EX-10.8 11 doc11.txt EXHIBIT 10.8 646407.05/LA [0:00 AM] DRAFT VOTING AGREEMENT This Voting Agreement (the "Agreement") is made as of May 21, 2004, by and --------- between Positron Corporation, a Texas corporation (the "Company"), and IMAGIN ------- Diagnostic Centres, Inc., an Ontario, Canada corporation ("Investor"). The -------- 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 -------------- 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 -------------- 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 ------------ the Initial Notes collectively as the "Notes"); ----- WHEREAS, the Notes are convertible into shares of the Company's Series C Preferred Stock and Series D Preferred Stock (collectively, the "Preferred --------- Stock"), which in turn are convertible into shares of the Company's Common Stock (the "Common Stock"). ------------- 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 ----------------- 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 ---------------- 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. ----------------------- (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 ---------- 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 Gary Brooks, Sachio ----------------- Okamura and Mario Leite Silva (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 ----------------------- 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 --------------------- 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 -------- 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 ------- 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 ---------------- be effected in person, by proxy, by written consent, or in any other manner permitted by applicable law. -2- 8. Amendments and Waivers. Any term of this Agreement may be amended ------------------------ 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 ------------------------------------ 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 ------------ 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 --------------- any Transferee; provided that any Transferee shall execute and deliver an Adoption Agreement substantially in the form attached hereto as Exhibit A. Upon --------- 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 -------------- 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 ----------------- 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 ------------ 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.] -3- IN WITNESS WHEREOF, the Parties have executed this Voting Agreement as of the date first above written. COMPANY: POSITRON CORPORATION By: /s/ Gary H. Brooks ----------------------------------------------- Name: Gary H. Brooks Its: President Address: 1304 Langham Creek Drive #300 Houston, Texas 77084 Facsimile: 281-492-2961 INVESTOR: IMAGIN DIAGNOSTIC CENTERS, INC. By: /s/ Cynthia R. Jordan ----------------------- Name: Cynthia R. Jordan Its: Chief Executive Officer Address: 1835 Yonge St., Suite 500 Toronto, Ontario, Canada M4S 1XB EXHIBIT A --------- ADOPTION AGREEMENT ------------------ This Adoption Agreement ("Adoption Agreement") is executed by the ------------------- undersigned (the "Transferee") pursuant to the terms of that certain Voting ---------- Agreement dated as of May 21, 2004 (the "Agreement") between Positron Corporation, a Texas corporation (the "Company"), and IMAGIN Diagnostic Centres, ------- 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 -------------- 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 --------- 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 ------ be given to Transferee at the address listed beside Transferee's signature below. EXECUTED AND DATED this _____ day of ____________, _____. TRANSFEREE: [Name of Transferee] ------------------------ By: ---------------------------------------- Name: Title: Address: ----------------------------------- ----------------------------------- ----------------------------------- Fax: --------------------------------- Accepted and Agreed: POSITRON CORPORATION By: ------------------------------ Name: ----------------------- Title: -----------------------