<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
Healthcare Imaging Services, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
421939109
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
Sam Beran, M.D.
Department of Plastic Surgery
5323 Harry Hines Boulevard
Dallas, TX 75235-9132
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 1, 1999**
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss. ss. 240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check
the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
**The reporting persons beneficially own in the aggregate 887.385 shares of
Series D Cumulative Accelerating Redeemable Preferred Stock ("Series D Preferred
Stock") of Healthcare Imaging Services, Inc. (the "Company"). Such Series D
Preferred Stock is convertible at any time after March 1, 1999 into shares of
the Company's common stock.
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 2 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Sam Beran, M.D.
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 7,867,967.785, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 0, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 7,867,967.785, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,399,768.365, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.92%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
IN
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 3 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Phyllis Beran
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 7,867,967.785, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 0, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 7,867,967.785, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
119,875.045, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X]
See Item 5, Note (a)
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.04%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
IN
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 4 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Beran/Echelon I Shareholders Trust
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Trust is organized under the laws of the State of New Jersey.
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 4,091,341.475, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 0, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 4,091,341.475, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,091,341.475, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.48%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO - TRUST
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 5 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Beran/Mainland II Shareholders Trust
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Trust is organized under the laws of the State of New Jersey.
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 865,473.353, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 865,473.353, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
865,473.353, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.08%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO - TRUST
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 6 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Beran/Management III Partners Trust
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Trust is organized under the laws of the State of New Jersey.
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 2,124,351.745, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 2,124,351.745, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,124,351.745, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.76%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO - TRUST
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 7 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Beran/Bloomfield IV Shareholders Trust
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Trust is organized under the laws of the State of New Jersey.
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 550,758.188, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 550,758.188, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
550,758.188, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.63%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO - TRUST
______________________________________________________________________________
<PAGE>
_______________________________________________________________________________
CUSIP No. 421939109 SCHEDULE 13D Page 8 of 15
_______________________________________________________________________________
1 NAME OF REPORTING PERSON
Beran/INB V Shareholders Trust
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS
OO, See Item 3
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
Not applicable
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Trust is organized under the laws of the State of New Jersey.
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 0, See Item 5
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 236,043.024, See Item 5
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 0, See Item 5
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 236,043.024, See Item 5
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
236,043.024, See Item 5
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
Not applicable, See Item 5
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.04%, See Item 5
______________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO - TRUST
______________________________________________________________________________
<PAGE>
Page 9 of 15
Item 1. Security and Issuer.
This statement relates to the common stock, par value $.01 per share
(the "Common Stock"), of Healthcare Imaging Services, Inc. (the "Company"). The
Company's principal executive offices are located at: 200 Schulz Drive, Red
Bank, New Jersey, 07701.
Item 2. Identity and Background.
(a) Name: This statement is being filed by Sam Beran, M.D., Phyllis
Beran, Beran/Echelon I Shareholders Trust, Beran/Mainland II Shareholders Trust,
Beran/Management III Partners Trust, Beran/Bloomfield IV Shareholders Trust, and
Beran/INB V Shareholders Trust (individually, a "Reporting Person" and,
collectively, the "Reporting Persons"). The filing of this statement shall not
be construed as an admission (i) that any of the Reporting Persons are, for the
purpose of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as
amended, the beneficial owner of any of the securities covered by this Schedule,
(ii) that this Schedule is legally required to be filed by any of the Reporting
Persons or (iii) that any of the Reporting Persons are, for the purpose of
Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, a
"group" within the meaning of Regulation 13D-5 promulgated under the Securities
Exchange Act of 1934, as amended.
(b) Residence or Business Address: The residence or business address of
the Reporting Persons are as follows:
Sam Beran, M.D. Phyllis Beran
Department of Plastic Surgery 10 Grove Street
5323 Harry Hines Boulevard Cherry Hill, NJ 08002
Dallas, TX 75235-9132
Beran/Echelon I Shareholders Trust Beran/Mainland II Shareholders Trust
10 Grove Street 10 Grove Street
Cherry Hill, NJ 08002 Cherry Hill, NJ 08002
Beran/Management III Partners Trust Beran/Bloomfield IV Shareholders Trust
10 Grove Street 10 Grove Street
Cherry Hill, NJ 08002 Cherry Hill, NJ 08002
Beran/INB V Shareholders Trust
10 Grove Street
Cherry Hill, NJ 08002
<PAGE>
Page 10 of 15
(c) Principal Occupation/Business:
Sam Beran, M.D. is a plastic surgeon practicing in Dallas, Texas.
Sam Beran, M.D. is the son of Phyllis Beran.
Phyllis Beran, formerly an officer of Bloomfield Imaging
Associates, P.A. and Irving N. Beran, M.D., P.A., is a private investor. Phyllis
Beran is the mother of Sam Beran, M.D.
Beran/Echelon I Shareholders Trust is a liquidating trust for the
benefit of Sam Beran, M.D., Eby Banas, Perry Barr, Vito Valecce, Gary Goldstein,
Zohan Stark, Morris Peterzell, Marc Kahn, Arthur Marks, Ronald Brody, John
Pancelli, Leonard Kabel, Patrick Abruiso, Stephen Raphael, Guy Buonincontro,
Richard Mauriello, Joseph Hassman, Daniel Rosenberg, Alan Carr and Philip Getson
for which Phyllis Beran and Sam Beran, M.D. are trustees.
Beran/Mainland II Shareholders Trust is a liquidating trust for the
benefit of Sam Beran, M.D., Jonathan Fox, R.F. Tinner, Alan Carr and George
Godfrey for which Phyllis Beran and Sam Beran, M.D. are trustees.
Beran/Management III Partners Trust is a liquidating trust for the
benefit of Sam Beran, M.D., P.C. (the "General Partner") and The Estate of
Irving N. Beran, M.D. and Phyllis Beran (collectively, the "Limited Partners")
for which Phyllis Beran and Sam Beran, M.D. are trustees.
Beran/Bloomfield IV Shareholders Trust is a liquidating trust for
the benefit of Sam Beran, M.D. for which Phyllis Beran and Sam Beran, M.D. are
trustees.
Beran/INB V Shareholders Trust is a liquidating trust for the
benefit of Sam Beran, M.D. for which Phyllis Beran and Sam Beran, M.D. are
trustees.
(d) Criminal Convictions: During the last five years, none of the
Reporting Persons have been convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors).
(e) Court or Administrative Proceedings: During the last five years,
none of the Reporting Persons have been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction which resulted in a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) Citizenship: Sam Beran, M.D. and Phyllis Beran are citizens of the
United States. Beran/Echelon I Shareholders Trust, Beran/Mainland II
Shareholders Trust, Beran/Management III Partners Trust, Beran/Bloomfield IV
Shareholders Trust and Beran/INB V Shareholders Trust (the "Beran Trusts") are
each organized under the laws of the State of New Jersey.
<PAGE>
Page 11 of 15
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the terms of an asset purchase agreement (the "Purchase
Agreement"), dated as of September 16, 1998, among the Company, Echelon MRI,
P.C., Mainland Imaging Center, P.C., North Jersey Imaging Management Associates,
L.P., Bloomfield Imaging Associates, P.A., Irving N. Beran, M.D., P.A.
