EXHIBIT 99(D)
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT, dated as of May 19, 1998, by and among General
Electric Company, a New York corporation acting through its GE Medical Systems
division ("Parent"), on the one hand, and the persons set forth in the signature
page hereto in their capacities as shareholders of InnoServ Technologies, Inc.,
a California corporation (the "Company") (collectively, the "Shareholders" and
individually, a "Shareholder"), on the other hand.
WHEREAS, concurrently herewith, Parent, a subsidiary of a subsidiary of
Parent and the Company are entering into an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used without definition herein having the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, each Shareholder has sole, or together with such Shareholder's
spouse as necessary, has complete voting and dispositive power and/or full
voting power as to the aggregate number of shares of Common Stock, par value
$.01 per share, of the Company (the "Company Common Stock") set opposite such
Shareholder's name on SCHEDULE I attached hereto, whether as certificated shares
in the name of such Shareholder or held in brokerage accounts in the name of
such Shareholder; such shares of Company Common Stock, as such shares may be
adjusted by any stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, being referred to herein as the "Shares";
WHEREAS, approval of the Merger Agreement by the Company's
shareholders is a condition to the consummation of the Merger;
WHEREAS, as a condition to its entering into the Merger Agreement,
Parent has required that the Shareholders agree, and the Shareholders have
agreed, to enter into this Agreement;
WHEREAS, the Shareholders have been informed that the Board of
Directors of the Company has approved the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. AGREEMENT TO VOTE, RESTRICTIONS ON DISPOSITIONS, ETC.
During the term of the Agreement:
a. Each of the Shareholders hereby agrees to attend the
Company Meeting, in person or by proxy, and to vote (or cause to be
voted) all Shares, and any other voting securities of the Company,
whether issued heretofore or hereafter, that such person owns or has
the right to vote, for approval and adoption of the Merger Agreement
and the Merger, such agreement to vote to apply also to any adjournment
or adjournments of the Company Meeting. Each Shareholder agrees not to
grant any proxies or enter into any voting agreement or arrangement
inconsistent with this Agreement.
b. Each of the Shareholders hereby agrees to vote (or cause to
be voted) all Shares, and any other voting securities of the Company,
whether issued heretofore or hereafter, that such person owns or has
the right to vote, against (i) any merger (other than the Merger),
consolidation, combination, sale of assets, reorganization,
recapitalization, dissolution, liquidation or other business
combination or similar transaction involving the Company or its
Subsidiaries, securities or assets (including any Business Combination
Proposal) which is not approved in writing by Parent or (ii) any
amendment of the Company's articles of incorporation or by-laws or
other proposal involving the Company or any Subsidiary, which amendment
or proposal would in any manner impede, frustrate, prevent or nullify
the Merger, the Merger Agreement or any of the transactions
contemplated by the Merger Agreement or which could result in any of
the conditions to the Company's obligations under the Merger Agreement
not being fulfilled.
c. Each of the Shareholders hereby agrees that, without the
prior written consent of Parent, such Shareholder shall not, directly
or indirectly, sell, offer to sell, grant any option for the sale of or
otherwise, pledge, transfer, tender or dispose of, or enter into any
agreement to sell, pledge (other than existing margin call pledge
agreements with respect to Shares held in brokerage accounts in the
name of a Shareholder), transfer, tender or dispose of, any Shares and
any other voting securities of the Company, issued heretofore or
hereinafter that such person owns or has the right to vote; PROVIDED,
HOWEVER, that Parent shall consent to any such sale, pledge, transfer
or disposition of any such Shares or other voting securities by and
between Shareholders.
d. Each of the Shareholders, solely in his capacity as a
shareholder, hereby agrees not to directly or indirectly take (nor
shall such Shareholder authorize or permit any representative,
investment banker, financial advisor, attorney, accountant or other
agent of such Shareholder to take) any action to (i) encourage, solicit
or initiate the submission of any Business Combination Proposal or (ii)
participate in any way in discussions or negotiations with, or furnish
any non-public written information to, any person in connection with,
or take any other action to encourage the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Business
Combination Proposal; ; provided, that with respect to Shareholders who
serve as officers or directors of the Company, such Shareholders acting
solely in their capacity as officers or directors may (i) participate
in discussions or negotiations with or furnish information to any Third
Party that makes an unsolicited Business Combination Proposal that the
Board of Directors of the Company determines (after consultation with
its financial advisors) may reasonably be expected to result in a
Superior Proposal, and permit the Company to enter into any
confidentiality agreement or standstill agreement with such Third Party
in connection with such a Business Combination Proposal, (ii) take all
steps necessary to cause the Company to comply with Rule 14e-2
promulgated under the Exchange Act with regard to any Business
Combination Proposal (assuming that such Business Combination Proposal
includes a tender offer requiring the Company's response pursuant to
such Rule), (iii) take the steps necessary as directors to fail to make
or withdraw or modify the Board of Directors' recommendation referred
to in SECTION 8.2 of the Merger Agreement if there exists a Business
Combination Proposal that is a Superior Proposal or if such director
determines, in good faith and after consultation with independent
counsel, that such action is required to discharge properly his
fiduciary duties, or (iv) if the Company terminates the Merger
Agreement in accordance with Section 10.1(e) thereof, cause the Company
to enter into an agreement with respect to or recommend to its
shareholders a Business Combination Proposal that is a Superior
Proposal.
e. Each of the Shareholders agrees to promptly notify Parent
in writing of the nature and amount of any acquisition by such
Shareholder of any voting securities of the Company acquired by such
Shareholder hereinafter.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of
the Shareholders, as to himself, herself or itself, as an individual
shareholder, represents and warrants to Parent as follows: (a) this Agreement
has been duly executed and delivered by such Shareholder; (b) assuming the due
authorization, execution and delivery of this Agreement by Parent, this
Agreement constitutes the valid and binding agreement of such Shareholder
enforceable against such Shareholder in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles; (c) the shares
of Company Common Stock listed next to the name of such Shareholder on SCHEDULE
I hereto are the only voting securities of the Company owned (beneficially or of
record) by such Shareholder and are held by such Shareholder either as
certificated shares or in brokerage accounts in the name of such Shareholder
free and clear of all liens, charges, encumbrances, restrictions and commitments
of any kind; and (d) the execution and delivery of this Agreement by such
Shareholder does not conflict with any agreement, order or other instrument
binding upon such Shareholder, nor requires any regulatory filing or approval.
Section 3. FURTHER ASSURANCES. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of any party to
effectuate, carry out or comply with all the terms of this Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents
and warrants to each Shareholder as follows: (a) each of this Agreement and the
Merger Agreement has been duly executed and delivered by a duly authorized
officer or employee of Parent; and (b) assuming the due authorization, execution
and delivery of this Agreement by the Company and the Shareholders, each of this
Agreement and the Merger Agreement constitutes a valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles.
Section 5. EFFECTIVENESS AND TERMINATION. It is a condition precedent
to the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. This Agreement shall
terminate upon the earliest of (i) the close of business on September 30, 1998,
(ii) the Effective Date or (iii) the termination of the Merger Agreement in
accordance with its terms; PROVIDED, that if any Business Combination Proposal
shall have been made prior to the termination of the Agreement and the Merger
Agreement is terminated pursuant to Sections 10.1(b)(ii) or (c)(ii) of the
Merger Agreement, Sections 1(b), (c) and (d) hereof shall survive for 180 days
after termination of this Agreement. Upon any such termination of this
Agreement, except for any rights any party may have in respect of any breach by
any other party of its or his obligations hereunder, none of the parties hereto
shall have any further obligation or liability hereunder.
Section 6. MISCELLANEOUS.
a. NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement
shall be in writing and shall be deemed to have been duly given to any
party when delivered personally (by courier service or otherwise), or
seven days after being mailed by first-class mail, postage prepaid in
each case to the applicable addresses set forth below:
If to Parent: GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: J. Xxxxx Xxxxxx
with a copy to: Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
If to any of the Shareholders: to the addresses set forth on SCHEDULE I:
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
and with an additional copy to: InnoServ Technologies, Inc.
000 Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
or to such other address as such party shall have designated by notice
so given to each other party.
b. AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated except by an instrument in writing signed by Parent, the
Company and the Shareholders affected thereby; PROVIDED that: without
the consent of any party no such amendment, change, supplement, waiver,
modification or termination shall in any way further restrict the
transferability of any Company Common Stock held by such party, impose
any obligation on such party, diminish the benefits of such party
hereunder or restrict the rights of such party as set forth herein),
without the consent of such party.
c. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the
parties and their respective successors and assigns, including without
limitation any trustee, executor, heir, legatee or personal
representative succeeding to the ownership or voting power of such
Shareholder's shares of Company Common Stock or other securities
subject to this Agreement. Notwithstanding any transfer of shares of
Company Common Stock, the transferor shall remain liable for the
performance of all obligations under this Agreement of such transferor.
d. ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement) embodies the entire agreement and understanding among the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter. There
are no representations, warranties or covenants by the parties hereto
relating to such subject matter other than those expressly set forth in
this Agreement and the Merger Agreement.
e. SEVERABILITY. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid
or unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall
not be affected thereby and shall be enforced to the greatest extent
permitted by applicable law, PROVIDED that in such event the parties
shall negotiate in good faith in an attempt to agree to another
provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out
the parties' intentions hereunder.
f. SPECIFIC PERFORMANCE. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and
that any party may, in its sole discretion, apply to a court of
competent jurisdiction for specific performance or injunction or such
other relief as such court may deem just and proper in order to enforce
this Agreement or prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection to the
imposition of such relief.
g. REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the
exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such
rights, power or remedy by such party.
h. NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
i. NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any
person or entity who or which is not a party hereto.
j. JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Circuit Court in the State of New York or
the United States District Court for the Southern District of New York
or any court of the State of New York located in the City of New York
in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on FORUM NON
CONVENIENS or any other objection to venue therein). Each party hereto
waives any right to a trial by jury in connection with any such action,
suit or proceeding.
k. GOVERNING LAW. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the
California General Corporation Law to the fullest extent possible and
in the absence of applicability of the aforementioned California
General Corporation law, by the internal laws of the State of New York
without regard to principles of conflicts of law.
l. NAME, CAPTIONS, GENDER. The name assigned this Agreement
and the section captions used herein are for convenience of reference
only and shall not affect the interpretation or construction hereof.
Whenever the context may require, any pronoun used herein shall include
the corresponding masculine, feminine or neuter forms.
m. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one instrument. Each counterpart
may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
n. LIMITATION ON LIABILITY. No Shareholder shall have any
liability hereunder for any actions or omissions of any other
Shareholder.
o. EXPENSES. Except as otherwise provided in the Merger
Agreement, each party shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated
hereby, except that in the event of a dispute concerning the terms or
enforcement of this Agreement, the prevailing party in any such dispute
shall be entitled to reimbursement of reasonable legal fees and
disbursements from the other party or parties to such dispute.
p. SHAREHOLDER CAPACITY. Each Shareholder signs this Agreement
solely in his capacity as the record holder and/or beneficial owner of
the Shares set opposite his name on SCHEDULE I and nothing herein shall
limit, impose any obligation on, or affect any actions taken by such
Shareholder, as applicable, serving in his capacity as an officer or
director of the Company, including without limitation, any actions
taken by such Shareholder in the fulfillment of his fiduciary duties in
his capacity as an officer or director of the Company. For the purposes
of this Agreement, all actions taken by a Shareholder acting in his
capacity as an officer or director of the Company shall be viewed as if
taken by a person separate and apart from such Shareholder, without
consideration to such person's ownership of equity interests in the
Company
SCHEDULE I
NAME AND ADDRESS
OF SHAREHOLDER NUMBER OF SHARES % OUTSTANDING
-------------- ---------------- -------------
Xxxxxx X. Xxxxx 962,399 31.98
Xxxxxx X. Xxxxx 52,868 1.76
The Xxxxx Family Foundation 13,743 .46
Xxxxx X Xxxxx Trust 26,322 .87
The Xxxxxxxx Charitable Remainder 102,548 3.41
Trust
Xxxxxxx X. Xxxxx 65,587 2.18
Westrec Rollover P/S Plan 52,755 1.75
Xx. Xxxxxx Xxxxx IRRA 70,000 2.33
The Salen Family 1995 Revocable 121,962 4.05
Living Trust
MSB Radiology Medical Group, Inc. 89,095 2.96
Profit Sharing Trust
MSB Radiology Medical Group, Inc. 11,000 .37
Xxxxxxx X. Xxxxxx 21,000 .70
TOTAL 1,589,279 52.82
