CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of March 29, 1999 is
entered into by and between Swissray International, Inc., a New York corporation
with principal offices located in Hochdorf, Switzerland (herein referred to as
the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS, INC., a California
corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded on the OTC Bulletin Board; and
WHEREAS, Consultant has experience In the area of corporate finance,
investor communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist
and consult with the Company in matters concerning corporate finance and to
represent the Company in investor's communications and public relations with
existing shareholders, brokers, dealers and other investment professionals as to
the Company's current and proposed activities.
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to
act in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing March 29, 1999 and ending on March
28, 2000.
2. Duties of Consultant. The Consultant agrees that it will generally
provide the following specified consulting services through its officers and
employees during the term specified in Section 1.:
(a) Advise and assist the Company in developing and
implementing appropriate plans and materials for presenting
the Company and its business plans, strategy and personnel
to the financial community, establishing an image for the
Company in the financial community, and creating the
foundation for subsequent financial public relations efforts:
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans,
strategy and personnel, as they may evolve during such period,
and advise and assist the Company in communicating appropriate
information regarding such plans, strategy and personnel to
the financial community;
(d) Assist and advise the Company with respect to its
(i) stockholder and investor relations, (ii)
relations with brokers, dealers, analysts and
other investment professionals, and (iii)
financial public relations generally;
(e) Perform the functions generally assigned to
investor / stockholder relations and public
relations departments in major corporations,
including responding to telephone and written
inquiries (which may be referred to the Consultant
by the Company); preparing press releases for the
Company with the Company's involvement and
approval or reviewing press releases, reports and
other communications with or to shareholders,
the investment community and the general public;
advising, with respect to the timing, form,
distribution and other matters related to such
releases, reports and communications; and the
consulting with respect to corporate symbols,
logos, names, the presentation of such symbols,
logos and names, and other matters relating to
corporate image.
(f) Upon the Company's approval, disseminate information regarding
the Company to shareholders, brokers, dealers, other Investment
community professionals and the general Investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment
professionals to advisd them of the Company's plans, goals and
activities, and assist the Company in preparing for press
conferences and other forums Involving the media, investment
professionals and the general investment public;
(h) At the Company's request, review business plans, strategies,
mission statements budgets, proposed transactions and other plans
for the purpose of advising the Company of the investment community
implications thereof; and
(i) Otherwise perform as the Company's financial relations and
public relations consultant.
3. Allocation of Time and-Energies. The Consultant hereby promises to
perform and discharge well and faithfully the responsibilities which may
be assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company in connection with the conduct
of its financial and investor public relations and communications
activities, so long as such activities are in compliance with applicable
securities laws and regulations. Consultant and staff shall diligently and
thoroughly provide the consulting services required hereunder. Although no
specific hours-per-day requirement will be required, Consultant and the
Company agree that Consultant will perform the duties set forth herein
above in a diligent and professional manner. The parties acknowledge and
agree that a disproportionately large amount of the effort to be expended
and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur upon and shortly after, and
in any event, within two months of the effectiveness of this Agreement. It
is explicitly understood that Consultant's performance of its duties
hereunder will in no way be measured by the price of the Company's common
stock, nor the trading volume of the Company's common stock. It is also
understood that the Company in entering into this Agreement with Liviakis
Financial Communications, Inc. ("LFC"), a corporation and not any
Individual member of LFC, and with such, Consultant will not be deemed to
have breached this Agreement if any member, officer or director of LFC
leaves the firm or dies or becomes physically unable to perform any
meaningful activities during the term of the Agreement, provided the
Consultant otherwise performs its obligations under this Agreement.
4. Remuneration. As full and complete compensation for services
described in this Agreement, the Company shall compensate LFC
(herein referred to as "Consultants") as follows:
4.1 For undertaking this engagement and for other good and
valuable consideration, the Company agrees to issue and deliver
to the Consultants a "Commencement Bonus" payable in the form of
3,000,000 shares of the Company's common stoqk ('Common Stock").
