Exhibit 10.10 Annex O
THE BENTLEY INTERNATIONAL, INC.
VOTING TRUST AGREEMENT NO. 1
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into this
____ day of ________, 1998, by and among XXXXX X. XXXXXX as voting trustee (in
such capacity, the 'Voting Trustee"), INTERIORS, INC., a Delaware corporation
(the "Shareholder") and BENTLEY INTERNATIONAL, INC., a Missouri corporation
("Bentley").
W I T N E S S E T H:
WHEREAS, Shareholder has entered into on even date herewith, a Securities
Purchase and Registration Rights Agreement (the "Securities Purchase Agreement")
with Bentley to acquire One Hundred Fifty Thousand (150,000) shares (the
"Shares") of the common stock ("Common Stock"), $0.18 par value, of Bentley and
a warrant (the "Warrant") to purchase an additional Three Hundred Thousand
(300,000) shares of the Common Stock; and
WHEREAS, pursuant to the terms of the Securities Purchase Agreement
Shareholder has agreed that the Shares shall be registered in the name of the
Voting Trustee and held pursuant to the terms and provisions of this Agreement
until certain indebtedness of Shareholder to Bentley is paid in full and until
the Shares are sold by Shareholder; and
WHEREAS, Shareholder has further agreed that any additional shares of the
Common Stock Shareholder acquires through the exercise of the Warrant shall be
registered in the name of the Voting Trustee and held pursuant to the terms and
provisions of this Agreement until such indebtedness of Shareholder to Bentley
is paid in full and until the additional shares are sold by Shareholder; and
WHEREAS, the Voting Trustee is willing to serve as Trustee with respect to
the Shares as herein provided.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Shares to be Held in Trust.
(a) Establishment of Voting Trust. Shareholder and the Voting Trustee
hereby establish and constitute this voting trust (the "Voting Trust") with
respect to the Shares to be sold and transferred pursuant to the Securities
Purchase Agreement and the Warrant (such Shares hereinafter are referred to
collectively as the "Trust Shares"). The Voting Trust shall be administered on
the terms set forth in this Agreement. The Voting Trust may be referred to as
"The Bentley International, Inc. Voting Trust No. 1" without reference to the
date of this Agreement.
(b) Actions to be Taken. At the Closing described in the Securities
Purchase Agreement or upon the acquisition of Trust Shares through any exercise
of the Warrant, the following actions shall be taken by each of the parties
hereto:
(i) Shareholder shall instruct Bentley in writing that all
certificates evidencing Shares to be issued in connection with the Closing
pursuant to the Securities Purchase Agreement or evidencing Trust Shares
Shareholder acquires through any exercise of the Warrant shall be issued to
and in the name of the Voting Trustee pursuant to this Agreement. Bentley
shall cause such certificates to be so issued and delivered to the Voting
Trustee. The Voting Trustee hereby is authorized to receive and to hold, in
the name of the Voting Trustee, for the benefit of Shareholder (subject to
the rights of Bentley as stated herein, in the Securities Purchase
Agreement and in that certain Pledge Agreement (the "Pledge Agreement") of
even date herewith between Shareholder and Bentley), the Trust Shares.
(ii) Immediately following the receipt of any Trust Shares, the Voting
Trustee shall (a) issue to Interiors a voting trust certificate in the form
of Exhibit A attached hereto (the "Voting Trust Certificate") evidencing
the number of Trust Shares received by the Voting Trustee, (b) deliver
possession of all certificates representing the Trust Shares to Riezman &
Blitz, P.C. (the "Agent") so designated in the Pledge Agreement and (c)
execute in blank and deliver to the Agent the irrevocable stock power
attached hereto as Exhibit B; provided, however, that if immediately
following the receipt of any Trust Shares the Pledge Agreement shall no
longer be in force or effect, the Voting Trustee shall retain all
certificates representing the Trust Shares pursuant to the provisions of
this Agreement and shall not execute and deliver such stock power.
