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SHAREHOLDERS' AGREEMENT
between
AITKEN AND PARTNERS
and
DRS BLOCH AND PARTNERS INCORPORATED
and
BURGER RADIOLOGY INCORPORATED
and
DR DIERS & PARTNERS
and
DRS HAAGENSEN & LURIE INCORPORATED
and
PAUL ANDREW JENNINGS
and
G OMAR
and
D OPPERMAN
and
DRS LOUIS SULMAN & PARTNERS INCORPORATED
and
DRS P P VAN ZYL & VAN DER MERWE
and
RADNET IMAGING SYSTEMS (PROPRIETARY) LIMITED
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TABLE OF CONTENTS
1. PARTIES .................................................................................................................................... 1
2. INTERPRETATION .................................................................................................................... 1
3. INTRODUCTION ........................................................................................................................ 8
4. CONDITIONS PRECEDENT .................................................................................................... 10
5. SHARES ................................................................................................................................... 11
6. FUNDING OF THE COMPANY ................................................................................................ 15
7. LOAN ACCOUNTS ................................................................................................................... 15
8. FINANCE AND GUARANTEES................................................................................................ 16
9. DIRECTORATE ........................................................................................................................ 17
10. MEETINGS OF SHAREHOLDERS .......................................................................................... 19
11. DIVIDENDS .............................................................................................................................. 20
12. DETERMINATION OF THE TNAV ........................................................................................... 20
13. DATA CONTRIBUTIONS ......................................................................................................... 21
14. TERMINATING RESOLUTION AND FORCED SALE ............................................................. 22
15. RELATIONSHIP OF PARTIES ................................................................................................. 22
16. ARBITRATION.......................................................................................................................... 22
17. BREACH ................................................................................................................................... 24
18. DOMICILIUM CITANDI ET EXECUTANDI ............................................................................... 24
19. GENERAL ................................................................................................................................. 26
20. COSTS ..................................................................................................................................... 27
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1. PARTIES
1.1 AITKEN AND PARTNERS
1.2 DRS BLOCH AND PARTNERS INCORPORATED
1.3 BURGER RADIOLOGY INCORPORATED
1.4 DR DIERS & PARTNERS
1.5 DRS HAAGENSEN & LURIE INCORPORATED
1.6 PAUL ANDREW JENNINGS
1.7 G OMAR
1.8 D OPPERMAN
1.9 DRS LOUIS SULMAN & PARTNERS INCORPORATED
1.10 DRS P P VAN ZYL & VAN DER MERWE
1.11 RADNET IMAGING SYSTEMS (PROPRIETARY) LIMITED
2. INTERPRETATION
2.1 In this Agreement:-
2.1.1 clause headings are for the purposes of convenience and
reference only and shall not be used in the interpretation of, nor
modify nor amplify any of the provisions of this Agreement;
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2.1.2 the Parties shall, wherever necessary or appropriate, be referred to
by their defined designations, either as in 1 above or 2.2 below;
2.1.3 a reference to:-
2.1.3.1 any particular gender shall include the other two genders;
2.1.3.2 the singular shall include the plural and vice versa;
2.1.3.3 a natural person shall include corporate or unincorporate
created entities (such as partnerships) and vice versa;
2.1.4 all of the annexes hereto are incorporated herein and shall have
the same force and effect as if they were set out in the body of this
Agreement;
2.1.5 words and/or expressions defined in this Agreement shall bear the
same meanings in any annexes hereto which do not contain their
own defined words and/or expressions;
2.1.6 where a period consisting of a number of days is prescribed, it shall
be determined by excluding the first and including the last day;
2.1.7 where the day upon or by which any act is required to be performed
is a Saturday, Sunday or public holiday in the Republic of South
Africa, the Parties shall be deemed to have intended such act to be
performed upon or by the first day thereafter which is not a
Saturday, Sunday or public holiday;
2.1.8 where an expression has been defined (whether in 2.2 below or
elsewhere in this Agreement) and such definition contains a
provision conferring rights or imposing obligations on any Party,
effect shall be given to that provision as if it were a substantive
provision contained in the body of this Agreement;
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2.1.9 if figures are referred to in numerals and words, the words shall
prevail in the event of any conflict between the two;
2.1.10 words and/or expressions defined in any particular clause in the
body of this Agreement shall, unless the application of such word
and/or expression is specifically limited to that clause, bear the
meaning so assigned to it throughout this Agreement;
2.1.11 the terms "holding" and "subsidiary" in relation to any company
shall bear the meanings assigned to them in the Act;
2.1.12 none of the provisions hereof shall be construed against or
interpreted to the disadvantage of the Party responsible for the
drafting or preparation of such provision;
2.1.13 the eiusdem generis rule shall not apply, and whenever a provision
is followed by the word "including" and specific examples, such
examples shall not be construed so as to limit the ambit of the
provision concerned;
2.1.14 a reference to any statutory enactment shall be construed as a
reference to that enactment as at the Signature Date and as
amended or re-enacted from time to time thereafter;
2.1.15 unless specifically provided to the contrary, all amounts referred to
in this Agreement are exclusive of VAT;
2.1.16 the expiration or termination of this Agreement shall not affect such
of its provisions as expressly provide that they will continue to apply
after such expiration or termination or which of necessity must
continue to apply after such expiration or termination.