(collectively, the "Beran Entities"), the estate of Irving N. Beran, Deceased,
Mrs. Phyllis Beran and Sam Beran, M.D. (collectively, the "Beran Stockholders"),
the Beran Entities sold substantially all of the Beran Entities' assets and
properties that pertained to the three diagnostic imaging facilities, one
radiology/x- ray/ultrasound facility and certain other radiology facilities
operated by the Beran Entities, at the following locations:
1. Echelon MRI, P.C.:
108 Somerdale Road
Voorhees, New Jersey 08043
(MRI Facility)
2. Mainland Imaging Center, P.C.:
1418 New Road 612 Atlantic Avenue
Northfield, New Jersey 08225 Ocean City, New Jersey 08226
(MRI Facility) (X-ray office)
3. Bloomfield Imaging Associates, P.A.:
350 Bloomfield Avenue
Bloomfield, New Jersey 07003
(MRI Facility)
4. Irving N. Beran, M.D., P.A.:
2512 Atlantic Avenue 429 White Horse Pike
Atlantic City, New Jersey 08401 Atco, New Jersey 08004
(Ultrasound office) (X-ray office)
600 Somerdale Road 640 N. Black Horse Pike
Suites, 113, 116 and 117 Williamstown, New Jersey 08094
Voorhees, New Jersey 08043 (X-ray office)
(X-ray office)
The acquisition was consummated on October 2, 1998, to be effective as of
October 1, 1998.
As part of the consideration for the sale of the Beran Entities' assets
and properties, the Beran Entities received in the aggregate 887.385 shares of
Series D Cumulative Accelerating Redeemable Preferred Stock of the Company (the
"Series D Preferred Stock") having an aggregate liquidation preference of
$9,317,542.50 (i.e., $10,500 per share liquidation preference). Set forth on
Schedule I to this Schedule 13D is the number of shares of Series D Preferred
Stock received by each Beran Entity. Such Series D Preferred Stock is
convertible at any time after March 1, 1999 into shares of the Company's Common
Stock. After March 1, 1999 (the "Convertibility Date"), subject to certain
limitations, the holders of the Series D Preferred Stock will be entitled to
convert the Series D Preferred
<PAGE>
Page 12 of 15
Stock into Common Stock equal to the quotient of (x) the aggregate liquidation
preference of the Series D Preferred Stock being converted divided by (y) the
Conversion Price. The "Conversion Price" shall be equal to the average of the
market prices for the Common Stock for the twenty (20) consecutive trading days
immediately preceding the Convertibility Date and shall be subject to adjustment
in certain circumstances.
On December 14, 1998, North Jersey Imaging Management Associates, L.P.
transferred its shares of Series D Preferred Stock to Beran/Management III
Partners Trust, Bloomfield Imaging Associates, P.A. transferred its shares of
Series D Preferred Stock to Beran/Bloomfield IV Shareholders Trust, and Irving
N. Beran, M.D., P.A. transferred its shares of Series D Preferred Stock to
Beran/INB V Shareholders Trust.
On December 23, 1998, Echelon MRI, P.C. transferred its shares of
Series D Preferred Stock to Beran/Echelon I Shareholders Trust and Mainland
Imaging Center, P.C. transferred its shares of Series D Preferred Stock to
Beran/Mainland II Shareholders Trust.
Item 4. Purpose of Transaction.
All of the shares of Common Stock reported herein were acquired in
connection with the sale of the Beran Entities' assets and properties described
in Item 3 above for investment purposes.
(a) The Company entered into a Registration Rights Agreement with the
Beran Entities pursuant to which the holders of a majority of the then
outstanding shares of Series D Preferred Stock have the right commencing on
January 1, 1999 and ending on December 31, 2001, to demand twice that the
Company register, under the Securities Act of 1933, all or any part of shares of
the Company's Common Stock issuable upon conversion of the Series D Preferred
Stock. The holders Series D Preferred Stock (the AHolders@) also have certain
"piggyback" registration rights to participate in registered offerings filed by
the Company. The Holders have not exercised any of their registration rights
and, therefore, these rights may be exercised in the future.
Except as described herein, no Reporting Person has any present plans
or proposals to acquire or dispose of any material amount of the Company's
securities held by such Reporting Person.
No Reporting Person has any present plans or proposals with respect to
the Company as described in Items 4(b)-(j) of Schedule 13D. The Reporting
Persons retain their right to modify their plans with respect to the
transactions described in this Item 4, to acquire or dispose of the Company's
securities and to formulate plans and proposals which could result in the
occurrence of any such events, subject to applicable laws and regulations.
<PAGE>
Page 13 of 15
Item 5. Interest in Securities of the Issuer
(a) Beneficial Ownership
Items 7, 8, 9, 10, 11, 12 and 13 from pages 2 through 8 of this
statement are incorporated herein by reference.
The Reporting Persons are the beneficial owners of an aggregate of
7,867,967.785 shares of Common Stock. Based on the Company's most recent public
filings, this represents beneficial ownership of 40.93% of the Company's Common
Stock.
Each of the Reporting Persons beneficially owns (i) that number of
shares of Common Stock and (ii) that percentage of the Company's Common Stock
(based on the Company's most recent public filings), as set forth opposite
his/its name:
<TABLE>
<CAPTION>
Percentage of Issued and
Number of Shares of Outstanding Common
Common Stock Stock Beneficially
Reporting Person Beneficially Owned (1) Owned (1)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Sam Beran, M.D. 7,867,967.785(2) 40.93%
Phyllis Beran 7,867,967.785(2) 40.93%
Beran/Echelon I Shareholders Trust 4,091,341.475 26.48%
Beran/Mainland II Shareholders Trust 865,473.353 7.08%
Beran/Management III Partners Trust 2,124,351.745 15.76%
Beran/Bloomfield IV Shareholders Trust 550,758.188 4.63%
Beran/INB V Shareholders Trust 236,043.024 2.04%
</TABLE>
(1) Since the conversion ratio of the Series D Preferred Stock into Common
Stock is based on market conditions (See Item 3), the number of shares
of Common Stock reported as beneficially owned by the Reporting Persons
may differ from the number of shares actually received upon conversion
of the Series D Preferred Stock after March 1, 1999. Solely for the
purpose of calculating the number of shares of Common Stock owned by
the Reporting Persons, the Reporting Persons used the average market
prices for the twenty (20) consecutive trading days immediately
preceding January 25, 1999. Set forth on Schedule II of this Schedule
13D is the formula used to calculate the number of shares of Common
Stock to be issued to the Reporting Persons upon conversion of the
Series D Preferred Stock.
(2) Represents all of the shares of Common Stock beneficially owned by the
Beran Trusts of which Sam Beran, M.D. and Phyllis Beran are
co-trustees. Sam Beran, M.D. disclaims beneficial ownership of
3,468,199.420 shares of Common Stock beneficially owned by the Beran
Trusts. Phyllis Beran disclaims beneficial ownership of 7,748,092.740
shares of Common Stock beneficially owned by the Beran Trusts.
<PAGE>
Page 14 of 15
(b) Voting and Dispositive Powers
Items 7, 8, 9, 10, 11, 12 and 13 from pages 2 through 8 of this
statement are incorporated herein by reference.
Sam Beran, M.D. and Phyllis Beran are co-trustees of the Beran Trusts.
As such, Sam Beran, M.D. and Phyllis Beran share voting and dispositive power
with respect to the shares of Common Stock beneficially owned by the Reporting
Persons.
(c) Transactions in Securities of the Company During the Past Sixty Days
Other than as set forth herein, the Reporting Persons have not made any
purchase or sales of securities of the Company during the sixty (60) days
preceding the date of this Schedule 13D.
(d) Dividends and Proceeds
Subject to the terms of each of the Beran Trust's liquidating trust
agreements, the trustees of each the Beran Trusts, Phyllis Beran and Sam Beran,
M.D., have the power to direct the receipt of dividends from or the proceeds
from the sale of the shares of Common Stock beneficially owned by the Reporting
Persons.
(e) Date Reporting Person Ceased to be Beneficial Owner of More than 5%
of the Company's Stock
Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationship with
Respect to Securities of the Issuer.
