[EXHIBIT 10.1.12]
EXHIBIT "A"
PERVASYS, INC.
XXXXXX XXXXX VOTING TRUST AGREEMENT
THIS AGREEMENT dated as of May 21, 2003 by and entered into
among Pervasys, Inc. USA, Inc., a Nevada corporation (herein
called the "Grantor"), Xxxxx Xxxxxx, with a principal place of
business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 000000 XXX, (herein called the "Trustee") and Xxxxxx
Xxxxx (herein called the "Beneficiary");
WITNESSETH:
1. Transfer in Trust. The Grantor and the Beneficiary
hereby transfer to the Trustee and the Trustee acknowledges
receipt, in trust, of all right, title and interest in and to,
in the aggregate of, Eighteen Million (18,000,000) shares of the
Common Stock, par value $.001 per share and/or options to
purchase such shares of the Grantor (the "Trust Shares" or
"Beneficiary Shares"). The Beneficiary Shares deposited by the
Beneficiary will be evidenced by duly executed certificates for
such shares, accompanied with stock powers executed in favor of
the Trustee. Beneficiary shall furnish the Trustee with his/her
address and taxpayer identification number, all of which it
shall be the obligation of the Beneficiary to keep current with
the Trustee. The trustee shall furnish Beneficiary with a
receipt for such Beneficiary Shares together with a true,
correct and complete copy of this Trust Agreement executed by
all parties. Beneficiary shall furnish the Trustee with such
additional information with respect to Beneficiary and his/her
Beneficiary Shares and such other matters as The Trustee may
reasonably request in connection with its duties hereunder. The
Grantor and Beneficiary hereby agree that, should such
Beneficiary acquire or be entitled to any additional shares,
options, warrants or other rights to acquire equity securities
of the Grantor or any subsidiary or affiliate of the Grantor
during the term of this Agreement, such shares or rights shall
be automatically transferred to the Trustee in trust as set
forth above to be held pursuant to the terms of this Agreement.
All such present or future transferred shares or rights are
included within the meaning of the "Trust Shares". Beneficiary
hereby specifically instructs the transfer agent and registrar
of such shares or rights to register all certificates or other
evidence of ownership of Trust Shares into the name of the
Trustee under this Agreement, with full powers of ownership and
transfer subject to this Agreement.
2. Custody. Transfers. The Trustee agrees to hold the Trust
Shares in the name of "Xxxxx Xxxxxx, Trustee ultld May 21,
2003," All Trust Shares shall be held in registrations not
required. No purchases or acquisitions of shares of the Grantor
(by exercise of options or warrants or otherwise) or purchases
or sales or transfers of Trust Shares, including transfers
pursuant to Section 3, shall be made by the Trustee on behalf of
the trust without a prior written Letter of Direction or other
documentation signed by both the Grantor and (in the case of
Beneficiary Shares
being acquired, sold or transferred) the Beneficiary involved.
The Trustee shall be protected and held harmless in relying upon
such documentation.
3. "Drip Out." On and after the date hereof, upon the
Distribution Schedule set forth below, the Grantor and the
Beneficiary hereby authorize and instruct the Trustee to release
from the corpus of the Trust and transfer to the Beneficiary
and/or his/her designated assigns the stated number of
Beneficiary Shares owned by the Beneficiary set forth in the
Distribution Schedule, and such transferred Beneficiary Shares
shall thereafter be free from the restrictions imposed by this
Agreement.
Distribution Schedule
---------------------
RELEASE DATE AMOUNT RELEASED
November 21, 2003 2,250,000
May 21, 2004 2,250,000
November 21, 2004 2,250,000
May 21, 2005 2,250,000
November 21, 2005 2,250,000
May 21, 2006 2,250,000
November 21, 2006 2,250,000
May 21, 2007
or "Termination Date" Balance remaining
Unless the Beneficiary has previously provided the Trustee with
a Letter of Direction to the contrary, all distributions of
Beneficiary Shares or funds by the Trustee to the Beneficiary
under this Agreement shall be made only to, and in the name of,
the Beneficiary and to the address of the Beneficiary as set
forth above.
4. Vesting and Other Special Restrictions. The Grantor and the
Beneficiary may by a Letter of Direction issued pursuant to a
Restricted Stock Purchase Agreement, a Stock Option Agreement,
or otherwise, require the Trustee to hold Beneficiary Shares of
the Beneficiary in trust subject to such other and further
vesting or other special restrictions as shall be set forth in
such Letter of Direction, provided that the Trustee shall not be
required to hold such Beneficiary Shares in this trust beyond
the Termination Date.
