STOCKHOLDERS AGREEMENT
EX- 10.27
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as March 22, 1996 by
and among Diagnostic Imaging Services, Inc., a Delaware corporation (the
"Company "), Primedex Health Systems, Inc., a New York corporation (" PHS ") and
Xxxxxx Xxxxx, an individual ("NH") (collectively, the "Shareholders").
WHEREAS, PHS and NH are holders of shares of common stock ("Common Stock")
of the Company;
WHEREAS, PHS and NH desire to secure the election of the nominees of PHS
and NH to the Board of Directors of the Company as well as assure the Company
that its transactions will always be in the best interest of the Company; and
WHEREAS, PHS has entered into a Securities Purchase Agreement
("Agreement"), dated as of March 22, 1996, with tie Company, and PHS, under
which PHS will invest a substantial amount in the Company; and a condition of
closing the Securities Purchase Agreement is the execution and delivery by the
Shareholders and the Company of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained herein, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. VOTING AGREEMENT REGARDING SHARES.
1.1 Agreement to Vote. Each Shareholder agrees on behalf of himself or
itself and any of the following persons to whom the Shareholder may transfer
shares of Common Stock owned or controlled by such Shareholder ("Shares"): (a) a
member of his or her immediate family; (b) a trust established by the
Shareholder for the benefit of the Shareholder or his or her immediate family by
gift or inheritance; or (c) a person that directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is under common control
with, the Shareholder (individually, an "Affiliated Transferee") to hold all of
the Shares now held or subsequently acquired registered in his or its name
subject to, and to vote the Shares in accordance with, the provisions of this
Agreement.
1.2 Board of Directors. Each Shareholder shall vote his or its Shares
(or shall consent pursuant to an action by written consent of the Company's
shareholders) so as to elect a four person board of which two nominees shall be
designated by NH and two nominees by PHS, their respective successors,
affiliates, or assigns shall also be so bound; and, in the event that any
designated director shall not complete his term of office as a director and a
successor director is to be elected, each Shareholder shall vote his or its
Shares to elect as such successor director a nominee designated by the party
whose appointed director's term is uncompleted, its successors, affiliates or
assigns.
1.3 Removal. On all matters relating to the removal of directors of the
Company, each Shareholder shall vote his or its Shares (or shall consent
pursuant to an action by written consent of the Company's shareholders) to
ensure that no director of the Company may be removed from the Board, with or
without cause, except upon the prior written authorization or request of the
appropriate appointing Shareholder.
1.4 Conflicting Charter or By-Law Provisions. Each Shareholder shall
vote his or her Shares (or shall consent pursuant to an action by written
consent of the Company's shareholders), and shall take all other action
necessary, to ensure that the Certificate of incorporation and By-Laws of the
Company facilitate and do not at any time conflict with the provisions of this
Agreement.
1.5 Approval of Transactions. Each Shareholder shall vote his or its
Shares (or shall consent pursuant to an action by written consent of the
Company's shareholders) on any issue put to the vote of the Company's
shareholders in the manner which the Board of Directors of the Company
recommends.
1.6 Rights Assignable. NH and PHS may assign their respective rights
and benefits under this Agreement to any person that acquires shares of Common
Stock from them.
1.7 Certain Types of Issue. So long as NH and Xxxxxx Xxxxxx, M.D. shall
serve as directors of the Company, neither shall take nor recommend any material
action involving the Company which is not approved by the other.
2. CONDITION PRECEDENT; TERMINATION.
2.1 Condition Precedent to Obligations. The obligation of each party to
this Agreement to perform its obligations under this Agreement shall be subject
to the consummation and performance of the transactions contemplated by the
Agreement.
2.2 Termination of Rights regarding the Company. The rights of the
Shareholders under this Agreement shall terminate upon the earliest to occur of
(i) with respect any individual Shareholder, the date on which such Shareholder
or any Affiliated Transferee no longer owns more than five percent (5%) of the
outstanding Shares, or (ii) the occurrence of the merger or consolidation of the
Company into, or the sale of all or substantially all of the Company's assets to
another entity.