(a) The Beran Entities entered into an escrow agreement dated October 1, 1998
(the "Escrow Agreement") with the Company whereby the Beran Entities deposited
in escrow an aggregate of 16.362 of the 887.385 shares of Series D Preferred
Stock which the Beran Entities received pursuant to the Asset Purchase
Agreement. Such 16.362 shares of Series D Preferred Stock shall be held in
escrow for the purpose of funding an accounts receivable adjustment and certain
liabilities of the Beran Entities. This Escrow Agreement is binding upon the
Beran Trusts. Schedule III sets forth the number of shares each Beran Entity
placed in escrow pursuant to the Escrow Agreement.
(b) Each of the Beran Entities entered into separate pledge and security
agreements dated October 1, 1998 (the "Pledge Agreements") with the Company
whereby the Beran Entities pledged an aggregate of 257.1 of the 887.385 shares
of Series D Preferred Stock which the Beran Entities received pursuant to the
Asset Purchase Agreement. Such 257.1 shares of Series D Preferred Stock secure
individual notes from each of the Beran Entities to the Company. The Pledge
Agreements are binding on the Beran Trusts. Schedule IV sets forth (i) the
number of shares each Beran Entity pledged, and (ii) the amount of each Beran
Entity's promissory note.
<PAGE>
Page 15 of 15
Item 7. Material to be Filed as Exhibits.
1. Asset Purchase Agreement, dated as of September 16, 1998, by and
among Healthcare Imaging Services, Inc., Echelon MRI, P.C., Mainland Imaging
Center, P.C., North Jersey Imaging Management Associates, L.P., Bloomfield
Imaging Associates, P.A., Irving N. Beran, M.D., P.A., the Estate of Irving N.
Beran, Deceased, Mrs. Phyllis Beran and Sam Beran, M.D. (Incorporated by
reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed with
the Securities and Exchange Commission on October 16, 1998 (File Number
000-19636)).
2. Certificate of Designations, Preferences and Rights of Series D
Cumulative Accelerating Redeemable Preferred Stock of Healthcare Imaging
Services, Inc. (Incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K filed with the Securities and Exchange Commission on
October 16, 1998 (File Number 000-19636)).
3. Escrow Agreement, dated as of October 1, 1998 by and among
Healthcare Imaging Services, Inc., Echelon MRI, P.C., Mainland Imaging Center,
P.C., North Jersey Imaging Management Associates, L.P., Bloomfield Imaging
Associates, P.A. and Irving N. Beran, M.D., P.A.
4. Form of Pledge and Security Agreement.
<PAGE>
SIGNATURES AND JOINT STATEMENT AGREEMENT
----------------------------------------
After reasonable inquiry and to the best of each Reporting Person's
respective knowledge and belief, each Reporting Person certifies that the
information set forth in this statement is true, complete and correct.
Each Reporting Person understands that they are responsible for the
timely filing of this statement and any amendments thereto and for the
completeness and accuracy of the information concerning such Reporting Person
contained herein; each Reporting Person understands that they are not
responsible for the completeness or accuracy of the information concerning the
other Reporting Persons making this filing unless such Reporting Person knows or
has reason to believe that such information is inaccurate. This Statement may be
executed in more than one counterpart.
Dated: February 16, 1999
/s/ Sam Beran, M.D.
--------------------------
Sam Beran, M.D.
/s/ Phyllis Beran
--------------------------
Phyllis Beran
BERAN/ECHELON I SHAREHOLDERS TRUST
/s/ Sam Beran, M.D.
By:
--------------------------
Name: Sam Beran, M.D.
Title: Co-Trustee
BERAN/MAINLAND II SHAREHOLDERS TRUST
/s/ Sam Beran, M.D.
By:
--------------------------
Name: Sam Beran, M.D.
Title: Co-Trustee
<PAGE>
BERAN/MANAGEMENT III PARTNERS TRUST
/s/ Sam Beran, M.D.
By:
--------------------------
Name: Sam Beran, M.D.
Title: Co-Trustee
BERAN/BLOOMFIELD IV SHAREHOLDERS
TRUST
/s/ Sam Beran, M.D.
By:
--------------------------
Name: Sam Beran, M.D.
Title: Co-Trustee
BERAN/INB V SHAREHOLDERS TRUST
/s/ Sam Beran, M.D.
By:
--------------------------
Name: Sam Beran, M.D.
Title: Co-Trustee
<PAGE>
SCHEDULE I
Shares of Series D
Beran Entity Preferred Stock Received
------------ ------------------------
Echelon MRC, P.C. 461.44
Mainland Imaging Center, P.C. 97.612
North Jersey Imaging Management
Associates, L.P. 239.594
Bloomfield Imaging Associates, P.A. 62.117
Irving N. Beran, M.D., P.A. 26.622
-------
TOTAL 887.385
<PAGE>
SCHEDULE II
Conversion of Reporting Persons' Series D Preferred Stock into Common Stock
Conversion Ratio: The quotient of (x) the aggregate liquidation
preference of the Series D Preferred Stock being
converted divided by (y) the Conversion Price. The
"Conversion Price" shall be equal to the average of
the market prices for the Common Stock for the twenty
(20) consecutive trading days immediately preceding
the Convertibility Date and shall be subject to
adjustment in certain circumstances.
Example:
Number of Shares of Series D
Preferred Stock Held in the aggregate
by the Reporting Persons = 887.385
X (aggregate liquidation preference of 887.385
shares of Series D Preferred Stock) = $9,317,542.50
Y*(Conversion Price) = 1.1842375
9,317,542.50
- ----------------- = 7,867,967.785 shares of Common Stock to be issued in
exchange for 887.385 shares of
1.1842375 Series D Preferred Stock
<TABLE>
<CAPTION>
Number of Shares of Number of Shares of
Series D Preferred Common Stock
Reporting Person Stock Owned Beneficially Owned
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
Sam Beran, M.D. 887.385** 7,867,967.785
Phyllis Beran 887.385** 7,867,967.785
Beran/Echelon I Shareholders Trust 461.44 4,091,341.475
Beran/Mainland II Shareholders Trust 97.612 865,473.353
Beran/Management III Partners Trust 239.594 2,124,351.745
Beran/Bloomfield IV Shareholders Trust 62.117 550,758.188
Beran/INB V Shareholders Trust 26.622 236,043.024
</TABLE>
* Solely for the purpose of calculating the number of shares of Common
Stock owned by the Reporting Persons, the Reporting Persons used the
average market prices for the twenty (20) consecutive trading days
immediately preceding January 25, 1999.
** Represents all of the shares of Common Stock beneficially owned by the
Beran Trusts of which Phyllis Beran and Sam Beran, M.D. are trustees.
<PAGE>
SCHEDULE III
Number of Escrowed
Beran Entity Series D Preferred Shares
------------ -------------------------
Echelon MRC, P.C. 8.508
Mainland Imaging Center, P.C. 1.8
North Jersey Imaging Management
Associates, L.P. 4.418
Bloomfield Imaging Associates, P.A. 1.145
Irving N. Beran, M.D., P.A. 0.491
------
TOTAL 16.362
<PAGE>
SCHEDULE IV
<TABLE>
<CAPTION>
Number of Pledged Amount of
Beran Entity Series D Preferred Shares Promissory Note
- ------------ ------------------------- ---------------
<S> <C> <C>
Echelon MRC, P.C. 133.7 $1,300,000
Mainland Imaging Center, P.C. 28.3 275,000
North Jersey Imaging Management
Associates, L.P. 69.4 675,000
Bloomfield Imaging Associates, P.A. 18 175,000
Irving N. Beran, M.D., P.A. 7.7 75,000
------- ----------
TOTAL 257.1 $2,500,000
</TABLE>
<PAGE>
Exhibit 3
ESCROW AGREEMENT
----------------
Escrow Agreement (this "Agreement"), dated as of October 1, 1998, by
and among HealthCare Imaging Services, a Delaware corporation (the "Purchaser"),
and Echelon MRI, P.C., a New Jersey professional corporation, Mainland Imaging
Center, P.C., a New Jersey professional corporation, North Jersey Imaging
Management Associates, L.P., a New Jersey limited partnership, Bloomfield
Imaging Associates, P.A., a New Jersey professional corporation, and Irving N.
