EXHIBIT 9.1
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (the "Agreement") is executed
this 15 day of December, 2000 and effective as of the19th day of October, 2000
(the "Effective Date"), by and among Computerized Thermal Imaging, Inc., a
Nevada corporation (the "Corporation"), Xxxxx X. Xxxxxxxx, individually, and
Thermal Imaging, Inc. ("TII"), an Oregon corporation (Xxxxx X. Xxxxxxxx and
TII are hereinafter collectively referred to as the "Stockholders").
RECITALS
WHEREAS, the Corporation and Xxxxx Xxxxxxxx entered into that certain
Voting Agreement ("Original Agreement") dated October 19, 2000 in order to
facilitate the voting arrangements set forth therein;
WHEREAS, the Corporation and the Stockholders desire to amend and
restate the Original Agreement in order to make TII a party to the Original
Agreement, and to undertake certain other obligations as provided in this
Agreement; and
WHEREAS, the Corporation and the Stockholders deem it to be in the best
interests of the Corporation and the Stockholders that this Agreement be
executed.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Termination of Agreement.
This Agreement shall terminate on the sooner of the third anniversary of
the Effective Date or the death or legal declaration of incapacity of Xxxxx X.
Xxxxxxxx.
2. Legends. In addition to any other legends required by law or agreements
between the parties, each certificate representing the Stockholders' shares of
common stock of the Corporation outstanding on the date of this Agreement
shall be endorsed by the Corporation with a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG
THE CORPORATION AND THE SHAREHOLDER, (A COPY OF WHICH MAY BE OBTAINED FROM THE
CORPORATION). THE AGREEMENT PROHIBITS TRANSFER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE TO AN "AFFILIATE TRANSFEREE" AS DEFINED IN SUCH VOTING
AGREEMENT UNLESS SUCH AFFILIATE TRANSFEREES AGREE TO BE BOUND BY SUCH
AGREEMENT AND BY ACCEPTING THE SHARES SUCH AFFILIATE TRANSFEREES SHALL BE
DEEMED TO BE BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT."
3. Voting Restrictions.
During the term of this Agreement, the Stockholders hereby agree to vote
all shares of common stock of the Corporation owned of record by the
Stockholders, whether owned as of the date of this Agreement or acquired after
the date of this Agreement, any other shares of the capital stock of the
Company over which they exercise voting control as of the date of this
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Agreement, any shares acquired by exercise of any options or warrants now or
hereafter acquired by the Stockholders, and any shares acquired in respect of
any such shares (collectively, the "Shares") for the election of directors of
the Corporation, and on all matters that may require the vote of the
shareholders, in the same proportion as those shares voted by all shareholders
other than (i) Xxxxx X. Xxxxxxxx, individually, (ii) Xxxxx X. Xxxxxx,
individually, and Xxxxx X. Xxxxxx, doing business as Manhattan Financial
Group, (iii) TII, and (iv) any Affiliate Transferee (as defined in Paragraph 5
hereof) of the individuals or entities set forth in clauses (i), (ii) and
(iii) above.
4. Grant of Proxy.
During the period this Agreement remains in force, the Stockholders
hereby appoint Xxxxxxx X. Xxxxxx, Chief Executive Officer of the Corporation,
and Xxxxx X. Xxxxxxx, Chief Financial Officer, Secretary and Treasurer of the
Corporation, as proxies, each with power to act without the other and with
power of substitution, and hereby authorize and direct them to represent and
vote the Shares as specified in Paragraph 3 above. In the event that either
or both such proxies are no longer executive officers of the Corporation, then
their respective successors-in-title shall be automatically appointed as
proxies in their place and stead without any further action on the part of the
Shareholder or such proxies. The foregoing proxy shall be deemed coupled with
an interest and shall be irrevocable for the term of this Agreement.
5. Transfer Restrictions.
The Stockholders shall not transfer any of their Shares to any entity
controlling, controlled by or under common control with the Stockholders, or
to any member of Xxxxx X. Xxxxxxxx'x immediate family (as defined in Section
16a-1(e) of the Securities Exchange Act of 1934, as amended)(each an
"Affiliate Transferee"), unless such Affiliate Transferee agrees in writing to
be bound by this Agreement with respect to such transferred Shares and to
become a party hereto with like effect with respect to the transferred Shares
as though an original subscriber hereof. The Stockholders shall have the
right to transfer their Shares to any individual or entity other than an
Affiliate Transferee free of the voting and transfer restrictions set forth
herein.
6. Entire Understanding.
This Agreement contains the entire understanding of the parties hereto
and supersedes any prior agreement, either oral or written, and any amendment
to, or modification or termination of, this Agreement must be in writing and
signed by the parties hereto.
7. Drafter's Liability.
The parties agree that the provisions of this Agreement shall not be
construed against the drafter of this Agreement and they represent that they
have had adequate opportunity and have been encouraged to take the advice of
their own counsel prior to the execution of this Agreement.
8. Severability.
This Agreement shall not be severable in any way but it is specifically
agreed that if any provision shall be held to be invalid, then such invalidity
shall not affect the validity of the remainder of this Agreement.
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9. Records.
A copy of this Agreement shall be deposited with the Corporation and
shall be subject to the same right of examination by a shareholder of the
Corporation, in person or by agent or attorney, as are the books and records
of the Corporation.
10. Construction.
This Agreement is intended by the parties to be governed, construed and
interpreted in accordance with the laws of the State of Nevada, without giving
effect to principles of conflicts of law.
11. Benefit.
This Agreement shall be binding upon and shall inure to the benefit of
the heirs, executors, administrators and assigns of the parties hereto.
12. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
COMPUTERIZED THERMAL
IMAGING, INC.
By: /s/Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & CEO
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx, individually
THERMAL IMAGING, INC.
By: /s/Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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