INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(b) AND (c)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13G/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Q.E.P. CO., INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001
- --------------------------------------------------------------------------------
(Title of Class of Securities)
74727K10
- --------------------------------------------------------------------------------
(CUSIP Number)
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act, but shall be subject to all other provisions of the Act (however, SEE
the Notes).
<PAGE>
CUSIP NO. 74727K10 13G PAGE 2 OF 7 PAGES
- -------------------------------------------------------------------------------
1 Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(Entities Only)
LEWIS GOULD, INDIVIDUALLY AND AS TRUSTEE OF A
VOTING TRUST
- -------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (a) |X|
(SEE Instructions) (b) |_|
- -------------------------------------------------------------------------------
3 SEC Use Only
- -------------------------------------------------------------------------------
4 Citizenship or Place of Organization
USA
- -------------------------------------------------------------------------------
5 Sole Voting Power
NUMBER OF 1,344,000
SHARES ---------------------------------------------
BENEFICIALLY 6 Shared Voting Power
OWNED BY NONE
EACH ---------------------------------------------
REPORTING 7 Sole Dispositive Power
PERSON 913,848
WITH ---------------------------------------------
8 Shared Dispositive Power
430,152
- -------------------------------------------------------------------------------
9 Aggregate Amount Beneficially Owned by Each Reporting Person
1,344,000
- -------------------------------------------------------------------------------
10 Check if the Aggregate Amount in Row (9) Excludes Certain Shares |_|
(SEE Instructions)
- -------------------------------------------------------------------------------
11 Percent of Class Represented by Amount in Row (9)
50.0%
- -------------------------------------------------------------------------------
12 Type of Reporting Person (SEE Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 74727K10 13G PAGE 3 OF 7 PAGES
- -------------------------------------------------------------------------------
1 Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(Entities Only)
SUSAN J. GOULD
- -------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (a) |X|
(SEE Instructions) (b) |_|
- -------------------------------------------------------------------------------
3 SEC Use Only
- -------------------------------------------------------------------------------
4 Citizenship or Place of Organization
USA
- -------------------------------------------------------------------------------
5 Sole Voting Power
NUMBER OF NONE
SHARES ---------------------------------------------
BENEFICIALLY 6 Shared Voting Power
OWNED BY NONE
EACH ---------------------------------------------
REPORTING 7 Sole Dispositive Power
PERSON NONE
WITH ---------------------------------------------
8 Shared Dispositive Power
430,152
- -------------------------------------------------------------------------------
9 Aggregate Amount Beneficially Owned by Each Reporting Person
430,152
- -------------------------------------------------------------------------------
10 Check if the Aggregate Amount in Row (9) Excludes Certain Shares |_|
(SEE Instructions)
- -------------------------------------------------------------------------------
11 Percent of Class Represented by Amount in Row (9)
16.1%
- -------------------------------------------------------------------------------
12 Type of Reporting Person (SEE Instructions)
IN
- -------------------------------------------------------------------------------
<PAGE>
Item 1.
(a) Name of Issuer:
Q.E.P. Co., Inc.
(b) Address of Issuer's Principal Executive Offices:
1081 Holland Drive
Boca Raton, FL 33487
Item 2.
(a) Name of Persons Filing:
Lewis Gould, individually and as Trustee, and Susan J. Gould
(b) Address of Principal Business Office or if None, Residence:
1081 Holland Drive
Boca Raton, FL 33487
(c) Citizenship:
USA for all Reporting Persons
(d) Title of Class of Securities:
Common Stock, par value $.001
(e) Cusip Number:
74727K10
Item 3.
N/A
Item 4. Ownership
(1)(a) Amount Beneficially Owned by Lewis Gould,
individually and as Trustee of a Voting Trust: 1,344,000
Represents (1) 897,848 shares held of record and options to
purchase 16,000 shares by Lewis Gould, individually; and (2) 414,152
shares held of record and options to purchase 16,000 shares by Lewis
Gould as Trustee of a Voting Trust for the benefit of Susan J. Gould.
(1)(b) Percent of Class: 50.0%
Page 4 of 7 Pages
<PAGE>
(1)(c) Number of shares as to which such person has:
(i) Sole power to vote or to direct the vote:
1,344,000
(ii) Shared power to vote or to direct the vote:
None
(iii) Sole power to dispose or to direct the
disposition of: 913,848
(iv) Shared power to dispose or to direct the
disposition of: 430,152
(2)(a) Amount Beneficially Owned by Susan J. Gould: 430,152
Represents 414,152 shares held of record and options to
purchase 16,000 shares by Lewis Gould as Trustee of a Voting Trust for
the benefit of Susan J. Gould pursuant to a Voting Trust Agreement
which may be automatically terminated in certain events.