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2.2 In this Agreement, unless the context indicates a contrary intention, the
following words and expressions shall bear the meanings assigned to them
hereunder and cognate expressions shall bear corresponding meanings:-
2.2.1 the Act – the Companies Act No 61 of 1973;
2.2.2 the Affected Shareholder – a Shareholder in respect of which a
Terminating Resolution is to be passed (or has been passed, as
the case may be);
2.2.3 this Agreement – collectively, this shareholders' agreement and
Annexes "A" to "D" hereto inclusive;
2.2.4 Aitken –
2.2.5 the Auditors – the auditors at any given time of the Company (at
present Messrs Moores Rowland, Chartered Accountants (SA) of
Johannesburg);
2.2.6 Bloch –
2.2.7 the Board – the board of directors of the Company at any given
time;
2.2.8 Burger –
2.2.9 the Business – the principal business activity of the Company,
namely the administration of effective Radiology networking
between Shareholders and services ancillary thereto;
2.2.10 the Claims – in relation to any one of the Shareholders, the
aggregate of all and any claims of whatsoever nature and
howsoever arising which such Shareholder may have against the
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Company at any given time, and whether on loan account or
otherwise;
2.2.11 the Company - Radnet Imaging Systems (Proprietary) Limited,
Registration Number 1994/007133/07;
2.2.12 the Conditions – the conditions precedent contained in 4
hereunder;
2.2.13 the Data Contribution – in relation to any one of the Shareholders,
the data which such Shareholder is obliged to contribute in terms of
13 hereunder;
2.2.14 Diers –
2.2.15 the Effective Date – the commencement of business on the first
business day succeeding that upon which the Conditions shall
have become fulfilled;
2.2.16 the Equity – in relation to any one of the Shareholders, all of such
Shareholder's Shares and Claims;
2.2.17 the Fixed Price – in relation to any number of Shares to be sold or
issued (by way of subscription) in terms of this Agreement, an
amount determined by the application of the formula (A B) x C,
where:-
2.2.17.1 A represents the TNAV;
2.2.17.2 B represents the total number of Shares in issue at the time
and includes, where applicable, the number of Shares
being subscribed for;
2.2.17.3 C represents the number of Shares to be sold or issued,
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provided however that if the TNAV is a negative value, the Fixed
Price of the Shares concerned shall be the par value thereof;
2.2.18 Haagensen – Drs Haagensen & Lurie Inc, Registration No:
…………………………….;
2.2.19 Jennings –
2.2.20 the Management Agreement – the written management
agreement, substantially in the form of Annex "A" hereto, to be
concluded between the Company and each Shareholder;
2.2.21 Omar –
2.2.22 Opperman –
2.2.23 the Parties – collectively, the Company and the Shareholders;
2.2.24 Prime - the publicly-quoted nominal rate of interest per annum of
the Standard Bank of South Africa Limited (as certified by any
General Manager of that bank, whose appointment and authority it
shall not be necessary to prove) at which that bank lends monies
on overdraft and without security to its most favoured corporate
borrowers, which interest shall be compounded monthly in arrear
and calculated in a 365-day year, irrespective of whether or not the
year in question is a Leap Year;
2.2.25 the Prior Agreements – collectively:-
2.2.25.1 the shareholders' agreement concluded between the
Parties on ……………………..; and
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2.2.25.2 all management agreements and secrecy agreements
concluded between the Parties (or any two or more of
them) prior to the Signature Date;
2.2.26 Radiology - the rendering, on a medical basis, of imaging services
and the administration of radiotherapy and nuclear medicine;
2.2.27 the Secrecy Agreement – the written secrecy agreement,
substantially in the form of Annex "B" hereto, to be concluded
between the Company and each Shareholder;
2.2.28 Shares - ordinary shares having a par value of R1 each in the
capital of the Company;
2.2.29 the Shareholders – collectively, all of the shareholders of the
Company at any given time. In this regard it is recorded that
Aitken, Bloch, Burger, Diers, Haagensen, Jennings, Omar,
Opperman, Sulman and Van Zyl are the only shareholders of the
Company as at the Signature Date;
2.2.30 the Signature Date - the date upon which this Agreement shall
have become duly signed by all of the Parties hereto;
2.2.31 Sulman –
2.2.32 the Terminating Resolution – a resolution passed in terms of 14
hereunder;
2.2.33 the TNAV - the tangible net asset value of the Company at any
given time as determined by the Auditors;
2.2.34 Van Zyl -
2.2.35 VAT - Value-added Tax as defined in the VAT Act;
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2.2.36 the VAT Act - the Value-added Tax Act No 89 of 1991.