(iii) Immediately following the receipt of the Voting Trust
Certificate, Interiors shall (a) deliver possession of the Voting Trust
Certificate to the Agent and (b) shall execute and deliver to the Agent the
irrevocable stock power attached hereto as Exhibit B; provided, however,
that if immediately following the receipt of any Trust Shares the Pledge
Agreement shall no longer be in force or effect, Interiors shall retain the
Voting Trust Certificate pursuant to the provisions of this Agreement and
shall not execute and deliver such stock power.
(c) Voting Securities Subsequently Acquired. The parties hereto acknowledge
that, if any additional voting securities of Bentley are issued with respect to
or in exchange for the Trust Shares, whether by reason of a stock split, stock
dividend, share exchange, merger, consolidation or similar transaction,
certificates representing such additional voting securities shall be delivered
to the Voting Trustee, who shall, in turn, deliver the same to the Agent along
with executed irrevocable stock powers with respect to such additional voting
securities in form and substance equivalent to Exhibit B, and such additional
voting securities shall constitute "Trust Shares" hereunder; provided, however,
that if immediately following the receipt of such additional
voting securities the Pledge Agreement shall no longer be in force or effect,
the Voting Trustee shall retain all certificates representing such additional
voting securities pursuant to the provisions of this Agreement and shall not
execute and deliver such stock powers. The Voting Trustee shall execute and
deliver one or more Voting Trust Certificates to Shareholder to represent
Shareholder's interest in such additional voting securities, which Shareholder,
in turn, shall deliver forthwith to Agent along with executed irrevocable stock
powers with respect to such additional Voting Trust Certificates in form and
substance equivalent to Exhibit B; provided, however, that if immediately
following the receipt of such additional voting securities the Pledge Agreement
shall no longer be in force or effect, Interiors shall retain the Voting Trust
Certificates pursuant to the provisions of this Agreement and shall not execute
and deliver such stock powers. For purposes of this Agreement, "voting
securities" shall mean any equity securities of Bentley (or any corporate
successor, including any entity which acquires the capital stock of Bentley or
assets of Bentley in consideration for voting securities) which may be entitled
by law to vote at any time with respect to any matter, whether or not such
equity securities are accorded voting rights under Articles of Incorporation of
Bentley (or such successor).
(d) Legend. All certificates representing the Trust Shares, and all
warrants and options exercisable for equity securities which shall become Trust
Shares as set forth herein, shall bear a legend substantially to the effect that
"The shares of Securities of the corporation [represented hereby/receivable upon
exercise hereof] are subject to the terms of The Bentley International, Inc.
Voting Trust Agreement No. 1, as the same may be amended and/or restated from
time to time, a copy of which is on file with the corporation."
2. Voting Trust Shares.
(a) Power to Vote Trust Shares. Subject to the provisions of this
Agreement, the Voting Trustee shall have the power to vote the Trust Shares with
respect to any matter, for or against.
(b) Matters on Which Trust Shares May Be Voted. Subject to the provisions
of this Agreement, the Voting Trustee, as such, shall have full power and
discretion to vote the Trust Shares for the election of directors of Bentley and
on any and all other matters with respect to which holders of the voting
securities of Bentley are entitled to vote (including but not limited to
amendments of Bentley's Articles of Incorporation, mergers, consolidations,
share exchanges, dissolution of Bentley, acquisitions of business, issuances of
securities or sales or other dispositions of all or substantially all of the
assets or Securities of Bentley or any subsidiary thereof), whether such matters
are considered in a meeting of such holders or in a unanimous written consent to
be executed by them.
3. Voting Trustee.
(a) The Voting Trustee shall have the right to resign as Voting Trustee
hereunder during his lifetime at any time by notice to Bentley and the Voting
Trust Certificate
holders, such resignation to be effective at such time as a successor Voting
Trustee accepts this Agreement pursuant to Section 3(c).
