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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1 )*
SWISSRAY International, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
871016-20-0
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(CUSIP Number)
John M. Liviakis, 2420 "K" St., #220, Sacramento, CA 95816, (916) 448-6084
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 7, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED
IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY
VALID OMB CONTROL NUMBER.
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SCHEDULE 13D
CUSIP No. 871016-20-0 PAGE 2 OF 16 PAGES
- --------------------------------------------------------------------------------
1 Names of Reporting Person
I.R.S. Identification Nos. of above persons (entities only)
Liviakis Financial Communications, Inc. 68-0311399
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2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
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(b)
----------------------------------------------------------------------
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds (See Instructions)
00
- --------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
CALIFORNIA
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7 Sole Voting Power
-
Number of ----------------------------------------------------------
Shares 8 Shared Voting Power
Beneficially -
Owned by ----------------------------------------------------------
Each 9 Sole Dispositive Power
Reporting 3,000,000
Person ----------------------------------------------------------
With 10 Shared Dispositive Power
-
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
3,000,000
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12 Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
25.0%
- --------------------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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1. SECURITY AND ISSUER.
The title of the class of equity securities to which this Amended
Statement on Schedule 13D relates is common stock, $.01 par value (the "Common
Stock"), issued by SWISSRAY International, Inc., a New York corporation (the
"Corporation"). The principal offices of the Corporation are located at 200 East
32nd Street, Suite 34-B, New York, New York 10016.
2. IDENTIFY AND BACKGROUND.
This Amended Statement is filed by Liviakis Financial Communications,
Inc., a California corporation ("LFC").
LFC's principal business is as a consultant in the areas of financial
and investor public relations and communications. LFC's principal business and
principal office address is 2420 "K" Street, Suite 220, Sacramento, California
95816.
LFC's President is John M. Liviakis ("JML"), and its Treasurer, Chief
Financial Officer and Secretary is Renee A. Liviakis ("RAL"). JML and RAL are
the only executive officers of LFC. The activities associated with these
positions constitute the principal occupation and employment of JML and RAL. JML
and RAL are LFC's only directors and are its sole stockholders. JML and RAL are
citizens of the United States, and their business address is LFC's principal
business address specified above.
During the past five years, none of LFC, JML and RAL has been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors),
and during such period none of them has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction, the result of which
was to subject such person to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
This Amended Schedule 13D is being filed to report 3,000,000 shares of
Common Stock which the Corporation issued to LFC pursuant to a Consulting
Agreement dated effective as of March 29, 1999 by and between the Corporation
and LFC (the "Consulting Agreement"). Under the Consulting Agreement, LFC
undertakes to perform certain investor communications, financial and investor
public relations, and related services for the Corporation through March 28,
2000. A copy of the Consulting Agreement has been filed as Exhibit "A" to this
Schedule 13D.
On July 7, 1999, LFC entered into a Voting Trust Agreement dated as of
March 29, 1999 (the "Voting Trust Agreement") by and among the Corporation, LFC
and Ruedi G. Laupper as voting trustee (the "Voting Trustee"). Pursuant to the
Voting Trust Agreement, LFC transferred legal title to the 3,000,000 shares of
Common Stock to the
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Voting Trustee, in whom legal title is to remain while LFC is the beneficial
owner of such shares or until certain other events occur. While legal title to
the shares remains with the Voting Trustee, all voting rights attaching to such
shares will be vested in and exercised by the Voting Trustee. LFC entered into
the Voting Trust Agreement in fulfillment of its obligation arising under the
terms of the Consulting Agreement. A copy of the Voting Trust Agreement is filed
as Exhibit B to this Amended Schedule 13D.
4. PURPOSE OF TRANSACTION.
The 3,000,000 shares of Common Stock issued by the Corporation to LFC
were issued as consideration for consulting services rendered and to be rendered
by LFC pursuant to the Consulting Agreement.
LFC has no plans or proposals which relate to or would result in: any
extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Corporation or any subsidiary of the Corporation; the
sale or transfer of a material amount of assets of the Corporation or any of its
subsidiaries; any change in the Corporation's present Board of Directors or
management; any material change in the present capitalization or dividend policy
of the Corporation; any material change in the Corporation's business or
corporate structure; any changes in the Corporation's charter, bylaws, or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Corporation by any person; a class of securities
of the Corporation being delisted from a national securities exchange or ceasing
to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; a class of equity securities of the
Corporation becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or any
similar action.