(2)(b) Percent of Class: 16.1%
(2)(c) Number of shares as to which such person has:
(i) Sole power to vote or to direct the vote:
None
(ii) Shared power to vote or to direct the vote:
None
(iii) Sole power to dispose or to direct the
disposition of: None
(iv) Shared power to dispose or to direct the
disposition of: 430,152
Item 5. Ownership of Five Percent or Less of a Class
N/A
Item 6. Ownership of More than Five Percent on Behalf
of Another Person
None
Item 7. Identification and Classification of the Subsidiary
Which Acquired the Security Being Reported on by the
Parent Holding Company
N/A
Page 5 of 7 Pages
<PAGE>
Item 8. Identification and Classification of Members of the Group
Lewis Gould
Susan J. Gould
Item 9. Notice of Dissolution of Group
N/A
Item 10. Certification
N/A
Page 6 of 7 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 26, 1998
/s/ Lewis Gould
--------------------------------
Lewis Gould, individually and as
Trustee of a Voting Trust
/s/ Susan J. Gould by Lewis Gould, attorney-in-fact
--------------------------------
Susan J. Gould
by Lewis Gould as attorney-in-fact
Page 7 of 7 Pages
<PAGE>
EXHIBITS
Exhibit A Joint Filing Statement*
Exhibit B Power of Attorney*
Exhibit C Voting Trust Agreement
- ----------
* Previously filed
Page 7 of 7 Pages
<PAGE>
EXHIBIT C
VOTING TRUST AGREEMENT
AGREEMENT, made as of the 2nd day of August 1996, by and among Q.E.P.,
Co., Inc., a Delaware corporation having its principal place of business at 990
South Rogers Circle, Boca Raton, Florida 33487 (the "Company"), Susan Gould, an
individual residing at 4101 North Ocean Boulevard, Apartment 903D, Boca Raton,
Florida 33431 (the "Shareholder"), and Lewis Gould, an individual residing at
2916 South Ocean Boulevard, Townhouse 1, Highland Beach, Florida 33487 (the
"Trustee").
WITNESSETH:
WHEREAS, the Shareholder presently owns 514,152 shares (the "Existing
Shares") of common stock, no par value (the "Common Stock"), of the Company; and
WHEREAS, the Shareholder presently contemplates and intends to sell,
pursuant to a public offering (the "Public Offering") registered under the
Securities Act of 1933, as amended (the "Act"), a total of 100,000 shares of
Common Stock (the "Public Offering Shares") which shall result in Shareholder
being the record and beneficial owner of 414,152 shares of Common Stock; and
WHEREAS, for purposes of this Agreement, the term "Shares" shall
include the 414,152 shares of Common Stock to be held of record and beneficially
immediately following the Public Offering, all Public Offering Shares
contemplated to be sold but not actually sold in the Public Offering, and all
other shares of the Common Stock hereafter acquired, of record or beneficially,
by the Shareholder; and
<PAGE>
WHEREAS, in order to secure continuity and stability of the Company's
policy and management for the benefit of the Company and all of its
shareholders, the Shareholder has agreed to enter into this Agreement pursuant
to which the Trustee will obtain voting control with respect to the Shares; and
WHEREAS, the Shareholder has agreed that the Trustee shall take and
hold for the period which is hereinafter stated the legal title to the Shares,
to be held by him and to act under the terms of this Agreement; and
WHEREAS, the Trustee has consented to act pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged,
IT IS HEREBY AGREED:
1. RECITALS. The parties hereby adopt as part of this Agreement each of
the recitals which are contained above in the WHEREAS clauses, and agree that
such recitals shall be binding upon the parties hereto by way of contract and
not merely by way of recital or inducement; and such clauses are hereby
confirmed and ratified as being accurate by each party as to itself, herself and
himself.
2. TRANSFER OF STOCK TO TRUSTEE AND ACCEPTANCE BY TRUSTEE.
A. The Shareholder shall deposit with the Trustee certificates
evidencing the Shares. All certificates evidencing the Shares shall be endorsed,
or accompanied by such instruments of
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<PAGE>
transfer (together with any appropriate transfer tax stamps), as to enable the
Trustee to cause such certificates to be transferred into the name of the
Trustee, as hereinafter provided. Upon receipt by the Trustee of the any such
Shares and the transfer of same on the books of the Company into the name of the
Trustee, the Trustee shall hold same subject to the terms of this Agreement, and
shall thereupon issue and deliver to the Shareholder a voting trust certificate
for the Shares so deposited (hereinafter referred to as the "Voting Trust
Certificate"), which shall be substantially in the form annexed hereto as
Exhibit "A".
B. All certificates for Shares to be transferred and delivered
to the Trustee pursuant to this Agreement shall be surrendered by the Trustee to
the Company and canceled, and a new certificate therefor shall be issued to and
held by the Trustee in the name of "Lewis Gould, as Voting Trustee u/t/a dated
August 2, 1996."
C. The Trustee hereby accepts the trust which is created
pursuant to this Agreement and covenants that he will faithfully discharge all
of his duties as such Trustee.
D. Copies of this Agreement, and of every agreement amending
or supplementing same, shall be placed on file in the principal office of the
Company, and shall be open to inspection by any shareholder of the Company,
during normal business hours.
E. The Shareholder hereby represents, warrants and covenants
that the Existing Shares are the only capital stock of the Company which are
beneficially owned by the Shareholder as of the date hereof and that if the
Shareholder, at any time during the
3
<PAGE>
term of this Agreement, shall acquire ownership of any additional capital stock
of the Company, the Shareholder shall deposit with the Trustee the certificates
evidencing such additional capital stock. The Shareholder further covenants that
if, for any reason, she does not sell all of the Public Offering Shares in the
Public Offering, the Shareholder shall deposit with the Trustee the certificates
evidencing such Public Offering Shares not sold in the Public Offering.
3. TRANSFER OF VOTING TRUST CERTIFICATES AND SHARES.
A. Except as provided in Paragraphs "B" and "C" of this
Article "3" of this Agreement, during the term of this Agreement, no Voting
Trust Certificates or Shares shall be sold, transferred, assigned, pledged,
hypothecated or otherwise transferred (each, a "Transfer") by the Shareholder.