(b) In the event of the resignation, death or inability of the Voting
Trustee to serve for any reason, the successor to the Voting Trustee shall be
the person appointed by the Voting Trustee to serve as successor to the Voting
Trustee. Upon the death of the Voting Trustee without his having appointed a
successor, the Board of Directors of Bentley shall by resolution duly adopted
name a successor Voting Trustee.
(c) Any person appointed as a successor Voting Trustee hereunder shall
become a Voting Trustee only upon written acceptance of this Agreement and the
rights, powers, duties and obligations of the Voting Trustee hereunder, and the
delivery of such acceptance to the preceding Voting Trustee (if then living) and
the Voting Trust Certificate holders. Each successor Voting Trustee shall have
the same rights, powers, duties and obligations as the Voting Trustee whom such
successor succeeds.
4. Cash Dividends; Shareholder Materials. During the term of this
Agreement, the Voting Trust Certificate holders shall continue to remain
entitled to receive any cash and in kind dividends declared and paid with
respect to the Trust Shares (except in kind dividends of voting securities), and
any informational materials distributed by the Company to all holders of voting
securities of the Company. The Voting Trustee shall be solely responsible for
the delivery of such informational materials and cash and in kind dividends to,
and the division thereof among, the Voting Trust Certificate holders.
5. Termination. This Agreement and the Voting Trust created herein shall
terminate upon the execution of an instrument by all the parties to this
Agreement terminating this Agreement.
6. Transfer and Distribution of Trust Shares.
(a) In the event any Voting Trust Certificate holder transfers all or part
of the Trust Shares relating to his, her, or its Voting Trust Certificate to an
Affiliate (as defined below) of the transferor, or to a person who immediately
prior to the transfer is a holder of Voting Trust Certificates, then upon the
Voting Trustee's receipt of a duly endorsed Voting Trust Certificate specifying
the number of Trust Shares being transferred, the Voting Trustee shall issue to
such transferee one or more Voting Trust Certificates representing such
transferee's interest in the transferred Trust Shares, and shall issue to such
transferor one or more new Voting Trust Certificates representing the
untransfered Trust Shares. The foregoing notwithstanding, so long as the Pledge
Agreement is in force and effect no Voting Trust Certificate shall be
transferable except pursuant to the provisions of the Pledge Agreement. For
purposes of this Agreement, the term "Affiliate" shall mean and include any of
the following:
(i) any family member of a transferor which is described in
Section 267(c)(4) of the Internal Revenue Code of 1986 as presently in
effect ("Family Member");
(ii) any trust of which the transferor or a Family Member of the
transferor is a Trustee or a material beneficiary;
(iii) if the transferor is a trust, any beneficiary thereof; or
(iv) any corporation, partnership, limited partnership, limited
liability company or other entity in which the transferor or any
Family Member of the transferor has a material financial interest.
Each party hereto agrees that any transfer of Voting Trust Certificates shall be
in accordance with all applicable federal and state securities laws.
(b) In the event any Voting Trust Certificate holder proposes to transfer
all or part of the Trust Shares underlying his, her, or its Voting Trust
Certificate in a bona fide sale or charitable gift to a person who is not an
Affiliate of the transferor, and who immediately after the transfer will not own
more than two and one-half percent (2.5%) of the outstanding voting securities
of Bentley, then upon the Voting Trustee's receipt of a duly endorsed Voting
Trust Certificate specifying the number of Trust Shares being transferred and a
statement in reasonable detail describing the terms of the proposed transfer and
the transferor's certificate that the proposed transferee is not an Affiliate,
the Voting Trustee shall cause to be issued to such transferee one or more
certificates representing the Trust Shares so transferred, and shall issue to
such transferor one or more new Voting Trust Certificates representing the
untransfered Trust Shares. Such transferee shall take the transferred Trust
Shares free from the provisions of this Agreement. The foregoing
notwithstanding, so long as the Pledge Agreement is in force and effect no Trust
Shares shall be transferable except pursuant to the provisions of the Pledge
Agreement. Each party hereto acknowledges and agrees that any sale or transfer
of Trust Shares pursuant to this Section 6(b) shall be in accordance with
applicable federal and state laws. It is the intention of the parties hereto
that Trust Shares transferable pursuant to this Section 6(b) shall be
transferable by any party hereto without limitation or restriction other than
those limitations or restrictions imposed by this Agreement and the applicable
federal and state securities laws .