This Commencement Bonus shall be issued to the Consultants
immediately following execution of this Agreement and shall,
when issued and delivered to Consultants, be fully paid and
non-assessable. The Company understands and agrees that
Consultants have foregone significant opportunities to accept
this engagement and that the Company derives substantial benefit
from the execution of this Agreement and the ability to announce
its relationship with Consultant. The 3,000,000 shares of Common
Stock issued as a Commencement Bonus, therefore, constitutes
payment for Consultant's agreement to consult to the Company and
are a nonrefundable, nonapportionable, and non-ratable retainer;
such shares of Common stock are not a prepayment for future
services. If the Company decides to terminate this Agreement
prior to March 28, 2000 for any reason whatsoever, it is agreed
and understood that Consultants will not be requested or
demanded by the Company to
return any of the shares of Common Stock paid to it hereunder,
The shares of Common Stock issued pursuant to this Agreement
shall be issued in the name of Liviakis Financial
Communications, Inc.
4.2 Consultants acknowledge that the shares of Common Stock to be
issued pursuant to this Agreement (collectively, the "Shares')
have not been registered under the Securities Act of 1933, and
accordingly are "restricted securities" within the meaning of
Rule 144 of the Act. As such, the Shares may not be resold or
transferred unless the Company has received an opinion of counsel
reasonably satisfactory to the Company that such resale or
transfer is exempt from the registration requirements of that
Act.
4.3 In connection with the acquisition of Shares hereunder, the
Consultants, represent and warrant to the Company as follows:
(a)Consultants acknowledge that the Consultants have been
afforded the opportunity to ask questions of and receive answers
from duly authorized officers and other representatives of the
Company concerning an investment in the Shares, and any
additional information which the Consultants have requested.
(b) Consultants' investment in restricted securities is
reasonable in relation to the Consultants' net worth, which is in
excess often (10) times the Consultants' cost basis in the
Shares. Consultants have had experience in investments In
restricted and publicly traded securities, and Consultants have
had experience in investments in speculative securities and other
investments which involve the risk of loss of investment.
Consultants acknowledge that an investment in the Shares is
speculative and involves the risk of loss. Consultants have the
requisite knowledge to assess the relative meets and risks of
this investment without the necessity of relying upon other
advisors, and Consultants can afford the risk of loss of his
entire investment in the Shares. Consultants are (i) accredited
investors, as that term is defined in Regulation D promulgated
under the Securities Act of 1933, and (ii) a purchaser described
In Section 25102(f)(2) of the California Corporate Securities Law
of 1968, as amended.
(c) Consultants are acquiring the Shares for the Consultants' own
account for long-term investment and not with a view toward resale
or distribution thereof except in accordance with applicable
securities laws.
(d) Consultant agrees that throughout the period of time that it
retains beneficial ownership of all or any portion of the 3,000,000
shares of Common Stock referred to above that Consultant shall (a)
vote such shares in favor of Xxxxx X. Xxxxxxx continuing to
maintain his current position(s) with the Company and (b) give
Xxxxx X. Xxxxxxx and/or his designee the right to vote Consultant's
shares at all Company shareholder meetings. Consultant further
agrees to sign a Voting Trust Agreement so as to effectuate the
terms and intent of this paragraph.
5. Financing "Finder's Fee". It is understood that in the event Consultant
introduces Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom
Company, or its nominees, ultimately finances or causes the completion of
such financing, Company agrees to compensate Consultant for such services
with a finder's fee in the amount of 2.5% of total gross funding provided
by such lender or equity purchaser, such fee to be payable in cash. This
will be in addition to any fees payable by Company to any other
intermediary, if any, which shall be per separate agreements negotiated
between Company and such other intermediary. It is also understood that in
the event Consultant introduces Company, or its nominees, to an
acquisition candidate, either directly or indirectly through another
intermediary,
not already having a preexisting relationship with the Company, with whom
Company, or its nominees, ultimately acquires or causes the completion of
such acquisition, Company agrees to compensate Consultant for such
services with a "finder's fee" in the amount of 2% of total gross
consideration provided by such acquisition, such fee to be payable in
cash. This will be in addition to any fees payable by Company to any other
intermediary, if any, which shall be per separate agreements negotiated
between Company and such other intermediary. It is specifically understood
that Consultant is not or does it hold itself out be a Broker/Dealer, but
is rather merely a "Finder" in reference to the Company procuring
financing sources and acquisition candidates. (Total fee for Liviakis and
other commission not to exceed ten (10) percent).