B. Notwithstanding the provisions of Paragraph "A" of this
Article "3" of this Agreement, sales of any or all of the Shares and/or
Transfers of any or all Voting Trust Certificates shall be permitted under this
Agreement only upon full compliance by the Shareholder with subparagraph "(X)"
of this Paragraph "B" of this Article "3" of this Agreement, with respect to a
sale of the Shares, or subparagraph "(Y)" of this Paragraph "B" of this Article
"3" of this Agreement, with respect to a sale of Voting Trust Certificate(s), or
subparagraph "(Z)" of this Paragraph "B" of this Article "3" of this Agreement,
with respect to a Transfer of a Voting Trust Certificate.
(X) If the Shareholder determines to sell any or all
of the Shares by means of a sale through a registered broker
4
<PAGE>
dealer (a "Sale"), the Shareholder shall so notify the Trustee of such
determination by a written notice (a "Notice of Sale"), which Notice of Sale
shall state the number of Shares intended to be sold. Each Notice of Sale shall
be deemed to be an offer to sell the Shares subject to the Notice of Sale to
Trustee, in his individual capacity and not as Trustee (an "Offer to Trustee"),
at a purchase price (the "Purchase Price") equal to the fair market value of the
Shares (without giving effect to the restrictions imposed upon such Shares by
this Agreement). For purposes of this Agreement, "fair market value of the
Shares" shall be equal to the closing sale price (or average of the closing bid
and closing asked prices) of a share of Common Stock on the date the Notice of
Sale shall be deemed given under this Agreement multiplied by the number of
Shares subject to the Notice of Sale. In no event shall the number of Shares set
forth in a Notice of Sale exceed the number of Shares that Shareholder would,
except for the provisions of this Agreement, be permitted to sell pursuant to
Rule 144 promulgated under the Securities Act of 1933, as amended. Each Offer to
Trustee shall remain open for three (3) business days after receipt of the
Notice of Sale. The Trustee shall exercise such Offer to Trustee by giving the
Shareholder written notice of such exercise within said three (3) business day
period and delivering to the Shareholder the Purchase Price in the form of cash,
certified check or other means of immediately available funds. Upon payment of
the Purchase Price by the Trustee, the Shares subject to the Offer to Trustee
shall be transferred into the name of Trustee in his individual capacity on the
stock transfer records of the Company
5
<PAGE>
and such Shares shall no longer be subject to this Agreement. If the Trustee
shall fail to timely exercise the Offer to Trustee, then the Trustee shall
comply with all reasonable requests of Shareholder to cause the Shares subject
to the Notice of Sale to be transferred on the stock transfer records of the
Company into the name of the purchaser of such Shares (or into the name of a
registered broker or dealer designated by such purchaser) and such Shares shall
no longer be subject to this Agreement; provided, however, that such Sale shall
have been consummated within fifteen (15) days after the giving of such Notice
of Sale; and provided further, however, if such Sale shall not have been
consummated within said fifteen (15) days after the giving of such Notice of
Sale then the Shares subject to the Notice of Sale shall, in all respects, be
subject to the terms of this Agreement and Shareholder shall not thereafter
Transfer any Voting Trust Certificates and/or Shares without again first
complying with all of the terms of this Agreement applicable to such Transfer.
(Y) If Shareholder determines to sell any or all of
the Voting Trust Certificates pursuant to a bona fide third party offer,
Shareholder shall so notify the Trustee of such determination by a written
notice (a "Notice of Sale"), which Notice of Sale shall state the number of
Voting Trust Certificates intended to be sold, and shall be accompanied by a
copy of the agreement (the "Sale Agreement") pursuant to which the Sale is
intended to be consummated. Each Notice of Sale shall be deemed to be an offer
to sell the Voting Trust Certificates to Trustee, in his individual capacity and
not as Trustee (an "Offer to Trustee"),
6
<PAGE>
at a purchase price (the "Purchase Price") equal to the price for the Shares as
set forth in the Sale Agreement. Each Offer to Trustee shall remain open for
three (3) business days after receipt of the Notice of Sale. The Trustee shall
exercise such Offer to Trustee by giving Shareholder written notice of such
exercise within said three (3) business day period and delivering to Shareholder
the Purchase Price in any of the manners and at such times as are permissible in
the Sale Agreement. Upon payment of the Purchase Price by the Trustee, the
Voting Trust Certificates subject to the offer to Trustee shall be transferred
into the name of Trustee in his individual capacity. If the Trustee shall fail
to timely exercise the Offer to Trustee, then the Trustee shall comply with all
reasonable requests of Shareholder to cause the Voting Trust Certificates
subject to the Notice of Sale to be transferred into the name of the purchaser
of such Voting Trust Certificates; provided, however, that such Sale shall be
consummated no later than the original closing date set forth in the Sale
Agreement and that each transferee of a Voting Trust Certificate hereunder
shall, by the acceptance thereof, become a party and subject to this Agreement
with the same force and effect as if such transferee had executed this
Agreement, and shall be embraced within the meaning of the term Shareholder
whenever used herein, including the limited ability to transfer any or all of
the Voting Trust Certificates and/or the Shares; and further provided, however,
if such Sale shall not have been consummated on or prior to the original closing
date set forth in the Sale Agreement, then, the Voting Trust Certificates
subject to the Notice of Sale shall,
7
<PAGE>
in all respects, be subject to the terms of this Agreement and Shareholder shall
not thereafter Transfer any Voting Trust Certificates and/or Shares without
again first complying with all of the terms of this Agreement applicable to such
Transfer.
