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EXHIBIT B
CUSIP NO. 584498-10-5 13D
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of May 18, 1999,
is entered into by and among MEDICAL ALLIANCE, INC., a Texas corporation
("MAI"), DHS ACQUISITION CORP., a Delaware corporation ("Merger Subsidiary"),
those shareholders of MAI whose signatures appear on the signature pages hereof
(each a "XXX Xxxxxx" and collectively the "MAI Holders"), and those stockholders
of DIAGNOSTIC HEALTH SERVICES, INC., a Delaware corporation ("DHS"), whose
signatures appear on the signature pages hereof (each a "DHS Holder" and
collectively the "DHS Holders");
W I T N E S S E T H :
WHEREAS, contemporaneous with the execution and delivery of
this Agreement, MAI, Merger Subsidiary and DHS have entered into an Amended and
Restated Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"; all capitalized terms used herein without definition having the
respective meanings ascribed to them in the Merger Agreement); and
WHEREAS, as a condition and inducement to MAI and Merger
Subsidiary entering into the Merger Agreement and incurring the obligations set
forth therein and the MAI Holders entering into this Agreement and incurring the
obligations set forth herein, the DHS Holders have agreed to vote and to cause
to be voted all of the shares of common stock of DHS, $.001 par value per share
(the "DHS Common Stock"), now owned or hereafter acquired by them, for and in
favor of the merger of Merger Subsidiary with and into DHS (the "Merger"), and
the other transactions provided for in the Merger Agreement; and
WHEREAS, as a condition and inducement to the DHS Holders
entering into this Agreement and incurring the obligations set forth herein, the
MAI Holders have agreed to vote and to cause to be voted all of the shares of
common stock of MAI, $.002 par value per share (the "MAI Common Stock"), now
owned or hereafter acquired by them, for and in favor of the issuance of MAI
Common Stock in the Merger;
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements set forth herein and in the Merger
Agreement, the parties hereto, intending to be legally bound hereby, agree as
follows:
SECTION 1. VOTING OF DHS COMMON STOCK. Each of the DHS Holders
hereby agrees that, during the period commencing on the date hereof and
continuing until the first to occur of (a) the Effective Time of the Merger, or
(b) the termination of this Agreement in accordance with its terms, (i) such DHS
Holder will not sell or transfer any DHS Common Stock now owned or hereafter
acquired by such DHS Holder (the "DHS Shares") or any interest therein to any
person, other than an Affiliate of such DHS Holder who shall agree to be bound
by the terms of this Agreement to the same extent as such DHS Holder, and (ii)
at any meeting (whether
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annual or special and whether or not an adjourned or postponed meeting) of the
holders of DHS Common Stock, however called, or in connection with any written
consent of the holders of DHS Common Stock, such DHS Holder will appear at the
meeting or otherwise cause the DHS Shares to be counted as present thereat for
purposes of establishing a quorum and vote or consent (or cause to be voted or
consented) the DHS Shares (A) in favor of the adoption of the Merger Agreement
and the approval of all other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and hereof, and
(B) against any action or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of DHS under the Merger Agreement. Each DHS Holder further agrees not to enter
into any agreement or understanding with any Person the effect of which would be
inconsistent with or violative of any provision contained in this Section 1.
SECTION 2. VOTING OF MAI COMMON STOCK. Each XXX Xxxxxx hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time of the Merger, or (b) the
termination of this Agreement in accordance with its terms, (i) such XXX Xxxxxx
will not sell or transfer any MAI Common Stock now owned or hereafter acquired
by such XXX Xxxxxx (the "MAI Shares") or any interest therein to any person,
other than an Affiliate of such XXX Xxxxxx who shall agree to be bound by the
terms of this Agreement to the same extent as such XXX Xxxxxx, and (ii) at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the holders of MAI Common Stock, however called, or in connection
with any written consent of the holders of MAI Common Stock, such XXX Xxxxxx
will appear at the meeting or otherwise cause the MAI Shares to be counted as
present thereat for purposes of establishing a quorum and vote or consent (or
cause to be voted or consented) the MAI Shares (A) in favor of the issuance of
MAI Common Stock in the Merger and any actions required in furtherance thereof
or in furtherance of the Merger, and (B) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of MAI under the Merger Agreement.
