Exhibit 10.9 Annex N
THE WINDSOR ART, 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ as voting
trustees (in such capacity, the "Voting Trustees"), 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 entered into on July 7, 1998, a Stock Purchase
Agreement (the "Stock Purchase Agreement") with Bentley to acquire all of the
issued and outstanding shares (the "Shares") of common stock, par value $1.00
per share ("Common Stock") of WINDSOR ART, INC., a Missouri corporation
("Windsor"); and
WHEREAS, pursuant to the terms of the Stock Purchase Agreement Shareholder
has agreed that the Shares shall be registered in the names of the Voting
Trustees and held pursuant to the terms and provisions of this Agreement until
certain indebtedness of Shareholder and Windsor is paid in full; and
WHEREAS, the Voting Trustees are willing to serve as Trustees with respect
to the Shares of Common Stock of Windsor 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 Trustees
hereby establish and constitute this voting trust (the "Voting Trust") with
respect to the Shares of Common Stock of Windsor to be sold and transferred
pursuant to the Stock Purchase Agreement (such Shares of Common Stock of Windsor
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 Windsor Art, Inc. Voting Trust No. 1" without
reference to the date of this Agreement.
(b) Actions to be Taken. At the Closing described in the Stock Purchase
Agreement, the following actions shall be taken by each of the parties hereto:
(i) Shareholder shall instruct Bentley and Windsor in writing that all
certificates evidencing Shares of Common Stock of Windsor to be issued in
connection with the Closing pursuant to the Stock Purchase Agreement shall
be issued to and in the name of the Voting Trustees pursuant to this
Agreement.
Bentley shall cause such certificates to be so issued and delivered to
the Voting Trustees. The Voting Trustees hereby are authorized to receive
and to hold, in the name of the Voting Trustees, for the benefit of
Shareholder (subject to the rights of Bentley as stated herein, in the
Stock 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 the Trust Shares, the Voting
Trustees 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 held by the Voting Trustees, (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.
(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.
(c) Voting Securities Subsequently Acquired. The parties hereto acknowledge
that, if any additional voting securities of Windsor 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 Trustees, 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. The Voting Trustees
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. For purposes of this
Agreement, 'voting securities" shall mean any equity securities of Windsor (or
any corporate successor, including any entity which acquires the capital stock
of Windsor or assets of Windsor 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 the Articles of
Incorporation of Windsor (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 stock of the corporation [represented hereby/receivable upon
exercise hereof] are subject to the terms of The Windsor Art, 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."
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2. Voting Trust Shares.
(a) Power to Vote Trust Shares. Subject to the provisions of this
Agreement, the Voting Trustees shall have the power to vote the Trust Shares
with respect to any matter, for or against, on which the Trustees shall agree.
(b) Matters on Which Trust Shares May Be Voted. Subject to the provisions
of this Agreement, the Voting Trustees, as such, shall have full power and
discretion to vote the Trust Shares for the election of directors of Windsor and
on any and all other matters with respect to which holders of the voting
securities of Windsor are entitled to vote (including but not limited to
amendments of Windsor's Articles of Incorporation, mergers, consolidations,
share exchanges, dissolution of Windsor, acquisitions of business, issuances of
securities or sales or other dispositions of all or substantially all of the
assets or stock of Windsor 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.
(c) Special Matters Regarding Voting of Trust Shares. The foregoing
provisions of this Agreement notwithstanding, until there is a "Default"
(hereinafter defined), the Voting Trustees shall vote all the Trust Shares in
such manner as may be necessary (i) to provide that Windsor's Board of Directors
shall consist of two members, one designated by Shareholder and the other
designated by Bentley and (ii) to authorize and allow Windsor and Shareholder to
effect (A) financing based on the assets of Windsor within the limits set forth
in the Stock Purchase Agreement, (B) "Mezzanine Financing" as defined in and
subject to the limits set forth in the Stock Purchase Agreement. Anything herein
to the contrary notwithstanding, upon and after any Default (i) under either of
the Promissory Notes between Shareholder and Bentley executed on even date
herewith as part of the consideration for the Shares pursuant to the Stock
Purchase Agreement or (ii) under that certain Consulting Agreement between
Windsor and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ executed as of even date herewith, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(or his successor Trustee hereunder) shall become the sole Trustee of this
Voting Trust and any other Trustee of the Voting Trust shall cease to act in
such capacity, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or his successor Trustee hereunder) shall
have the sole right and power, in his absolute discretion, to vote the Trust
Shares as described above in Section 2(a) and Section 2(b) on any and all
matters with respect to which holders of the voting securities of Windsor are
entitled to vote (including but not limited to amendments of Windsor's Articles
of Incorporation and Bylaws). For purposes of this Agreement the term "Default"
as used herein shall mean (a) any failure by Shareholder to make any payment of
interest or principal with respect to either of the Promissory Notes when the
same is due or within any grace period provided for in such Promissory Notes,
(b) any other Default as such term is defined in either of such Promissory Notes
or (c) any failure by Windsor to make any payment of any amount under the
Consulting Agreement when the same is due or within any grace period provided
for in such Consulting Agreement.