5. Voting. The Trust Shares shall be voted by the Trustee on
behalf of the Beneficiary at all meetings of or at all other
occasions requiring votes or consents of shareholders of the
Grantor for the election of Directors and on other corporate
matters. In cases where action or consent of shareholders is
required by law or called for by the Grantor on any matter, the
Trustee shall vote the Beneficiary
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Shares allocated to the Beneficiary on that matter as directed
by the Beneficiary. In the absence of any such direction, the
Trustee shall not vote those Beneficiary Shares. The Trustee
agrees immediately to forward to the Beneficiary a copy of any
notice, proxy statement, report, announcement of other
communication received by it in the capacity of a shareholder of
the Grantor and to use diligent efforts to ascertain the
position of the Beneficiary on each matter to be voted upon.
6. Dividends; Distributions. Any cash dividends or other
distributions in cash received by the Trustee on Trust Shares
shall be distributed by the Trustee to the Beneficiary in the
same proportion as the number of Beneficiary Shares owned by
such Beneficiary bears to the total number of Trust Shares held
by the Trustee upon which the dividend or other distribution is
made. Stock dividends or other distributions "in kind" shall be
held by the Trustee as Trust Shares and shall thereafter be
distributed to the Beneficiary as Beneficiary Shares in
accordance with the Distribution Schedule.
7. Term; Termination. This Agreement shall expire by its terms
on May 30, 2007 (the "Termination Date"). The Termination Date
may be changed by a signed consent of the Grantor and the
Beneficiary directed to the Trustee. On and after the
Termination Date the Trustee shall promptly distribute to the
Beneficiary the balance, if any, of the Beneficiary's
Beneficiary Shares remaining in the corpus of the Trust plus any
dividends or distributions on the Beneficiary Shares not
previously made to such Beneficiary .Distributions shall be made
in the manner set forth above in Section 3
8. Fees. The initial acceptance fee of the Trustee is $500.00
and the annual fee of the Trustee hereunder is $100.00, which
fees shall be nonrefundable and payable in advance by the
Grantor. The Grantor also agrees to pay on demand The Trustee's
costs and expenses, including fees and expenses of counsel to
The Trustee, incurred in connection with its duties hereunder.
The Trustee shall have a lien or right of set-off on all funds
held hereunder to pay all of its expenses under this Agreement.
9. Resignation or Removal. The Trustee may resign as Trustee
hereunder at any time by giving thirty (30) days' prior written
notice of such intention, subject to the appointment and taking
office of a successor Trustee. In the event the Trustee shall
become incapacitated through death, bankruptcy or judicial
determination of incompetency or criminal or civil sanction the
Grantor shall appoint a substitute Trustee. In the event that
the Grantor does not appoint a successor Trustee within fifteen
(15) days of notice of the Trustee's intention to resign or of
the date of such judicial determination, the Trustee may appoint
as its successor any trust company having an office in Los
Angeles County, State of California, United States of America.
Upon the effective date of resignation and/or appointment, the
Trustee or his/her legal representative will deliver an
securities and funds held hereunder to such successor Trustee
who has agreed in writing to serve, as directed by written
instructions of the Grantor. After the effective date of his
resignation, The Trustee shall have no duty with respect to the
corpus of the trust except to hold such property in safekeeping
and to deliver same to its successor as directed in writing by
the Grantor.
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10. Trustee Protection. The Trustee shall have no
obligation hereunder except to receive the contributions of
Trust Shares or funds referred to herein and to make transfers
or distributions of saidTrust Shares and funds in accordance
with the provisions hereof. The Trustee shall be protected and
held harmless in acting upon any written notice, certificate,
waiver, consent or other instrument or document which he believes
to be genuine. The Trustee shall not be liable for any error of
judgment or for any act or omission other than his own gross
negligence or willful misconduct. In no event shall the Trustee
be required to account for any funds or securities
subsequent to the distribution thereof in accordance with this
Agreement. The Trustee's duties shall be determined only with
reference to this Agreement and applicable laws. The Trustee is
not charged with knowledge of or any duties or responsibilities
in connection with any other document or agreement. The Grantor
and the Beneficiary represents and warrants to the Trustee that
each of them has the full and complete power to transferthe
Trust Shares in trust to the Trustee, that there are no claims
or encumbrances on any of the Trust Shares and that none of them
shall have any claim against the Trustee pertaining to the
appropriateness or the prudence of any manner of holding or in
vesting any securities or funds under this agreement.