(Z) If the Shareholder determines to Transfer any
Voting Trust Certificate by gift and without any consideration, Shareholder
shall give written notice (a "Transfer Notice") to Trustee, which Transfer
Notice shall set forth all of the terms and conditions of the proposed Transfer,
including, but not limited to, a statement that no consideration of any kind is
being given in exchange for the Transfer of the Voting Trust Certificate, and
shall provide copies of all agreements, instruments or other documents
reflecting the terms and conditions of or to evidence such proposed Transfer. If
the Transfer shall be by gift and not for any consideration, then the Transfer
may be consummated, but only in accordance with the terms and conditions set
forth in the Transfer Notice and the agreements, instruments and other documents
provided with the Transfer Notice; provided, however, that each transferee of a
Voting Trust Certificate hereunder shall, by the acceptance thereof, become a
party and subject to this Agreement with the same force and effect as if such
transferee had executed this Agreement, and shall be embraced within the meaning
of the term Shareholder whenever used herein, including the limited ability to
transfer any or all of the Voting Trust Certificates and/or the Shares.
C. Notwithstanding any of the other provisions of this
Agreement, the Shareholder shall have the absolute right to pledge
8
<PAGE>
or hypothecate any or all Voting Trust Certificates owned by the Shareholder;
provided, however, any such pledge or hypothecation shall be subject to this
Agreement and any foreclosure of such pledge or hypothecation shall be deemed a
Transfer of the Voting Trust Certificates to which subparagraph "(Y)" of
Paragraph "B" of this Article "3" of this Agreement shall apply and the Offer to
Trustee shall be applicable thereto as if such foreclosure was a sale of the
Voting Trust Certificates, and, if such offer to Trustee shall not be exercised,
the party seeking to foreclose such pledge or hypothecation shall execute a
document substantially in the form annexed hereto as Exhibit "B" to this
Agreement.
D. Upon the death of any registered holder of Voting Trust
Certificates subject to this Agreement, the Trustee shall, upon surrender to the
Trustee of the Voting Trust Certificate(s) which were registered in the
decedent's name duly endorsed for surrender and cancellation, and delivery of
such other documents as the Trustee may reasonably require, cause said Voting
Trust Certificate(s) to be transferred to the decedent's legal representatives,
heirs, successors or assigns, as the case may be provided; however, that each
transferee of a Voting Trust Certificate hereunder shall, by the acceptance
thereof, become a party and subject to this Agreement with the same force and
effect as if such transferee had executed this Agreement, and shall be embraced
within the meaning of the term Shareholder whenever used herein, including the
limited ability to transfer any or all of the Voting Trust Certificates and/or
the Shares.
9
<PAGE>
E. During the term of this Agreement, the Trustee, in his
capacity as Trustee pursuant to this Agreement, shall not have the power to sell
the Shares without the authorization of the Shareholder. Any sales shall be made
in compliance with all applicable State and Federal securities laws.
F. If a sale of the Shares by the Trustee in his capacity as
Trustee pursuant to this Agreement occurs at any time, the proceeds shall be
distributed by the Trustee to and among the holder or holders of the Voting
Trust Certificates upon the surrender of said Voting Trust Certificates. The
distribution shall be pro rata among the holders of the Voting Trust
Certificates and there shall be no discrimination among the holders in the
distribution.
G. If a Voting Trust Certificate is lost, stolen, mutilated,
or destroyed, the Trustee, in his sole and absolute discretion, which discretion
shall not be unreasonably withheld, may issue a duplicate of such certificate
upon receipt of: (1) evidence of such fact satisfactory to the Trustee, (2)
indemnity satisfactory to the Trustee, (3) the existing certificate, if
mutilated, and (4) reimbursement of all costs and expenses incurred by the
Trustee in connection with the issuance of a new voting Trust Certificate. If a
Voting Trust Certificate is lost, stolen, mutilated or destroyed, the Trustee
shall not be required to recognize any transfer of a Voting Trust Certificate
which is not made in accordance with the provisions of this Agreement. Any
person claiming ownership of the Voting Trust Certificates pursuant to this
Paragraph "G" of this Article "3" of
10
<PAGE>
this Agreement shall be required to produce such indicia of title which is
satisfactory to the Trustee in his sole and absolute discretion, which
discretion shall not be unreasonably withheld and shall, in addition, deliver to
the Trustee an indemnity in form and substance which is satisfactory to the
Trustee.
H. In addition to the provisions of subparagraphs "(Y)" and
"(Z)" of Paragraph "B" of this Article "3" of this Agreement, a Transfer of any
of the Voting Trust Certificates pursuant to this Agreement shall have as a
condition precedent thereto the requirement that the transferee, prior to the
receipt of any Voting Trust Certificate, execute a document substantially in the
form annexed as Exhibit "B" to this Agreement.
