Exhibit (3)
VOTING TRUST AGREEMENT
This Voting Trust Agreement (the "Agreement") entered into as of September
28, 2004 by and among Lu Pingji ("Voting Trustee") and each of the persons
listed under the caption "Stockholders" on the signature page hereto and listed
on Exhibit A attached hereto, such persons being certain of the stockholders of
Lanbo Financial Investment Company Group Limited, a company incorporated under
the laws of the British Virgin Islands (hereinafter referred to as "Lanbo" or
the "Company"). The Stockholders shall be referred to herein collectively as the
"Stockholders" and individually as the "Stockholder".
RECITALS
The Stockholders deem it for the best interest of the Company and
themselves to act together concerning the direction of the affairs of the
Company, in order to secure continuity and stability of policy and management,
to provide a conservative and constructive administration and to promote the
continuous and uninterrupted development of business policies, and to that end
to unite the voting power held by them and to vest such power in the Voting
Trustee.
NOW, THEREFORE, it is mutually agreed as follows:
1. Each Stockholder shall deliver, or cause to be delivered, to the Voting
Trustee a certificate or certificates representing the shares of capital stock
of the Company, par value USD 1.00 per share, in such amount as set forth next
to the name of each Stockholder on Exhibit A hereto ("Lanbo Shares"). The
certificate or certificates representing the Lanbo Shares shall be accompanied
by a proper and sufficient instrument, duly executed for the transfer of such
shares to the Voting Trustee, and with all necessary transfer tax stamps, if
any, thereto affixed. The Stockholders warrant and represent that: (i) the Lanbo
Shares have been issued by the Company subject to a capital contribution note
("Note"), with the original principal amount and outstanding balance of such
Note set forth on Exhibit A, and (ii) the Lanbo Shares are subject to forfeiture
in the event of non-payment of said Note. Accordingly, the Stockholders hereby
empower, authorize and direct the Voting Trustee: (i) to accept the Lanbo
Shares, subject to the Note and the lien imposed upon such Lanbo Shares, and
(ii) to pay and satisfy all obligations of the Stockholders under the Note in
accordance with the terms of the Note, a copy of which is attached hereto as
Exhibit B and incorporated by reference. Except as set forth above, the Voting
Trustee shall not be authorized to borrow any monies or incur any debt against
or pledge any of the Lanbo Shares, the Replacement Shares (as defined herein),
any other shares of capital stock held pursuant to this trust or under this
Agreement, or any other property held under this Agreement.
2. Upon deposit of the certificates representing the Lanbo Shares in
accordance with Section 1 above, the Voting Trustee shall deliver or cause to be
delivered to each Stockholder, his voting trust certificate for the same number
of Lanbo Shares as set forth on Exhibit A hereto, which voting trust
certificates will be in substantially the following form:
LANBO FINANCIAL INVESTMENT COMPANY GROUP LIMITED
VOTING TRUST CERTIFICATE
Trust Certificate Number ___________ Number of Voting Trust Shares ___________
This certifies that _______________ has deposited ________ shares of capital
stock, par value USD 1.00 per share, of Lanbo Financial Investment Company Group
Limited, a company incorporated under the laws of the British Virgin Islands,
with the Voting Trustee hereinafter named, under an agreement between the Voting
Trustee and certain of the stockholders of the Company, dated as of September
28, 2004 (the "Agreement"), in exchange for this voting trust certificate
representing shares of this voting trust. This certificate and the interest
represented hereby is transferable only on the books of the Voting Trustee upon
the presentation and surrender of this certificate. The holder of this
certificate takes it subject to all the terms and conditions of the Agreement
and becomes a party to that Agreement and is entitled to the benefits thereof.
This voting trust certificate may not be transferred or sold except as
specifically provided in the Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this certificate to be signed
as of September __, 2004.
-----------------------------------
Voting Trustee
3. The voting trust certificates issued by the Voting Trustee may be
transferred on the books of the Voting Trustee upon the surrender of such
certificate or certificates, properly endorsed by the registered holders
thereof. Title to the voting trust certificate when duly endorsed shall, to the
extent permitted by law, be transferable with the same effect as in the case of
negotiable instruments. Every transferee of a voting trust certificate shall, by
the acceptance of such certificate, become a party to this Agreement with like
effect as though an original party.