Beneficiary understands that (i) The Trustee is acting solely
as Trustee pursuant to the terms of this Agreement, (ii) the
Trust Shares will be received and held in trust by the Trustee
for the benefit of the Beneficiary, to be used for those purposes
set forth in this Agreement and (iii) no Beneficiary may
construe the contents of any oral or written communication
with the Trustee or the Grantor as legal, tax or investment advice.
The Grantor and the Beneficiary shall indemnify and hold harmless
the Trustee from and against all loss, liability, claim or
expense to which the Trustee may become subject, including
reasonable attorneys fees, arising out of or connected with the
performance by the Trustee of the duties set forth In this
Agreement, except for claims arising from the Trustee's failure
to abide by the terms of this Agreement.
11. Action by Trustee. Any action to be taken by the Trustee on
behalf of a Beneficiary hereunder shall be evidenced by a Letter
of Direction or other agreement or document signed by the
Beneficiary (or his or her estate or legal representative
together with evidence of authority). No such action or
directive of the Beneficiary to the Trustee shall be valid
unless so executed and delivered.
12. Counsel. The Trustee may consult with and obtain advice from
legal counsel in the event of any dispute or question as to the
construction of any of the provisions herein or its duties
hereunder and shall incur no liability and shall be fully
protected and held harmless in acting in accordance with the
opinion of such counsel.
13. Interpleader. In the event that The Trustee should at any
time be confronted with inconsistent claims or demands by the
parties hereto, The Trustee shall have the right to interplead
said parties in an arbitration or in any court of competent
jurisdiction and request that such arbitrator or court determine
such respective rights of the parties with respect to the corpus
of the trust. Upon doing so, the Trustee automatically shall be
released from any obligations or liability as a consequence of
any such claims or demands.
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14. Notice. Any notice permitted or required hereunder shall be
deemed to have been duly given if delivered personally, by
facsimile transmission, or if mailed certified or registered
parties at their address set forth below or to such address as
they may hereunder designate:
If to the Trustee:
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xx0xxxxxxx 00000
XXX
If to the Grantor:
Pervasys, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxx, XX 00000 XXX
Attention: Chairman of the Board
with a copy to:
Xxxxxx Xxx
Alexander, Xxx, Xxxxxxxx & Xxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxx, XX 00000 XXX
If to the Beneficiary:
This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto.
This Agreement may be executed in one or more counterparts, each
of which constitute the original, and all of which collectively
shall constitute one and the same instrument.
15. Miscellaneous.
(1) The Trustee may execute any of its powers or
responsibilities
hereunder and exercise any rights hereunder either directly or
through its agents or attorneys. Nothing in this Agreement shall
be deemed to impose upon The Trustee any duty to qualify to do
business or to act as fiduciary or otherwise in any jurisdiction
other than the State of California. The Trustee shall not be
responsible for and shall not be under a duty to examine into or
pass upon the validity, binding effect, execution or sufficiency
of this Agreement or of any subsequent amendment
of supplement hereto or of any Letter of Direction or other
document instructing him to act.
(b) This Agreement shall bind the successors and assigns of
the parties. Should any provision of this Agreement be found
unenforceable by judicial determination it shall not thereby
invalidate the rest of the Agreement.
(c) The interpretation of this Agreement and the rights
created thereby shall be governed by the laws of the State of
California. Any disputes arising hereunder shall be first
submitted for mediation and, if this fails shall be submitted
to binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association at a location in
Los Angeles County, California, United States of America.
(d) Where the context allows words importing only the
masculine gender include the feminine gender and vice versa and
words importing only the singular number include the plural and
vice versa.
(e) This agreement shall be binding upon the successors and
assigns of the
(f) No modification of this Agreement shall be of any effect
unless in writing and signed by the Grantor, the Trustee and the
Beneficiary.
IN WITNESS WHEREOF, each of the undersigned has hereunto set
his/her hand pursuant to due authority, as of the date first set
forth above:
GRANTOR:
Pervasys, Inc.
By:
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
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