VOTING AGREEMENT
This Voting Agreement (the "Agreement") is entered into as of this ___ day
of February, 2004, by and between SRC Holdings Corporation, a Missouri
corporation ("SRC"), and Xxxxx X. Xxxxxxx, a resident of Xxxxxx County, Missouri
("Xxxxxxx").
SRC and Decorize, Inc., a Delaware corporation ("Decorize") have entered
into a Securities Purchase Agreement dated as of February 13, 2004 (the
"Securities Purchase Agreement"), under which SRC has agreed to purchase certain
capital stock and warrants of Decorize (the "Acquisition"). Xxxxxxx has voting
power with respect to the number of shares of common stock, par value $.001, of
Decorize (the "Voting Stock") set forth opposite his name on the attached
Schedule 1. As an inducement and a condition to entering into the Securities
Purchase Agreement, SRC has required that Xxxxxxx enter into this Agreement.
Therefore, in consideration of the foregoing and the mutual covenants,
representations, warranties and agreements contained in this Agreement, and for
other valuable consideration, the receipt and sufficiency of which are
acknowledged, and intending to be legally bound, the parties agree as follows:
1. Manner of Voting the Shares of Voting Stock.
(a) During the period commencing on the date of this Agreement and
continuing until February 13, 2006, at any meeting of the holders of shares
of Voting Stock, however called, or in connection with any written consent
of the holders of shares of Voting Stock, Xxxxxxx will vote (or cause to be
voted) all of the shares of Voting Stock with respect to which he has
voting power ("Voting Control"), whether heretofore owned or hereafter
acquired, with respect to the following matters (each a "Fundamental
Transaction"):
(i) any sale of all the outstanding Voting Stock,
(ii) any sale of all or substantially all of Decorize's assets,
and
(iii) any merger or consolidation in which Decorize engages.
SRC may not direct Xxxxxx'x voting of the Voting Stock with respect to
which he has Voting Control ("Controlled Voting Stock") on any matter other
than the Fundamental Transactions.
(b) Xxxxxxx will not enter into any agreement or understanding with
any individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or other entity
(each, a "Person") the effect of which would be inconsistent with, or
violate, this Agreement.
(c) In the event of a stock dividend or distribution, or any change in
the Voting Stock by reason of any stock dividend, stock split,
recapitalization,
reclassification, combination, exchange of shares, merger or the like, the
term "shares" as used in this Agreement will be deemed to refer to and
include the shares as well as all stock dividends and distributions and any
shares or other securities into which or for which any or all of the shares
may be converted, changed or exchanged.
2. Proxy. Concurrently with the execution of this Agreement, Xxxxxxx will
deliver to SRC a proxy with respect to the Voting Stock in the form attached as
Exhibit A to this Agreement, which will be irrevocable to the fullest extent
permitted by law (the "Proxy"). In lieu of directing Xxxxxxx' voting of the
Controlled Voting Stock on Fundamental Transactions as provided in Section 1(a)
above, SRC may, in its sole discretion, utilize the Proxy to vote the Controlled
Voting Stock directly on Fundamental Transactions. SRC may not use the Proxy to
vote the Controlled Voting Stock on any matter other than the Fundamental
Transactions.
3. Representations and Warranties. Xxxxxxx represents and warrants to SRC
as follows:
(a) Ownership of Shares. Xxxxxxx has Voting Control with respect to
all of the shares of Voting Stock described on Schedule 1. Xxxxxxx has the
power to issue instructions with respect to the matters set forth in
Section 1 with respect to all of the shares of Voting Stock described on
Schedule 1 with no limitations, qualifications or restrictions on these
rights (subject to applicable securities laws).
(b) Power; Binding Agreement. Xxxxxxx has the legal capacity, power
and authority to enter into and perform all of his obligations under this
Agreement and the Proxy. Xxxxxxx has duly and validly executed and
delivered this Agreement and the Proxy, and they each constitute a valid
and binding agreement or instrument enforceable against him in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity). There
is no beneficiary or holder of a voting trust certificate or other interest
of any trust of which Xxxxxxx is settlor or trustee, or any other person,
whose consent is required for Xxxxxxx' execution and delivery of this
Agreement or the Proxy or his consummation of the transactions contemplated
under this Agreement and the Proxy.
(c) No Other Proxy. Any proxies given before the date of this
Agreement with respect to the Controlled Voting Stock, are not irrevocable,
and that those proxies (other than the Proxy) are revoked.