3. LEGEND.
3.1 Legend. Each certificate representing Shares owned by any
Shareholder or transferred to any Affiliated Transferee shall be endorsed with
the following legend:
"THE VOTING OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS AGREEMENT BY AND
AMONG CERTAIN HOLDERS OF COMMON STOCK OF THE CORPORATION. BY ACCEPTING
ANY INTEREST IN SUCH SECURITIES THE PERSON ACCEPTING SUCH INTEREST
SHALL BE DEEMED TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT. COPIES OF SUCH STOCKHOLDERS' AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST OF THE SECRETARY OF THE CORPORATION."
3.2 Legend Removal. The legend referred to in Section 3.1 shall be
removed (i) from every certificate upon termination of this Agreement in
accordance with the provisions of Section 2 above or (ii) from any certificate
representing Shares owned by any Shareholder or transferred to any Affiliated
Transferee that are transferred to a person other than a signatory to this
Agreement.
3.3 Cooperation with Filings. Each Shareholder shall cooperate fully
with the Company with regard to any filings required under the Securities and
Exchange Act of 1934, as amended, or any other federal or state securities law,
rule or regulation, relative to such Shareholder's participation in this
Agreement, which cooperation shall include, without limitation, the prompt
response to written requests for information. Each Shareholder hereby agrees to
indemnify and hold harmless the Company and their respective officers,
directors, employees, shareholders and agents from and against any and all
losses, damages, costs and expenses (including attorney's fees and other costs)
and liabilities due or arising out of information such Shareholder shall provide
to the Company pursuant to this Section 3.3 but only if such information
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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4. MISCELLANEOUS.
4.1 Representations. Each of the parties hereto represents that this
Agreement has been duly authorized, executed and delivered by such party and
constitutes a legal, valid and binding obligation of such party, enforceable
against it in accordance with the terms of this Agreement.
4.2 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof, that money damages shall be
inadequate for such breach, and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or in
equity.
4.3 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the parties hereto.
4.4 Notices. All notice and other communications provided for herein
shall be in writing and shall be delivered by hand, telecopied or sent by
overnight, certified or registered mail, return receipt requested, postage
prepaid, addressed in the manner set forth on the signature pages of this
Agreement (or to such other address for a party as shall be specified in a
notice given in accordance with this Section 4.4). All such notices shall be
conclusively deemed to be received and shall be effective, if sent by hand
delivery or telecopied, upon receipt, or if sent by registered or certified
mail, on the fifth day after the day on which such notice is mailed.
4.5 Benefit; Successors and Assigns. Except as otherwise provided
herein, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement either express or implied is intended to confer on any
person other than the parties thereto and their respective successors and
permitted assigns, any rights, remedies or obligations under or by reason of
this Agreement.
4.6 Miscellaneous. This Agreement sets forth the entire agreement and
understanding among the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof. All representations and
warranties contained herein shall survive the execution and delivery of this
Agreement, regardless of any investigation made by any party hereto or on such
party's behalf. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof. 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.
4.7 Severability. If any provisions of this Agreement shall be deemed
invalid or unenforceable pursuant to a final determination of any court of
competent jurisdiction, or as a result of future legislative action, such
determination or action shall be construed so as not to affect the validity,
enforceability or effect the other provisions of this Agreement, and this
Agreement shall be construed as if the invalid or unenforceable provision were
not contained herein, and the rights and obligations of the parties shall be
construed and enforced accordingly.
4.8 Amendments and Waivers. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the Shareholders.
4.9 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one instrument, and each of
which may be executed by less than all of the parties to this Agreement.
4.10 Governing Law. The agreement shall be governed by an construed in
accordance with the laws of the state of California without regard to the choice
of law provisions thereof.
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IN WITNESS WHEREOF, the parties hereto have cause this Stockholders
Agreement to be executed and delivered as of the date first above written.
DIAGNOSTIC IMAGING SERVICES, INC.
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
Address: 0000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
SHAREHOLDERS
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Address: 0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
PRIMEDEX HEALTH SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President
Xxxxxx Xxxxx
Address: 0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
14380GAZ.JGM
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