Beran, P.A., a New Jersey professional corporation (referred to collectively
herein as the "Sellers" and each individually as a "Seller") and Swidler Berlin
Shereff Friedman, LLP, as escrow agent (the "Escrow Agent"). Except as otherwise
provided herein, all capitalized terms used and not defined herein shall have
the respective meanings ascribed thereto in the Asset Purchase Agreement
(defined below).
WHEREAS, the Purchaser and the Sellers are parties to an Asset Purchase
Agreement (the "Asset Purchase Agreement"), dated as of September 16, 1998,
which provides for, among other things, the purchase by the Purchaser of
substantially all of the Sellers' assets and properties that pertain to the
Facilities;
WHEREAS, the Purchaser and the Sellers have agreed that certificates
evidencing 16.362 shares of Series D Stock, as more fully described on Schedule
A annexed hereto (the "Escrow Shares", and together with any dividends and other
payments and distributions paid or made in respect of the Escrow Shares, the
"Escrow Amount"), each of which shall be duly endorsed in blank or accompanied
by stock powers duly endorsed in blank by the applicable Seller, shall be held
in escrow commencing on the date hereof for the purpose of funding the Accounts
Receivable Adjustment and any unpaid tax liabilities of the Sellers to the State
of New Jersey that have accrued on or prior to the Closing; and
WHEREAS, this Agreement, a copy of which is attached as Exhibit 4 to
the Asset Purchase Agreement, is intended to reflect and serve as the escrow
agreement among the parties hereto with respect to the Escrow Amount.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Appointment. The Purchaser and the Sellers hereby appoint and
designate the Escrow Agent, and the Escrow Agent agrees to serve, as escrow
agent for the purposes set forth herein.
2. Escrow. Simultaneously herewith, (a) the Purchaser shall deliver the
Escrow Shares to the Escrow Agent to be held in escrow in accordance with the
terms and provisions hereof and (b) the Sellers shall duly endorse such
certificates, as applicable, or deliver to the Escrow Agent stock powers duly
endorsed in blank. All dividends and other payments and
<PAGE>
distributions paid or made in respect of the Escrow Shares shall be delivered to
the Escrow Agent and held in escrow in accordance with the terms and provisions
hereof. The Escrow Agent shall make distributions of the Escrow Amount to the
Sellers or the Purchaser, as the case may be, only in accordance with the terms
and provisions of Section 4 of this Agreement. Any cash portion of the Escrow
Amount shall be invested in an interest-bearing money market account. Interest
paid with respect to the Escrow Amount shall be paid in accordance with the
terms and provisions of Section 4 of this Agreement. Any taxes that shall become
due on interest earned in such account shall be borne by the party that receives
such interest and shall be timely paid by such party when due.
3. Voting Rights. Prior to any distribution of the Escrow Shares by the
Escrow Agent in accordance with the terms and provisions hereof, each Seller
shall be entitled to exercise any and all voting rights pertaining to the Escrow
Shares which such Seller has deposited with the Escrow Agent in accordance with
the terms hereof and of the Asset Purchase Agreement for any purpose not
inconsistent with the terms hereof and in accordance with the terms of the Asset
Purchase Agreement (including, without limitation, Section 13.08).
4. Release of Escrow Amount. The Escrow Agent shall hold the Escrow
Amount until it delivers the Escrow Amount as provided in this Section 4.
(a) Notification and Action. If, at any time, the Escrow Agent
shall receive written instructions executed by the Purchaser and Mrs.
Phyllis Beran or Dr. Sam Beran on behalf of the Sellers (which
instructions may be executed in counterparts) directing it to make
distributions out of the Escrow Amount, the Escrow Agent shall deliver
the Escrow Amount, or a portion thereof, as directed in such
instructions, as promptly as practicable after the Escrow Agent's
receipt of such instructions.
(b) Conflicting Notification. In the event of conflicting
instructions from the Purchaser and Mrs. Phyllis Beran or Dr. Sam Beran
on behalf of the Sellers, the Escrow Agent shall, in its sole and
absolute discretion: (i) continue to hold the Escrow Amount, or the
portion thereof, which is the subject of such conflicting instructions
until (x) it shall receive a copy of a final and non-appealable court
order from a court of competent jurisdiction (in form and substance
satisfactory to the Escrow Agent) or (y) written instructions executed
by the Purchaser and Mrs. Phyllis Beran or Dr. Sam Beran on behalf of
the Sellers (which instructions may be executed in counterparts)
directing it to deliver the Escrow Amount, or the disputed portion
thereof, in accordance with the terms of such court order or written
instructions, as the case may be, in which event the Escrow Agent shall
deliver such Escrow Amount, or the disputed portion thereof, in
accordance therewith, or (ii) at any time after the five (5) day period
following the Escrow Agent's receipt of such conflicting instructions,
deliver the Escrow Amount into the control of a court of competent
jurisdiction, in which event the Escrow Agent shall have no further
obligations or responsibilities with respect thereto. Notwithstanding
the foregoing, the Escrow Agent shall deliver the Escrow Amount, or a
portion thereof, in accordance with
23
<PAGE>
the terms of any written instructions executed by the Purchaser and
Mrs. Phyllis Beran or Dr. Sam Beran on behalf of the Sellers (which
instructions may be executed in counterparts) to the extent that such
instructions are received by the Escrow Agent prior to its delivery of
the Escrow Amount to a court of competent jurisdiction in accordance
with clause (ii) above. Any written instructions delivered to the
Escrow Agent by either the Purchaser or Mrs. Phyllis Beran or Dr. Sam
Beran on behalf of the Sellers, as the case may be, shall be delivered
contemporaneously by such delivering party to the other parties hereto.
(c) Exchange of Certificates. In the event that any of the
certificates representing the Escrow Shares need to be exchanged for a
number of certificates evidencing in the aggregate the same number of
shares as a result of (i) written instructions to the Escrow Agent
executed by the Purchaser and Mrs. Phyllis Beran or Dr. Sam Beran on
behalf of the Sellers (which instructions may be executed in
counterparts) as to the disposition of the Escrow Shares or (ii) a
dispute as to a portion of the Escrow Shares, the Purchaser and the
Sellers shall take all action necessary to effect such exchange and
deliver any such replacement certificates duly endorsed in blank or
accompanied by stock powers duly endorsed in blank.
5. Fees and Expenses. The Escrow Agent shall not be entitled to any fee
for acting as such, but shall be reimbursed for any out-of-pocket expenses
incurred in connection herewith, including, without limitation, legal fees and
expenses, which shall be borne by the Purchaser.
6. Responsibilities of Escrow Agent. The Escrow Agent's acceptance of
its duties under this Agreement is subject to the following terms and
conditions, which shall govern and control with respect to its rights, duties,
liabilities and immunities:
(a) The Escrow Agent makes no representations or warranties
and has no responsibilities as to the correctness of any statement
contained herein, and the Escrow Agent shall not be required to inquire
as to the performance of any obligation under any agreement or document
other than this Agreement nor shall the Escrow Agent be under any
obligation to take any legal action in connection with this Agreement
or towards its enforcement or performance or to appear in, prosecute or
defend any action or legal proceeding in connection herewith.