3. INTRODUCTION
3.1 The Shareholders are the registered and/or beneficial owners of the entire
issued share capital of the Company;
3.2 Every Shareholder:-
3.2.1 conducts business, independently of the other Shareholders, as a
Radiology practitioner;
3.2.2 regards it as fundamental to the continued viability of its practice
that it applies and maintains the highest degree of professionalism,
care and skill in the Radiological services and procedures offered
by it;
3.2.3 recognises the benefits to be derived, in the context of its own
Radiological practice, from receiving regular reports and surveys
based on the Data Contributions;
3.2.4 enjoys the esteem of the other Shareholders, both as a colleague
in Radiology and as a member of the Company;
3.2.5 acknowledges that if, for whatsoever reason, it ever loses the
esteem of the other Shareholders, its continued membership of the
Company will become untenable and it hereby consents to the
implementation of the procedures set forth in 14. hereunder in
order to terminate such membership.
3.3 Each of the Shareholders is desirous of:-
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3.3.1 improving, on an on-going basis, the Radiological services and
procedures offered by it from time to time;
3.3.2 extending the range of Radiological services and procedures
offered by it from time to time;
3.3.3 regularising and standardising its Radiological services and
procedures so as to bring and keep them substantially in
conformity with those offered by the other Shareholders;
3.3.4 being expeditiously apprised, on a regular basis, of:-
3.3.4.1 trends which are being observed in the Radiological
practices of the Shareholders;
3.3.4.2 new developments and procedures in the field of Radiology
and the practicability of applying them in its own practice;
3.3.5 receiving advice and assistance in the effective administration of its
Radiological practice, thereby maximising the business efficiency
and profitability thereof;
3.3.6 entering into the Management Agreement with the Company for the
purposes, inter alia, of enabling the Company to:-
3.3.6.1 collect, collate and analyse the Data Contributions and
prepare and distribute reports and surveys based thereon
for the benefit of all of the Shareholders;
3.3.6.2 negotiate, on a collective basis, for the benefit of all of the
Shareholders, with the funders of health care, managed
care organisations, other health care products and
suppliers of goods and services customarily utilised in
Radiology practices.
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3.4 This Agreement records the provisions, terms and conditions which will
govern:-
3.4.1 the re-structuring of the shareholdings in the Company;
3.4.2 the amendment of the Memorandum and Articles of Association of
the Company so as to bring them into conformity with the
provisions of this Agreement and in particular, those set forth in 3.2
and 3.3 above;
3.4.3 the relationship of the Shareholders as shareholders in, and loan
creditors of, the Company
and certain matters ancillary thereto.
4. CONDITIONS PRECEDENT
4.1 This Agreement, in its entirety, is subject to the fulfilment of the following
conditions precedent:-
4.1.1 that a Management Agreement is duly concluded between the
Company and each Shareholder;
4.1.2 that a Secrecy Agreement is duly concluded between the Company
and each Shareholder;
4.1.3 that the existing Memorandum of Association of the Company is
replaced with a new Memorandum of Association, substantially in
the form of Annex "C" hereto;
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4.1.4 that the existing Articles of Association of the Company are
replaced with new Articles of Association, substantially in the form
of Annex "D" hereto.