3. Voting Trustees.
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(a) Any individual acting as one of the Voting Trustees shall have the
right to resign as a Voting Trustee hereunder during his lifetime at any time by
notice delivered to the other Voting Trustee, Bentley and Shareholder, such
resignation to be effective at such time as a successor Voting Trustee accepts
this Agreement pursuant to Section 3(c).
(b) Subject to the terms of Section 2(c) of this Agreement, in the event of
the resignation, death or inability of one of the Voting Trustees to serve for
any reason, the successor to such Voting Trustee shall be an individual
appointed in accordance with the provisions of this Section 3(b). In the event
the trusteeship originally occupied by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Bentley
Trusteeship") becomes vacant, Bentley within ten (10) days of its receipt of
notice of such vacancy shall appoint another individual to as a Voting Trustee
hereunder who shall occupy the Bentley Trusteeship and shall for purposes of
this Agreement be deemed ▇▇▇▇▇ ▇. ▇▇▇▇▇▇' successor; and in the event the
trusteeship originally occupied by ▇▇▇ ▇▇▇▇ (the "Interiors Trusteeship")
becomes vacant, Interiors within ten (10) days of its receipt of notice of such
vacancy shall appoint another individual to as a Voting Trustee hereunder who
shall occupy the Interiors Trusteeship and shall for purposes of this Agreement
be deemed ▇▇▇ ▇▇▇▇'▇ successor.
(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 Trustees hereunder, and the
delivery of such acceptance to the acting Voting Trustee (if any), Bentley and
Shareholder. Each successor Voting Trustee shall have the same rights, powers,
duties and obligations as the Voting Trustee whom such successor succeeds.
▇.▇▇▇▇ Dividends; Shareholder Materials. During the term of this Agreement,
the Voting Trust Certificate holder 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 Windsor to all holders of voting securities of the
Windsor. The Voting Trustees shall be solely responsible for the delivery of
such informational materials and cash and in kind dividends to the Voting Trust
Certificate holder.
5. Termination.
(a) This Agreement and the Voting Trust created herein shall terminate upon
the earlier to occur of the following: (i) the execution of an instrument by all
parties to this Agreement terminating this Agreement; (ii) at such time as the
Promissory Notes have been paid in full and all obligations under the Consulting
Agreement have either been paid in full or satisfied; or (iii) at such time as
the Voting Trust Certificate has been acquired by Bentley pursuant to the Pledge
Agreement.
(b) Upon termination of this Agreement and the Voting Trust created herein
upon the occurrence of an event recited in Section 5(a)(i) or Section 5(a)(ii)
above, Shareholder shall surrender to the then acting Voting Trustees
Shareholder's Voting Trust Certificate, duly
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endorsed for transfer. The Voting Trustees shall as soon as practicable
thereafter cause to be distributed to Shareholder, free from trust, one or more
certificates representing the Trust Shares to which Shareholder (or
Shareholder's assignee) is entitled, which certificates shall not contain the
legend recited in Section 1(d) hereof.
(c) Upon termination of this Agreement and the Voting Trust created herein
upon the occurrence of the event recited in Section 5(a)(iii) above, Bentley
shall surrender to the then acting Voting Trustees the Voting Trust Certificate,
duly endorsed for transfer. The Voting Trustees shall as soon as practicable
thereafter cause to be distributed to Bentley, free from trust, one or more
certificates representing the Trust Shares to which Bentley (or Bentley's
assignee) is entitled, which certificates shall not contain the legend recited
in Section 1(d) hereof.
