
herein, all terms and conditions of the Stock Purchase Agreement and all other
documents and instruments entered into in connection with the transactions
contemplated thereby shall remain in full force and effect.
9. Definition of Claims. For purposes of this Agreement, the term "Claims"
means, except as otherwise set forth herein, all claims, demands, actions,
causes of action, charges, complaints, liabilities, obligations, promises,
agreements, damages, suits, costs, losses, debts and expenses (including
attorneys' fees and costs) of any nature or kind, known or unknown, which a
releasing party hereunder at any time had, or which a releasing party hereunder
at any time may have, against each or any of the parties such releasing party
releases hereunder, arising out of or related to any act, omission, or other
thing which existed or occurred on or before the execution and delivery of this
Agreement. The Claims released under this Agreement include, but are not limited
to, (i) any alleged violations of any other contract or covenant, any tort, and
any federal, state, local or other governmental statute or regulation and (ii)
any Claim related to or arising out of an alleged breach of any representation,
warranty or covenant contained in the Stock Purchase Agreement (other than
Claims related to or arising out of any alleged breach of any representation,
warranty or covenant set forth in Sections 8.03 and 8.08(b) and Articles IV, V
and XII of the Stock Purchase Agreement). Notwithstanding the foregoing or
anything herein to the contrary, the term "Claims" shall exclude the rights and
obligations of the parties under this Agreement.
10. Release by Interiors, Windsor and Xxxx. As a material inducement to
Bentley and Xxxxxx to enter into this Agreement, each of Interiors, Windsor and
Xxxx (on behalf of themselves and their respective beneficiaries, successors,
assigns, agents, directors, officers, employees, representatives, attorneys and
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such affiliates)), release and forever discharge each of Bentley
and Xxxxxx, and each and all of their respective beneficiaries, successors,
assigns, agents, directors, officers, employees, representatives, attorneys and
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such affiliates)), or any of them, from any and all Claims, as
defined in Section 9 hereof.
11. Release by Bentley and Xxxxxx. As a material inducement to Interiors,
Windsor and Xxxx to enter into this Agreement, each of Bentley and Xxxxxx (on
behalf of themselves and their respective beneficiaries, successors, assigns,
agents, directors, officers, employees, representatives, attorneys and
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such affiliates) releases and forever discharges Interiors, Windsor
and Xxxx and each and all of their respective beneficiaries, successors,
assigns, agents, directors, officers, employees, representatives, attorneys and
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such affiliates)), or any of them, from any and all Claims, as
defined in Section 9 hereof.
00.Xx Filings; Ownership of Claims. Each of Interiors, Bentley, Windsor, Xxxxxx
and Xxxx agrees that he or it has not filed any Claims against any person he
or it has released herein with any local,state or federal agency, court or other
body, and that he or it will not do so at any time, based on any act, omission
or other thing arising or accruing on or prior to signing this Agreement,
whether known or unknown at the time of such signing, and further agrees that if
any such agency, court or other body assumes jurisdiction of any such Claim
against any of the persons so released, such releasing party will request such
agency, court or other body to withdraw from the matter with prejudice. Each of
Interiors, Bentley, Windsor,
Xxxxxx and Xxxx represents and agrees that he or it has not assigned or
transferred, or purported to assign or transfer, to any person or entity, any
Claim or any portion thereof, or interest therein.
13. Consultation with Counsel; Full and Independent Knowledge and
Understanding. Each of Interiors, Bentley, Windsor, Xxxxxx and Xxxx has been
advised to consult with an attorney of his or its choice before signing this
Agreement. Each of Interiors, Bentley, Windsor, Xxxxxx and Xxxx acknowledges and
agrees that he or it has been so advised; that he or it has fully discussed all
aspects of this Agreement with an attorney chosen by him or it to the full
extent desired; that he or it has carefully read and fully understands all of
the provisions of this Agreement; that he or it has taken as much time as he or
it needs for full consideration of this Agreement; that he or it is voluntarily
entering into this Agreement; that he or it has the capacity to enter into this
Agreement; and that it is duly authorized, by all necessary corporate authority,
to execute and deliver this Agreement and to perform its obligations hereunder.
14. Venue; Expense Recovery. Each party hereto irrevocably submits to the
jurisdiction of the courts of the State of Missouri and the United States
District Court for the Eastern District of Missouri for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and
the transactions contemplated hereby and to the laying of venue in any such
court. Each party hereto irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Should any party hereto ever institute any legal action or administrative
proceeding with respect to any Claim waived by this Agreement, the responding
party shall be entitled to recover from the other party or parties, as
applicable, all damages, costs, expenses and attorneys' fees incurred as a
result of such action.
15. Successors. This Agreement shall be binding upon the parties hereto and
upon their respective heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of the parties hereto and
to their respective heirs, administrators, representatives, executors,
successors and assigns.
16. Governing Law. This Agreement shall in all respects be interpreted,
enforced and governed under the internal laws (without regard to choice of law
principles) of the State of Missouri.
17. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, by facsimile or
sent by certified, registered or express air mail, postage prepaid, and shall be
deemed given when so delivered personally, or by facsimile, or if mailed, two
days after the date of mailing, as follows:
If to Interiors,
Xxxx or Windsor: Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxx Xxxx, Pres.
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
and to: Xxxxx Xxxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
and to: Xx. Xxxxxx X'Xxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Bentley
or Xxxxxx: Xxxxxxx International, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx, Pres.
With a copy to:
Riezman & Blitz, P.C.
0000 Xxxxxxxx Xxx. 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
or to such other address as any party hereto shall notify the other parties
hereto (as provided above) from time to time.
18. Proper Construction.
(a) The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
(b) As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires.
(c) The section headings used in this Agreement are intended solely for
convenience of reference and shall not in any manner amplify, limit, modify or
otherwise be used in the interpretation of any of the provisions hereof.
19. Further Assurances. Each party hereto agrees to execute and
deliver to any other party hereto such additional agreements, instruments and
writings as any of them may reasonably request in order to effect transactions
contemplated by, and the intent and purposes of, this Agreement.
20. Entire Agreement. This Agreement sets forth the entire agreement
among the parties hereto, and fully supersedes any and all prior agreements or
understandings among the parties hereto, pertaining to the subject matter
hereof, including without limitation that certain letter agreement dated October
29, 1998.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF KNOWN AND
UNKNOWN CLAIMS.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or has caused this Agreement to be executed on its behalf, as of the
date first above written.
INTERIORS, INC.,
a Delaware corporation
By:
An Authorized Officer
BENTLEY INTERNATIONAL, INC.,
a Missouri corporation
By:
An Authorized Officer
WINDSOR ART, INC.,
a Missouri corporation
By:
An Authorized Officer
Xxx Xxxx
Xxxxx X. Xxxxxx
With respect to Section 5(b) only:
U.S. BANK TRUST,
a national association
By:
An Authorized Officer
With respect to Section 5(e) only:
Xxxxxx Xxxx