4.2 Each of the Parties undertakes to use its best endeavours to procure the
fulfilment of the Conditions as soon as possible after the Signature Date.
4.3 If all of the Conditions are not fulfilled by the close of business on 30 June
2001, this Agreement shall ipso facto be void ab initio and the status quo
ante restored as far as may be possible.
4.4 Upon the due and timeous fulfilment of the Conditions, the Prior
Agreements shall be and become cancelled and of no further force or
effect whatsoever, save for any claims between the Parties which may be
in existence at the time.
5. SHARES
5.1 As soon as practicable after the Effective Date, the Parties shall take such
steps as may be necessary to procure that the Company's share capital
structure corresponds with the following:-
5.1.1 authorised: R4 000 divided into 4000 Shares;
5.1.2 issued: R………………….. divided into ………………. Shares and
held as follows by the Shareholders:-
Aitken …… shares ……..%
Bloch 100 shares ………%
Burger 100 shares ………%
Diers 100 shares ………%
Haagensen 100 shares ………%
Jennings 70 shares ………%
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Omar ….. shares ………%
Opperman 40 shares ………%
Sulman 100 shares ………%
van Zyl ……. shares ………%
5.2 Should it be resolved at any time that the issued share capital of the
Company be increased, the Shareholders agree that, in the absence of
any written agreement between them to the contrary, they shall be entitled
to take up the increased share capital pro rata to their respective
shareholdings in the Company at that time.
5.3 Save where -
5.3.1 the Shareholders jointly contract to dispose of the entire issued
share capital of the Company to a third person; or
5.3.2 one of the Shareholders contracts to dispose of the whole or part of
its Shares to one or more of the other Shareholders, with the
written consent of all of the other Shareholders,
the remaining provisions of this clause 5 shall apply where one of the
Shareholders (hereinafter referred to as "the offeror") desires or proposes in
any way to dispose of its Equity.
5.4 The offeror shall give written notice ("the offer notice") to the other
Shareholders ("the offerees") in which it shall specify that it wishes to
dispose of all of its Shares in and claims on loan account against the
Company.
5.5 The offer notice shall:
5.5.1 only be capable of being given in respect of the entirety (and not
part) of the offeror's Equity;
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5.5.2 not be revocable until the expiry of the period referred to in 5.6
below.
5.6 The offerees shall have the right, for a period of 21 days after receipt by
them of a copy of the offer notice, to purchase the offeror's Equity. If they
wish to exercise such right, they shall give unconditional written notice to
that effect ("the acceptance notice") to the offeror prior to the expiry of the
aforementioned 21 day period. Upon timeous receipt of the acceptance
notice, a contract shall be deemed to have been concluded between the
offeror and the offerees for the sale and purchase respectively of all of the
offeror's Equity on the following terms and conditions:-
5.6.1 the purchase price in respect of the offeror's:-
5.6.1.1 Shares shall be the Fixed Price; and
5.6.1.2 Claims shall be the face value of its loan account claim
against the Company as at the date of the acceptance
notice;
5.6.2 on the third business day succeeding that upon which it received
the acceptance notice, the offeror shall deliver the following
documents to the Auditors:-
5.6.2.1 the share certificates relating to the Shares, together with
transfer forms (in blank as to transferee) duly signed by the
registered holders thereof and currently dated;
5.6.2.2 a written cession of the Claims (in blank as to transferee)
duly signed by the offeror and currently dated;
5.6.2.3 the written resignation of all of the offeror's nominees as
director/s (and if applicable, public officer and/or secretary)
of the Company;
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5.6.3 the entire purchase price in respect of the offeror's Equity shall be
paid by the offerees in 12 equal, interest-free monthly instalments,
the first of which shall be paid on the first day of the first month
immediately succeeding that during which the acceptance notice
was given and subsequent instalments are to be paid on the first
day of each of the 11 months thereafter succeeding until the said
purchase price shall have become paid in full.
5.7 The liability of each of the offerees under the contract referred to in 5.6
above shall be joint and several.
5.8 Each of the offerees shall be entitled to take up such proportion of the
offeror's Equity as is in proportion to such offeree's shareholding in the
Company at the time. Notwithstanding the aforegoing:-
5.8.1 it shall be open to the offerees to agree, inter se, that such Equity
will be taken up by them in different proportions or entirely by one
or more of them;
5.8.2 in the event of any of the offerees failing or declining to exercise
the right to purchase its entitlement to the offeror's Equity, the
remaining offeree/s shall be entitled to acquire such offeree's
entitlement to the Equity on offer, either entirely or pro rata, mutatis
mutandis as set forth in the first sentence of this clause 5.8, as the
case may be.