4. Title to the Lanbo Shares, certificates for which shall be deposited
pursuant to this Agreement with the Voting Trustee, shall be vested in the
Voting Trustee and shall be transferable into the name of the Voting Trustee
upon the books of the Company. The Voting Trustee shall, as to all Lanbo Shares
so held by him, except as expressly set forth herein to the contrary, possess
and be entitled to exercise all stockholders' rights of every kind, including
the right to vote and take part in, or consent to, any action of the
stockholders of the Company. The holders of voting trust certificates shall not
have any right, with respect to any Lanbo Shares held by the Voting Trustee to
vote or to take part in or consent to, any action of the stockholders of the
Company. The Voting Trustee shall have the right to dispose of any Lanbo Shares
at any time for such cash, property or capital stock of another entity which the
Voting Trustee determines in good faith to be fair consideration for the Lanbo
Shares, provided the consideration received by the Voting Trustee for such Lanbo
Shares shall become property of this trust and held under the terms of this
Agreement. In the event that the Voting Trustee exchanges all or a portion of
the Lanbo Shares for the capital stock or securities of another entity
("Replacement Securities"), such Replacement Securities shall become property of
this trust and held under the terms of this Agreement by the Voting Trustee and
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in his name in the same manner as the Lanbo Shares which are the original
subject hereof. Any other entity in which the Voting Trustee exercises voting
power through the ownership of Replacement Securities shall be herein referred
to as the "Replacement Company".
5. The Voting Trustee will vote on matters which may come before him at
any stockholders' meeting of the Company and /or Replacement Company and will
exercise his best judgment from time to time to select suitable directors, to
the end that the affairs of the Company and /or Replacement Company shall be
properly managed, and the Voting Trustee, by virtue of his acting as a Voting
Trustee, shall not be disqualified to serve as a director or officer of the
Company and /or Replacement Company. The Voting Trustee, in his capacity as
Voting Trustee, assumes no responsibility relating to the management, or any
action taken by the directors or officers of the Company and /or Replacement
Company. The Voting Trustee may vote the Lanbo Shares, the Replacement
Securities or any other shares of voting capital stock held pursuant to this
trust and Agreement in person or by such persons as he shall select as his
proxy. No Voting Trustee shall be liable for any error of judgment or mistake of
law, or other mistake or for anything except his own willful misconduct or gross
management.
6. In the event of the death or resignation of the Voting Trustee, the
successor voting trustees shall be Xiao Genxiang and such successor trustees
shall have the powers and authorities of the Voting Trustee under this
Agreement. In the event of the death or resignation of Xiao Genxiang, the
successor voting trustee shall be Xxxx Xxxxxxxx and such successor trustee shall
have the powers and authorities of the Voting Trustee under this Agreement. In
the event there is subsequent to the date of this Agreement more than one Voting
Trustee, all questions arising between the Voting Trustees shall be determined
by decision of the majority of those then acting as trustees, whether at a
meeting or by writing, with or without meeting.
7. The Voting Trustee shall not be entitled to any compensation for his
services, but shall be reimbursed by the holders of voting trust certificates
for any expenses or liabilities incurred by him in connection with his duties
under this Agreement, including disbursements and reasonable compensation of his
agents, attorneys, employees and officers whom he may employ in carrying out the
terms of this Agreement.
8. The holder of each voting trust certificate shall be entitled, until
the termination of this Agreement pursuant to Section 12 hereof, to receive,
from time to time, payments equal to the dividends, if any, collected by the
Voting Trustee on the Lanbo Shares, the Replacement Securities or any other
shares of voting capital stock held pursuant to this trust, in a pro rata amount
based on the number of voting trust certificate shares held by such holder.
9. During the continuance of this Agreement, the Stockholders agree with
each other and with the Voting Trustee, and the Voting Trustee accepts the trust
upon the condition of this Agreement, that such Stockholders will not sell their
respective Lanbo Shares, the Replacement Securities or any other shares of
voting capital stock held pursuant to this trust although the Stockholders are
free to transfer, sell or assign the voting trust certificates held by them;
provided, however, that (i) the transferee thereof shall be bound by the terms
and conditions of this Agreement and (ii) notice of such transfer, sale or
assignment shall be promptly given to the Voting Trustee. No Stockholder may
pledge his voting trust certificates to secure the payment of any debt or
obligation.
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10. A copy of this Agreement shall be filed by the Voting Trustee in the
principal office of the Company and/or Replacement Company, and shall be open
for inspection during business hours by the trust certificate holders.
11. This Agreement shall continue in effect for ten (10) years from the
date of its execution, unless sooner terminated in accordance with the
provisions of this Section 12 hereof.
12. This Agreement may be terminated at any time by the unanimous consent
of all registered holders of the voting trust certificates issued hereunder,
provided the Note shall have been paid in full. The Voting Trustee also may
terminate this Agreement at any time upon 15 days' advance written notice to the
registered holders of voting trust certificates; provided, however, that the
Voting Trustee may not terminate this Agreement until the Note has been paid in
full or the Lanbo Shares are forfeited in the event of non-payment of the Note.