Each XXX Xxxxxx hereby further agrees not to enter into any agreement or
understanding with any Person the effect of which would be inconsistent with or
violative of any provision contained in this Section 2.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF DHS
HOLDERS. Each DHS Holder (severally, and not jointly and severally) hereby
represents and warrants to, and agrees with, MAI as follows:
(a) Ownership of Shares. Such DHS Holder is the sole record
and beneficial owner of that number of shares of DHS Common Stock set forth next
to such DHS Holder's name on Schedule 1 annexed hereto. On the date hereof, such
DHS Shares constitute all of the shares of DHS Common Stock owned of record or
beneficially owned by such DHS Holder. Such DHS Holder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power of disposition, and sole power to agree to all of
the matters set forth in this
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Agreement, in each case with respect to all of such DHS Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Enforceability. This Agreement has been duly and validly
executed and delivered by such DHS Holder and constitutes a valid and binding
agreement enforceable against such DHS Holder in accordance with its terms
except (i) as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights, and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents
and approvals as may be required under the XXX Xxx, xxx 0000 Xxx xxx xxx 0000
Xxx, (x) no filing with, and no permit, authorization, consent or approval of,
any state or federal Governmental Authority is necessary for the execution of
this Agreement by such DHS Holder and the consummation by such DHS Holder of the
transactions contemplated hereby, and (ii) none of the execution and delivery of
this Agreement by such DHS Holder, the consummation by such DHS Holder of the
transactions contemplated hereby or compliance by such DHS Holder with any of
the provisions hereof will (A) conflict with or result in any breach of the
organizational documents of such DHS Holder, (B) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such DHS Holder is a party or by which such DHS
Holder or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such DHS Holder or any of his or its properties or assets.
(d) No Encumbrances. Except as applicable in connection with
the transactions contemplated by Section 1 hereof, the DHS Shares, at all times
during the term hereof, will be beneficially owned by such DHS Holder and
Affiliates thereof referred to in Section 1 of this Agreement, free and clear of
all proxies or voting trusts or other such agreements, except for any such
matters arising hereunder.
(e) Restriction on Transfer, Proxies and Non-Interference.
Such DHS Holder will not, directly or indirectly, from the date hereof through
the termination of this Agreement, (i) except as permitted by Section 1 above,
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the DHS Shares or any interest therein; (ii) grant any proxies or powers or
attorney, deposit the DHS Shares into a voting trust or enter into a voting
agreement
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with respect to the DHS Shares (other than this Agreement); or (iii) take any
action that would make any representation or warranty of such DHS Holder
contained herein untrue or incorrect or would result in a breach by such DHS
Holder of its obligations under this Agreement.
SECTION 4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF MAI
HOLDERS. Each XXX Xxxxxx (severally, and not jointly and severally) hereby
represents and warrants to, and agrees with, the DHS Holders as follows:
(a) Ownership of Shares. Such XXX Xxxxxx is the sole record
and beneficial owner of that number of shares of MAI Common Stock set forth next
to such XXX Xxxxxx'x name on Schedule 1 annexed hereto. On the date hereof, such
MAI Shares constitute all of the shares of MAI Common Stock owned of record or
beneficially owned by such XXX Xxxxxx. Such XXX Xxxxxx has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such MAI Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Enforceability. This Agreement has been duly and validly
executed and delivered by such XXX Xxxxxx and constitutes a valid and binding
agreement enforceable against such XXX Xxxxxx in accordance with its terms
except (i) as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights, and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents
and approvals as may be required under the XXX Xxx, xxx 0000 Xxx xxx xxx 0000
Xxx, (x) no filing with, and no permit, authorization, consent or approval of,
any state or federal Governmental Authority is necessary for the execution of
this Agreement by such XXX Xxxxxx and the consummation by such XXX Xxxxxx of the
transactions contemplated hereby, and (ii) none of the execution and delivery of
this Agreement by such XXX Xxxxxx, the consummation by such XXX Xxxxxx of the
transactions contemplated hereby or compliance by such XXX Xxxxxx with any of
the provisions hereof will (A) conflict with or result in any breach of the
organizational documents of such XXX Xxxxxx, (B) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such XXX Xxxxxx is a party or by which such XXX
Xxxxxx or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such XXX Xxxxxx or any of its properties or assets.
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(d) No Encumbrances. Except as applicable in connection with
the transactions contemplated by Section 2 hereof, the MAI Shares, at all times
during the term hereof, will be beneficially owned by such XXX Xxxxxx and
Affiliates thereof referred to in Section 2 of this Agreement, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such matters arising hereunder.
(e) No Finder's Fees. Except as set forth in the Merger
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of such XXX Xxxxxx.
(f) Restriction on Transfer, Proxies and Non-Interference.
Such XXX Xxxxxx will not, directly or indirectly, at any time prior to the
termination of this Agreement, (i) except as permitted by Section 2(i) above,
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the MAI Shares or any interest therein; (ii) grant any proxies or powers of
attorney, deposit the MAI Shares into a voting trust or enter into a voting
agreement with respect to the MAI Shares (other than this Agreement); or (iii)
take any action that would make any representation or warranty of such XXX
Xxxxxx contained herein untrue or incorrect or would result in a breach by such
XXX Xxxxxx of his, her or its obligations under this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF MAI. MAI hereby
represents and warrants to the DHS Holders as follows:
(a) Organization. MAI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas and has all
requisite corporate power and authority to execute and deliver this Agreement
and perform its obligations hereunder. The execution and delivery by MAI of this
Agreement and the performance by MAI of its obligations hereunder have been duly
and validly authorized by the Board of Directors of MAI and no other corporate
proceedings on the part of MAI are necessary to authorize the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby by MAI.
(b) Corporate Authorization. This Agreement has been duly and
validly executed and delivered by MAI and constitutes a valid and binding
agreement of MAI enforceable against MAI in accordance with its terms, except
(i) as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights, and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
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(c) No Conflicts. Except for filings, authorizations, consents
and approvals as may be required under the XXX Xxx, xxx 0000 Xxx xxx xxx 0000
Xxx, (x) no filing with, and no permit, authorization, consent or approval of,
any state or federal Governmental Authority is necessary for the execution of
this Agreement by MAI and the consummation by MAI of the transactions
contemplated hereby, and (ii) none of the execution and delivery of this
Agreement by MAI, the consummation by MAI of the transactions contemplated
hereby, or compliance by MAI with any of the provisions hereof will (A) conflict
with or result in any breach of the articles of incorporation or by-laws of MAI,
(B) result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which MAI is a party or by
which MAI or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to MAI or any of its properties or assets.
SECTION 6. TERMINATION. This Agreement will terminate upon
the earlier of (i) the consummation of the Merger, or (ii) the termination of
the Merger Agreement in accordance with its terms.
SECTION 7. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof (including,
without limitation, that certain Voting Agreement dated as of February 18, 1999
by and among DHS, MAI Acquisition Corp., the DHS Holders and the MAI Holders).
(b) Assignments: Rights of Assignees: Third Party
Beneficiaries. This Agreement shall not be assignable by any party hereto
without the consent of the other parties. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
and permitted assigns. Nothing expressed or referred to in this Agreement is
intended or shall be construed to give any person other than the parties to this
Agreement or their respective heirs, executors, administrators, legal
representatives, successors or permitted assigns any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
(c) Specific Performance. The parties hereto acknowledge that
money damages are an inadequate remedy for breach of this Agreement because of
the difficulty of ascertaining the amount of damage that will be suffered by the
non-breaching party or parties in the event that this Agreement is breached.
Therefore, each of the parties agrees that the non-breaching party or parties
may obtain specific performance of this Agreement and injunctive relief
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against any breach hereof without the necessity of establishing irreparable
harm.
(d) Waiver. No waiver of any provision of this Agreement shall
be effective unless it is in writing signed by the party granting the waiver,
and a waiver by any party hereto of any one or more defaults shall not operate
as a waiver of any future default or defaults, whether of a like or of a
different character. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provisions (whether or not similar), nor shall
such a waiver constitute a continuing waiver, unless otherwise expressly
provided.
(e) Section Headings. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, or extend
the scope or intent of this Agreement or any provisions thereof.
(f) Choice of Law. This Agreement will be governed by and
construed and enforced in accordance with the laws of the State of Texas
(without regard to the principles of conflicts of law) applicable to a contract
executed and to be performed in such State. Each party hereto (i) agrees to
submit to personal jurisdiction and to waive any objection as to venue in the
state or federal courts located in Dallas County, Texas, (ii) agrees that any
action or proceeding shall be brought exclusively in such courts, unless subject
matter jurisdiction or personal jurisdiction cannot be obtained, and (iii)
agrees that service of process on any party in any such action shall be
effective if made by registered or certified mail addressed to such party at the
address specified herein, or to any parties hereto at such other addresses as
he, she or it may from time to time specify to the other parties in writing for
such purpose. The exclusive choice of forum set forth in this Section 7(f) shall
not be deemed to preclude the enforcement of any judgment obtained in such forum
or the taking of any action under this Agreement to enforce such judgment in any
appropriate jurisdiction.
(g) Notices. All notices, requests and other communications to
any party hereunder shall be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed (first
class mail postage prepaid), or by overnight express courier (charges prepaid or
billed to the account of the sender) to the parties at the following addresses
or facsimile numbers:
If to MAI, to: Medical Alliance, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx
If to any of the of DHS Holders or MAI Holders:
At his, her or its address set forth
on Schedule 1 annexed hereto
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with a copy to in each case to:
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
- and -
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Xxxxxxxxx Traurig
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
or to such other address or fax number as any party may have furnished to the
others in writing in accordance herewith.
(h) 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 and the same document.
(i) Severability of Provisions. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall not in any way be affected, impaired or invalidated.
SECTION 8. EFFECTIVENESS. This Agreement shall become
effective simultaneously with the execution and delivery of the Merger
Agreement.
SECTION 9. THE INDIVIDUAL STOCKHOLDERS. The individuals
executing this Agreement are executing this Agreement solely so that this
Agreement will constitute a "stockholders' agreement" within the meaning of
Section 218(c) of the Delaware General Corporation Law and will not have any
rights or obligations hereunder except to vote in accordance with Section 1 and
Section 2, as applicable.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first set forth above.
MEDICAL ALLIANCE, INC.
By: /s/ XXXX XXXXXXXX
[MERGER SUBSIDIARY]
By: /s/ XXXX XXXXXXXX
DHS Holders:
/s/ XXX X XXXXXX
Xxx X. Xxxxxx
/s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXXX
Xxxxx R. Xxxxxxxx
/s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
/s/ XX X. XXXXX
Xx X. Xxxxx
/s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
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MAI Holders:
MAPLELEAF CAPITAL, LTD.
By: /s/ XXX XXXXXXX
SUNWESTERN CAYMAN 1998 PARTNERS
By: /s/ XXX XXXXXXX
SUNWESTERN INVESTMENT FUND III
By: /s/ XXX XXXXXXX
/s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
/s/ XXXX X. XXXX
Xxxx X. Xxxx
/s/ XXXXX X. XXXXXXXXXXXX
Xxxxx X. Xxxxxxxxxxxx
/s/ XXXXXX X. XXXXXXXXXX
Xxxxxx X. Xxxxxxxxxx
/s/ XXXX XXXXXXXX
Xxxx Xxxxxxxx
/s/ XXXX XXXXXXXXX
Xxxx XxXxxxxxx
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