(b) The Escrow Agent shall be protected in acting upon any
written notice, request, waiver, consent, receipt or other paper or
document from any duly authorized agent of any Seller, including,
without limitation, Mrs. Phyllis Beran or Dr. Sam Beran as contemplated
by this Agreement and/or any duly authorized agent of the Purchaser,
not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth of any information therein
contained and what it purports to be. The Escrow Agent shall be
entitled to rely upon any certification, instruction, notice or other
writing delivered to it in compliance with the provisions of this
Agreement without being
24
<PAGE>
required to determine the authenticity or the correctness of any fact
stated therein or the propriety or validity thereof. The Escrow Agent
may act or fail to act in reliance upon any instrument comporting with
the provisions of this Agreement or signature believed by it, without
independent investigation, to be genuine and may assume that any person
purporting to give notice or advice or make any statement or execute
any document in connection with the provisions hereof has been duly
authorized to do so.
(c) The sole duty of the Escrow Agent, other than as herein
specified, shall be to receive the Escrow Amount and hold it subject to
release, in accordance with the written instructions of the Purchaser
and Mrs. Phyllis Beran or Dr. Sam Beran on behalf of the Sellers or as
otherwise provided for herein, and the Escrow Agent shall be under no
duty to determine whether the Purchaser and the Sellers are complying
with the requirements of the Asset Purchase Agreement or any other
agreement or document. No implied covenants or obligations shall be
inferred from this Agreement against the Escrow Agent, nor shall the
Escrow Agent be bound by the provisions of any agreement beyond the
specific terms hereof. The Escrow Agent shall have no duties or
responsibilities except those expressly set forth herein and shall
neither be obligated to recognize nor have any liability or
responsibility arising under any other agreement to which the Escrow
Agent is not a party, even though reference thereto may be made herein.
The Escrow Agent shall not be required to inquire as to the performance
of any obligation under any agreement or document, including, without
limitation, the Asset Purchase Agreement or any agreements or documents
referred to herein or therein nor shall the Escrow Agent be under any
obligation to take any legal action in connection with this Agreement
or towards its enforcement or performance or to appear in, prosecute or
defend any action or legal proceeding in connection herewith.
(d) The Escrow Agent does not have any interest in the Escrow
Amount, but is serving as escrow holder only and has only possession
thereof.
(e) The Escrow Agent shall not be liable for any error of
judgment, or for any mistake of fact or law, or for anything which it
may do or refrain from doing in connection herewith, except as may
result from its own gross negligence or willful misconduct.
(f) The Purchaser agrees to indemnify the Escrow Agent against
and save it harmless from any and all claims, liabilities, costs,
payments and expenses, including reasonable fees and expenses of
counsel either paid to retained attorneys (who may be selected by the
Escrow Agent) or amounts representing the fair value of legal services
rendered to itself, incurred as a result of or in connection with the
performance of this Agreement, except as a result of the Escrow Agent's
own gross negligence or willful misconduct.
(g) The duties of the Escrow Agent hereunder are solely
ministerial in nature,
25
<PAGE>
and the Escrow Agent shall not have any liability under, or duty to
inquire into, the terms and provisions of any other agreement or
document. The Purchaser and the Sellers acknowledge that the Escrow
Agent, from time to time, has served as counsel to the Purchaser
including, without limitation, in connection with the negotiation,
execution and delivery of the Asset Purchase Agreement and the other
agreements and documents contemplated thereby. The participation of
Swidler Berlin Shereff Friedman, LLP as Escrow Agent is being
undertaken as an accommodation to the parties hereto and shall in no
way hinder or limit the present or future ability of Swidler Berlin
Shereff Friedman, LLP to act as counsel to the Purchaser with respect
to any matter including, but not limited to, disputes between and/or
among the Purchaser, the Sellers and any stockholder of the Sellers
arising from the Asset Purchase Agreement or with regard to this
Agreement; provided, however, that such representation shall not affect
the Escrow Agent's obligations hereunder and shall be at the cost and
expense of the Purchaser.
(h) In case any property held by the Escrow Agent hereunder
shall be attached, garnished or levied upon under any order of court,
or the delivery thereof shall be stayed or enjoined by any order of
court, or any other writ, order, judgment or decree shall be entered or
issued by any court affecting such property, or any part thereof, or
any act of the Escrow Agent, the Escrow Agent is hereby expressly
authorized to use its sole discretion to obey and comply with all
writs, orders, judgments or decrees so entered or issued, whether with
or without jurisdiction, and in case the Escrow Agent obeys and
complies with any such writ, order, judgment or decree, it shall not be
liable to any person, firm or corporation by reason of such compliance
notwithstanding the fact that such writ, order, judgment or decree may
be subsequently reversed, modified, annulled, set aside or vacated.
(i) The Escrow Agent may, at any time, resign by providing
written notice to each of the other parties hereto and depositing the
Escrow Amount with a successor escrow agent designated jointly by the
Purchaser and Mrs. Phyllis Beran or Dr. Sam Beran on behalf of the
Sellers. Upon receipt of the Escrow Agent's resignation, the Purchaser
and Mrs. Phyllis Beran or Dr. Sam Beran on behalf of the Sellers shall
promptly appoint a successor escrow agent. If no successor shall have
been appointed within ten (10) days after the mailing of notice of
resignation by the Escrow Agent, the Escrow Agent shall be entitled to
deposit any or all of the Escrow Amount with a court of competent
jurisdiction.
7. Amendment and Termination. This Agreement may be amended or
terminated only by a writing signed by the Escrow Agent, the Purchaser and Mrs.
Phyllis Beran or Dr. Sam Beran on behalf of the Sellers. Once the Escrow Amount
has been distributed, this Agreement shall terminate and the Escrow Agent shall
have no further duties or responsibilities hereunder; provided, however, that
the exculpatory and indemnification provisions of Section 6 shall survive
termination.
26
<PAGE>
8. Interpleading. Notwithstanding anything to the contrary herein, at
any time the Escrow Agent shall have the right, in its sole discretion, to
deposit the Escrow Amount with a court having competent jurisdiction, in which
event the Escrow Agent shall give written notice of such deposit to each of the
other parties hereto. Upon such deposit, the Escrow Agent shall be relieved and
discharged of all further duties and responsibilities with respect to the Escrow
Amount.
9. Notices and Addresses. Any notice, demand, request, waiver or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service, if personally served or sent by
telecopy; on the business day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Sellers, to:
Phyllis Beran
with a copy to:
Steven Dubow, Esq.
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103-6698
Fax: (215) 569-5628
If to the Purchaser, to:
Elliott H. Vernon, Esq.
HealthCare Imaging Services, Inc.
200 Schulz Drive
Red Bank, New Jersey 07701
Fax: (732) 224-9362
27
<PAGE>
with a copy to:
Scott M. Zimmerman, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
Fax: (212) 758-9526
If to the Escrow Agent, to:
Scott M. Zimmerman, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
Fax: (212) 758-9526
10. Miscellaneous. This Agreement shall be binding upon the successors
and assigns of the parties hereto and shall inure to the benefit of and be
enforceable by each of them and their respective permitted successors and
assigns. The headings in this Agreement are for purposes of reference only and
shall not limit or define the meaning hereof. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto.
11. Governing Law: Forum; Process. This Agreement shall be construed in
accordance with, and governed by, the Laws of the State of New York as applied
to contracts made and to be performed entirely in the State of New York without
regard to principles of conflicts of Law. Each of the parties hereto hereby
irrevocably and unconditionally submits to the exclusive jurisdiction of any
court of the State of New York or any federal court sitting in the State of New
York for purposes of any suit, action or other proceeding arising out of this
Agreement (and agrees not to commence any action, suit or proceedings relating
hereto except in such courts). Each of the parties hereto agrees that service of
any process, summons, notice or document by U.S. registered mail at its address
set forth herein shall be effective service of process for any action, suit or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement, which is
brought by or against it, in the courts of the State of New York or any federal
court sitting in the State of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
28
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
HEALTHCARE IMAGING SERVICES, INC.