5. INTEREST IN SECURITIES OF THE ISSUER.
LFC has the sole power to direct the disposition of the 3,000,000 shares
of Common Stock issued by the Corporation to LFC pursuant to the Consulting
Agreement. LFC would exercise its power to direct the disposition of such
securities through its officers and directors, JML and RAL. As a result of the
transfer of legal title to the 3,000,000 shares of Common Stock to the Voting
Trustee pursuant to the Voting Trust Agreement, LFC has no power to direct the
vote of such shares.
The 3,000,000 shares of Common Stock that LFC acquired pursuant to the
Consulting Agreement and which are now represented by voting trust certificates,
and as to which LFC has the sole power to direct the disposition, represent
approximately 25.0% of the outstanding Common Stock of the Company. The
calculation of the percentage of the class of Common Stock is based on the
12,006,222 shares of Common Stock which the Corporation reported as outstanding
as of May 10, 1999 in its Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1999.
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During the past sixty days, LFC has not engaged in any transactions in
Common Stock, other than entering into the Voting Trust Agreement and
transferring legal title to the 3,000,000 shares of Common Stock to the Voting
Trustee.
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The Corporation entered into the Consulting Agreement with LFC and
pursuant thereto issued 3,000,000 shares of Common Stock to LFC in consideration
for consulting services performed and to be performed by LFC pursuant to the
Consulting Agreement through March 28, 2000. The Corporation has the right to
extend the term of the Consulting Agreement for an additional year through March
28, 2001 by issuing to LFC that number of additional shares of Common Stock
calculated by dividing $630,000 by the average closing bid price for Common
Stock during the ten trading days preceding March 29, 2000. In the Consulting
Agreement, LFC agrees that while it retains beneficial ownership of the
3,000,000 shares of Common Stock that it has received pursuant to the Consulting
Agreement, or any portion thereof, it will (i) vote such shares in favor of
Ruedi G. Laupper continuing to maintain his current positions with the
Corporation; (ii) give Mr. Laupper or his designee the right to vote LFC's
shares at all meetings of the Corporation's shareholders; and (iii) enter into a
voting trust agreement to effectuate the foregoing arrangements. Pursuant to
those provisions, LFC entered into the Voting Trust Agreement.
Except for the Consulting Agreement and the Voting Trust Agreement,
there are no contracts, arrangements, understandings or relationships between
LFC and any other person with respect to any securities of the Corporation.
7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - Consulting Agreement, dated effective March 29, 1999, by and
between the Corporation and LFC.
Exhibit B - Voting Trust Agreement, dated as of March 29, 1999, by and
among the Corporation, LFC and the Voting Trustee.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 9, 1999 Liviakis Financial Communications, Inc.
By /s/ John M. Liviakis
--------------------------------------
John M. Liviakis, President
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EXHIBIT B
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 Ruedi G. Laupper (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
3,000,000 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.
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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 hereto, 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
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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
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.
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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 the event 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
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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.
12. DURATION AND TERMINATION. This 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. 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 cause to be
delivered to the holders thereof the shares of stock and any other securities
then held by the Voting Trustee which are represented by such 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.
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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
given shall 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 to 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.
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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 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.
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
Liviakis Financial Communications, Inc. and in particular those portions of such
Consulting Agreement as relate to voting rights with respect to 3,000,000 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
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stockholder has signed a counterpart of this Agreement and transferred and
delivered its shares of stock to the Voting Trustee.
VOTING TRUSTEE
Dated: As of March 29, 1999
/s/Ruedi G. Laupper
-----------------------------------
Ruedi G. Laupper
SWISSRAY International, Inc.
By: /s/Josef Laupper
-------------------------------
Its: Josef Laupper, Secretary
------------------------------
By: /s/Michael Laupper
-------------------------------
Its: Michael Laupper, Interim
------------------------------
Chief Financial Officer
------------------------------
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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.
<TABLE>
<CAPTION>
Number of Shares
Name Signature Deposited Hereunder
---- --------- -------------------
<S> <C> <C>
LIVIAKIS FINANCIAL
COMMUNICATIONS,INC. By:/s/John M. Liviakis 3,000,000
---------------------------
John L. Liviakis, President
</TABLE>
<PAGE> 15
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ANNEX 1 FORM OF VOTING TRUST CERTIFICATE
Voting Trust Certificate
SWISSRAY International, Inc.
No. 1 of 1 Liviakis 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, $.01 par value per share, of the Common Stock of SWISSRAY
International, Inc., a New York corporation (hereinafter called 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: /s/ Ruedi G. Laupper
-------------------------------
Ruedi G. Laupper
<PAGE> 16
Page 16 of 16
(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.
