646407.05/LA [0:00 AM] DRAFT
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made as of May 21, 2004, by and
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between Positron Corporation, a Texas corporation (the "Company"), and IMAGIN
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Diagnostic Centres, Inc., an Ontario, Canada corporation ("Investor"). The
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Company's Board of Directors is referred to herein as the "Board."
R E C I T A L S :
WHEREAS, the Company and Investor have entered into that certain Note
Purchase Agreement dated May 21, 2004, wherein the Investor agreed to purchase
and the Company agreed to sell Secured Convertible Promissory Notes in the
principal amounts of $300,000 and $400,000 the "Initial Notes"), and the
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obligation of such parties to purchase the Secured Convertible Promissory Notes
is conditioned upon the parties hereto entering into this Agreement;
WHEREAS, the Company and Investor have entered into that certain Loan
Agreement dated May 21, 2004 (the "Loan Agreement", wherein the Investor agreed
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to provide the Company with advances of up to a total of $1,300,000 to be
evidenced by convertible notes (the "Credit Notes," and referred to herein with
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the Initial Notes collectively as the "Notes");
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WHEREAS, the Notes are convertible into shares of the Company's Series C
Preferred Stock and Series D Preferred Stock (collectively, the "Preferred
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Stock"), which in turn are convertible into shares of the Company's Common Stock
(the "Common Stock").
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WHEREAS, the Common Stock has general voting rights, but the Preferred
Stock does not.
NOW, THEREFORE, in consideration of the foregoing and certain other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
A G R E E M E N T :
1. Agreement to Vote. Investor hereby agrees on behalf of itself and any
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direct transferee or assignee of any of such Investor's Common Stock (where such
transfer or assignment was affected pursuant to a non-public sale not involving
a national exchange, quotation system or over the counter bulletin board), to
hold all of the shares of Common Stock registered in its name (and any
securities of the Company issued with respect to, or in exchange or substitution
of the Common Stock, and any other voting securities of the Company subsequently
acquired by such Investor) (hereinafter collectively referred to as the
"Investor Shares") subject to, and to vote, either in person or by proxy, the
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Investor Shares at any regular or special meeting of stockholders (or by written
consent) in accordance with, the provisions of this Agreement.
2. Election of Directors.
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(a) In any election of the directors, Investor and any direct
transferee or assignee of any of such Investor Shares (where such transfer or
assignment was affected pursuant to a non-public sale not involving a national
exchange, quotation system or over the counter bulletin board (each a
"Transferee") shall each vote, either in person or by proxy, at any regular or
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special meeting of stockholders (or by written consent), all Investor Shares
then owned by them (or as to which they then have voting power) to elect a total
of three directors (the "Company Directors") designated by Xxxx Xxxxxx, Sachio
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Okamura and Xxxxx Xxxxx Xxxxx (or whoever of such persons are then Directors on
the Board).
(b) In the event that Investor or a Transferee shall fail to vote its
Investor Shares for the Company Directors in accordance with this Section 2,
such party shall be deemed immediately upon the existence of such a breach to
have granted the Secretary of the Company, a proxy to such Investor Shares to
ensure that such shares will be voted for the Company Directors. Each party
acknowledges that each proxy granted hereby, including any successive proxy if
need be, is given to secure the performance of a duty and shall be irrevocable
until the duty is performed.
3. Removal and Vacancies. Any director of the Company may be removed
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from the Board in the manner allowed by law and the Company's Articles of
Incorporation and Bylaws. In the event of the removal, death or resignation of
any director, a replacement director may be elected to the Board in accordance
with Section 2 above and in the manner allowed by law and the Company's Articles
of Incorporation and Bylaws to fill the vacancy created by such removal, death
or resignation.
4. Specific Enforcement. It is agreed and understood that monetary
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damages would not adequately compensate the parties hereto for the breach of
this Agreement by any party, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
5. Captions. The captions, headings and arrangements used in this
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Agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
6. Notices. Any notice required or permitted by this Agreement shall be
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in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the U.S. mail as certified or
registered mail with postage prepaid (airmail if sent internationally), if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
7. Manner of Voting. The voting of shares pursuant to this Agreement may
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be effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
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8. Amendments and Waivers. Any term of this Agreement may be amended
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with the written consent of the Company and Investor. Any amendment or waiver
effected in accordance with this Section 8 shall be binding upon the parties and
their respective successors and assigns.
9. Stock Splits, Stock Dividends, etc. In the event of any issuance of
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shares of the Company's voting securities hereafter to any of the parties hereto
(including, without limitation, in connection with any stock split, stock
dividend, recapitalization, reorganization, or the like), such shares shall
become subject to this Agreement.
10. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
11. Binding Effect. This Agreement shall be binding upon the parties and
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any Transferee; provided that any Transferee shall execute and deliver an
Adoption Agreement substantially in the form attached hereto as Exhibit A. Upon
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the execution and delivery of an Adoption Agreement by any Transferee, such
transferee shall be deemed to be a party hereto as if such transferee's
signature appeared on the signature pages hereto. By their execution hereof or
any Adoption Agreement, each of the parties hereto appoints the Company as its
attorney-in-fact for the purpose of executing any Adoption Agreement which may
be required to be delivered hereunder.
12. Governing Law. This Agreement shall be deemed a contract made under
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the laws of Texas and together with the rights and obligations of the parties
hereunder, shall be construed under and governed by the laws of Texas,
regardless of any laws on choice of law or conflicts of laws of any
jurisdiction.
13. Entire Agreement. This Agreement, and the documents referred to
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herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
existing between the parties hereto concerning such subject matter are expressly
canceled.
14. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW THIS PAGE.]
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IN WITNESS WHEREOF, the Parties have executed this Voting Agreement as of
the date first above written.
COMPANY:
POSITRON CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Its: President
Address: 0000 Xxxxxxx Xxxxx Xxxxx #000
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
INVESTOR:
IMAGIN DIAGNOSTIC CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Its: Chief Executive Officer
Address: 0000 Xxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx M4S 1XB
EXHIBIT A
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ADOPTION AGREEMENT
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This Adoption Agreement ("Adoption Agreement") is executed by the
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undersigned (the "Transferee") pursuant to the terms of that certain Voting
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Agreement dated as of May 21, 2004 (the "Agreement") between Positron
Corporation, a Texas corporation (the "Company"), and IMAGIN Diagnostic Centres,
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Inc., an Ontario, Canada corporation. Capitalized terms used but not defined
herein shall have the respective meanings ascribed to such terms in the
Agreement. By the execution of this Adoption Agreement, the Transferee agrees
as follows:
(a) Acknowledgment. Transferee acknowledges that Transferee is
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acquiring certain shares of the capital stock of the Company (the "Stock"),
subject to the terms and conditions of the Agreement.
(b) Agreement. Transferee (i) agrees that the Stock acquired by
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Transferee shall be subject to the terms of the Agreement, and (ii) hereby
agrees to be bound by and adopts the Agreement with the same force and effect as
if Transferee were originally a party thereto.
(c) Notice. Any notice required or permitted by the Agreement shall
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be given to Transferee at the address listed beside Transferee's signature
below.
EXECUTED AND DATED this _____ day of ____________, _____.
TRANSFEREE:
[Name of Transferee]
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By:
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Name:
Title:
Address:
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Fax:
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Accepted and Agreed:
POSITRON CORPORATION
By:
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Name:
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Title:
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