(c) Upon termination of this Agreement and the Voting Trust created herein,
each holder of a Voting Trust Certificate shall surrender to the then acting
Voting Trustee all of such holder's Voting Trust Certificates, duly endorsed for
transfer. The Voting Trustee shall as soon as practicable thereafter cause to be
distributed to such holder, free from trust, one or more certificates
representing the Trust Shares to which such holder is entitled, which
certificates shall not contain the legend contained in Section 1(d) hereof.
(d) The Voting Trustee shall have no right or power to sell, pledge, give,
assign or transfer in any other manner any Voting Trust Certificate or any of
the Trust Shares or
any interest in either, except in accordance with the provisions of this
Agreement and the Pledge Agreement.
7. Compensation of Voting Trustee. The Voting Trustee shall receive no
compensation for his services as Voting Trustee hereunder, but this provision
shall not limit in any way the compensation or benefits which a Voting Trustee
may receive in his or her capacity as an officer, director, consultant or
attorney of any of the parties to this Agreement.
8. Liability of Voting Trustee. Subject to the terms of this Agreement, it
is the intention of the parties that the Voting Trustee have unfettered
discretion to vote the Trust Shares as the Voting Trustee deems appropriate. No
Voting Trustee shall be liable to Shareholder or any other person for any loss
arising out of or in connection with his or her voting of any of the Trust
Shares or any other action or inaction as Voting Trustee hereunder, unless such
loss was caused by a Voting Trustee's gross negligence or willful misconduct.
The Voting Trustee may consult with counsel of his choice, and shall have full
and complete authorization and protection for any action taken or suffered by
the Voting Trustee under this Agreement in good faith and in accordance with the
opinion of such counsel.
9. Dissolution. In the event of the dissolution or total or partial
liquidation of the Bentley, whether voluntary or involuntary, the Voting Trustee
shall receive the moneys, securities, rights or property to which the Voting
Trust Certificate holders deposited hereunder are entitled and shall distribute
the same among the registered holders of Voting Trust Certificates in proportion
to their respective interests therein, subject to the provisions of the Pledge
Agreement. Upon such distribution, all further obligations or liability of the
Voting Trustee in respect of such moneys, securities, rights or property so
received shall cease.
10. Notices. All notices and other communications under or in connection
with this Agreement shall be in writing and shall be deemed given (i) if
delivered personally, upon delivery, (ii) if delivered by registered or
certified mail (return receipt requested), upon the earlier of actual delivery
or three days after being mailed, or (iii) if given by facsimile, upon
confirmation of transmission by facsimile, in each case to the parties at the
following addresses:
a. If to Shareholder, addressed to:
Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxx Xxxx
With copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Twenty-Third Floor
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
b. If to the Voting Trustee and Bentley, addressed to:
Xx. Xxxxx X. Xxxxxx, President
Bentley International, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Riezman & Blitz, P.C.
0000 Xxxxxxxx Xxx. 0xx Xxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
11. Amendment. This Agreement may be amended or modified in whole or in
part only by a document in writing signed by the Voting Trustee and each other
party against whom such amendment or modification is to be enforced.
12. Counterparts. This Voting Trust Agreement may be executed in one or
more counterparts, each of which shall constitute an original, and all of which
taken together shall constitute one instrument.
13. Severability. If any one or more of the provisions contained in this
Agreement or any application thereof shall be invalid, illegal or unenforceable
in any respect, the validity, legality or enforceability of the remaining
provisions of this Agreement and any other application thereof shall not in any
way be affected or impaired thereby.
