EXHIBIT 8
VOTING AGREEMENT
(▇▇ ▇▇)
THIS VOTING AGREEMENT (the "Agreement") is made as of October 14, 1997 (the
"Effective Date"), by and among Carlyle Partners II, L.P., a Delaware limited
partnership ("▇▇ ▇▇"), ▇▇▇▇▇▇▇ Partners III, L.P., a Delaware limited
partnership ("CP III"), Carlyle International Partners II, L.P., a Cayman
Islands exempted limited partnership ("CIP II"), Carlyle International Partners
III, L.P., a Cayman Islands exempted limited partnership ("CIP III"), C/S
International Partners, a Cayman Islands general partnership ("C/S"), the State
Board of Administration of Florida ("SBA"), Carlyle Investment Group, L.P., a
Delaware limited partnership("CIG"), Carlyle-Insight International Partners,
L.P., a Cayman Islands exempted limited partnership ("C-IIP"), and
Carlyle-Insight Partners, L.P., a Delaware limited partnership ("C-IP") (▇▇ ▇▇,
CP III, CIP II, CIP III, C/S, SBA, CIG, C-IIP and C-IP, collectively, the
"Stockholders" and, individually, a "Stockholder").
W I T N E S S E T H :
WHEREAS, InSight Health Services Corp. (the "Company") and the Stockholders
have entered into that certain Securities Purchase Agreement dated as of October
14, 1997 (the "Purchase Agreement"), pursuant to which, among other things, the
Stockholders have the power, together with General Electric Company, a New York
corporation ("GE"), to nominate the Joint Director;
WHEREAS, pursuant to the Purchase Agreement and subject to the limitations
therein contained, the affirmative vote of holders of at least 67% of the then
outstanding shares of Series B Preferred Stock is required in order for the
Company to be able to undertake the actions specified in Sections 6.12(a) -
6.12(v), inclusive, of the Purchase Agreement; and
WHEREAS, the Stockholders desire to enter into an agreement to be
specifically enforceable against each of them pursuant to which they agree to
vote their shares of the Series B Preferred Stock in the manner and for the
purposes specified herein, in order to allocate among themselves the power, with
GE, to nominate the Joint Director and the power to approve such actions as are
specified in such Sections 6.12(a) - 6.12(v).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, and for other good and lawful consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. ELECTION OF JOINT DIRECTOR; VOTING .
(a) Each of the Stockholders agrees to execute and deliver each written
notice prepared by ▇▇ ▇▇ to be sent to the Secretary of the Company that
includes the identity of the person, determined by ▇▇ ▇▇ and holders of a
majority of the then outstanding shares of Series C
Preferred Stock, to be nominated to be the Joint Director, pursuant to Sections
10(b)(2) - 10(b)(4), inclusive, of the Series B Certificate of Designation and
the Series C Certificate of Designation.
(b) Each of the Stockholders agrees to cast its votes on all matters
specified in Sections 6.12(a) - 6.12(v), inclusive, of the Purchase Agreement,
in accordance with the votes on such matters cast by ▇▇ ▇▇.
SECTION 2. IRREVOCABLE PROXY. In order to insure the voting of the
Stockholders in accordance with this Agreement, each Stockholder agrees to
execute an irrevocable proxy simultaneously with the execution hereof in the
form of Exhibit A attached hereto granting to ▇▇ ▇▇ the right to vote, or to
execute and deliver stockholder written consents, in respect to all Stock now
owned or hereafter registered in the name of the Stockholder. It is understood
and agreed that such irrevocable proxy relates solely to the power, with GE, to
nominate the Joint Director and the power to approve such actions as are
specified in Sections 6.12(a) - 6.12(v), inclusive, of the Purchase Agreement in
accordance with this Agreement and does not constitute the grant of any rights
to said proxy to vote as to any other matters.
SECTION 3. CHANGES IN STOCK. In the event that subsequent to the date
of this Agreement any shares or other securities (other than any shares or
securities of another corporation issued to the Company's stockholders pursuant
to a plan of merger) are issued on, or in exchange for, any of the shares of the
Stock held by the Stockholders by reason of any stock dividend, stock split,
consolidation of shares, reclassification, or consolidation involving the
Company such shares or securities shall be deemed to be Stock for purposes of
this Agreement.
SECTION 4. REPRESENTATIONS OF STOCKHOLDERS. Each Stockholder hereby
represents and warrants to each of the other Stockholders that (a) it owns and
has the right to vote the number of shares of the Stock set forth opposite its
name on Exhibit B attached hereto, (b) it has full power to enter into this
Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof and (c) it will not take any action inconsistent with the purposes and
provisions of this Agreement.
SECTION 5. ENFORCEABILITY. Each Stockholder expressly agrees that this
Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against each of the parties hereto,
provided, however, that this agreement shall be null and void unless persons
having the right, in the aggregate, to vote a majority of the issued and
outstanding shares of the Stock sign and become parties hereto prior to
October 30, 1997.
SECTION 6. GENERAL PROVISIONS. (a) All of the covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the respective parties and their successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
2
(c) This Agreement shall be executed in any number of counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same instrument.
