EXHIBIT 2
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
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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 annual or special and whether or not an adjourned or postponed
meeting) of the holders of DHS
EXHIBIT 2
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.
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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 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.
2
EXHIBIT 2
(b) Enforceability. This Agreement has been duly and validly
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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
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Holder will not, directly or indirectly, from the date hereof through the
termination of this Agreement, (i) except as permitted by Section l 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 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.
3
EXHIBIT 2
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.
(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.
4
EXHIBIT 2
(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 MAI
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Holder 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.
(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
5
EXHIBIT 2
(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.
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(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 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.
6
EXHIBIT 2
(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
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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
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 -
7
EXHIBIT 2
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
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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]
8
EXHIBIT 2
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:
----------------------------
[MERGER SUBSIDIARY]
By:
----------------------------
DHS Holders:
----------------------------
Xxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxx
----------------------------
Xx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
9
EXHIBIT 2
MAI Holders:
MAPLELEAF CAPITAL, LTD.
By:
----------------------------
SUNWESTERN CAYMAN 1998 PARTNERS
By:
----------------------------
SUNWESTERN INVESTMENT FUND III
By:
----------------------------
----------------------------
Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxx
----------------------------
Xxxxx X. Xxxxxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxxx
----------------------------
Xxxx Xxxxxxxx
----------------------------
Xxxx XxXxxxxxx
10
EXHIBIT 2
Schedule 1 to Voting Agreement
------------------------------
DHS Holders DHS Shares
----------- ----------
Xxx X. Xxxxxx 154,750
c/o Diagnostic Health Services, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Xxxx X. Xxxxxx 9,693
c/o Diagnostic Health Services, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 328,052
Diagnostic Health Services, Inc.
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
Xxxxxx X. Xxxxxx 126,421
Standard Construction of San Francisco
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xx X. Xxxxx 1,000
XxxxxxXxx.Xxx
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 32,911
c/o Diagnostic Health Services, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
EXHIBIT 2
MAI Holders MAI Shares
----------- ----------
Mapleleaf Capital, Ltd. 738,330
Sunwestern Cayman 1998 Partners 135,649
Sunwestern Investment Fund III 125,214
Xxxx X. Xxxxxxxx 470,646
Xxxx X. Xxxx 15,000
Xxxxx X. Xxxxxxxxxxxx 167,027
Xxxxxx X. Xxxxxxxxxx 187,711
Xxxx Xxxxxxxx 80,454
Xxxx XxXxxxxxx 42,648