At any time after termination of this Agreement, the holders of voting
trust certificates will be entitled, upon surrender for cancellation of the
voting trust certificates, and upon the payment of any transfer tax required by
law, to receive certificates representing the Lanbo Shares, the Replacement
Securities or Shares, or any other shares of voting capital stock held pursuant
to this Agreement, pro rata based on the number of voting trust certificate
shares held by such holder compared to the total number of voting trust
certificates outstanding. All other property held under this Agreement shall be
distributed, upon surrender of the voting trust certificate, pro rata based on
the number of voting trust certificate shares held by such holder compared to
the total number of voting trust certificates outstanding.
13. This Agreement shall constitute a valid and binding agreement among
the Stockholders and any subsequent holders of voting trust certificates and
their respective successors and assigns. 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 the remaining provisions of this
Agreement. This Agreement embodies the complete agreement and understanding
among the parties with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations, by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way. This Agreement may be executed on separate counterparts, each
of which will be an original and all of which taken together will constitute one
and the same Agreement. All questions concerning this Agreement will be governed
by and interpreted in accordance with the internal law, not the law of
conflicts, of the British Virgin Islands.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this agreement as of the date and
first written above.
VOTING TRUSTEE:
/s/ XXXXXX XX
----------------------
XXXXXX XX
STOCKHOLDERS:
/s/ Xxx Xxx
----------------------
Xxx Xxx
/s/ Guangzhe Feng
----------------------
Guangzhe Feng
/s/ Xxxxxxx Xxx
----------------------
Xxxxxxx Xxx
/s/ Xxxxx Xxxx
----------------------
Xxxxx Xxxx
/s/ Xuchang Zhang
----------------------
Xuchang Zhang
/s/ Fang Nie
----------------------
Fang Nie
/s/ Xxxxxxx Xxxx
----------------------
Xxxxxxx Xxxx
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[STOCKHOLDER SIGNATURE PAGE TO VOTING TRUST AGREEMENT]
/s/ Xxxxxx Xxxx
----------------------
Xxxxxx Xxxx
/s/ Xxxxxx Xx
----------------------
Xxxxxx Xx
/s/ Xxxx Xxx
----------------------
Xxxx Xxx
/s/ Zhu Liu
----------------------
Zhu Liu
/s/ Xxxxxxxx Xxx
----------------------
Xxxxxxxx Xxx
/s/ Xxxxxxx Xxx
----------------------
Xxxxxxx Xxx
/s/ Pingzhang Zhao
----------------------
Pingzhang Zhao
/s/ Yinli Fan
----------------------
Yinli Fan
/s/ Shuancun Wei
----------------------
Shuancun Wei
/s/ Weiqi Hui
----------------------
Weiqi Hui
[STOCKHOLDER SIGNATURE PAGE TO VOTING TRUST AGREEMENT]
/s/ Xxxxxx Xxxx
----------------------
Xxxxxx Xxxx
/s/ Xxx Xxxx
----------------------
Xxx Xxxx
/s/ Xxxxxxx Xxxx
----------------------
Xxxxxxx Xxxx
/s/ Aiguo Fu
----------------------
Aiguo Fu
/s/ Xxxx Xxxx
----------------------
Xxxx Xxxx
/s/ Xxxxxxxx Xxxx
----------------------
Xxxxxxxx Xxxx
/s/ Bingyi Song
----------------------
Bingyi Song
/s/ Xxxx Xxx
----------------------
Xxxx Xxx
/s/ Xxxxxxx Xxxx
----------------------
Xxxxxxx Xxxx
/s/ Xxx Xxxx
----------------------
Xxx Xxxx
[STOCKHOLDER SIGNATURE PAGE TO VOTING TRUST AGREEMENT]
/s/ Nenge Wang
----------------------
Nenge Wang
/s/ Xx Xxx
----------------------
Xx Xxx
/s/ Xxxx Xxxx
----------------------
Xxxx Xxxx
/s/ Xxxxxxx Xxxx
----------------------
Xxxxxxx Xxxx
/s/ Xxx Xx
----------------------
Xxx Xx
/s/ Shoufeng Li
----------------------
Shoufeng Li
/s/ Qinghai Fan
----------------------
Qinghai Fan
/s/ Xxxxxxx Xxx
----------------------
Xxxxxxx Xxx
/s/ Xxxxxx Xxx
----------------------
Xxxxxx Xxx
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INDEX OF EXHIBITS
EXHIBIT A - Stockholders
EXHIBIT B - Note