4. DELIVERY OF VOTING TRUST CERTIFICATES FOR TRANSFER. Subject to
compliance with applicable laws and the terms of this Agreement, Voting Trust
Certificates shall be delivered for transfer to Trustee at the address of
Trustee for the giving of notices as provided in Paragraph "C" of Article "14"
of this Agreement (or at such other address as the Trustee may designate by
notice as provided in Paragraph "C" of Article "14" of this Agreement to the
registered holders of the Voting Trust Certificates). Delivery of a Voting Trust
Certificate, duly endorsed by the holder thereof, shall vest title thereto and
all rights thereunder in the transferee as named in the endorsement, or, when
presented duly endorsed in blank, in the bearer thereof. The Trustee may treat
such transferee as the absolute owner thereof, and of all rights and interests
represented thereby, for all purposes whatsoever, and the Trustee shall not be
bound or
11
<PAGE>
affected by any notice to the contrary, or by any notice of any trust, whether
expressed or implied, or constructive, or any charge to equity with respect to
the title or ownership of the Voting Trust Certificate, or the Shares which are
represented thereby. Each transferee of a Voting Trust Certificate hereunder
shall, by the acceptance thereof, become a party and subject to this Agreement
with the same force and effect as it such transferee had executed this
Agreement, and shall be embraced within the meaning of the term Shareholder
whenever used herein, including the limited ability to transfer any or all of
the Voting Trust Certificates and/or the Shares.
5. DIVIDENDS.
A. Prior to the termination of this Agreement, the holder of a
Voting Trust Certificate shall be entitled to receive payments which are equal
to the cash dividends, if any, which are received by the Trustee upon the Shares
of the Company represented by the Voting Trust Certificate. If any dividend with
respect to the Shares which are deposited with the Trustee is paid, in whole or
in part, in stock of the Company having voting powers, the Trustee shall hold,
subject to the terms of this Agreement, the certificates for the Shares which
are received by it on account of such dividend and the holder of the Voting
Trust Certificate representing Shares on which such stock dividend has been paid
shall be entitled to receive a Voting Trust Certificate issued pursuant to this
Agreement for the number of Shares and class of stock received as such dividend
with respect to the Shares which are represented by such Voting Trust
Certificate. The holders who
12
<PAGE>
are entitled to receive the dividends which are described above shall be those
registered as such on the transfer books of the Trustee at the close of business
on the day which is fixed by the Company as the record date to determine those
holders of its stock who are entitled to receive such dividends.
B. If any dividend with respect to the Shares which are
deposited with the Trustee is paid other than in cash or in capital stock having
voting powers, then the Trustee shall distribute same among the holders of
Voting Trust Certificates registered as such at the close of business on the day
which is fixed by the Company as the record date to determine those holders of
its stock who are entitled to receive such distribution. Said distribution shall
be made to such holders of Voting Trust Certificates, in accordance with the
number of Shares which are represented by their respective Voting Trust
Certificates.
C. The transfer books of the Trustee may be closed temporarily
by the Trustee for a period not exceeding 30 days preceding the date which is
fixed by the Company for the payment or distribution of dividends or the
distribution of assets or rights, or at any other time in the sole and absolute
discretion of the Trustee.
D. In lieu of receiving cash dividends upon the capital stock
of the Company and paying same to the holders of Voting Trust Certificates
pursuant to the provisions of this Agreement, the Trustee may instruct the
Company in writing to pay such dividends directly to the holders of any Voting
Trust Certificates. Upon receipt of such written instructions, the Company shall
pay such
13
<PAGE>
dividends directly to the holders of the Voting Trust Certificates. Upon such
instructions being given by the Trustee to the Company, and until revoked by the
Trustee, all liability of the Trustee with respect to payment of dividends shall
cease. The Trustee may at any time revoke such instructions and by written
notice to the Company direct it to make dividend payments to the Trustee.
6. SUBSCRIPTION RIGHTS. If any stock or other securities of the Company
are offered for subscription to the holder of the Shares of the Company which
are deposited hereunder, the Trustee, promptly upon receipt of notice of such
offer, shall mail a copy thereof to the holders of the Voting Trust
Certificates. Upon receipt by the Trustee, at least five days prior to the last
day which is fixed by the Company for subscription and payment, of a request
from any such registered holder of a Voting Trust Certificate to subscribe on
his behalf, accompanied with the sum of money which is required to be paid for
such shares or securities, the Trustee shall make such subscription and payment.
Upon receiving from the Company the certificates for shares or securities so
subscribed for, the Trustee shall issue to such holder a Voting Trust
Certificate with respect thereto if same be stock having voting powers, but if
same be securities other than stock having voting powers, the Trustee shall mail
or deliver such securities to the certificate holder on whose behalf the
subscription was made, or may instruct the Company to make delivery directly to
the certificate holder entitled thereto.
7. DISSOLUTION OF THE COMPANY. In the event of the dissolution or total
or partial liquidation of the Company, whether
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<PAGE>
voluntary or involuntary, the Trustee shall receive the moneys, securities,
rights or property to which the holder of the Shares which are deposited
hereunder is entitled, and shall distribute same pro rata among the holders of
the Voting Trust Certificates and there shall be no discrimination among the
holders in the distribution. The Trustee may, in his sole and absolute
discretion, deposit such moneys, securities, rights or property with any banking
company duly authorized to do business in the jurisdiction where such deposit is
made, with authority and instructions to distribute same as above provided after
first withdrawing the fee of such company from such assets; upon such deposit,
all further obligations or liabilities of the Trustee with respect to such
moneys, securities, rights or property so deposited shall cease.