/s/ Elliott A. Vernon
By: ___________________________
Name: Elliott A. Vernon
Title: CHM/CEO
ECHELON MRI, P.C.
/s/ Samuel J. Beran
By: ___________________________
Name: Samuel J. Beran
Title: President
MAINLAND IMAGING CENTER, P.C.
/s/ Samuel J. Beran
By: ___________________________
Name: Samuel J. Beran
Title: President
NORTH JERSEY IMAGING MANAGEMENT
ASSOCIATES, L.P.
/s/ Samuel J. Beran
By: ___________________________
Name: Samuel J. Beran
Title: President
BLOOMFIELD IMAGING ASSOCIATES, P.A.
/s/ Samuel J. Beran
By: ___________________________
Name: Samuel J. Beran
Title: President
IRVING N. BERAN, M.D., P.A.
/s/ Samuel J. Beran
By: ___________________________
Name: Samuel J. Beran
Title: President
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
as Escrow Agent
/s/Scott M. Zimmerman
By:____________________________
Scott M. Zimmerman, a Partner
29
<PAGE>
SCHEDULE A--Escrow Shares
-------------------------
<TABLE>
<CAPTION>
Certificate No. Name Number of Shares
- --------------- ---- ----------------
<S> <C>
D-11 Echelon MRI, P.C. 8.508
D-12 Mainland Imaging Center, P.C. 1.8
D-13 North Jersey Imaging Management Associates, L.P. 4.418
D-14 Bloomfield Imaging Associates, P.A. 1.145
D-15 Irving N. Beran, P.A. 0.491
</TABLE>
30
<PAGE>
Exhibit 4
FORM OF
-------
PLEDGE AND SECURITY AGREEMENT
-----------------------------
PLEDGE AND SECURITY AGREEMENT, dated ______ ___, 1998 (the
"Agreement"), by and between Healthcare Imaging Services, Inc., a Delaware
corporation (the "Pledgee"), and _________ (the "Pledgor").
RECITALS
--------
WHEREAS, Pledgor has issued a promissory note, dated as of the date
hereof, in favor of the Pledgee in the principal amount of ______ Dollars
($____) (the "Note");
WHEREAS, the Pledgor owns _______ shares of Series D Cumulative
Accelerating Redeemable Preferred Stock of the Pledgee (the "Pledged Shares");
and
WHEREAS, the Pledgee desires that the Pledgor pledge the Pledged Shares
to secure all of its obligations to the Pledgee under the Note.
NOW, THEREFORE, in consideration of the foregoing premises, the terms
and conditions herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor and the
Pledgee hereby agree as follows:
12. Defined Terms.
(a) Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Note.
(b) When used in this Agreement, the following capitalized
terms shall have the respective meanings ascribed thereto as follows:
"Agreement": as defined in the preamble of this Agreement.
"Asset Purchase Agreement": shall mean the Asset Purchase
Agreement, dated as of September 16, 1998, among Healthcare Imaging Services,
Inc., [Pledgor,] Echelon MRI, P.C., Mainland Imaging Center, P.C., North Jersey
Imaging Management Associates, L.P., Bloomfield Imaging Associates, P.A., Irving
N. Beran, M.D., P.A., the estate of Irving N. Beran, Deceased, Phyllis Beran and
Sam Beran, M.D.
"Business Day": shall mean any day other than a day on
which banks are authorized or required to be closed in the State of New Jersey.
<PAGE>
"Cash Substitution Amount": as defined in Section 3.
"Collateral": as defined in Section 2.
"Event of Default": as defined in Section 7.
"Governmental Authority": shall mean any governmental
authority including, without limitation, any federal, state, territorial,
county, municipal or other governmental agency, board, branch, bureau,
commission, court, arbitration panel, department, authority, body or other
instrumentality or political unit or subdivision or official thereof, whether
domestic or foreign.
"Instruments": shall mean any and all legal documents,
including, without limitation, stock certificates or any document evidencing
stock ownership.
"Lien": shall mean any security agreement, financing
statement (whether or not filed), mortgage, lien (statutory or otherwise),
charge, pledge, hypothecation, conditional sales agreement, adverse claim, title
retention agreement or other security interest, encumbrance, lien, charge,
restrictive agreement, mortgage, deed of trust, indenture, pledge, option,
limitation, exception to or other title defect in or on any interest or title of
any vendor, lessor, lender or other secured party to or of such Person under any
conditional sale, lease, consignment, or bailment given for security purposes,
trust receipt or other title retention agreement with respect to any property or
asset of such Person, whether direct, indirect, accrued or contingent.
"Note": as defined in the preamble of this Agreement.
"Obligations": shall mean all the obligations and
liabilities of every kind and character now or hereafter existing (whether
matured or unmatured, contingent or liquidated) of Pledgee under the Note and
any costs and expenses incurred by the Pledgee in the collection of the Note,
including reasonable attorney's fees and expenses, whether or not a suit to
enforce such rights is actually instituted.
"Person": shall mean any corporation, partnership, firm,
joint venture, individual, association, trust, unincorporated organization or
other entity.
"Pledgee": as defined in the preamble of this Agreement.
"Pledged Shares": as defined in the preamble of this
Agreement.
"Pledgor": as defined in the preamble of this Agreement.
"Proceeds": shall mean all dividends, distributions and
income received with respect to the Pledged Shares.
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"Securities Act": as defined in Section 8.
"UCC": shall mean the Uniform Commercial Code as in effect
in the State of New Jersey on the date hereof; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the Pledgee's security interest in the Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New Jersey, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
13. Grant of Security Interest/Pledge. To secure the prompt and
complete payment, observance and performance of the Obligations (subject to any
applicable grace and cure periods), the Pledgor hereby assigns, conveys,
pledges, hypothecates and transfers to the Pledgee, and hereby grants to the
Pledgee a security interest in and Lien on, all of the Pledgor's right, title
and interest in and to the Pledged Shares, any interest into which the foregoing
may be converted or exchanged, whether by recapitalization, reclassification,
reorganization or other similar transaction or event, and all of the Proceeds of
the foregoing, whether now owned or existing or hereafter arising or acquired
(collectively, the "Collateral").
14. Substitution. At any time and from time to time, the Pledgor may,
upon compliance with the procedures set forth herein, obtain possession of all
or any portion of the Pledged Shares by substituting therefor a cash amount
equal to the Value of the Pledged Shares (the "Cash Substitution Amount"). In
the event that the Pledgor desires to engage in such substitution, it shall
deliver a written notice to the Pledgee stating its desire to engage in such
substitution and its calculation of the Cash Substitution Amount. In engaging in
a substitution, the Pledgor shall be entitled to substitute cash proceeds to be
derived from the redemption or sale of all or a portion of the Pledged Shares.
The parties hereto shall take such action, at the sole cost and expense of the
Pledgor, as is reasonably necessary to permit and facilitate any such redemption
or sale and substitution.
15. Rights; Interests; Etc.
(a) So long as no Event of Default shall have occurred and
be continuing:
(i) The Pledgor shall be entitled to exercise any and all
rights pertaining to the Collateral or any part thereof, including,
without limitation, voting rights, for any purpose not inconsistent
with the terms hereof or of the Note and in accordance with the terms
of the Asset Purchase Agreement, and the Pledgee shall take all actions
necessary to enable the Pledgor to exercise such rights in a timely
manner; and
(ii) The Pledgor shall be entitled to receive and retain
any and all interest, dividends, income and other payments and
distributions paid or made in respect of the Collateral.
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(b) Upon the occurrence and during the continuance of an
Event of Default:
(i) All rights of the Pledgor to exercise the rights
which it would otherwise be entitled to exercise pursuant to Section
4(a)(i) hereof and to receive the interest, dividends, income and other
payments and distributions which it would otherwise be authorized to
receive and retain pursuant to Section 4(a)(ii) hereof shall be
suspended, and all such rights shall thereupon become vested in the
Pledgee who shall thereupon have the sole right to exercise such rights
and to receive and hold as Collateral such interest, dividends, income
and other payments and distributions; provided, however, that if the
Pledgee shall become entitled and shall elect to exercise its right to
realize on the Collateral pursuant to Section 8 hereof, then all cash
sums and the value of all securities, if any, referred to in Section
4(a)(ii) hereof received by the Pledgee, or held by Pledgor for the
benefit of the Pledgee and paid over to the Pledgee pursuant to Section
4(b)(ii) hereof, shall be applied against any outstanding Obligations;
and
(ii) All interest, dividends, income and other payments
and distributions which are received by the Pledgor contrary to the
provisions of Section 4(b)(i) shall be received in trust for the
benefit of the Pledgee, shall be segregated from other property of the
Pledgor and shall be forthwith paid over to the Pledgee.
16. Representations of the Pledgor. The Pledgor represents and warrants
to the Pledgee as follows:
(a) The Pledgor has the legal right and capacity to grant the
Lien in the Collateral pursuant hereto;
(b) No consent or authorization of, filing with, or other act
by or in respect of, any Governmental Authority and no consent of any Person is
required (i) for the pledge by the Pledgor of any Collateral pursuant to this
Agreement, or (ii) for the exercise by the Pledgee of the rights provided for in
this Agreement or the remedies in respect of the Collateral pursuant to this
Agreement, except such as have been obtained or made or may be required under
federal or state securities laws in connection with any sale of the Collateral;
(c) The Pledgor is the sole legal and beneficial owner of, and
has valid and transferable title to, the Collateral pledged by the Pledgor to
the Pledgee pursuant hereto, free and clear of all Liens, other than the Lien in
favor of the Pledgee created by this Agreement;
(d) The Pledged Shares are fully paid and non-assessable and
are not subject to any charter, bylaw, statutory, contractual or other
restrictions governing their issuance, transfer, ownership or control other than
as set forth in the Asset Purchase Agreement, and the exhibits thereto, and
applicable securities laws; and
(e) All actions required to create and perfect the Lien of the
Pledgee in the
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Collateral have been taken and the delivery to the Pledgee of the Collateral is
effective to create a valid, perfected and exclusive first priority Lien on the
Collateral in favor of the Pledgee.
17. Obligations of the Pledgor. The Pledgor further represents,
warrants, and covenants to the Pledgee that:
(a) Except as set forth on Schedule A hereto, the Pledgor will
not, without the prior written consent of the Pledgee, sell, transfer or convey
any interest in, or suffer or permit any Lien on or with respect to, any of the
Collateral (other than as created under this Agreement) during the term of this
Agreement;
(b) Simultaneously with the execution of this Agreement, the
Pledgor will deliver to the Pledgee all instruments and stock certificates
representing the Pledged Shares, together with appropriate undated instruments
of transfer or assignment duly executed in blank. In addition, the Pledgor shall
promptly deliver to the Pledgee stock certificates or other documents
representing any Collateral acquired or received after the date of this
Agreement;
(c) The Pledgor will, at its own expense, at any time and from
time to time at the request of the Pledgee, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may be
requested by the Pledgee to further enhance, preserve, establish, demonstrate,
perfect or enforce the Pledgee's rights, interest and remedies created by,
provided in or emanating from this Agreement;
(d) The Pledgor, at its own expense, shall defend the
Collateral against all claims of any kind or nature at any time by any Person
claiming the same or any interest therein adverse to the interests of the
Pledgee;
(e) Except as otherwise required by law, the Pledgor agrees
that, with respect to the Collateral, the Pledgee does not have any obligation
to preserve its rights against prior or third parties; and
(f) The Pledgee's only duty with respect to the Collateral
delivered to it shall be to use reasonable care in the custody and preservation
of such Collateral, and the Pledgor agrees that if the Pledgee accords such
Collateral substantially the same kind of care as it accords its own property,
such care shall conclusively be deemed reasonable. In the event that all or any
part of the Collateral consists of Instruments and that all or any part of such
Instruments are lost, destroyed or wrongfully taken while such Instruments are
in the possession of the Pledgee, the Pledgor agrees that it will use its best
efforts to cause the delivery of new Instruments in place of the lost, destroyed
or wrongfully taken Instruments upon request therefor by the Pledgee, without
the necessity of any indemnity bond or other security, other than the Pledgee's
agreement of indemnity upon usual and customary terms therefor.
18. Events of Default.
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Each of the following shall constitute an "Event of Default":
(a) If the Pledgor shall fail to observe or perform any
material term, covenant or agreement contained in this Agreement; or
(b) The occurrence of an Event of Default (as defined in the
Note) under the Note.
19. Remedies. Upon the occurrence of an Event of Default or at any time
during the continuance thereof:
(a) The Pledgee may exercise all rights and remedies of a
Pledgee under the UCC. Without limiting the generality of the foregoing, the
Pledgor expressly agrees that in any such event the Pledgee, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
the Pledgor, or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived to the extent permitted by law), may
forthwith assume, collect, receive, appropriate and realize upon the Collateral,
or any part thereof, and/or may forthwith sell, lease, assign, give an option or
options to purchase, or sell or otherwise dispose of and deliver the Collateral
(or contract to do so), or any part thereof, in one or more parcels at a public
or private sale or sales, at any exchange broker's board or at the Pledgee's
offices or elsewhere at such prices and on such terms and restrictions
(including, without limitation, a requirement that any purchaser of all or any
part of the Collateral shall be required to purchase the Pledged Shares solely
for investment and without any intention to make a distribution thereof) as the
Pledgee may deem appropriate without any liability for any loss due to decrease
in the market value of the Pledged Shares during the period held. The Pledgee
shall give the Pledgor ten (10) Business Days' prior notice of any intended
disposition of the Collateral. Such notice shall be deemed reasonable and
properly given if hand delivered or sent by facsimile to the address or
facsimile number, as applicable, of the Pledgor indicated below. Any disposition
of the Pledged Shares or any part thereof may be for cash or on credit or for
future delivery without assumption of any credit risk, with the right to the
Pledgee to purchase all or any part of the Pledged Shares so sold at any such
sale or sales, public or private, free of any equity or right of redemption
which right or equity is, to the extent permitted by applicable law, hereby
expressly waived and released by the Pledgor.
(b) All of the Pledgee's rights and remedies under this
Agreement and under applicable law, including but not limited to the foregoing,
shall be cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as the Pledgee may deem expedient.
(c) The Pledgor recognizes that the Pledgee may be unable to
effect a public sale of all or a part of the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), or other relevant securities law in any jurisdiction, but may
be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire the
Pledged Shares for their own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor agrees that private
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sale so made may be at prices and on other terms less favorable to the seller
than if the Pledged Shares were sold at public sale, and that the Pledgee has no
obligation to delay the sale of any Pledged Shares for the period of time
necessary to permit the registration of the Pledged Shares for public sale under
the Securities Act or other relevant securities law in any jurisdictions. The
Pledgor agrees that a private sale or sales made under the foregoing
circumstances shall be commercially reasonable.
