VOTING AGREEMENT
Exhibit 10.1
This Voting Agreement (the “Agreement”) is made and entered into as of December 24,
2009, between Project Alta Holdings Corp., a Delaware corporation (“Parent”), and the
undersigned stockholder of the Company (“Holder”).
RECITALS
Pursuant to an Agreement and Plan of Merger, dated as of December 24, 2009 (the “Merger
Agreement”) by and among Parent, Project Alta Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent (“Merger Sub”), and AMICAS, Inc., a Delaware corporation
(the “Company”), Merger Sub is merging with and into the Company (the “Merger”) and
the Company, as the surviving corporation of the Merger, will thereby become a wholly-owned
subsidiary of Parent. Concurrently with the execution and delivery of the Merger Agreement and as a
condition and inducement to Parent and Merger Sub to enter into the Merger Agreement, Parent has
required that Holder enter into this Agreement. The Holder is the record and beneficial owner
(within the meaning of Rule 13d-3 of the Exchange Act) of such number of shares of the outstanding
Common Stock, par value $0.001 per share, of the Company as is indicated beneath Holder’s signature
on the last page of this Agreement (the “Shares”). Capitalized terms used herein but not
defined shall have the meanings ascribed to them in the Merger Agreement.
AGREEMENT
The parties agree as follows:
1. Agreement to Retain Shares.
(a) Transfer. (1) Except as contemplated by the Merger Agreement, and except as
provided in Section 1(b) below, during the period beginning on the date hereof and ending on the
earlier to occur of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the
Expiration Date (as defined below), Holder agrees not to, directly or indirectly, sell, transfer,
exchange or otherwise dispose of (including by merger, consolidation or otherwise by operation of
law) the Shares or any New Shares (as defined below), (2) Holder agrees not to, directly or
indirectly, grant any proxies or powers of attorney, deposit any of such Holder’s Shares into a
voting trust or enter into a voting agreement with respect to any of such Holder’s Shares, or enter
into any agreement or arrangement providing for any of the actions described in this clause (2),
and (3) Holder agrees not to, directly or indirectly, take any action that could reasonably be
expected to have the effect of preventing or disabling Holder from performing Holder’s obligations
under this Agreement, in each case at any time prior to the earlier to occur of (i) the Effective
Time and (ii) the Expiration Date. As used herein, the term “Expiration Date” shall mean
the earlier to occur of (i) the date of termination of the Merger Agreement in accordance with the
terms and provisions thereof and (ii) the date on which the Company’s
Board of Directors withdraws or modifies in a manner adverse to Parent or Merger Sub its
approval or recommendation of the Merger or the transactions contemplated thereby or by the
Transaction Documents.
(b) Permitted Transfers. Section 1(a) shall not prohibit a transfer of Shares or New
Shares by Holder (i) to any family member, trust for the benefit of any family member or charitable
organization to which contributions are deductible for federal income tax, estate or gift purposes
so long as the assignee or transferee agrees to be bound by the terms of this Agreement and
executes and delivers to the parties hereto a written consent memorializing such agreement and (ii)
upon the vesting of restricted stock awards of Company Common Stock but only to the extent of such
Holder’s income or other tax liability with respect to such vested restricted stock awards.
(c) New Shares. Holder agrees that any shares of the Company Common Stock that Holder
purchases or with respect to which Holder otherwise acquires record or beneficial ownership after
the date of this Agreement and prior to the earlier to occur of (i) the Effective Time and (ii) the
Expiration Date (“New Shares”) shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares.
(a) Until the earlier to occur of the Effective Time and the Expiration Date, at every meeting
of the stockholders of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the stockholders of the
Company with respect to any of the following, Holder shall appear at such meeting (in person or by
proxy) and shall vote or consent the Shares and any New Shares (i) in favor of adoption of the
Merger Agreement and the approval of the transactions contemplated thereby and (ii) against any
proposal for any recapitalization, merger, sale of assets or other business combination (other than
the Merger) between the Company and any person or entity other than Parent or any other action or
agreement that would reasonably be expected to result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company under the Merger Agreement or
Holder under this Agreement or which would reasonably be expected to result in any of the
conditions to the Company’s obligations under the Merger Agreement not being fulfilled.
This Agreement is intended to bind Holder as a stockholder of the Company only with respect to the
specific matters set forth herein. Except as set forth in clauses (i) and (ii) of this Section
2(a), Holder shall not be restricted from voting in favor of, against or abstaining with respect to
any other matter presented to the stockholders of the Company. Prior to the termination of this
Agreement, Holder covenants and agrees not to enter into any agreement or understanding with any
person to vote or give instructions in any manner inconsistent with the terms of this Agreement.
(b) Holder further agrees that, until the termination of this Agreement, Holder will not, and
will not permit any entity under Holder’s control to, (A) solicit proxies or become a “participant”
in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to
an Opposing Proposal (as defined below), (B) initiate a stockholders’ vote with respect to an
Opposing Proposal or (C) become a member of a “group” (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company with
respect to an Opposing Proposal. For the purposes of this Agreement, an “Opposing
Proposal” means any action or proposal described in clause (ii) of Section 2(a) above.
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(c) Subject to the provisions set forth in Section 5 hereof and as security for Holder’s
obligations under Section 2(a), Holder hereby irrevocably constitutes and appoints Parent and its
or his designees as his attorney and proxy in accordance with the DGCL, with full power of
substitution and resubstitution, to cause the Shares to be counted as present at the Company
Stockholders Meeting, to vote his Shares at the Company Stockholders Meeting, however called, and
to execute consents in respect of his Shares as and to the extent provided in Section 2(a).
SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 5 HEREOF, THIS PROXY AND POWER OF ATTORNEY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST. Upon the execution of this Agreement, Holder hereby
revokes any and all prior proxies or powers of attorney given by Holder with respect to voting of
the Shares on the matters referred to in Section 2(a) and agrees not to grant any subsequent
proxies or powers of attorney with respect to the voting of the Shares on the matters referred to
in Section 2(a) until after the Expiration Date. Holder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon the Holder’s execution and delivery of this
Agreement and Holder’s granting of the proxy contained in this Section 2(c). Holder hereby affirms
that the proxy granted in this Section 2(c) is given in connection with the execution of the Merger
Agreement, and that such Proxy is given to secure the performance of the duties of Holder under
this Agreement. Parent acknowledges and agrees that Holder may vote the Shares on all other
matters not referred to in Section 2(a), and the attorneys and proxies named above may not exercise
the proxy with respect to such matters.
3. Representations, Warranties and Covenants of Holder. Holder hereby represents,
warrants and covenants to Parent that Holder (i) is the record and/or beneficial owner of the
Shares, which, at the date of this Agreement and at all times up until the earlier to occur of
(A) the Effective Time and (B) the Expiration Date, and will be free and clear of any liens,
claims, options, charges or other encumbrances that would reasonably be expected to have the effect
of preventing or disabling Holder from performing Holder’s obligations under this Agreement, and
(ii) does not own of record or beneficially any shares of capital stock of the Company other than
the Shares (excluding shares as to which Holder currently disclaims beneficial ownership in
accordance with applicable law). Holder has the legal capacity, power and authority to enter into
and perform all of Holder’s obligations under this Agreement (including under the proxy granted in
Section 2(c) above). This Agreement (including the proxy granted in Section 2(c) above) has been
duly and validly executed and delivered by Holder and constitutes a valid and binding agreement of
Holder, enforceable against Holder in accordance with its terms, subject to (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies.
4. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest
in Parent or Merger Sub any direct or indirect ownership or incidence of ownership of or with
respect to any Covered Shares, except as expressly provided herein. All rights, ownership and
economic benefits of and relating to the Covered Shares shall remain vested in and belong to the
Stockholder, and neither Parent nor Merger Sub shall have any authority to direct the
Stockholder in the voting or disposition of any of the Covered Shares, except as otherwise
provided herein.
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5. Termination. This Agreement and the proxy delivered in connection herewith shall
terminate and shall have no further force and effect as of the earlier to occur of
(i) the Expiration Date and (ii) the date following the date of the Company Stockholders Meeting,
including any adjournment or postponement thereof.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i)
Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity
as a record holder and/or beneficial owner of the Shares, (ii) nothing in this Agreement shall be
construed to limit or affect any action or inaction by Holder acting in his capacity as a director,
officer or other fiduciary of the Company, and (iii) Holder shall have no liability to Parent,
Merger Sub or any of their Affiliates under this Agreement as a result of any action or inaction by
Holder acting in his capacity as a director, officer or other fiduciary of the Company.
7. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the parties or their respective successors and assigns. Any amendment or
waiver effected in accordance with this Section 7(a) shall be binding upon the parties and their
respective successors and assigns.
Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with
the laws of the State of Delaware, without regard to the conflicts of laws principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the Court of Chancery of
the State of Delaware and to the jurisdiction of the United States District Court for the District
of Delaware for the purpose of any action arising out of or relating to this Agreement, and each of
the parties hereto irrevocably agrees that all claims in respect to such action may be heard and
determined exclusively in the Court of Chancery of the State of Delaware or any federal court
sitting in the State of Delaware. Each of the parties hereto agrees that a final judgment in any
action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Each of the parties hereto irrevocably consents to the service of
any summons and complaint and any other process in any other action relating to this Agreement, on
behalf of itself or its property, by the personal delivery of copies of such process to such party.
Nothing in this Section 7(c) shall affect the right of any party hereto to serve legal
process in any other manner permitted by law.
(b) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(c) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(d) Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by courier,
overnight delivery service or confirmed facsimile, or 72 hours after being deposited in the
regular mail as certified or registered mail with postage prepaid, if such notice is addressed to
the
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party to be notified at such party’s address or facsimile number as set forth below, or as
subsequently modified by written notice.
(e) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as possible to that under
the provision rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(f) Specific Performance. Each of the parties hereto recognizes and acknowledges that
a breach of any covenants or agreements contained in this Agreement will cause Parent and Merger
Sub to sustain damages for which they would not have an adequate remedy at law for money damages,
and therefore each of the parties hereto agrees that in the event of any such breach Parent shall
be entitled to the remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which they may be entitled, at law or
in equity.
[SIGNATURE PAGE FOLLOWS]
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The parties have caused this Agreement to be duly executed on the date first above written.
| PROJECT ALTA HOLDINGS CORP. | ||||||
| By: Name: |
/s/ Xxxxxxx Xxxxx
|
|||||
| Title: | President | |||||
| Address: | ||||||
| c/o Xxxxx Xxxxx, LLC | ||||||
| 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | ||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||
| Attention: Orlando Xxxxx | ||||||
| Xxxx Boro | ||||||
| Facsimile No.: (000) 000-0000 | ||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxxxx X. Xxxxxx, M.D.
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
40,760 | Common Stock | 40,760 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxx X. Xxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
3,137 | Common Stock | 3,137 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxxxx X. Xxxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
42,934 | Common Stock | 42,934 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxxx X. Xxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
18,217 | Common Stock | 18,217 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxxxx X. Xxxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
24,769 | Common Stock | 24,769 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxx X. Xxxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
54,690 | Common Stock | 54,690 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxx X. Sviolka
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
26,825 | Common Stock | 26,825 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxx X. Xxxxxxx, Xx.
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
| 0 | 0 | |||||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxx Xxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
| 0 | 0 | |||||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxxx Xxxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common
Stock
|
1,000 | Common Stock | 1,000 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Xxxxx Xxxxxxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common Stock
|
15,000 | Common Stock | 15,000 | |||||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
| “HOLDER” | ||||
| /s/ Kang Xxxx
|
||||
| Holder’s Address for Notice: | ||||
| Attention: | ||||
| Facsimile No.: | ||||
| Shares owned of record: | Beneficially owned shares: | |||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||
Common
Stock
|
20,000 | Common Stock | 20,000 | |||||||