8. REORGANIZATION OF THE COMPANY. If the Company is merged into or
consolidated with another corporation, or all or substantially all of the assets
of the Company are transferred to another corporation, then in connection with
such transfer the term "Company" for all purposes of this Agreement shall be
taken to include such successor corporation, and the Trustee shall receive and
hold under this Agreement any Shares of such successor corporation, received on
account of the ownership, as the Trustee hereunder, of the Shares held hereunder
at the time of such merger, consolidation and transfer. The Voting Trust
Certificates issued and outstanding under this Agreement at the time of such
merger, consolidation or transfer may remain outstanding, or the Trustee may, in
his discretion, substitute for the Voting Trust
15
<PAGE>
Certificates new Voting Trust Certificates in appropriate form and substance and
the terms "Shares" and "capital stock" as used herein shall be taken to include
any shares which may be received by the Trustee in lieu of all or any part of
the capital stock of the Company.
9. RIGHTS OF TRUSTEE.
A. The Trustee shall have the right, subject to the provisions
of this Article "9" of this Agreement, to exercise, in person or by his nominees
or proxies, all shareholders' rights and powers with respect to all Shares which
are deposited hereunder and to take part in or consent to any corporate or
shareholders' action of any kind whatsoever which he may exercise in his sole
and absolute discretion. Those rights shall include, but not be limited to, a
vote in favor of or against any resolution or proposed action of any character
whatsoever, which may be presented at any meeting or require the consent of
shareholders of the Company. Without limiting the generality of the foregoing,
it is understood that such action or proceeding may include, upon terms
satisfactory to the Trustee or to his nominees or proxies which are appointed by
him, mortgaging, creating a security interest in and pledging of all or any part
of the property of the Company, the lease or sale of all or any part of the
property of the Company, for cash, securities, or other property, the
dissolution of the Company, or the consolidation, merger, reorganization or
recapitalization of the Company. The Trustee may exercise any of the foregoing
powers notwithstanding the fact that he may also be acting as a trustee of
another voting trust agreement or another
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trust or as an executor or administrator of an estate or as an agent for other
persons, trusts, estates, corporations or other organizations interested in the
same matters, or may be interested in the same matters in his individual
capacity, as stockholder, director or otherwise.
B. The Trustee shall not be personally responsible with
respect to any action which is taken pursuant to his vote so cast in any matter
or act which is committed or omitted to be done pursuant to this Agreement,
provided such commission or omission does not amount to willful misconduct.
C. No Trustee acting under this Agreement shall be required to
give a bond or other security for the faithful performance of his duties.
10. TERM.
A. The holders of the Voting Trust Certificates shall not have
power to revoke this Agreement, and said certificate holders hereby expressly
acknowledge that they shall not have the right or power, whether alone or in
conjunction with others, in whatever capacity, to alter, amend, or revoke any of
the terms of this Agreement, in whole or in part.
B. Subject to the terms of subparagraph "(X)" of Paragraph "B"
of Article "3" of this Agreement providing for early termination in the event of
a Sale, this Agreement shall be effective as of the date hereof and shall
continue in effect until the tenth anniversary of the date hereof, but shall
terminate automatically upon the death of the Trustee, the removal of the
Trustee or determination of the Trustee's incompetency by order of
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a court with jurisdiction over the Trustee or the execution by the Trustee of a
deed of termination, which shall be duly acknowledged in the same manner as a
conveyance of real estate which is entitled to be recorded in the State of
Delaware and which shall be mailed by certified mail, return receipt requested,
to the Company at its address for the giving of notices as provided in Paragraph
"C" of Article "14" of this Agreement, and to the holders of the Voting Trust
Certificates which are outstanding at the time of the mailing of such deed of
termination.
11. TERMINATION PROCEDURE.
A. Upon the termination of this Agreement at any time, due to
the death of the Trustee or by the execution and filing with the Company of a
deed of termination which is executed by the Trustee in accordance with the
terms of Paragraph "B" of Article "10" of this Agreement or by the expiration of
the ten year period provided in Paragraph "B" of Article "10" of this Agreement,
the Trustee (or, in the case of the death of the Trustee, the administrator or
executor of the estate of Trustee) shall, during the period commencing thirty
(30) days before and ending thirty (30) days after such termination, give notice
of such termination to the holders of the Voting Trust Certificates which are
outstanding at the time of the termination of this Agreement. After the date
which is specified in any such notice (which date shall be fixed by the
Trustee), the Voting Trust Certificates shall cease to have any effect, and the
holders of such Voting Trust Certificates shall have no further rights pursuant
to this Agreement other than to receive the Shares represented by such
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Voting Trust Certificates which is distributable pursuant to the terms hereof
upon the surrender of such Voting Trust Certificates.
B. Upon the surrender of the Voting Trust Certificates
properly endorsed, the Trustee (or, in the case of the death of the Trustee, the
administrator or executor of the estate of Trustee) shall deliver to the
registered holders of Voting Trust Certificates the number of Shares represented
by such Voting Trust Certificates thereby, such delivery to be made by the
Trustee (or such administrator or executor of the estate of Trustee) at the
address specified by the Trustee (or such administrator or executor of the
estate of Trustee) against surrender of the Voting Trust Certificate.
C. At any time subsequent to sixty (60) days after the
termination of this Agreement, the Trustee (or, in the case of the death of the
Trustee, the administrator or executor of the estate of Trustee) may deposit
with the Company certificates evidencing the Shares represented by the voting
Trust Certificates which are then outstanding, with authority in writing to the
Company to deliver such certificates evidencing such Shares in exchange for
Voting Trust Certificates representing such Shares and, upon such deposit, all
further liability of the Trustee (or such administrator or executor of the
estate of Trustee) for the delivery of such certificates evidencing the Shares
and the delivery or payment of dividends upon surrender of the Voting Trust
Certificates shall cease, and the Trustee (or such administrator or executor of
the estate of Trustee) shall not be required to take any further action
hereunder.