(d) This Agreement shall remain in effect until the day immediately
preceding the 2020 annual stockholders meeting, unless sooner terminated in
writing by each of the Stockholders. This Agreement shall not be effective,
with respect to Section 1(b) hereof and with respect to Section 2 to the extent
it applies to matters to which Section 1(b) applies, at any time at which the
aggregate liquidation preference with respect to the Series B Preferred Stock
owned by the Stockholders, the general partner of any Stockholder or any
investor in any Stockholder or in the general partner of any Stockholder as of
October 14, 1997, taken as a whole, falls below 33% of the total liquidation
preference of the shares of Series B Preferred Stock outstanding on October 14,
1997.
(e) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of this
Agreement and this Agreement shall continue in all respects to be valid and
enforceable.
(f) No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any continuing or
subsequent breach. This Agreement may not be amended or modified except by a
written instrument signed by each of the Stockholders.
(g) Capitalized terms used but not defined herein have the meaning given
to such terms in the Purchase Agreement. Whenever the context of this Agreement
shall so require, the use of the singular number shall include the plural and
the use of any gender shall include all genders. The term "Stock" means capital
stock of the Company.
(h) This Agreement and those documents expressly referred to herein
constitute the entire agreement and understanding of the parties and supersede
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and thereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to
be duly executed and delivered, as of the day and year first above written.
CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
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Name:
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Title:
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CARLYLE PARTNERS III, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
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Title:
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CARLYLE INTERNATIONAL PARTNERS II, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
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Title:
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CARLYLE INTERNATIONAL PARTNERS III, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
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Name:
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Title:
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C/S INTERNATIONAL PARTNERS,
a Cayman Islands general partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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STATE BOARD OF ADMINISTRATION OF
FLORIDA,
a separate account maintained pursuant to an
Investment Management Agreement dated as of
September 6, 1996 between the State Board of
Administration of Florida, Carlyle Investment
Group, L.P. and Carlyle Investment Management,
L.L.C.
By: Carlyle Investment Management, L.L.C., as
Investment Manager
By:
-----------------------------------------
Name:
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Title:
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CARLYLE INVESTMENT GROUP, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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5
CARLYLE-INSIGHT INTERNATIONAL
PARTNERS, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CARLYLE-INSIGHT PARTNERS, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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6
EXHIBIT A
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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EXHIBIT B
Carlyle Partners II, L.P. 8,207.727
Carlyle Partners III, L.P. 374.632
Carlyle International Partners II, L.P. 6,928.169
Carlyle International Partners IIII, L.P. 373.289
C/S International Partners 1,559.913
State Board of Administration of Florida 3,447.641
Carlyle Investment Group, L.P. 8.621
Carlyle-Insight International Partners, L.P. 918.659
Carlyle-Insight Partners, L.P. 3,181.349
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
CARLYLE INTERNATIONAL PARTNERS II, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
CARLYLE INTERNATIONAL PARTNERS III, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
C/S INTERNATIONAL PARTNERS,
a Cayman Islands general partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
STATE BOARD OF ADMINISTRATION OF
FLORIDA,
a separate account maintained pursuant to an
Investment Management Agreement dated as of
September 6, 1996 between the State Board of
Administration of Florida, Carlyle Investment
Group, L.P. and Carlyle Investment Management,
L.L.C.
By: Carlyle Investment Management, L.L.C., as
Investment Manager
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
CARLYLE INVESTMENT GROUP, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
CARLYLE-INSIGHT INTERNATIONAL
PARTNERS, L.P.,
a Cayman Islands exempted limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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INSIGHT HEALTH SERVICES CORP.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to CARLYLE PARTNERS II, L.P.,
a Delaware limited partnership, an irrevocable proxy pursuant to the provisions
of Section 212 of the Delaware General Corporation Law to vote, or to execute
and deliver written consents or otherwise act with respect to, all shares of
capital stock (the "Stock") of INSIGHT HEALTH SERVICES CORP. (the "Company") now
owned or hereafter acquired by the undersigned as fully, to the same extent and
with the same effect as the undersigned might or could do under any applicable
laws or regulations governing the rights and powers of shareholders of a
Delaware corporation in connection with the nomination of the Joint Director and
in connection with the matters identified in Sections 6.12(a) - 6.12(v),
inclusive, of a certain Securities Purchase Agreement, dated as of October 14,
1997 among the Company and certain purchasers, as provided in a certain Voting
Agreement, dated as of October 14, 1997, among the purchasers under such
Securities Purchase Agreement. The undersigned hereby affirms that this proxy
is given as a condition of said voting agreement and as such is coupled with an
interest and is irrevocable. It is further understood by the undersigned that
this proxy may be exercised by CARLYLE PARTNERS II, L.P for the period beginning
the date hereof and ending on the day immediately preceding the Company's 2020
annual stockholders' meeting, unless sooner terminated in accordance with the
provisions of said voting agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this 14th day of October, 1997.
CARLYLE-INSIGHT PARTNERS, L.P.,
a Delaware limited partnership
By: TC Group, L.L.C., its General Partner
By:
-----------------------------------------
Name:
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Title:
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