5.9 Should no acceptance notice be received prior to the expiry of the
aforementioned 21 day period:-
5.9.1 the offerees' right to acquire the offeror's Equity in terms of the offer
notice shall ipso facto lapse and be of no further force or effect
whatsoever;
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5.9.2 the Company shall ipso facto become obliged to purchase the
offeror's Equity on the same terms and conditions, mutatis
mutandis, as those set forth in 5.6 above.
6. FUNDING OF THE COMPANY
6.1 Each Shareholder undertakes (to the extent that it has not already done
so) to lend and advance to the Company an amount of R10 000 forthwith
after the Effective Date.
6.2 The Company will endeavour to obtain whatever additional working capital
it may require from time to time from the management fees which are to be
paid to it in terms of the Management Agreements. To the extent that it is
unable to do so, the Company will endeavour to obtain such additional
working capital from external or other banking sources, failing which the
Shareholders will, pro rata to their shareholding, lend and advance such
additional amounts to the Company .
6.3 All and any amounts lent and advanced to the Company shall be credited
to the respective Shareholders' Claims in the financial records of the
Company.
7. LOAN ACCOUNTS
7.1 Subject to the provisions of 7.1.1 hereunder, any amount owing by the
Company, to any of the Shareholders, whether on loan account or in
respect of unpaid dividends, shall, unless otherwise provided in any written
agreement to which the Company is party:
7.1.1 bear interest only if the directors of the Company so resolve, and
provided that the same rate of interest shall be paid in respect of all
amounts owing by the Company to each of the Shareholders; and
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7.1.2 be repayable, together with interest accrued thereon, only on the
basis that repayments are made to each of the Shareholders pro
rata to the amount of their respective loan account claims against
the Company and then only in one or both of the following events:
7.1.2.1 with the adoption of a resolution by the directors approving
such repayment; or
7.1.2.2 if an effective resolution is passed for the winding up of the
Company or if the Company is placed in liquidation or
under judicial management or if execution is levied against
its assets.
7.2 To the extent that any Shareholder's loan account claim is
disproportionate, in the sense that the percentage which such claim bears
to the aggregate of all Shareholders' loan account claims exceeds the
percentage of the issued Shares in the Company held by the Shareholder
concerned, such excess shall:
7.2.1 rank in preference ahead of the loan account claims of the other
Shareholders;
7.2.2 bear interest at Prime, unless the excess is paid within 30 days
after the disproportion arises.
8. FINANCE AND GUARANTEES
8.1 The Shareholders shall be entitled to procure finance for the Business and
the Company's other activities from any third party on such terms and
conditions as they may resolve and each undertakes, if necessary and
subject to the provisions of 8.2 hereunder, to guarantee, jointly, the
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obligations of the Company to such third party and hereby indemnify each
other pro-rata to their respective shareholdings in the Company.
8.2 Each of the Shareholders undertakes, if they are called upon to do so by a
creditor of the Company, and if they unanimously resolve in favour thereof,
to bind itself jointly with the other Shareholders as surety for the Company
for the fulfilment of its obligations to such creditor.
8.3 Should any of the Shareholders be called upon to effect payment in terms
of any suretyship undertaking which it may have signed in respect of any of
the Company's obligations pursuant to the provisions of 8.2 above, it shall
be entitled to call upon each of the other Shareholders to bear a pro-rata
share of the amount payable, proportionate to its shareholding in the
Company at the time. Should any of the other Shareholders fail to
contribute its aliquot share as aforesaid, the Shareholder which effects
payment in terms of such suretyship undertaking shall be entitled to
recover such other Shareholder's aliquot share from it on demand.
8.4 Should only one of the Shareholders sign any suretyship undertaking for
the obligations of the Company (with the prior authority of all of the
Shareholders) and should the Shareholder which has signed any such
suretyship undertaking, be called upon to effect payment in terms thereof,
the provisions of 8.3 above shall apply mutatis mutandis.
9. DIRECTORATE
9.1 The Board shall consist of such number of directors as equates, from time
to time, to the number of Shareholders.