6. Transfer and Distribution of Trust Shares. Except as expressly provided
in this Agreement and in the Pledge Agreement, no party to this Agreement shall
have the right or power to sell, pledge, give, assign or transfer in any other
manner the Voting Trust Certificate or any of the Trust Shares or any interest
in either. Each party hereto agrees that any transfer of the Voting Trust
Certificate or Trust Shares shall be in accordance with all applicable federal
and state securities laws.
7. Compensation of Voting Trustees. The Voting Trustees shall receive no
compensation for their services as Voting Trustees 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 Trustees. Subject to the terms of this Agreement, it
is the intention of the parties that the Voting Trustees have unfettered
discretion to vote the Trust Shares as they deem 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 Trustees hereunder, unless such loss was caused by
a Voting Trustee's gross negligence or willful misconduct. The Voting Trustees
may consult with counsel of their choice, and shall have full and complete
authorization and protection for any action taken or suffered by the Voting
Trustees under this Agreement in good faith and in accordance with the opinion
of such counsel. No Voting Trustee acting hereunder shall be required to give a
bond or other security for the faithful performance of its duties as such.
9. Dissolution. In the event of the dissolution or total or partial
liquidation of the Windsor, whether voluntary or involuntary, the Voting
Trustees 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 Trustees in respect of such moneys, securities, rights
or property so received shall cease.
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10. Non-Disqualification. Nothing herein contained shall disqualify a
Voting Trustee from voting for it or any of its employees, officers, directors,
shareholders or affiliates to serve or from having any such persons serve
Windsor or any of its subsidiaries or affiliates as an officer or director or in
any other capacity and from voting for any of its employees, officers,
directors, shareholders or affiliates to receive and having any such persons
receive compensation for such services.
11. 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:
In the case of the Voting Trustees, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Interiors, Inc.
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of Shareholder to:
Interiors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of Bentley to:
Bentley International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of any notice to ▇▇▇ ▇▇▇▇ or Shareholder a copy shall be sent also
to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇
▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of any notice to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ a copy shall be sent
also to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Riezman & Blitz, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12. Amendment. This Agreement may be amended or modified in whole or in
part only by a document in writing signed by the Voting Trustees and each other
party against whom such amendment or modification is to be enforced.
13. 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.
14. 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.
15. 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.
16. Binding Effect. This Agreement shall be binding on, inure to the
benefit of, and be enforceable by and against the Voting Trustees, the other
parties hereto, and their respective heirs, personal representatives,
distributees, successors and assigns.
17. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
___________________________________ ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Voting Trustee ▇▇▇ ▇▇▇▇, as a Voting Trustee
BENTLEY INTERNATIONAL, INC. INTERIORS, INC.
By:________________________________ By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President ▇▇▇ ▇▇▇▇, President
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Windsor Art, 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.
▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Art, Inc.
a Missouri corporation
Voting Trust Certificate
This certifies that:
(1) certificates representing One Hundred (100) shares of Common Stock of
Windsor Art, Inc.., a Missouri corporation ("Company"), have been deposited with
the undersigned, as Voting Trustees under the Windsor Art, Inc. Voting Trust
Agreement No. 1 (the "Voting Trust Agreement"), dated as of July 30, 1998, among
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇, as Voting Trustees, 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 Trustees under the Voting Trust Agreement.
In the event of such a transfer, the Voting Trustees shall cause appropriate
evidence thereof to be endorsed hereon or shall, in the discretion of the Voting
Trustees, 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 Trustees have executed this
certificate this _____ day of ________, _____.
___________________________ ____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Voting Trustee ▇▇▇ ▇▇▇▇, Voting Trustee
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Windsor Art, 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 $1.00 per share ("Common Stock"), of WINDSOR ART, 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.1
(issued pursuant to the terms and provisions of the Windsor Art, 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: _________
____, ____
____________________________ ____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Voting Trustee ▇▇▇ ▇▇▇▇, Voting Trustee
Being the Voting Trustees under the Windsor Art, Inc. Voting Trust Agreement No.
1
In the Presence Of:
______________________________
Interiors, Inc.
By: __________________________
▇▇▇ ▇▇▇▇, President
In the Presence Of:
_____________________________
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