5.1 It is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender,
equity purchaser or acquisition candidate introduced to it by
Consultant under this Agreement, prior to Company receiving funds
or closing on any acquisition. However, Consultant will not
introduce any parties to Company about which Consultant has any
prior knowledge of questionable, unethical or illicit activities.
5.2 Company agrees that said compensation to Consultant shall be
paid in full at the time said financing or acquisition is closed.
Moreover, said compensation, will be a condition precedent to the
closing of such financing or acquisition and Company shall
execute any and all documents necessary to effect said
compensation.
5.3 As further consideration to Consultant, Company, or its
nominees, agrees to pay with respect to any financing or
acquisition candidate provided directly or indirectly to the
Company by any lender or equity purchaser covered by this Section
5. during the period of one year from the date of this Agreement,
a fee to Consultant equal to that outlined in Section "5" herein.
5.4 Consultant will notify Company of introductions it makes for
potential sources of financing or acquisitions in a timely manner
(within approximately 3 days of introduction) via facsimile memo.
If Company has a preexisting relationship with such nominee and
believes such party should be excluded from this Agreement, then
Company will notify Consultant within 5 days or sooner if possible
of such circumstances via facsimile memo.
6. Expenses. Consultant agrees to pay for all its expenses (phone,
mailing, labor, etc.), other than extraordinary items (travel required by/or
specifically requested by the Company, luncheons or dinners to large groups
of investment professionals mass faxing to a sizable percentage of the
Company's constituents, investor conference calls, print advertisements in
publications, etc.) approved by the Company prior to its incurring an
obligation for reimbursement.
7. Indemnification The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by
the Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon
the accuracy thereof without independent investigation. The Company will
protect, indemnify and hold harmless Consultant against any claims or
litigation including any damages, liability, cost and reasonable attorney's
fees as incurred with respect thereto resulting from Consultant's
communication or dissemination of any said information, documents or
material not designated by the Company to the Consultant as "confidential"
or "Company private", excluding any such claims or litigation resulting from
Consultant's communication or dissemination of information not provided or
authorized by the Company.
8. Consultant represents that it Is not required to maintain any licenses
and registrations under federal or any state regulations necessary to
perform the services set forth herein. Consultant acknowledges that, to the
best of its knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency
having jurisdiction over Consultant. Consultant acknowledges that, to the
best of its knowledge, Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities laws. Consultant further acknowledges
that it is not a securities Broker Dealer or a registered investment
advisor. Company acknowledges that, to the best of its knowledge, that it
has not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. Company acknowledges that, to the best of its
knowledge, Company is not the subject of any investigation, claim, decree or
judgment involving any violation of the SEC or securities laws.
9. Legal Representation. The Company acknowledges that it has been
represented by independent legal counsel with respect to this
Agreement. Consultant represents that they have consulted with
independent legal counsel and/or tax, financial and business
advisors, to the extent the Consultant deemed necessary.
10Status of Independent Contractor. Consultant's engagement
pursuant to this Agreement shall be as independent contractor, and not as an
employee, officer or other agent of the Company. Neither party to this
Agreement shall represent or hold itself out to be the employer or employee
of the other. Consultant further acknowledges the consideration provided
herein above is a gross amount of consideration and that the Company will
not withhold from such consideration any amounts as to income taxes, social
security payments or any payroll taxes. All such income taxes and other such
payments shall be made or provided for by Consultant and the Company shall
have no responsibility or duties regarding such matters. Neither the Company
or the Consultant possess the authority to bind each other in any agreements
without the express written consent of the entity to be bound.
00.Xxxxxxxx's Fee. If any legal action or any arbitration or
other proceeding is brought for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorney's fees and other costs in connection with that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
12. Waiver The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
13. Notices, All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below-.
To the Company: Swissray International, Inc.
