1
EXHIBIT 5
(5) VOTING TRUST AGREEMENT
VOTING AGREEMENT -- FOUNDERS
This Voting Agreement (this "Agreement") is made and entered into as of February
27, 1998 among HyperBaric Systems, a California corporation (the "Company") and
the holders of Common Stock of the Company who are signatories hereto
(collectively the "Founders"), listed on Exhibit A hereto, which Exhibit may be
updated from time to time to reflect changes, deletions or additions made in
accordance with the terms herein.
RECITALS
A. The Founders desire to insure the long-term
effectiveness of management in attaining the goals of all of the shareholders.
B. The Founders desire to maintain a three-member Board of
Directors and to nominate and elect certain Directors to serve on the Board, in
accordance with the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
l. Shares Subject To Agreement. The Founders, as the
holders of Common Stock of the Company each agree on behalf of themselves, and
any transferee or assignee of any such shares of Common Stock during the term of
this Agreement and any extensions thereof, to hold all of such shares of Common
Stock held in their respective names (or held in trust under their control), and
any other shares of stock of the Company acquired by any of them in the future
(the "Founders' Shares") subject to, and to vote the Founders' Shares in
accordance with, the provisions of this Agreement.
The Company agrees that it shall not issue additional shares of
its Common Stock unless and until the person to whom such security is to be
issued becomes a party to this Agreement and agrees to be bound by all the
provisions hereof. The parties hereto agree that any such additional purchaser
may become a party hereto without further consent of the parties by signing this
Agreement and being added to the list of parties on Exhibit A hereto.
Notwithstanding the foregoing, the Board may approve the issuance of Common
Stock to persons who are not bound by the provisions of this Agreement up to and
including the aggregate amount of 500,000 shares.
3. Nomination and Election Of Directors. The Company's
Bylaws shall at all times authorize a three (3) member Board of Directors. Each
of the undersigned hereby agrees to nominate and to vote all of their shares of
Common Stock of the Company to elect Xxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxxxx
Xxxxxxx as members of the Company's Board of Directors. Notwithstanding the
above, if at any time any of the Directors named above is no longer a
shareholder of the Company, then the remaining Founders may agree to nominate
and elect a replacement for such Director(s). Furthermore, any two Directors may
vote to remove and replace the third Director without cause at any time.
2
4. Termination Of This Agreement. This Agreement shall
terminate upon the earlier of (a) the closing of the sale of the Company's
Common Stock in a public offering; or (b) February 27, 2008.
5. Successors In Interest.
(a) The provisions of this Agreement shall be
binding upon the successors in interest to any of the Founders' Shares. So long
as this Agreement is in effect, the Company shall not permit the transfer of any
of the Founders' Shares on its books or issue one or more new certificates for
common stock unless and until the person or entity to whom such security is to
be transferred shall have executed a written agreement, substantially in the
form of this Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if such person
were an original party to this Agreement.
(b) Each certificate representing any of the
Founders' Shares shall be marked by the Company with a legend reading
substantially as follows:
"The shares evidenced hereby are subject to a Voting Agreement
dated February 27, 1998 (a copy of which may be obtained from
the issuer), and by accepting any interest in such shares the
person accepting such interest shall be deemed to agree to and
shall become bound by all the provisions of said Voting
Agreement."
6. Remedies. Each holder of Founders' Shares will be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision hereof, and to exercise all
other rights existing in its favor. Each holder of Founders' Shares agrees and
acknowledges that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that each holder may, in its sole
discretion, apply to any court of law or equity of competent jurisdiction for
specific performance in addition to injunctive relief in order to enforce or
prevent any violation of the provisions of this Agreement.
7. Amendment And Waiver. No provision or term of this
Agreement may be amended or waived without the written consent of all of the
parties hereto.
8. Severability. Each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, (a) such provision shall be effective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement, and (b) the
parties shall, to the extent permissible by applicable law, amend this Agreement
so as to make effective and enforceable the intent of such prohibited or
invalidated provision.
9. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to contracts
between California residents entered into and to be performed entirely within
the State of California.
3
10. Counterparts. The Agreement may be executed in two or
more counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
----------------------------------------
Investor Signature
Name
Address
City, State Zip
4
EXHIBIT A
FOUNDERS
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxxx X. Xxxxxxxxxxxxx
Vic Xxxxxxx
Xxxxxxx Lazouto
Xxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxx X. Xxxxxxxxx