9.2 Each Shareholder shall be entitled to appoint 1 director to the Board, with
the right to remove or replace or fill any vacancy in respect of such director.
Each director shall be entitled to appoint (or remove or replace, if it so
desires) an alternate director, and each of the Shareholders undertakes to
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(and procure that its relevant nominee and appointee) votes in favour of
the other Shareholders' appointments, removals or replacements of
alternate directors.
9.3 Any appointment or removal of directors shall be made on written notice to
that effect to the Company, duly signed by the Shareholder concerned, and
shall, pursuant to 9.2 above, become operative as soon as it is received at
the registered office of the Company.
9.4 Each director shall have 1 vote and no resolution of the Board shall be
valid unless it is passed by at least 75% in number of directors present at
the relevant Board meeting. Notwithstanding the aforegoing, it is the
stated intention of the Shareholders to strive for unanimity in all resolutions
of the Board.
9.5 Each of the Shareholders undertakes to vote and procure that its nominee
votes in favour of the appointment of the directors nominated by the other
Shareholders in terms of 9.2 above, and not to vote for the removal of any
of the other Shareholders' directors unless so required by the other
Shareholder/s, in which event it undertakes to vote in accordance with the
request of such Shareholder/s.
9.6 A quorum at meetings of directors of the Company shall consist of at least
50% of the members of the Board, provided that if:
9.6.1 a quorum is not present within 30 minutes after the duly appointed
and notified time for the commencement of any directors meeting,
the chairman of the Board or, if he is not present, such person as
may be appointed in his stead by the directors present at such
meeting, shall adjourn that meeting for a period of not more than
10 days; and
9.6.2 reasonable notice of the time and place of the said adjourned
meeting shall have been given to all of the directors, the directors
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present at the commencement of that adjourned meeting shall then
constitute a quorum.
9.7 Board meetings shall be held at least …………. times during every
financial year of the Company, provided that any Shareholder shall have
the right, on not less than 21 days' written notice to the Company, to
convene additional meetings of the Board.
9.8 The Company's Managing Director shall be appointed annually by the
Board and his duties shall include:-
9.8.1 the signature of all instruments and documents relating to the day-
to-day activities of the Company or the delegation of such authority
in a manner which ensures its continuance to the satisfaction of the
Board;
9.8.2 the exercise of such other general powers as may be expressly
conferred upon him by the Board.
9.9 The Chairman of the Company shall be elected annually by the
Shareholders in general meeting and shall, ipso facto be chairman of the
Board. Such chairman shall not have a casting vote at meetings of the
Board.
10. MEETINGS OF SHAREHOLDERS
10.1 Meetings of Shareholders shall be convened in accordance with the
Articles of Association of the Company.
10.2 The Chairman of the Company from time to time shall act as chairman of
any general meeting of the Company and such chairman shall not have a
casting vote.
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10.3 A quorum at meetings of Shareholders shall be the respective duly
authorised representatives of 75% of the Shareholders. If, within 30
minutes after the time appointed for the meeting, a quorum is not present,
the meeting shall stand adjourned to the same day in the following week,
at the same time and place or, if that day is a public holiday, to the next
succeeding business day and if at such adjourned meeting a quorum is not
present within 30 minutes after the time appointed for the said meeting, the
Shareholder/s present shall, subject to the provisions of the Act, be a
quorum. The Company shall be obliged, in relation to any such adjourned
meeting, to forthwith notify the Shareholders by telefax of the date, place
and time thereof.
10.4 At any general meeting of the Company, each Shareholder shall be
entitled to exercise such number of votes as equates to the number of
Shares held by such Shareholder at the date of the meeting concerned.
10.5 Unless otherwise provided to the contrary herein, no resolution of the
Company shall be valid unless it is passed by at least 75% of the number
of votes represented and available to be cast at the relevant general
meeting. Notwithstanding the aforegoing, it is the stated intention of the
Shareholders to strive for unanimity in all resolutions to be passed at
general meetings.
11. DIVIDENDS
The declaration of dividends shall be in the discretion of the Board.
12. DETERMINATION OF THE TNAV
12.1 The Auditors shall in writing determine the TNAV (and the Fixed Price, if
required) upon request by the Company or any one or more of the
Shareholders and such determination shall, in the absence of manifest
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error, be final and binding on all of the Parties. The costs of the Auditors in
furnishing such determination shall be borne and paid for by the Party or
Parties requisitioning the same.
