Exhibit 9
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
THIS AMENDED AND RESTATED VOTING TRUST AGREEMENT ("Agreement") is made and
entered into as of this ___ day of February 2002, by and between
VOTING TRUST COMMITTEE OF SURGILIGHT, INC., as Trustee, having address of 00000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (hereinafter, with any
successors, referred to as the "Trustee"); and
LIN FAMILY PARTNERS, LTD., a Colorado limited partnership, having address of
0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000; XXXX XXX, TRUSTEE OF THE Y-C
IRREVOCABLE LIVING TRUST, having an address of 0xx Xxxxx, Xx. 0, Xxxxx-Xx X.
Xxxx, Xxxxxx, Xxxxxx; XXXX XXX, individually, X. X. XXX, individually, having an
address of 0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000; XXXXXX XXX, having an
address of 0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000; A.EX X. XXX, having an
address of 0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, and XXX XXX, having an
address of 0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, (each hereinafter,
together with his, her or its successors and assigns, referred to individually
as a "Beneficiary" and collectively as the "Beneficiaries").
Background
WHEREAS, each Beneficiary is a shareholder of SurgiLight, Inc., a Florida
corporation (the "Company") and owns shares of the common stock of the Company
(the "Common Stock"), as set forth below:
Name No. of Shares
------------------------ -----------
Lin Family Partners, Ltd. 4,000,000
Xxxx Xxx, Trustee of Y-C
Irrevocable Living Trust 4,500,000
Xxxx Xxx 4,500,000
X. X. Xxx 1,064,000
Xxxxxx Xxx 800,000
Xxxx X. Xxx 100,000
Xxx Xxx 100,000;
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Total 15,064,000 shares;
WHEREAS, in connection with an investigation pertaining to X.X. Xxx and
certain other Beneficiaries, conducted by the United States Securities and
Exchange Commission (the "SEC Action"), with a view to preserve the value of the
equity holders of the Company, Beneficiaries and Trustee entered into that
certain Voting Trust Agreement dated as of June 6, 2001 ("Trust Agreement"); and
WHEREAS, to further enhance and preserve the Company shareholders' value,
Beneficiaries and Trustee desire to amend and restate in its entirety the Trust
Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby amend and restate the Trust
Agreement in its entirety as follows:
ARTICLE I
DEPOSIT OF STOCK AND ISSUANCE
OF VOTING TRUST CERTIFICATES
Section 1.01. Deposit of Stock.
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(a) Each Beneficiary shall promptly deliver to the Trustee certificates for
transfer the following shares ("Trust Shares") to the Trustee:
Percentage
No. of Shares Ownership in
deposited in Company
Name Trust represented by
Shares
--------------------------------------- -------------- -----------------
Lin Family Partners, Ltd. 4,000,000 14.5%
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Xxxx Xxx, Trustee of Y-C Irrevocable 3,000,000 10.83%
Living Trust
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Xxxx Xxx 2,000,000 7.24%
--------------------------------------- -------------- -----------------
X.X. Xxx 1,064,000 3.84%
--------------------------------------- -------------- -----------------
Xxxxxx Xxx 506,000 1.22%
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Xxxx X. Xxx -0- -0-
--------------------------------------- -------------- -----------------
Xxx Xxx -0- -0-
--------------------------------------- -------------- -----------------
Total Shares 10,570,000 19%
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Such Trust Shares shall be held by the Trustee for the benefit of the
Beneficiaries under this Agreement.
(b) Beneficiaries collectively own an additional 4,494,000 shares ("Non
Trust Shares"), representing 16.22% of the outstanding common stock of the
Company as of December 31, 2001, which shares are not being deposited into the
trust created by this Agreement.
(c) During the term of this Agreement and any renewal and extension hereof,
the Trust Shares and the Non Trust Shares shall be subject to a quarterly
adjustment such that the aggregate number of Trust Shares and Non Trust Shares
as of the beginning of each calendar quarter shall not exceed nineteen percent
(19%) of the total issued and outstanding voting Common Stock. If at any time
prior to the expiration or termination of this Agreement, the Company issues
additional shares of common stock or a Beneficiary, or any other affiliate of
X.X. Xxx purchases or otherwise acquires or obtains any additional shares of
common stock of the Company, or any Beneficiary sells or otherwise transfers any
of such Beneficiary's Trust Shares in accordance with the terms of this
Agreement, then any such adjustment shall be made on a pro-rata basis among all
of the Beneficiaries. Any such additional shares acquired or obtained by a
Beneficiary shall be transferred and delivered immediately by the Beneficiary to
the Trustee, duly endorsed for transfer or accompanied by a duly executed stock
power and shall immediately become subject to this Agreement and all of its
provisions. References hereinafter to shares of the Company's stock subject to
this Agreement shall include all shares of stock of the Company hereafter
purchased or otherwise acquired by the Beneficiaries and automatically made
subject to the provisions of this Agreement by this Section 1.01(c). Promptly
upon receipt of such new certificates representing shares of the Company's
stock, the Trustee shall cause the certificates to be surrendered to the Company
and canceled and new certificates issued to and in the name of the Trustee in
replacement of the old certificates, and shall cause the Trustee's ownership as
a Trustee pursuant to this Agreement to be entered in the stock transfer records
of the Company. The Trustee shall cause such new certificates to bear a legend
on the face thereof in the form specified in Section 2.04.
(d) If at any time prior to the expiration or termination of this
Agreement, the aggregate number of the shares owned by all Beneficiaries is less
than nineteen percent (19%) as of the end of a quarter, the Trustee shall cause
certificate(s) representing the number of shares of Common Stock needed to bring
the total ownership of the Beneficiaries to 19% to be surrendered to the Company
and new certificates issued to the Beneficiaries on a pro-rata basis, and shall
cause the Beneficiaries' ownership to be reflected in the Company's stock
transfer records.
Section 1.02. Issuance of Voting Trust Certificates. The Trustee shall
issue Trust Certificates (the "Trust Certificates") in respect of the shares
deposited with and held by the Trustee for the benefit of the Beneficiaries
under this Agreement, or which are or become subject to this Agreement, in the
form set forth in Exhibit A hereto. An authorized representative shall sign such
Trust Certificates on behalf of the Trust.
Section 1.03. Duplicate Certificates. If a Trust Certificate shall be lost,
stolen, mutilated or destroyed, the Trustee, in his discretion, may issue a
duplicate of such Certificate upon receipt of (a) evidence of such fact
satisfactory to the Trustee, (b) an indemnity agreement satisfactory to the
Trustee, (c) the existing Trust Certificate, if mutilated, and (d) any fees and
expenses applicable thereto or to such transfer.
Section 1.04. Trust Certificate Book. The Trustee shall maintain complete
and correct records and books of account of all his transactions as Trustee, and
shall maintain a book to be known as the Trust Certificate Book containing the
name of each Beneficiary, showing his address, the number of shares represented
by the Trust Certificates held by him and other pertinent information. Such
records and books of account and the Trust Certificate Book shall be available
to each Beneficiary upon written request.
Section 1.05 Voting Requirements. At all times during the initial Term of
this Agreement and any renewals and extensions thereof and until such time as
X.X. Xxx and certain other Beneficiaries have reached a final settlement with
the Securities and Exchange Commission with respect to the SEC Action, the
Trustee shall vote the Trust Shares for the election of X.X. Xxx as a director
of the Company. Notwithstanding the foregoing, the Trustee shall be permitted to
remove X.X. Xxx as a director at any time for Cause, as defined in Section
3.04(b), (ii).
ARTICLE II
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TRUSTEE
Section 2.01. Composition. The Voting Trust Committee of the Board of
Directors of the Company (the "Committee") shall at all times during the term of
this Agreement be composed of all outside Directors, other than those who are
also paid consultants. Outside directors shall immediately become members of the
Voting Trust Committee upon their election to the Board of Directors of the
Company, and shall immediately resign from the Committee when they no longer
serve on the Board. The Committee shall vote the shares by majority vote.
Section 2.02. Trustee's Rights and Powers.
(a) During the term of this Agreement, the Trustee shall possess, and in
its discretion shall be entitled to exercise, in person or by its nominees,
agents, attorneys in fact or proxies, the right to vote thereon and to take part
in any consent to any corporate or stockholders' action of any kind whatsoever.
The right of the Trustee to vote shall include the right to vote at any election
of directors and in favor of, or in opposition to, any resolution or proposed
action of any character whatsoever which may be presented at any meeting or
require the consent of stockholders of the Company.
(b) In voting shares of stock or in doing any act in respect of the control
or management of the Company or its affairs, the Trustee shall exercise its best
judgment in the interests of the Company to the end that its affairs shall be
properly managed, and may in furtherance thereof vote all shares of stock
subject to this Agreement in favor of any individual (including, without
limitation, himself or any Beneficiary) as a director of the Company; provided
however, that the Trustee assumes no responsibility as Trustee with respect to
the management of the Company or in respect of any action taken by it or taken
by the Company on the basis of its consent thereto or of its vote so cast.
Section 2.03. Trustee's Limited Authority to Transfer. Except for the
voting rights specifically provided for in Section 2.02, the Trustee shall have
no rights as a shareholder of the Company. The Trustee will have no authority to
sell or otherwise dispose of any of the Trust Shares, except that the Trustee
may effect a transfer of such Trust Shares pursuant to the procedures set forth
below. In order to transfer Trust Shares, a Beneficiary must deliver to the
Trustee a written notice ("Notice of Sale") stating that Beneficiary intends to
sell, transfer, or otherwise dispose of, part or all of such Beneficiary's Trust
Shares, the number of shares to be transferred, and identifying a recognized,
reputable broker, acceptable to the Trustee to effect the transfer. In the event
of an open market sale, the Notice of Sale also must include evidence reasonably
satisfactory to the Trustee that the intended sale will be an open market sale,
and in the event of a private sale, the Notice of Sale must include the
consideration to be paid, the intended transferee and the proposed date of
transfer. The Beneficiary shall include with the Notice of Sale the Trust
Certificate(s) for the Trust Shares intended to be transferred. In order to
effect a permitted transfer of Trust Shares, the Trustee shall:
(i) send to each non-transferring Beneficiary a copy of the Notice of
Sale within five (5) days of the Trustee's receipt thereof; and
(ii) no earlier than five (5) and not later than ten (10) days
following the receipt of the Notice of Sale, unless precluded by an order,
decree or judgment of any court of competent jurisdiction, and unless the
Trustee, after consultation with counsel under Section 2.10(c), determines in
good faith that such proposed sale, transfer or other disposition does not
comply with this Agreement or applicable law, or is not in the best interest of
the Company, the Trustee shall execute all documents and take all other action
necessary to effect the sale or other transfer of the Trust Shares covered by
the Notice of Sale in accordance with the provisions of such Notice; and
(iii) upon receipt of payment of a sum sufficient to cover any tax or
government charges in respect of the transfer or delivery of such certificates,
cause certificates representing the Trust Shares to be transferred, such
certificates to be duly endorsed for transfer or accompanied by duly executed
instruments of, transfer to be delivered to the persons and place designated in
the Notice of Sale; provided, however, that the Trustee shall have no obligation
to collect or receive the purchase price or other consideration to be received
by the transferring Beneficiary; and
(iv) in the event the transferring Beneficiary is not selling,
transferring or otherwise disposing of all Trust Shares represented by the
certificate or certificates surrendered with the Notice of Sale, upon the
consummation of such sale, transfer or other disposition specified in the Notice
of Sale, issue to the transferring Beneficiary a new Trust Certificate or
Certificates for the Trust Shares not sold, transferred or disposed of and which
are subject to this Agreement.
Notwithstanding the forgoing, the parties hereto acknowledge and agree that the
Trustee and each of the Beneficiaries may effect any transfer of the Trust
Shares in any transaction arranged by the Company. Further, the parties hereto
agree and acknowledge that the Company will make reasonable efforts to file
appropriate registration statement for any Trust Shares transferred pursuant to
the provisions hereof.
Section 2.04. Trustee's Agreement to Limited Authority to Sell. The Trustee
agrees that, except as otherwise provided in Section 2.03, it shall take no
action, nor shall it allow any action to be taken, by which any shares of stock
at any time subject to this Agreement shall be sold, transferred or otherwise
disposed of during the term of this Agreement. The Trustee agrees that it will
not pledge, hypothecate or otherwise create any lien, claim or encumbrance upon
any shares of stock subject to this Agreement, except that the exercise of
voting rights by the Trustee pursuant to Section 2.02 hereof shall not be deemed
to constitute any such lien, claim or encumbrance.
Section 2.05. Trustee's Agreement to Certificate. The Trustee agrees that
all certificates representing shares of stock of the Company which are, or at
any time become, subject to this Agreement shall have endorsed upon them a
legend substantially in the form as follows:
The transfer of the shares represented hereby is restricted by provisions of a
Voting Trust Agreement, dated as of June 6, 2001 (as amended to date), between
the registered holder of these shares, as Trustee, and the Beneficiary named
therein, copies of which are on file at the offices of the corporation and of
said Trustee.
Section 2.06. Trustee's Right to Delegate. The Trustee may vote all stock
held hereunder in person or by such person or persons (excluding any
Beneficiary) as it may from time to time select as its proxy or proxies. The
Trustee may employ or use the services of accountants, attorneys, or any other
qualified personnel to assist it or its agents to carry out any of the duties
undertaken pursuant to this Agreement.
Section 2.07. Trustee's Right to Call Meetings of the Beneficiaries. The
Trustee may call a meeting of the Beneficiaries for any purpose that the Trustee
desires, including, but not limited to, discussions of any past or future
exercise of its rights or powers under this Agreement, or for other
informational purposes. Any vote of the Beneficiaries taken at a meeting called
pursuant to this Section shall not be binding on the Trustee.
Section 2.08. No Right of Trustee to Compensation. The Trustee shall not be
entitled to compensation for its service as Trustee hereunder.
Section 2.09. Trustee's Right to Participate. The Trustee herein appointed
and its successors may be parties to this Agreement as Beneficiary. The Trustee
and any firm or corporation of which it may be a member, agent or employee and
any corporation, trust or association of which it may be a trustee, stockholder,
director, officer, agent or employee may contract with, or be or become
pecuniarily interested, directly or indirectly, in, any matter or transaction to
which the Company or any subsidiary or controlled or affiliated corporation may
be a party or in which it may be concerned, as fully and freely as though such
Trustee were not a trustee hereunder.
Section 2.10. Trustee's Liability.
(a) The Trustee shall not be liable for any error of judgment nor for any
act done or omitted, nor for any mistake of fact or law nor for anything which
it may do or refrain from doing in good faith, nor generally shall the Trustee
have any accountability hereunder, except for its own willful default or gross
negligence. Furthermore, upon any judicial or other inquiry or investigation of
or concerning the Trustee's acts pursuant to its rights and powers as Trustee,
such acts shall be deemed reasonable unless proved to the contrary by clear and
convincing evidence.
(b) The Trustee shall not be liable in any event for acts or defaults of
any employee, agent, proxy or attorney in fact of the Trustee. The Trustee shall
always be protected and free from liability in acting upon any notice, request,
consent, certificate, declaration, telegram, facsimile, guarantee, affidavit or
other paper or document or signature believed by it to be genuine and to have
been signed by the proper party or parties or by the party or parties purporting
to have signed the same.
(c) The Trustee may consult with legal counsel, pursuant to Section 2.06
hereof, which may be counsel to the Company, and any action under this Agreement
taken or suffered in good faith by it in accordance with the opinion of such
counsel shall be conclusive upon the parties hereto and the Trustee shall be
fully protected and be subject to no liability in respect thereof.
Section 2.11. Trustee's Acceptance of Trust and Limitations on Share
Transfer. The Trustee by executing this Agreement, and each successor Trustee,
upon being appointed as such, accepts the trust created hereby and agrees to
carry out the terms and provisions hereof.
ARTICLE III
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TERMINATION
Section 3.01. Termination or Extension. This Agreement shall terminate upon
the earlier of (i) three (3) years after the date hereof ("Term"), subject to
automatic renewal as provided in Section 3.02; (ii) the (A) sale of more than
fifty percent of the voting stock in the Company, or (B) the sale of all or
substantially all of the assets of the Company, to a Person (as defined below)
not an Affiliate (as defined below) of the Company; (iii) a merger or
consolidation with another Person not an Affiliate of the Company which will own
more than 35% of the combined business of the entities that are parties to such
merger or combination; (iv) the Beneficiaries own in the aggregate less than
nineteen percent (19%) of the non-diluted shares of the Company; (v) the
termination by the Company of X.X. Xxx'x employment, if such termination of
employment is without Cause (as defined below); (vi) the expiration of the
maximum permitted term of voting trusts under the Florida Business Corporation
Act (a "Florida Trust Term"), subject to automatic renewal as provided in
Section 3.02 below. Notwithstanding the provisions of this Article III, this
Agreement shall remain in full force and effect as long as the Company is
required to pay any remuneration or other compensation to X.X. Xxx.
Section 3.02 Automatic Renewal. Subject to Section 3.03, this Agreement
automatically will renew upon the expiration of the initial Term or any Florida
Trust Term, as the case may be, and each renewal Term or renewal Florida Trust
Term, as applicable thereafter on the same terms and conditions for successive
Terms with respect to each Beneficiary.
In the event of such renewal, the Trustee shall, prior to the expiration as
hereinabove provided, as originally fixed, or as theretofore extended, as the
case may be, file in the principal executive office of the Company a copy of an
agreement extending the expiration date of this Agreement and thereupon the
duration of this Agreement shall be extended for the period fixed by such
renewal agreement; provided, however, that no such extension agreement shall
affect the rights or obligations of persons not parties thereto.
Section 3.03 Renewal Not Permitted. Notwithstanding the terms of Section
3.02, in the event that following a final settlement of the SEC Action, X.X. Xxx
voluntarily resigns as an employee of the Company, this Agreement shall
terminate upon the end of its then current term and shall not be subject to
automatic renewal. X.X. Xxx agrees that in such event, he only will sell his
Trust Shares in open market transactions, or pursuant to a prior written consent
of the Trustee for the remainder of the effective Term of the Agreement.
Section 3.04 Voting Trust Irrevocable. Except as otherwise provided in this
Agreement, the trust created by this Agreement is hereby expressly declared to
be irrevocable.
Section 3.05 Definitions. For purposes of this Article III, the following
definitions shall apply:
(a) "Affiliate" shall mean, with respect to any Person, (i) any Person
which directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such Person or (ii) any
Person who is a director or employee officer (A) of such Person, (B) of any
subsidiary of such Person, or (C) of any Person described in the foregoing
clause (i). For purposes of this definition, "control" of a Person shall mean
the power, direct or indirect, (i) to vote or direct the voting of more than 20%
of the outstanding voting securities of such Person, or (ii) to direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
(b) "Cause" with respect to X.X. Xxx (as used in this Section 3.05,
"Lin") shall mean any of the following:
(i) Lin's conviction of or plea of no contest to any crime
involving moral turpitude, the theft or willful destruction of money or other
property of the Company or of any Affiliate thereof or his conviction of or plea
of no contest to any felony crime, or being found by any stated or federal
governmental regulatory authority to have violated any statute or regulation
relating to the sale of securities or the business of the Company, or becoming
subject to any order, decree or judgment restraining him from violating any
statute or regulation involving or relating to the sale of securities or the
business of the Company;
(ii) Lin's inability to perform his responsibilities due to
illegal conduct, abuse or misuse of alcohol, prescribed drugs or any use of
illegal drugs, or any other behavior which would adversely effect the Company;
(iii) Lin's commission of theft, embezzlement or fraud against the
Company;
(iv) Lin willfully causing damage to the Company's property,
business reputation, or good will;
(v) Lin's incompetence, lack of performance as documented by the
Board, deliberate neglect of duty, or material breach of Xx. Xxx'x employment
agreement with the Company, if any, or the reasonable mandates of the Company;
(vi) misrepresentation or concealment of a material fact by Lin
for the purpose of securing or maintaining this Agreement or an employment
agreement with the Company; or.
The term "Cause" shall not (A) include any events which would otherwise
amount to Cause, as defined in clauses (i) through (vi) above, but which have
previously been disclosed in writing to, the Board of Directors of the Company
prior to the date of this Agreement, or (B) mean any act or omission reasonably
believed by Lin to have been in or not opposed to the best interests of the
Company or any subsidiary or Affiliate, or any other matter not specifically
described in clauses (i) through (vi) above.
(c) "Person" shall mean an individual or a corporation, association,
partnership, limited liability company, limited liability partnership, joint
venture, organization, business, individual, trust, or any other entity or
organization, including a government or any subdivision or agency thereof.
ARTICLE IV
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MISCELLANEOUS
Section 4.01. Relationships Created Hereunder. The trust created by this
Agreement is not intended to be, and shall not be treated as, a general
partnership, limited partnership, joint venture, corporation or joint stock
company or association. The relationship of each Beneficiary to the Trustee
shall be solely that of Beneficiary of the Trust created by this Agreement and
the rights of the Beneficiary and the Trustee shall be limited to those
conferred upon them by this Agreement.
Section 4.02. Right of Examination. An executed counterpart of this
Agreement shall be deposited with the Company at its office at 00000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000. This Agreement shall be subject to the same
right of examination by a stockholder of the Company in person or by agent or
attorney, as are the books and records of the Company, and shall be subject to
examination by any holder of a beneficial interest in the voting trust created
by this Agreement, either in person or by agent or attorney, at any reasonable
time for any proper purpose.
Section 4.03. Entire Agreement; Modifications. The Agreement represents the
entire agreement of the parties concerning the voting trust that is the subject
of this Agreement. This Agreement cannot be amended or supplemented unless such
amendment or supplement is in writing and signed by each party against whom
another party seeks to enforce such amendment or supplement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective hands
as of the day and year first above written.
TRUSTEE: BENEFICIARIES:
VOTING TRUST COMMITTEE OF
SURGILIGHT, INC. LIN FAMILY PARTNERS, LTD.
By: /s/ By: /s/
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Xxxxxx Xxxxx, Director X. X. Xxx, General Partner
By: /s/ /s/
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Xxx Xxxx, Director XXXX XXX, AS TRUSTEE OF THE Y-C
IRREVOCABLE LIVING TRUST
By: /s/ /s/
------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxx, Director X. X. XXX
By: /s/ /s/
------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxxx, Director XXXXXX XXX
By: /s/ /s/
------------------------------- -----------------------------------
Xxxxx X.Xxxxxxx, Director XXXX X. XXX
By: /s/ /s/
------------------------------- -----------------------------------
X.X. Xxxx, Director XXX XXX
/s/
-----------------------------------
XXXX XXX, individually