(d) If any consent, approval or authorization of, or filing
with, any Governmental Authority or any other Person should be necessary to
effectuate any sale or other disposition of the Collateral, or any partial
disposition of the Collateral, the Pledgor agrees to execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization or making such filing, and
will otherwise use its best efforts to secure or file the same. The Pledgor
further agrees to use its best efforts to secure such sale or other disposition
of the Collateral as the Pledgee may deem necessary pursuant to the terms of
this Agreement.
(e) Upon any sale or other disposition, the Pledgee shall have
the right to deliver, endorse, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition, including the Pledgee, shall hold the Collateral free from any
claim or right of whatever kind, including any equity or right of redemption.
The Pledgor specifically waives, to the extent permitted by applicable law, all
rights of stay or appraisal which the Pledgor had or may have under any rule of
law or statute now existing or hereafter adopted.
(f) The Pledgee shall not be obligated to make any sale or
other disposition unless the terms thereof shall be satisfactory to it. The
Pledgee may, without notice or publication, adjourn any private or public sale,
and, upon five (5) Business Days' prior notice to the Pledgor, hold such sale at
any time or place to which the same may be so adjourned. In case of any sale of
all or any part of the Collateral, on credit or future delivery, the Collateral
so sold may be retained by the Pledgee until the selling price is paid by the
purchaser thereof, but the Pledgee shall incur no liability in case of the
failure of such purchaser to take up and pay for the property so sold and, in
case of any such failure, such property may again be sold as herein provided.
20. Disposition of Proceeds. The proceeds of any sale or disposition of
all or any part of the Collateral shall be applied (after payment of any amounts
payable to the Pledgee pursuant to Section 11 hereof) by the Pledgee to the
payment of all of the Obligations. Any surplus thereafter remaining shall be
paid to the Pledgor, subject to the rights of any holder of a Lien on the
Collateral of which the Pledgee has actual notice.
21. Binding Obligation. This Agreement shall:
(a) create a continuing first priority security interest in the
Collateral;
(b) remain in full force and effect for so long as the
Obligations are outstanding and unpaid;
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(c) be binding upon the Pledgor and its successors and assigns;
and
(d) inure to the benefit of the Pledgee and its successors and
assigns.
22. Expenses of the Pledgee. All expenses (including, without
limitation, attorneys' fees and disbursements) incurred by the Pledgee in
connection with the failure by the Pledgor to perform or observe any provision
of this Agreement, the exercise or enforcement of any rights of the Pledgee
under this Agreement and the custody or preservation of any of the Collateral
and any actual or attempted sale or exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action taken
by the Pledgee hereunder, whether directly or as attorney-in-fact pursuant to a
power of attorney or other authorization herein conferred, shall be deemed an
obligation of the Pledgor and shall be deemed an Obligation for all purposes of
this Agreement and the Pledgee may apply the Collateral to payment of or
reimbursement of itself for such liability.
23. Termination. This Agreement shall terminate, and the Pledgee shall
forthwith assign, transfer and deliver such of the Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof to the Pledgor when
the Obligations have been completely paid and satisfied in full.
24. Power of Attorney. The Pledgor hereby irrevocably constitutes and
appoints the Pledgee as the true and lawful attorney of the Pledgor, with full
power of substitution in the name of the Pledgor from time to time upon the
occurrence and during the continuation of an Event of Default to do any and all
such acts and things or execute and deliver all such agreements, documents and
instruments as the Pledgee reasonably considers necessary or desirable to carry
out the provisions and purposes of this Agreement or to exercise any of its
rights and remedies hereunder and to perfect the Lien created hereunder, and to
do all acts or things necessary to realize on the Collateral, and the Pledgor
hereby ratifies and agrees to ratify all acts of any attorney taken or done in
accordance with this Section 13. Without in any way limiting the generality of
the foregoing, the Pledgee shall have the right to execute, for and in the name
of the Pledgor, all financing statements and amendments thereto, conveyances,
transfers, assignments, consents and other instruments as may be required for
such purposes. This power of attorney is coupled with an interest and shall not
be revoked or terminated by any act or thing other than the termination of this
Agreement in accordance with Section 12 hereof.
25. General Provisions.
(a) No failure on the part of the Pledgee to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Pledgee of any
right, power or remedy hereunder preclude any other or future exercise thereof,
or the exercise of any other right, power or remedy. The representations,
covenants and agreements of the Pledgor herein contained shall survive the date
hereof.
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(b) No amendment or waiver of any provision of this Agreement
nor consent to the departure by the Pledgor herefrom nor release of all or any
part of the Collateral shall in any event be effective unless the same shall be
in writing and consented to in writing by the Pledgee. Any such waiver or
consent or release shall be effective only in the specific instance and for the
specific purpose for which it is given.
(c) The obligations of the Pledgor under this Agreement shall
remain in full force and effect without regard to, and shall not be impaired or
affected by:
(i) any amendment, modification, addition or
supplement to the Note, any document or instrument delivered in
connection therewith or any assignment or transfer thereof;
(ii) any exercise, non-exercise or waiver by the
Pledgee of any right, remedy, power or privilege under or in
respect of the Note; or
(iii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of
the Pledgor or any other Person;
in all cases, whether or not the Pledgor shall have notice or knowledge of any
of the foregoing.
(d) Except as provided on Schedule A hereto, the Pledgor may
not assign its rights or obligations under this Agreement without the prior
written consent of the Pledgee.
(e) Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service, if personally served or sent by
telecopy; on the business day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Pledgor, to:
--------------------
--------------------
--------------------
Fax:
with a copy to:
Steven Dubow, Esq.
Blank Rome Comisky & McCauley LLP
One Logan Square
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Philadelphia, Pennsylvania 19103-6698
Fax: (215) 569-5628
If to the Pledgee, to:
Elliott H. Vernon, Esq.
Healthcare Imaging Services, Inc.
200 Schulz Drive
Red Bank, New Jersey 07701
Fax: (732) 224-9362
with a copy to:
Scott M. Zimmerman, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
Fax: (212) 758-9526
(f) This Agreement shall be construed in accordance with, and
governed by, the Laws of the State of New Jersey as applied to contracts made
and to be performed entirely in the State of New Jersey without regard to
principles of conflicts of Law. Each of the parties hereto hereby irrevocably
and unconditionally submits to the exclusive jurisdiction of any court of the
State of New Jersey or any federal court sitting in the State of New Jersey for
purposes of any suit, action or other proceeding arising out of this Agreement
(and agrees not to commence any action, suit or proceedings relating hereto
except in such courts). Each of the parties hereto agrees that service of any
process, summons, notice or document by U.S. registered mail at its address set
forth herein shall be effective service of process for any action, suit or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement, which is
brought by or against it, in the courts of the State of New Jersey or any
federal court sitting in the State of New Jersey and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(g) If any provision of this Agreement is determined by a
court of competent jurisdiction to be unenforceable, such provision shall be
automatically reformed and construed so as to be valid, operative and
enforceable to the maximum extent permitted by law while most nearly preserving
its original intent. The invalidity of any part of this Agreement shall not
render invalid the remainder of this Agreement.
(h) This Agreement may be executed in counterparts, each of
which when so
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executed and delivered shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument.
(i) The section headings in this Agreement are for convenience
of reference only and shall not affect the interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
[PLEDGOR]
By:
Name:
Title:
HEALTHCARE IMAGING SERVICES, INC.
By:
Name:
Title:
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SCHEDULE A
----------
Pledgor may assign its rights and obligations under the Pledge and
Security Agreement and may transfer the Collateral, subject to the terms and
provisions of the Pledge and Security Agreement, to a liquidating trust upon
Pledgor's dissolution and/or liquidation provided that such liquidating trust is
also assigned substantially all of the non-cash assets of Pledgor, including the
Collateral.
43
