[EXHIBIT 10.1.5]
EXHIBIT "A"
PERVASYS, INC.
XXXX XXXX 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 00000, XXX, (herein called the "Trustee") and Xxxx
Xxxx (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
Options 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 fares 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 u/t/d May 21,
2003," All Trust Shares shall be held in custody in account or
accounts with a NASD registered broker dealer firm or similar
custodian and copies of the monthly account statements shall be
provided to the Grantor and each Beneficiary .Certificates or
other documents evidencing Trust Shares shall bear a restrictive
legend stating that they may not be sold or transferred except
pursuant to an effective registration statement under the
Securities Act of 1933 or an opinion of counsel acceptable to
the Grantor that such registration is 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, tall 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 Options
of Beneficiary Shares owned by the Beneficiary set forth in the
Distribution Schedule, and such transferred Options of 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 Shares allocated to the
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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 (he 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 incompetence 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 all
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.
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 said Trust
Shares and funds in accordance with the provisions
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hereof. The Trustee shall be protected and held harmless in
acting upon any written notice, certificate, waiver J 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 transfer the 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.
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
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Xxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 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
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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 -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.
parties.
(e) This agreement shall be binding upon the successors
and assigns of the parties.
(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: /s/[Illegible]
--------------------------------
Secretary
--------------------------------
TRUSTEE
--------------------------------
Xxxxx Xxxxxx
BENEFICIARY:
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