Xxxxx X. Xxxxxxx, CEO
000 Xxxx 00@ Xxxxxx, Xxxxx 00-X
Xxx Xxxx, XX 00000
To the Consultant; Liviakis Financial Communications, Inc.
Xxxx X. Xxxxxxxx, President
0000 ""X" Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change to
the other party in the manner set forth in this paragraph.
14. Choice of Law, Jurisdiction of Venue.. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the
State of California. The parties agree that Sacramento County, CA, will be
the venue of any dispute and will have jurisdiction over all parties.
15. Arbitration Any controversy or claim arising out of or relating to
this Agreement, or the alleged breach thereof or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by
binding arbitration in New York in accordance with the applicable rules of
the American Arbitration Association, and judgment on the award rendered
by the arbitrator(s) shall be binding on the parties and may be entered in
any court having jurisdiction thereof. The provisions of Title 9 of Part 3
of the California Code of Civil Procedure, including section 1283.05, and
successor statutes, permitting expanded discovery proceedings shall be
applicable to all disputes that are arbitrated under this paragraph.
16. Definition of Company, Wherever the term Company appears insofar as
same relates to Company approvals and/or Company requests, such term shall
refer to the approval and/or request of Xxxxx X. Xxxxxxx, President and
CEO of the Company or his designee (as must be evidenced by document
executed by Xxxxx X. Xxxxxxx).
17. Option to Extend Term of Consultancy Consultant grants to Company the
option (in Company's sole discretion) to extend this Consulting Agreement
for an additional period of one year commencing March 29, 2000 and
terminating March 28, 2001 under the same terms, conditions,
responsibilities, warranties and agreements as are contained herein with
the sole exception being that paragraph 4.1 to the section entitled
"Remuneration" shall be revised so as to reflect the agreement of the
parties hereto that the remuneration to be provided for such second year
shall be $630,000. Such remuneration shall be paid in restrictive shares
of Common Stock with the number of shares to be determined based upon the
ten (10) day average closing bid price for the 10 consecutive trading days
preceding March 29, 2000. In order for the Company to extend this
Agreement in accordance with the terms and conditions of this paragraph,
notification must be sent by the Company to Consultant within no less than
two (2) weeks prior to the termination of this Agreement.
18. Complete Agreement This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its
terms may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
AGREED TO:
"Company" SWISSRAY INTERNATIONAL, INC.
Date: ___________ By: ___________________________
Xxxxx X. Xxxxxxx, Chief Executive Officer
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: ______________ By: ____________________________________
Xxxx X. Xxxxxxxx, President
VOTING TRUST AGREEMENT
This Agreement is made as of March 29, 1999 by and among SWISSRAY
International, Inc., a New York corporation ("Company"'), Liviakis Financial
Communications, Inc., a California corporation (""Stockholder"), said
Stockholder being the holder of an aggregate of 3,000,000 outstanding shares of
Common Stock of the Company, and Xxxxx X. Xxxxxxx (the "Voting Trustee") - all
in accordance with the terms, conditions and intent expressed in a March 29,
1999 Consulting Agreement between the Company and Stockholder.
In consideration of the covenants hereinafter contained, it is agreed as
follows:
1. Applicable to Holder of Common Stock. Stockholder shall
immediately assign, transfer and deliver to the Voting
Trustee at the Company's office in New York, New York all of its right, title
and interest in and to the 3,1000,000 shares of Company's Common Stock (the "LFC
Common Stock") issued to it in accordance with terms and conditions of March 29,
1999 Consulting Agreement referred to above. Stockholder shall accept in return
therefor a trust certificate issued under Section 2 hereof.
Neither the Stockholder nor any other person who becomes the
holder of Trust Certificates hereunder shall withdraw shares of LFC Common Stock
from the Voting Trust pursuant to Section 8 hereof other than in connection with
sales and other transfers of beneficial ownership of shares of LFC Common Stock
that, pursuant to the provisions of Rule 144 promulgated under the Securities
Act of 1933, as amended (or any successor rule or regulation), would be deemed
not to be part of a distribution of such securities by an underwriter.