12.2 In determining the TNAV, the Auditors shall:
12.2.1 determine such value as at the end of the month immediately
preceding that during which they receive the requisition to furnish
such determination;
12.2.2 act as experts;
12.2.3 not attribute any goodwill to the Shares;
12.2.4 be entitled to engage expert assistance in order to determine the
value of any property or other particular assets of the Company;
12.2.5 include as a liability of the Company, a reasonable provision for
contingent liabilities, if any;
12.2.6 attribute to the fixed assets of the Company the reasonable market
value thereof at the relevant times.
13. DATA CONTRIBUTIONS
Each Shareholder:-
13.1 undertakes to duly and timeously compile and submit its Data Contribution
in such form and at such intervals as the Company may from time to time
require;
13.2 acknowledges and agrees that its failure to comply with the undertaking
contained in 13.1 above could result in such Shareholder:-
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13.2.1 being precluded from receiving, and being denied access to, any
report, survey or other information based on the Data Contributions
in which such Shareholder did not participate; and
13.2.2 becoming subject to a Terminating Resolution.
14. TERMINATING RESOLUTION AND FORCED SALE
Provided that 85% of all of the Shareholders (other than the Affected Shareholder)
unanimously and in writing agree that the Affected Shareholder no longer enjoys
their esteem, the Affected Shareholder shall cease to be a member of the
Company and shall be deemed, upon receipt by it of a copy of the Terminating
Resolution, to have given an offer notice to the other Shareholders, in terms of 5.4
above. The provisions of 5.5 to 5.9 above inclusive shall thereupon apply, mutatis
mutandis.
15. RELATIONSHIP OF PARTIES
Notwithstanding anything to the contrary hereinbefore contained or implied, each of
the Shareholders shall remain an independent contractor and shall continue to
conduct its Radiological practice for its own account. Nothing contained in this
Agreement shall be construed as constituting any of the Shareholders as the
partner/s of any of the other/s of them or any Shareholder/s as the agent/s of either
the Company or any of the other Shareholder/s.
16. ARBITRATION
16.1 In the event of any dispute or difference arising amongst the Parties with
regard to the interpretation, implementation or enforcement of this
Agreement, or as to whether or not this Agreement has been terminated or
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is void or voidable and/or any other difference or dispute relating to or
arising from this Agreement or the enforcement thereof, then such dispute
or difference will (unless interim and/or urgent relief is sought from a court
of competent jurisdiction) be referred to arbitration before an arbitrator
appointed by and in accordance with such rules and procedures of
arbitration as may be determined by and in accordance with the Arbitration
Foundation of Southern Africa ("the Arbitration Foundation").
16.2 Notwithstanding anything to the contrary contained in this Agreement or
stipulated by the Arbitration Foundation, the arbitration will be held in
Johannesburg with a view to achieving an expeditious result. Furthermore,
the arbitration will be conducted in camera, the Parties and the participants
in the arbitration being obliged to maintain the utmost confidentiality with
regard to all matters relating thereto or arising therefrom, save as
otherwise expressly and peremptorily required by law.
16.3 The provisions of this clause 16:-
16.3.1 constitute an irrevocable consent by the Parties to any of the
proceedings contemplated therein and none of the Parties shall be
entitled to withdraw from the provisions of this clause 16 or claim
under any such proceedings that it is not bound by the provisions
of this clause 16 or subject to such proceedings;
16.3.2 are severable from the remainder of this Agreement and shall
remain of full force and effect, notwithstanding any termination,
cancellation, invalidity or alleged invalidity of this Agreement for any
reason whatsoever.
16.4 The receipt by any Party of a notice calling for arbitration in terms of this
clause 16 shall constitute the service of a process for the purposes of
interruption of prescription in terms of Section 15 of the Prescription Act No
68 of 1969.
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17. BREACH
In the event of any of the Parties ("the defaulting party") committing a breach of any
of the terms of this Agreement and failing to remedy such breach within a period of
10 days after receipt of a written notice from another Party ("the aggrieved party")
calling upon the defaulting party so to remedy, then the aggrieved party shall be
entitled, at its sole discretion and without prejudice to any of its other rights in law,
either to claim specific performance of the terms of this Agreement or to cancel this
Agreement forthwith and without further notice and in either case, claim and recover
damages from the defaulting party.