14. Headings. The headings in this Agreement are inserted for convenience
only and in no way alter, amend, modify, limit or restrict the contractual
obligations of the parties hereto.
15. Binding Effect. This Agreement shall be binding on, inure to the
benefit of, and be enforceable by and against the Voting Trustee, the other
parties hereto, and their respective heirs, personal representatives,
distributees, successors and assigns.
16. Governing Law, Jurisdiction and Venue. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Missouri.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
___________________________________
Xxxxx X. Xxxxxx, Voting Trustee
BENTLEY INTERNATIONAL, INC. INTERIORS, INC.
By:________________________________ By:_________________________________
Xxxxx X. Xxxxxx, President Xxx Xxxx, President
Bentley International, Inc. Voting Trust Agreement No. 1
THE SECURITIES REPRESENTED BY THIS VOTING TRUST CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY BE TRANSFERRED ONLY
IF REGISTERED UNDER APPLICABLE SECURITIES LAW OR IF AN EXEMPTION THEREFROM IS
AVAILABLE.
No. 1 150,000 Shares
Bentley International, Inc.
a Missouri corporation
Voting Trust Certificate
This certifies that:
(1) certificates representing One Hundred Fifty Thousand (150,000) shares
of Common Stock of Bentley International, Inc.., a Missouri corporation
("Company"), have been deposited with the undersigned, as Voting Trustee under
the Bentley International, Inc. Voting Trust Agreement No. 1 (the "Voting Trust
Agreement"), dated as of July 30, 1998, among Xxxxx X. Xxxxxx, as Voting
Trustee, and the other parties thereto, including the person named in the
immediately succeeding paragraph; and
(2) Interiors, Inc., a Delaware corporation or the registered assigns
thereof, is entitled to all of the benefits arising from the deposit of such
shares, subject to the terms and conditions set forth in the Voting Trust
Agreement.
Subject to the limitations set forth in the Voting Trust Agreement, and
subject to limitations imposed by applicable law from time to time (if any),
this certificate and the rights of the registered holder may be transferred on
the records maintained by the Voting Trustee under the Voting Trust Agreement.
In the event of such a transfer, the Voting Trustee shall cause appropriate
evidence thereof to be endorsed hereon or shall, in the discretion of the Voting
Trustee, cause another certificate (or additional certificates) to be issued in
replacement for this certificate to reflect the transfer appropriately.
IN WITNESS WHEREOF, the undersigned Voting Trustee has executed this
certificate this ____ day of ___________, _____.
___________________________
Xxxxx X. Xxxxxx, Voting Trustee
Bentley International, Inc. Voting Trust Agreement No. 1
IRREVOCABLE STOCK POWER AND ASSIGNMENT
FOR VALUE RECEIVED, the undersigned do hereby sell, assign and transfer
unto ____________________________ _______ shares of the of Common Stock, par
value $0.18 per share ("Common Stock"), of BENTLEY INTERNATIONAL, INC. (the
"Company") represented by Stock Certificate No. ________ and all of the
undersigned's right, title and interests in and to that certain Voting Trust
Certificate No.____ (issued pursuant to the terms and provisions of the Bentley
International, Inc. Voting Trust Agreement No. 1), both certificates being
attached hereto, being all of the Common Stock of the Company owned by the
undersigned, and do hereby irrevocably constitute and appoint
_____________________ as attorney to transfer the said stock on the books of the
Company and surrender the Voting Trust Certificate as provided in the said
Voting Trust Agreement in connection therewith with full power of substitution
in the premises. Dated: ________ ___, _____
____________________________
Xxxxx X. Xxxxxx, Voting Trustee
Being the Voting Trustee under the Bentley International, Inc. Voting Trust
Agreement No. 1
In the Presence Of:
______________________________
Interiors, Inc.
By: __________________________
Xxx Xxxx, President
In the Presence Of:
_____________________________