2. Trust Certificates to be Issued. The Voting Trustee shall hold
pursuant to the terms of this Agreement all LFC Common Stock which shall be
delivered to him hereunder. In exchange for the LFC Common Stock delivered to
him hereunder, the Voting Trustee will cause to be issued and delivered to the
Stockholder Common Stock trust certificates ("Trust Certificates") in
substantially the form set forth in Annex I hereto.
3. Stock in Name of Voting Trustee. The Voting Trustee
shall cause the LFC Common Stock deposited with him hereunder to be recorded on
the books of the Company in the name of the Voting Trustee as Voting Trustee
under this Agreement.
4. Power to Vote and to Consent. Until the earlier of (a) the
actual delivery of stock certificates or other securities to the holders of
Trust Certificates in exchange for Trust Certificates or (b) such time as the
stock certificates or other securities deposited hereunder shall have been
transferred out of the name of the Voting Trustee as holder of record, the
Voting Trustee shall have the full and unqualified right and power to vote and
to execute consents with respect to all shares of stock and other securities
having voting power held by him at all meetings of stockholders or security
holders for any purpose.
5. Cash Dividends. (a) Until the actual delivery of stock
certificates or other securities to the holders of Trust Certificates in
exchange for Trust Certificates, the holder of each Trust Certificate shall be
entitled to receive from time to time payment of any dividends or distributions
of cash or property (other than securities subject to Section 11 hereof)
collected by the Voting Trustee upon the number of shares at the time held in
trust hereunder. The Voting Trustee may in his discretion, from time to time,
instead of receiving and distributing any such dividends or distributions,
authorize the Company to make payment or delivery thereof directly to the
holders of Trust Certificates and (b) notwithstanding anything to the contrary
as may be contained herein, Stockholder shall not bear any costs associated with
this Agreement. Further, in addition to dividend rights, Stockholder shall also
retain all other rights and benefits of share ownership with the sole exception,
as heretofore indicated, of voting rights which shall pass through the Voting
Trustee to the Voting Trust Certificate holder.
6. Transfer. The Trust Certificates issued by the Voting Trustee
hereunder may be transferred on the books of the Voting Trustee upon the
surrender of such certificates properly endorsed by, the registered holders
thereof, in person or by attorney duly authorized, according to the rules
established for such purpose by the Voting Trustee.
Every transferee of a Trust Certificate or Certificates issued
hereunder shall by the acceptance of such Trust Certificate or Certificates
become a party hereto with like effect as though an original party fiereto, and
shall be included within the meaning of the term "Stockholder" wherever used
herein.
In connection with, and as a condition of, making or permitting
any transfer or delivery of stock certificates or other securities or Trust
Certificates under any provision of this Agreement, the Voting Trustee may
require the payment of a sum sufficient to pay or reimburse him for any stamp
tax or other governmental charge in connection therewith. Such sums shall be
paid by the Company. The transfer books for Trust Certificates may be closed by
the Voting Trustee at any time prior to the setting of a record date for the
payment or distribution of dividends, or
for any other purpose; or the Voting Trustee, in his discretion, in lieu of
closing the transfer books, may fix a date as the day as of which the holders of
Trust Certificates entitled to such payment or distribution or for such other
purpose shall be determined.
7. Authority and Liability of Voting Trustee. The Voting Trustee
shall be fully authorized and empowered to construe this Agreement, and his
construction of the same made in good faith shall be final, conclusive and
binding upon all holders of Trust Certificates and on all other parties
interested.
The Voting Trustee shall not incur any responsibility as
Stockholder, trustee or otherwise by reason of any error of judgment or mistake
of law or other mistake, or for any act or omission of any agent or attorney, or
for any misconstruction of this Agreement, or for any action of any sort taken
or omitted hereunder which is believed by him to be in accordance with the
provisions and intent hereof and is otherwise made or taken in good faith,
except for wilful misconduct or gross negligence.
The Voting Trustee may employ counsel (who may be counsel for the
Company) and agents, whose reasonable expenses and compensation shall be paid by
the Company.