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12. OTHER CAPACITIES OF THE TRUSTEE. Nothing which is herein contained
shall disqualify the Trustee, or incapacitate him from serving the Company or
any of its subsidiaries as an officer or director, or in any other capacity, and
in any such capacity to receive compensation; nor shall it disqualify the
Trustee from dealing or contracting with the Company either as a vendor,
purchaser or otherwise, nor shall any transaction or contract be affected or
invalidated by reason of the fact that the Trustee or any firm or corporation of
which the Trustee is a member, shareholder, Director or employee is in any way
interested in such transaction or contract.
13. COMPENSATION AND REIMBURSEMENT OF TRUSTEE. The Trustee shall serve
without compensation.
14. MISCELLANEOUS.
A. HEADINGS. Headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
B. ENFORCEABILITY. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or unenforceable in any
respect under the laws of any jurisdiction, such invalidity or unenforceability
shall not affect any other provision of this Agreement. Instead, this Agreement
shall be construed as if such invalid or unenforceable provisions had not been
contained herein.
C. NOTICES. Any notice or other communication required or
permitted hereunder must be in writing and sent by either (i) certified mail,
return receipt requested, postage prepaid,
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(ii) overnight delivery with confirmation of delivery, or (iii) facsimile
transmission with an original mailed by first class mail, postage prepaid,
addressed as follows:
To the Company: Q.E.P. Co., Inc.
990 South Rogers Circle
Boca Raton, Florida 33487
Attn: Lewis Gould, President
Facsimile No.: (407) 241-2830
Copy to: Frederick M. Mintz, Esq.
Mintz & Fraade, P.C.
488 Madison Avenue
New York, New York 10022
Facsimile No: (212) 486-0701
To the Shareholder: Ms. Susan Gould
4101 North Ocean Boulevard
Apartment 903D
Boca Raton, Florida 33431
Facsimile No.:
Copy To: Franklin Montgomery, Esq.
488 Madison Avenue
New York, New York 10022
Facsimile No.: (212) 486-0701
To the Trustee: Mr. Lewis Gould
2916 South Ocean Boulevard
Townhouse I
Highland Beach, Florida 33487
Facsimile No.: (407) 241-2830
Copy To: Frederick M. Mintz, Esq.
Mintz & Fraade, P.C.
488 Madison Avenue
New York, New York 10022
Facsimile No.: (212) 486-0701
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and if the other methods of sending notice set forth in this
Paragraph "C" of this Article "14" of this Agreement are not available, the
notice shall be hand delivered to the above addresses. Each notice or
communication
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shall be deemed to have been given as of the date so mailed or delivered, as the
case may be; provided, however, that any notice sent by facsimile shall be
deemed to have been given as of the date sent by facsimile if a copy of such
notice is also mailed by first class mail on the date sent by facsimile; and, if
the date of mailing differs from the date of sending by facsimile, then the date
of mailing by first class mail shall be deemed to be the date upon which notice
was given.
D. GOVERNING LAW. This Agreement shall in all respects be
construed, governed, applied and enforced in accordance with the internal laws
of the State of Delaware without giving effect to the principles of conflict of
laws.
E. ENTIRE AGREEMENT. The parties have not made any
representations, warranties, or covenants about the subject matter hereof which
is not set forth herein, and this Agreement, together with any instruments
executed simultaneously herewith, constitutes the entire Agreement between them
about the subject matter hereof. All understandings and agreements heretofore
had between the parties about the subject matter hereof are merged in this
Agreement and any such instrument which alone fully and completely expresses
their Agreement.
F. MODIFICATION. This Agreement may not be changed, modified,
extended, terminated or discharged orally, but only by an agreement in writing
which is signed by the Trustee and all holders of outstanding Voting Trust
Certificates.
G. FURTHER ASSURANCES. The parties agree to execute any and
all such other and further instruments and documents, and
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to take any and all such further actions which are reasonably required to
consummate, evidence, confirm or effectuate this Agreement and the intents and
purposes hereof.
H. BINDING AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, personal representatives, successors and assigns.
I. WAIVER. Except as otherwise expressly provided herein, no
waiver of any covenant, condition or provision of this Agreement shall be deemed
to have been made unless expressly in writing and signed by the party against
whom such waiver is charged; and (i) the failure of any party to insist in any
one or more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver of any other or subsequent
breach.
J. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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K. DISTRIBUTIONS. All distributions of cash, securities or
other property hereunder by the Trustee to the holders of Voting Trust
Certificates may be made, in the discretion of the Trustee, in the same manner
as provided for in Paragraph "C" of this Article "14" of this Agreement for the
giving of notices to the holders of Voting Trust Certificates.
L. EQUITABLE RELIEF. A breach by either of the parties hereto
of any of the provisions contained herein may cause the other party irreparable
injury or harm which cannot be reasonably or adequately compensated in damages
in an action at law. Each party expressly agrees that the other party shall be
entitled to injunctive or other equitable relief to prevent the breach or
anticipated breach of this Agreement. Resort to such equitable relief, however,
shall not be construed to be a waiver of any other rights or remedies which each
party may have for damages or otherwise.
