[EXHIBIT 10.1.13]
EXHIBIT "A"
PERVASYS, INC.
XXXX 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 00000, XXX, (herein called the "Trustee") and Xxxxxxx
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 Options in the
aggregate of Nine Million (9,000,000) 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 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, shall
be made by the Trustee on behalf of the trust without a prior
written Letter of
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Xxxxxxxxx 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 , 2003 1,125,000
, 2004 1,125,000
November , 2004 1,125,000
, 2005 1,125,000
November , 2005 1,125,000
, 2006 1,125,000
November , 2006 1,125,000
May 21, 2007 Balance remaining
or "Termination Date"
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
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Grantor on any matter, the Trustee shall vote the Beneficiary
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 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
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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
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 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 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:
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If to the Trustee:
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.
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(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 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/
--------------------------------
Its:
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/[Initials
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