The Voting Trustee may act as, and receive compensation as, a
director, officer, agent or member of any committee of the Company, or of any
affiliated entity; and he, or any firm of which he may be a member, or any
corporation or association of which he may be a stockholder, director or
officer, or any such firm, corporation or association in which he may be
otherwise directly or indirectly interested, may to the extent permitted by law,
and without liability in any way or under any circumstances by reason thereof,
contract with the Company, or be or become pecuniarily interested in any matter
or transactions to which the Company may be a party or in which the Company may
be a party or in which the Company may in any way be concerned, as fully as
though he were not the Voting Trustee.
The Voting Trustee shall not be required to give any bond or
security for the discharge of his duties.
The Voting Trustee may at any time resign by delivering to the
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Company his resignation in writing to take effect immediately.
The Voting Trustee may be a party to this Agreement as a
Stockholder, and to the extent of the stock deposited by him or of Trust
Certificates held by him, he shall
be entitled in all respects to the same rights and benefits as Stockholder.
The Voting Trustee may execute any or all Trust Certificates
personally or by an agent constituted the agent of the Voting Trustee for such
purpose. The Voting Trustee, under such regulations with respect to indemnity
and otherwise as he may, in his absolute discretion, prescribe, may provide for
the issue and delivery of Trust Certificates in lieu of lost, stolen or
destroyed Trust Certificates or in exchange for mutilated Trust Certificates.
8. Transfers. The Stockholder and any transferees of Trust
Certificates relating to the LFC Common Stock (in such connection, a
""Transferor") may at any time in connection with the bona fide transfer of
beneficial ownership of shares of LFC Common Stock exchange Trust Certificates
for the corresponding shares of LFC Common Stock. In theevent a Transferor
proposes to transfer beneficial ownership of shares of LFC Common Stock to one
or more third parties, the Transferor shall provide the Voting Trustee with a
written notice certifying such intention, stating the number of shares proposed
to be transferred, and indicating the names of the proposed transferee or
transferees or the name or the name of the brokerage firm through which the sale
of such shares of LFC Common Stock is to be effected. The Voting Trustee shall
by the end of the third business day following the date on which such notice is
received by the Voting Trustee deliver to the Transferor or the Transferor's
designee a certificate representing the LFC Common Stock proposed to be
transferred (i) registered in the name of the Voting Trustee and endorsed in
blank for transfer with the signature of the Voting Trustee guaranteed by an
'eligible guarantor institution" as that term is defined in Rule 17Ad-15
promulgated under the Securities Exchange Act of 1934, as amended, (ii)
registered in the name of the Transferor, (iii) registered in the name or names
of the transferee or transferees specified by the Transferor in its notice, or
(iv) registered in the name of the brokerage firm specified by Transferor in its
notice. In the event the proposed transfer is not effected within thirty (30)
days of the date the certificate representing the shares of LFC Common Stock
proposed to be transferred is delivered by the Voting Trustee, the Transferor
shall cause the certificates representing the shares of LFC Common Stock that
were to have been the subject of the transfer to be delivered to the Voting
Trustee for re-registration in the name of the Voting Trustee in exchange for
Trust Certificates pursuant to this Voting Trust
Agreement.
9. Compensation, Indemnity and Expenses. The Voting Trustee
shall not be entitled to compensation for services but shall be entitled to
indemnity
against any and all expenses and liabilities incurred by him in connection with
or growing out of this Agreement or the bona fide discharge of his duties
hereunder; and he shall be entitled to receive such indemnity from the Company
against all such claims, expenses and liabilities. The Company shall be deemed
to be fully entitled, by action of the board of directors of the Company, to
assume or provide otherwise for payment of any and all expenses and liabilities
incurred by the Voting Trustee in connection with or arising out of this
Agreement.
10. Taxes. If at any time the Voting Trustee is of the opinion
that any tax or governmental charge is payable in respect of any shares of stock
or other securities held by him hereunder, or in respect of any dividends,
distributions or other rights arising from or appurtenant to the subject matter
of this Agreement, the Voting Trustee may, but shall not be required to, pay
such tax or governmental charge, and the Voting Trustee shall be entitled to
reimbursement for such payments solely from the Company.