(d) No Conflicts. Neither Xxxxxxx' execution and delivery of this
Agreement and the Proxy, his consummation of the transactions contemplated
under this Agreement and the Proxy, nor his compliance with this Agreement
and
the Proxy will:
(i) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any declaration of trust, note, bond, mortgage,
indenture, security or pledge agreement, voting agreement,
stockholders' agreement or voting trust, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Xxxxxxx is a party or by which
Xxxxxxx or any of his assets may be bound,
(ii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to Xxxxxxx or any of his
assets,
and that would, in either case, prevent or impair Xxxxxx'x ability to
perform his obligations under this Agreement and the Proxy.
4. Reliance. Xxxxxxx understands and acknowledges that SRC is entering into
the Securities Purchase Agreement in reliance upon his execution and delivery of
this Agreement and the Proxy, and would not enter into the Securities Purchase
Agreement but for the existence and enforceability of this Agreement and the
Proxy.
5. Restrictions. Xxxxxxx will not, directly or indirectly, during the
period commencing on the date of this Agreement and continuing until February
13, 2006:
(a) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or grant or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any of the shares of the Controlled Voting Stock or any
interest therein,
(b) except as contemplated under this Agreement and the Proxy, grant
any proxies or powers of attorney, deposit any shares of his Controlled
Voting Stock into a voting trust, or enter into a voting agreement with
respect to any of his shares of Controlled Voting Stock that would prevent
or impair his ability to perform his obligations under this Agreement and
the Proxy, or
(c) take any action that would (i) make any of his representations or
warranties contained in this Agreement to be untrue or incorrect, or (ii)
have the effect of preventing or disabling him from performing his
obligations under this Agreement and the Proxy.
6. Stockholder Capacity. Xxxxxxx does not make any agreement or
understanding in this Agreement or in the Proxy in his capacity as a director or
officer of Decorize. Xxxxxxx signs this Agreement and the Proxy solely in his
capacity as a Person that has Voting Control with respect to the Controlled
Voting Stock. Nothing in this
Agreement or in the Proxy is intended to limit or affect any actions that
Xxxxxxx takes in his capacity as a director or officer of Decorize.
7. Further Assurances. From time to time, at any party's reasonable request
and without further consideration, the other party will execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated under this Agreement and the Proxy.
8. Entire Agreement. This Agreement (together with Exhibit A and Schedule
1, which are incorporated into this Agreement by this reference) and the Proxy
together constitute the entire agreement between the parties with respect to the
subject matter of this Agreement and the Proxy and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to this subject matter.
9. Certain Events. Xxxxxxx agrees that this Agreement and the Proxy and his
obligations under this Agreement and the Proxy will attach to its shares of
Controlled Voting Stock and will be binding upon any Person to which legal or
beneficial ownership of these shares of Controlled Voting Stock pass, whether by
operation of law or otherwise, including, without limitation, Xxxxxxx' heirs,
executors, guardians, administrators, trustees or successors and permitted
assigns. Notwithstanding any transfer of shares of Controlled Voting Stock that
are the subject of this Agreement, the transferor will remain liable for the
performance of the transferor's obligations under this Agreement and the Proxy.
10. Assignment; Binding Effect. Xxxxxxx may not assign (by operation of law
or otherwise) this Agreement without SRC's prior written consent, and any
purported assignment without this consent will be null and void. SRC may assign
its rights and obligations under this Agreement and the Proxy without Xxxxxxx'
consent. All covenants and agreements contained in this Agreement are binding
upon, and will inure to the benefit of, the respective heirs, executors,
guardians, administrators, trustees or successors and permitted assigns of the
parties.
11. Amendments; Waivers. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except upon the
execution and delivery of a written agreement executed by each of the parties
hereto.
12. Notices. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be given (and
will be deemed to have been duly received if so given) by hand delivery,
confirmed facsimile transmission, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service providing
proof of delivery. All communications under this Agreement will be delivered to
the respective parties at the following addresses:
(a) if to SRC, to its address set forth in the Securities Purchase
Agreement, and
(b) if to Xxxxxxx, to the address set forth on Schedule 1,
or, in each case, to such other address as the Person to whom notice is given
may have previously furnished to the other in writing in the manner set forth
above.
13. Severability. If any term or provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement will nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated under this Agreement is not affected in any manner materially
adverse to any party. Upon determination that any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced, the parties
hereto will negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by law in an acceptable manner to the end that the transactions
contemplated under this Agreement are fulfilled to the extent possible.
