Exhibit 10.11 Annex P
INTERIORS, INC.
VOTING TRUST AGREEMENT NO. 1
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into this
____ day of July, 1998, by and among XXX X. XXXX as voting trustee (in such
capacity, the "Voting Trustee"), BENTLEY INTERNATIONAL, INC., a Missouri
corporation (the "Shareholder") and INTERIORS, INC., a Delaware corporation
("Interiors").
W I T N E S S E T H:
WHEREAS, Shareholder has entered into a Securities Purchase and
Registration Rights Agreement dated July ___, 1998 (the "Securities Purchase
Agreement") with Interiors to acquire One Million Five Hundred Thousand
(1,500,000) shares (the "Shares") of the common stock ("Common Stock"), of
Interiors; and
WHEREAS, Interiors has entered into a Stock Purchase Agreement dated July
7, 1998 (the "Stock Purchase Agreement") with Shareholder to acquire One Hundred
(100) shares (the "Windsor Shares") of the common stock (the "Windsor Common
Stock"), of Windsor Art, Inc. ("Windsor"); and
WHEREAS, pursuant to the terms of the Stock 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; 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 (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 Interiors, 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, the following actions shall be taken by each of the parties
hereto:
(i) Shareholder shall instruct Interiors in writing that all
certificates evidencing Shares to be issued in connection with the Closing
pursuant to the
Securities Purchase Agreement shall be issued to and in the name of
the Voting Trustee pursuant to this Agreement. Interiors 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 Interiors as stated herein, in the Securities Purchase Agreement), the
Trust Shares.
(ii) Immediately following the receipt of the Trust Shares, the Voting
Trustee shall (a) issue to Shareholder a voting trust certificate in the
form of Exhibit A attached hereto (the "Voting Trust Certificate")
evidencing the number of Trust Shares held by the Voting Trustee, and (b)
deliver possession of all certificates representing the Trust Shares to
Shareholder.
(c) Voting Securities Subsequently Acquired. The parties hereto acknowledge
that, if any additional voting securities of Interiors 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, and such additional voting securities shall constitute
"Trust Shares" hereunder. 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. For purposes of this Agreement,
"voting securities" shall mean any equity securities of Interiors (or any
corporate successor, including any entity which acquires the capital stock of
Interiors or assets of Interiors 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 Interiors (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 Interiors, Inc. Voting Trust
Agreement No. 1, dated July ____, 1998, 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 Interiors
and on any and all other matters with respect to which holders of the voting
securities of Interiors are entitled to vote (including but not limited
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to amendments of Interiors' Articles of Incorporation, mergers, consolidations,
share exchanges, dissolution of Interiors, acquisitions of business, issuances
of securities or sales or other dispositions of all or substantially all of the
assets or Securities of Interiors 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 Interiors 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 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 Interiors 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 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
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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. For purposes of this Agreement, the
term "Affiliate" shall mean and include all 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 Trustees or a material beneficiary;
(iii) if the transferor is a trust, any beneficiary thereof; and
(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, subject to the Escrow Agreement of even date
herewith, underlying his, her, or its Voting Trust Certificate, 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. 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 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.
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(d) The Voting Trustee shall have no right or power to sell, pledge, give,
assign or transfer in other manner any Voting Trust Certificate or any of the
Trust Shares or any interest in either.
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 Interiors, whether voluntary or involuntary, the Voting Trustee
shall receive the moneys, securities, rights or property to which the Voting
Trustee 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. 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 Interiors, addressed to:
Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxx Xxxx
With copies to:
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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 Shareholder, addressed to:
Xx. Xxxxx X. Xxxxxx, Pres.
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.
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16. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
___________________________________
Xxx X. Xxxx, Voting Trustee
BENTLEY INTERNATIONAL, INC. INTERIORS, INC.
By:________________________________ By:_________________________________
Xxxxx X. Xxxxxx, President Xxx Xxxx, President
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Exhibit A to
Interiors, 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.__________________ ___________________ Shares
Interiors, Inc.
a Delaware corporation
Voting Trust Certificate
This certifies that:
(1) certificates representing _______ shares of Common Stock of Interiors,
Inc., a Delaware corporation ("Company"), have been deposited with the
undersigned, as Voting Trustee under the Interiors, Inc. Voting Trust Agreement
No. 1 (the "Voting Trust Agreement"), dated as of July ____, 1998, among Xxx X.
Xxxx, as Voting Trustee, and the other parties thereto, including the person
named in the immediately succeeding paragraph; and
(2) Bentley International, Inc., a Missouri 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 July, 1998.
___________________________
Xxx X. Xxxx, Voting Trustee
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