18. DOMICILIUM CITANDI ET EXECUTANDI
18.1 The Parties choose as their domicilia citandi et executandi for all purposes
under this Agreement, whether in respect of court process, notices or other
documents or communications of whatsoever nature the following
addresses:-
18.1.1 Aitken
18.1.2 Bloch : Sandton Clinic
Peter Place
Lyme Park
18.1.3 Burger
18.1.4 the Company : Northcliff Office Park
Unit 10
203 DF Malan Drive
Northcliff
18.1.5 Diers Garden City
Bartlett Road
Mayfair West
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Johannesburg
18.1.6 Haagensen
18.1.7 Jennings : Unit 5
Northcliff Office Park
203 D F Malan Drive
Northcliff
18.1.8 Omar
18.1.9 Opperman
18.1.10 Sulman : Rosebank Clinic
Sturdee Avenue
Rosebank
Johannesburg
18.1.11 Van Zyl
18.2 Any notice or communication required or permitted to be given in terms of
this Agreement shall be valid and effective only if given in writing but it shall
be competent to give notice by telefax.
18.3 Any Party may by notice to the others change the physical address chosen
as its domicilium citandi et executandi to another physical address in the
Republic of South Africa, or its telefax number, provided that the change
shall only become effective on the seventh day after receipt of the notice
by the addressees.
18.4 Any notice to a Party which is:-
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18.4.1 sent by prepaid registered post in a correctly addressed envelope
to it at its domicilium citandi et executandi shall be deemed to have
been received on the seventh day after posting (unless the contrary
is proved); or
18.4.2 delivered by hand to a responsible person during ordinary business
hours at its domicilium citandi et executandi shall be deemed to
have been received on the day of delivery; or
18.4.3 transmitted by telefax to its chosen telefax number (if any)
stipulated in 18.1 above, shall be deemed to have been received
on the date of dispatch (unless the contrary is proved).
18.5 Notwithstanding anything to the contrary herein contained, a written notice
or communication actually received by a Party shall be an adequate written
notice or communication to it notwithstanding that it was not sent to or
delivered at its chosen domicilium citandi et executandi.
19. GENERAL
The Parties acknowledge and agree that:-
19.1 this Agreement constitutes the entire contract between them and that no
provisions, terms, conditions, stipulations, warranties or representations of
whatsoever nature, whether express or implied have been made by any of
the Parties or on their behalf except as are recorded herein;
19.2 this Agreement shall be binding on their heirs, assigns and successors-in-
title;
19.3 no relaxation, extension of time, latitude or indulgence which any Party
("the grantor") may show, grant or allow to another ("the grantee") shall in
any way constitute a waiver by the grantor of any of the grantor's rights in
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terms of this Agreement and the grantor shall not thereby be prejudiced or
estopped from exercising any of its rights against the grantee which may
have then already arisen or which may arise thereafter;
19.4 no alteration, variation, amendment or purported consensual cancellation
of this Agreement or this clause 19 or any deletion therefrom shall be of
any force or effect unless reduced to writing and signed by or on behalf of
the Parties hereto;
19.5 they have undertaken to each other to do all such things, take all such
steps and to procure the doing of all such things and the taking of all such
steps as may be necessary, incidental or conducive to the implementation
of the provisions, terms, conditions and import of this Agreement;
19.6 this Agreement shall be interpreted according to the laws of the Republic of
South Africa and they have consented to the jurisdiction of the Transvaal
Provincial Division of the High Court.
20. COSTS
The Company shall bear the costs of and incidental to the negotiation, conclusion
and implementation of this Agreement.
THUS DONE AND SIGNED BY THE PARTIES ON THE DATES AND AT THE PLACES
SET OUT HEREUNDER:
FOR: AITKEN AND PARTNERS
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
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FOR: DRS BLOCH AND PARTNERS INCORPORATED
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
FOR: BURGER RADIOLOGY INCORPORATED
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
FOR: DR DIERS & PARTNERS
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
FOR: DRS HAAGENSEN & LURIE INCORPORATED
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
PAUL ANDREW JENNINGS
Place:
Date:
G OMAR
Place:
Date:
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D OPPERMAN
Place:
Date:
FOR: DRS LOUIS SULMAN & PARTNERS INCORPORATED
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
FOR: DRS P P VAN ZYL & VAN DER MERWE
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
FOR: RADNET IMAGING SYSTEMS
(PROPRIETARY) LIMITED
Signatory, who warrants that he is
duly authorised hereto
Place:
Date:
