Exhibit 9
VOTING TRUST AGREEMENT
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THIS VOTING TRUST AGREEMENT (this "Agreement") is made and entered into as
of this 6th day of June, 2001, by and between
VOTING TRUST COMMITTEE OF SURGILIGHT, INC., as Trustee having an address of
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter, with any
successors, referred to as the "Trustee"); and
LIN FAMILY PARTNERS, LTD., a Colorado limited partnership having an address of
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇, TRUSTEE OF THE Y-C
IRREVOCABLE LIVING TRUST, having an address of ▇▇▇ ▇▇▇▇▇, ▇▇. ▇, ▇▇▇▇▇-▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇; ▇. ▇. ▇▇▇, having an address of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇, having an address of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and ▇▇▇▇ ▇. ▇▇▇, having an address of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as Beneficiary (hereinafter, together with his, her or its
successors and assigns, referred to individually as a "Beneficiary" and
collectively as the "Beneficiaries").
WITNESSETH
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WHEREAS, each Beneficiary is a shareholder of SurgiLight, Inc., a
Delaware corporation (the "Company") and owns shares of the common stock of the
Company as set forth below:
Name No. of Shares
Lin Family Partners, Ltd. 4,000,000
▇▇▇▇ ▇▇▇, Trustee of Y-C
Irrevocable Living Trust 4,500,000
▇▇▇▇ ▇▇▇ 4,500,000
▇. ▇. ▇▇▇ 1,064,000
▇▇▇▇▇▇ ▇▇▇ 800,000
▇▇▇▇ ▇. ▇▇▇ 100,000
▇▇▇ ▇▇▇ 100,000;
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Total 15,064,000 shares
(the "Common Stock"); and
WHEREAS, each Beneficiary has agreed to execute and deliver this Agreement,
and the Trustee has consented to act as trustee under this Agreement, as
hereinafter provided;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
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IRREVOCABLE PROXY
Section 1.01. Irrevocable Proxy. Commencing on the date hereof and at all
times during the term of this Agreement, each Beneficiary hereby appoints the
Trustee proxy with power of substitution, for and in the name of the undersigned
to attend any meeting of the shareholders of the Company, or at any
continuation(s) or adjournment(s) thereof, with full power to vote the number of
shares set forth below (collectively the "Trust Shares") and to act for said
Beneficiary with respect to the Trust Shares to the same extent that said
Beneficiary might if he/she were personally present in the same manner
hereinafter provided, and to take part in any consent to any corporate or
stockholders' action of any kind whatsoever:
Approximate
Name No. of Shares % of Company
---- ------------- ------------
Lin Family Partners, Ltd. 4,000,000 16.91%
▇▇▇▇ ▇▇▇, Trustee of Y-C
Irrevocable Living Trust 3,000,000 12.68%
▇▇▇▇ ▇▇▇ 2,000,000 8.46%
▇. ▇. ▇▇▇ 1,064,000 4.50%
▇▇▇▇▇▇ ▇▇▇ 506,000 2.14%
Total 10,570,000 44.69%
The remaining 4,494,000 common shares owned by the Beneficiary represents 19% of
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the total outstanding 23,653,000 shares of the Company. The amount which is not
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locked up needs to be 19% of the non-diluted or current voting shares of the
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Company. These shares will be immediately and automatically adjusted on a
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pro-rata basis for future dilution of the Company or acquisition of additional
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shares by any owner of the Trust shares, any family member or beneficial owner
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of ▇.▇. ▇▇▇ or by ▇. ▇. ▇▇▇ such that 19% remains.
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An outside director shall immediately become a member of the Voting Trust
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Committee upon their election to the Board of Directors of the Committee and
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shall immediately resign from the Committee when they no longer serve on the
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Board. The Committee shall vote the shares by majority vote.
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Section 1.02 Voting Requirements. At all times during the term of this
Agreement, the Trustee shall vote the Trust Shares for the election of ▇. ▇. ▇▇▇
as both Officer and a Director of the Company.
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 the Board of Directors as follows:
All the outside Directors other than those who are paid consultants.
An outside director shall immediately become a member of the Voting Trust
Committee upon their election to the Board of Directors of the Committee 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 as
specifically provided in Section 2.02, the Trustee shall have no rights as a
shareholder of the Company. The Trustee shall have no authority to sell or
otherwise dispose of any of the stock held in any Beneficiary's name, except
that upon receipt of a notice ("Notice of Sale") from a Beneficiary that part or
all of the shares are to be sold, transferred or otherwise disposed of and
setting forth the number of shares to be transferred, the consideration
therefor, the intended transferee and the proposed date of transfer, which
Notice of Sale shall be accompanied by the Certificate in respect of the shares
to be so transferred, properly endorsed for transfer, the Trustee shall:
(i) cause each non-transferring Beneficiary to receive a copy of the
Notice of Sale within five (5) days of the Trustee's receipt thereof; and
(ii) not earlier than ten (10) days nor later than twenty days (20)
following its receipt of the Notice of Sale, unless precluded by an order,
decree or judgment of any court of competent jurisdiction unless the Trustee,
after consultation with counsel pursuant to Section 2.10(c), determines in good
faith that such proposed sale, transfer or other disposition does not comply
with thus Agreement or the option Agreement or applicable law, execute all
documents and take all other action necessary to transfer the number of shares
of the Company's stock specified in the Notice of Sale and represented by the
certificate or certificates surrendered therewith to the transferee named in
such Notice of Sale; 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 shares of the Company's stock 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 shares of the Company's stock
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
certificate or certificates in respect of such shares of the Company's stock not
sold, transferred or disposed of and which are subject to this Agreement.
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, 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.
(a) This Agreement shall terminate in any event upon the earlier of (i)
three (3) years after the date hereof; (ii) the sale of the Company to an
outside third party; (iii) a merger with other company or a third party which
will own more than 35% of the combined business; (iv) the Beneficiaries own less
than 19% of the non-diluted shares of the Company; (v) ▇.▇. ▇▇▇ is not an
Employee, Officer or Director of the Company; (vi) the expiration of the maximum
permitted term of voting trusts under the Delaware Business Corporation Law
(such period defined as the "Term"); provided, however, that this Agreement will
be automatically renewed thereafter on the same terms and conditions for
successive Terms with respect to each Beneficiary unless the Beneficiary gives
written notice to the Trustee of its desire not to consent to such renewal,
which notice shall be delivered to the Trustee not earlier than one (1) year,
and not later than sixty (60) days, prior to the end of the Term then in effect.
(b) In the event of such extension, 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 extension agreement; provided, however, that no such extension
agreement shall affect the rights or obligations of persons riot parties
thereto.
(c) Except as otherwise provided in this Agreement, the trust created by
this Agreement is hereby expressly declared to be irrevocable.
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. 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 understanding of the parties hereto with respect to the subject matter
hereof, and cannot be amended, supplemented or changed orally, but only by an
agreement in writing signed by the party or parties against whom enforcement is
sought and making specific reference to this Agreement.
Section 4.04. Notices. Any and all notices, requests, demands, or other
communications provided for hereunder shall be given in writing and shall be
deemed to have been given (a) when received, if delivered in person, or (b) when
sent, if sent by telecopier and confirmed within 48 hours by letter mailed or
delivered to the party to be notified at such Party's address first written
above or (c) three (3 business days following the mailing thereof, if mailed by
certified first class mail, postage prepaid, return receipt requested.
Section 4.05. Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their heirs, legatees,
executors, administrators, successors and assigns.
Section 4.06. Gender and Number. With respect to words used in this
Agreement, the singular form shall include the plural form, the masculine sender
shall include the feminine or neuter gender, and vice versa, as the context
requires.
Section 4.07. Description Headings.. The descriptive headings of this
Agreement are for convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
Section 4.08. Counterparts. This Agreement may be executed in counterparts,
each of which shall deemed an original but all of which taken together shall
constitute one instrument.
Section 4.09. Severability. If in any judicial proceedings a court shall
refuse to enforce any provision of this Agreement, then such unenforceable
provision shall be deemed eliminated from this Agreement for the purpose of
those proceedings to the extent necessary to permit the remaining provisions to
be enforced. To the full extent, however, that the provisions of any applicable
law may be waived, they are hereby waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
Section 4.10. Governing Law. This Agreement shall be construed under and
its validity determined by the laws of the State of Florida.
Section 4.11. Remedies. The parties hereto shall have all remedies for
breach of this Agreement available to them provided by law or in equity. Without
limiting the generality of the foregoing, the parties agree that in addition to
all other rights and remedies available at law or in equity, the parties shall
be entitled to obtain specific performance of the obligations of each party to
this Agreement and immediate injunctive relief and that in the event any action
or proceeding is brought in equity to enforce the same, no party will urge, as a
defense, that there is an adequate remedy at law.
Section 4.12. Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
permitted transferees, successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third person
to any party to this Agreement, nor shall any provision give any third person
any right of subrogation or action over or against any party to this Agreement.
[Signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands as of the day and year first above written.
TRUSTEE: BENEFICIARIES:
SURGILIGHT, INC. LIN FAMILY PARTNERS, LTD.
By: /s/ ▇▇▇ ▇▇▇▇ 7/6/01 By: /s/ ▇. ▇. ▇▇▇ 06/6/01
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▇▇▇ ▇▇▇▇, Director ▇. ▇. ▇▇▇, General Partner
By: /s/ ▇. ▇. ▇▇▇▇ 7/5/01 /s/ ▇▇▇▇ ▇▇▇
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▇. ▇. ▇▇▇▇, Director ▇▇▇▇ ▇▇▇, AS TRUSTEE OF
THE Y-C IRREVOCABLE LIVING
TRUST
By: /s/ ▇. ▇. ▇▇▇ 6/6/01 /s/ ▇▇▇▇ ▇▇▇
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▇. ▇. ▇▇▇, Director ▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇ ▇▇▇