14. Specific Performance. Xxxxxxx recognizes and acknowledges that his
breach of any covenants or agreements contained in this Agreement will cause SRC
to sustain damages for which it would not have an adequate remedy at law for
money damages. Therefore, Xxxxxxx agrees that in the event of any such breach
SRC will be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
15. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available with respect to this Agreement at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by any party will not preclude the party's simultaneous or later
exercise of any other such right, power or remedy.
16. No Waiver. A party's failure to exercise any right, power or remedy
provided under this Agreement or otherwise available with respect to this
Agreement at law or in equity, or to insist upon compliance by the other party
with its obligations under this Agreement, and any custom or practice of the
parties at variance with this Agreement, will not constitute a waiver by the
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
17. No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and will not be enforceable by, any Person who is not a party to
this Agreement.
18. Governing Law. This Agreement will be governed and construed under
Delaware law, without giving effect to its principles of conflicts of law.
19. Waiver of Jury Trial. The parties waive all right to trial by jury in
any action or proceeding to enforce or defend any rights under this Agreement
and any document executed in connection with this Agreement.
20. Descriptive Headings. The descriptive headings used in this Agreement
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed to be an original, but all of which, taken together, will
constitute one and the same Agreement.
SRC and Xxxxxxx have executed and delivered this Agreement as of the date
first above written.
SRC HOLDINGS CORPORATION /s/ Xxxxx X. Xxxxxxx
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By XXXXX X. XXXXXXX
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Name:
--------------------------
Title:
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SCHEDULE 1
Voting Stock
Xxxxx X. Xxxxxxx 3,303,970 shares of common stock, $.001 par
value per share
IRREVOCABLE PROXY
Xxxxx X. Xxxxxxx ("Xxxxxxx"), the undersigned stockholder of Decorize,
Inc., a Delaware corporation (the "Company"), irrevocably appoints and
constitutes SRC Holdings Corporation, a Missouri corporation ("SRC"), as the
sole and exclusive attorney and proxy, with full power of substitution and
resubstitution to the full extent of Xxxxxxx' rights, with respect to the shares
of capital stock of the Company that Xxxxxxx beneficially owns (which shares are
listed on the final page of this Irrevocable Proxy) and all other shares or
securities issued or otherwise that Xxxxxxx acquires on or after the date of
this Irrevocable Proxy (collectively, the "Shares"). THIS PROXY IS IRREVOCABLE
until February 13, 2006 (the "Expiration Date"), at which time it automatically
terminates.
Upon Xxxxxxx' execution of this Irrevocable Proxy, all prior proxies that
Xxxxxxx' has given with respect to any Shares are revoked and Xxxxxxx will not
grant any subsequent proxies with respect to the Shares until after the
Expiration Date.
This Irrevocable Proxy (a) is irrevocable (to the fullest extent provided
by applicable law), (b) is coupled with an interest, (c) is granted in
accordance with that certain Voting Agreement dated as of February 13, 2004,
between SRC and Xxxxxxx, and (d) is granted in consideration of SRC entering
into, and to induce SRC to enter into, that certain Securities Purchase
Agreement dated as of February 13, 2004, among the Company, SRC and Quest
Capital Alliance, L.L.C., a Missouri limited liability company.
SRC is authorized and empowered by Xxxxxxx at any time before the
Expiration Date to act as Xxxxxxx' attorney and proxy to vote the Shares and to
exercise all voting and other rights of Xxxxxxx with respect to the Shares at
every annual, special or adjourned meeting of the stockholders of the Company,
and in every written consent in lieu of such a meeting, or otherwise.
Notwithstanding anything in this Irrevocable Proxy to the contrary, SRC's rights
under this Irrevocable Proxy are limited to voting the Shares with respect to
the following matters (each a "Fundamental Transaction"): (a) any sale of all
the outstanding Voting Stock, (b) any sale of all or substantially all of the
assets of Decorize, and (c) any merger or consolidation in which Decorize
engages. SRC may not vote the Shares under this Proxy on any matter other than
the Fundamental Transactions.
All authority conferred by this Irrevocable Proxy will survive Xxxxxxx'
death or incapacity and is binding upon his heirs, personal representatives,
successors and assigns.
Date: February ____, 2004
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
Shares beneficially owned: 3,303,970
shares of common stock, $.001 par value per
share