11. Applicability to Other Securities. The terms of this
Agreement shall apply to shares of any class of voting securities issued by the
Company, including shares issued as a stock dividend or stock split, or in
exchange for shares subject to the terms and conditions of this Agreement,
whether by way of reorganization, reclassification or other means. Such
securities shall be deposited with the Voting Trustee and Trust Certificates
therefor shall be issued to the Stockholder. 1
12. Duration and Termination. This Agreement shall continue in
force throughout the period of time that Stockholder remains thel'beneficial
owner of any portion of the 3,000,000 shares of Common Stock of the Company
issued to it pursuant to the aforesaid Consulting Agreement but the Agreement
shall only apply to such portion of the 3,000,000 shares retained by
Stockholder. In addition, this Agreement shall terminate in the event that the
Voting Trustee at any time resigns under Section 7 hereof or otherwise ceases to
serve as Voting Trustee hereunder.
On the termination of this Agreement, the Voting Trustee (or his
executor, conservator or other personal representative if he is unable to
perform personally his responsibilities hereunder), in exchange for and upon
surrender of Trust Certificates then outstanding, will deliver or czfuse to be
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delivered to the holders thereof the shares of stock and any other securities
then held by the Voting Trustee which are represented by guch Trust
Certificates.
13. Acceptance. The Voting Trustee hereby accepts the trust
hereunder subject to all the terms, conditions and reservations herein contained
and agrees that he will exercise the powers and perform the duties of Voting
Trustee as herein set forth; provided, however, that nothing herein contained
shall be construed to prevent the Voting Trustee from at any time resigning and
discharging himself from the trust aforesaid in accordance with Section 7
hereof.
14. Continuation of Rights as Record Holder. Nothing in this
agreement contained shall be construed to deprive the Voting Trustee of the
right as record holder of any of the shares of stock or other securities at any
time held hereunder to vote the same and to execute consents with respect
thereto, notwithstanding the termination of this Agreement, so long as he shall
be or shall continue to be record holder of such shares of stock or other
securities.
15. Definition of "Company". The term "Company" for the purposes
of this Agreement and of all rights hereunder, including the issue and delivery
of stock, shall be taken to mean SWISSRAY International, Inc., a corporation
organized and existing under the laws of the State of New York, or any
corporation or corporations successor to it, and in the event of such
succession, the shares of the successor corporation received by the Voting
Trustee shall be held by him in lieu of the shares of stock of SWISSRAY
International, Inc. deposited hereunder and in all respects subject to the terms
and conditions of this Agreement. If the Company is acquired by another
corporation or other entity, this Agreement shall terminate. For purposes of
this Agreement, the Company will be considered to have been acquired when as a
result of a business combination the shareholders of the Company, in their
capacity as such, own less than fifty percent of the outstanding equity interest
in the surviving or successor entity.
16. Notices. All notices to the Company, the Voting Trustee and the
holders of Trust Certificates shall be deemed given (i) when personally
delivered, (ii) one business day after delivered to an overnight delivery
service of national reputation for delivery pursuant to its "next day"
service,'(iii) three business days after deposit in the United States mail
(registered or certified, prepaid, return receipt requested), or (iv)
upon receipt of answer-back confirmation of delivery of a facsimile
transmission. Any notice so " iven shall 9
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be taken and considered as though personally served on the parties to which it
was directed, including the Company, the Voting Trustee, the Stockholder and any
other holder of a Trust Certificate, and notice given utilizing one or more of
the methods specified above shall be the only notice required tc5 be given under
any provision of this Agreement. Notice to the Company and to the Voting Trustee
shall be directed to them, respectively, at the principal executive offices of
the Company (and to any facsimile number maintained at such offices), and
notices to the registered holders of Trust Certificates. shall be directed to
them at the addresses furnished by such holders respectively, to the Voting
Trustee (and to any facsimile number maintained by such holders at such
locations);. Any party may change the address or facsimile number to which
notices to such party shall be directed by giving notice of such change to the
other parties hereto in the manner aforesaid.
17. Copies and Inspection. Copies of this Agreement shall be
filed in the principal office of the Company and in the registered office of the
Company in the State of New York, and shall be open to the inspection of any
Stockholder of the Company or of any Trust Certificate holder hereunder daily
during business hours.
18. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or this Agreement.
19. Counterparts. This Agreement may be executed in
counterparts, each of which so executed shall be deemed to be an original, and
such counterparts shall together constitute one and the same instrument.
20. Amendment. This Agreement may be amender by the
written consent of the Voting Trustee and the holders of record of Trust
Certificates representing all of the shares then deposited with the Voting
Trustee pursuant to said agreement.
21. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
22. Controlling Terms. If and to the extent that there
are any discrepancies or differences between this Voting Trust Agreement and the
Consulting Agreement entered into between SWISSRAY International, Inc. and
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shares of Company Common Stock being issued, then in that event, and in that
event only, the terms and conditions contained in such Consulting Agreement
and the intent expressed therein shall take precedence over those conflicting
(if any) terms and conditions as are contained in this Voting Trust Agreement.
IN WITNESS WHEREOF,, the Voting Trustee and the Company have
executed this Agreement as of the date first written above, and Stockholder
has signed a counterpart of this Agreement and transferred and delivered its
shares of stock to the Voting Trustee.
VOTING TRUSTEE
Dated: March 29, 1999
-----------------
Xxxxx X. Xxxxxxx
SWISSRAY International, Inc.
By:____________________
Its: Xxxxx Xxxxxxx, Secretary
By: ___________________
Its-Xxxxxxx Xxxxxxx, Interim
Chief Financial Officer
STOCKHOLDER:
Each party hereto signing as a Stockholder hereby assigns and
transfers unto the Voting Trustee the shares of the Common Stock of the
Company owned by it and identified as to the number of shares in the
appropriate place opposite its signature.
Number of Shares
Name Signature Deposited Hereunder
-LIVIAKIS FINANCIAL
COMMUNICATIONS,INC. By: _______________ 3,000,000
Xxxx X. Xxxxxxxx, President
ANNEX I
FORM OF VOTING TRUST'CERTIFICATE
Voting Trust Certificate
SWISSRAY International, Inc.
No. I of I Livia.kis Financial Communications, Inc. 3,000,000 Shares
Stockholder
This is to certify that there have been deposited with the Voting
Trustee under the Voting Trust Agreement hereinafter mentioned, certificates for
the number of shares, $.0l par value per share, of the Common Stock of SWISSRAY
International, Inc., a New York corporation (hereinafter Failed the "Company"),
set out above, and that the person named above is entitled to all benefits and
interest specified in said Voting Trust Agreement arising from the deposit of
such shares thereunder.
Subject to Agreement. This certificate is issued under and
pursuant to, and the rights of the holder hereof are subject to and are limited
by, the terms and conditions of a certain Voting Trust Agreement, dated as of
March 29, 1999, copies of which are on file at the registered office of the
Company in the State of New York and at the Company's office in New York, New
York.
Term. The Voting Trust Agreement shall continue in force
throughout the period of time that Stockholder remains the beneficial owner of
any portion of the 3,000,000 shares of Common Stock of the Company issued to it
pursuant to the aforesaid Consulting Agreement but the Agreement shall only
apply to such portion of the 3,000,000 shares retained by Stockholder.
Amendment. The Voting Trust Agreement may be amended by the
written consent of the Voting Trustee and the holders of record of Trust
Certificates representing all of the shares then deposited with the Voting
Trustee pursuant to said agreement.
SEE REVERSE SIDE FOR RESTRICTIONS ON TRANSFER AND
CIRCUMSTANCES UNDER WHICH THIS CERTIFICATE MAY BE CANCELLED.
IN WITNESS WHEREOF., the Voting Trustee has executed this
certificate as of the 29th day of March, 1999.
By:______________________
Xxxxx X. Xxxxxxx
(The following legend is to appear on the
reverse side of the certificate.)
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE SECURITIES LAW AND MAY
NOT BE SOLD, TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAW. THE TRUSTEE RESERVES THE RIGHT TO REFUSE
THE TRANSFER, OF SUCH SECURITIES UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE
ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE TRUSTEE HAS
RECEIVED A SATISFACTORY LEGAL OPINION TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED.