M. WORD USAGE. As used in this Agreement, words such as
"herein", "hereof" and words of similar import refer to this Agreement as a
whole, and not to any particular section of this Agreement, unless the context
clearly indicates otherwise.
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IN WITNESS WHEREOF, the Company has signed and sealed this Agreement,
and the Shareholder and the Trustee have signed this Agreement as of the day,
month and year first above written.
/s/ LEWIS GOULD
-----------------------------------
Lewis Gould, Trustee
/s/ SUSAN GOULD
-----------------------------------
Susan Gould, Shareholder
Q.E.P. Co., Inc.
Attest:
/s/ LEWIS GOULD
-----------------------------------
By: Lewis Gould, President
/s/ SUSAN GOULD
-----------------------------------
Secretary
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EXHIBIT A
Q.E.P. CO., INC.
A Delaware Corporation
Voting Trust Certificate Number: ______
This certifies that ________________ is entitled to all of the benefits arising
from the deposit with Lewis Gould (hereinafter referred to as the "Trustee"), as
the Trustee under the Voting Trust Agreement dated ____________ 1996 (the
"Agreement"), of Certificate Number ______, representing shares (the "Shares")
of Common Stock, no par value, of Q.E.P. Co., Inc., a Delaware corporation
(hereinafter referred to as the "Company"), as provided in the Agreement and
subject to the terms thereof. This Certificate is issued, received, and held
under, and the rights of the owner hereof are subject to, the terms of the
Agreement. Copies of the Agreement, and of every agreement amending or
supplementing same, are on file in the principal office of the Company in Boca
Raton, Florida, and are open to inspection by any holder hereof and any
shareholder of the Company, during normal business hours. If the holder of this
Certificate is not an original signatory to the Agreement, such holder assents
to all the provisions of the Agreement as if such holder had signed the
Agreement in person.
The Agreement shall continue in full force and effect until ________
unless terminated prior thereto in accordance with its terms. Title to this
Certificate when duly endorsed shall, to the extent permitted by law and under
the Agreement, be transferable
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with the same effect as a negotiable instrument, subject to the following
legend:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended. The rights represented by
this Voting Trust Certificate may not be sold, assigned, pledged,
hypothecated, or otherwise transferred without an effective
registration statement under the Securities Act of 1933 or an opinion
of counsel for the Company that registration is not required under such
Act."
The Trustee may treat the registered holder hereof or, when presented
duly endorsed in blank, the bearer hereof, as the absolute owner hereof, and of
all rights and interest represented hereby, for all purposes whatsoever, and the
Trustee shall not be bound or affected by any notice to the contrary, or by any
notice of any trust, whether express or implied, or constructive, or any charge
or equity with respect to the title or ownership of this Certificate, or the
Shares represented hereby; provided, however, that no delivery of stock
certificates hereunder, or the proceeds thereof, shall be made without surrender
hereof properly endorsed.
In the event of the dissolution or total or partial liquidation of the
Company, the moneys, securities, or property received by the Trustee in respect
of the Shares deposited under the Agreement shall be distributed among the
registered holders of Voting Trust Certificates in proportion to their interests
as shown by the books of the Trustee.
If the Trustee receives any dividend or distribution other than in cash
or Company stock having general voting powers, the Trustee shall distribute the
same to the registered holders of Voting Trust Certificates in the form of
additional Voting Trust
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Certificates, on the date of such distribution, or to the registered certificate
holders at the close of business on the date fixed by the Trustee for taking a
record to determine the certificate holders entitled to such distribution,
pursuant to the provisions of Article "5" of the Agreement. Such distribution
shall be made to the certificate holders ratably in accordance with the number
of Shares represented by their respective Voting Trust Certificates.
Stock certificates for the number of Shares of capital stock then
represented by this certificate, or the net proceeds in cash or property of such
Shares, shall be due and deliverable hereunder upon the termination of Agreement
as provided therein.
This Certificate shall not be valid for any purpose until duly signed
by the Trustee.
IN WITNESS WHEREOF, the Trustee has signed this Certificate on the ____
day of ____________, 1996.
_________________________
Lewis Gould, Trustee
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EXHIBIT "B"
To: Lewis Gould, Trustee
[ADDRESS]
Dear Mr. Gould:
Reference is hereby made to that certain Voting Trust Agreement, dated
_______________, 1996 (the "Agreement"), among Q.E.P. Co., Inc. (the "Company"),
Susan Gould ("Shareholder") and Lewis Gould ("Trustee"). The undersigned is a
transferee, from Shareholder or a prior transferee of Shareholder, of Voting
Trust Certificate Number ______. A copy of Voting Trust Certificate Number
_______ has been annexed as Exhibit I to this letter and is incorporated herein
by reference thereto. The undersigned hereby acknowledges and accepts said
Voting Trust Certificate and agrees to become a party and subject to and be
bound by all of the terms of the Agreement, to the full extent of said Voting
Trust Certificate with the same force and effect as if such transferee had
executed the Agreement shall be embraced withing the meaning of the term
"Shareholder" whenever used therein including the limited
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ability to transfer any or all of the Voting Trust Certificate re
_______________________________________ represented by the Voting Trust
Certificate.
Dated this ___ day of _______, ____.
______________________________
Name:
Title, if applicable:
Address of Transferee:
_________________________
_________________________
_________________________
Tax Identification Number:
_________________________
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