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EXHIBIT 2.2
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Agreement") is made and entered into
as of the 21st day of December, 1999, among INFOCURE CORPORATION, a Delaware
corporation ("Parent") and THE UNDERSIGNED SHAREHOLDER AND/OR OPTION HOLDER (the
"Shareholder") of MEDICAL DYNAMICS, INC., a Colorado corporation (the
"Company").
RECITALS:
A. The Company, Merger Sub (as defined below) and Parent have
entered into an Agreement and Plan of Merger and Reorganization (the "Merger
Agreement"), which provides for the merger (the "Merger") of a wholly-owned
subsidiary of Parent ("Merger Sub") with and into the Company. Pursuant to the
Merger, all or substantially all of the outstanding capital stock of the Company
shall be converted into the right to receive common stock of Parent, as set
forth in the Merger Agreement;
B. Shareholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of the outstanding capital stock of the Company and shares
subject to outstanding options and warrants as is indicated on the signature
page of this Agreement; and
C. In consideration of the execution of the Merger Agreement by
Parent, Shareholder agrees to vote the Shares (as defined below) and other such
shares of capital stock of the Company over which Shareholder has voting power
so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
A. "Expiration Date" shall mean the earlier to occur of
(i) such date and time as the Merger Agreement shall have been terminated
pursuant to Section 8. thereof or (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement.
B. "Person" shall mean any (i) individual; (ii)
corporation, limited liability company, partnership or other entity or (iii)
governmental authority.
C. "Shares" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) owned by Shareholder
as of the date of this Agreement and (ii) all
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additional securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to acquire
shares of Company Common Stock) of which Shareholder acquires ownership during
the period from the date of this Agreement throughout the Expiration Date.
D. Transfer. A Person shall be deemed to have effected
a "Transfer" of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security or (ii) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrances of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. Transfer of Shares.
A. Transferee of Shares to be Bound by This Agreement.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Shares to be effected unless prior to any such Transfer the Person
to which any of such Shares, or any interest in any of such Shares, is or may be
transferred shall have: (i) executed a counterpart of this Agreement and a proxy
in the form attached hereto as EXHIBIT A (with such modifications as Parent may
reasonably request) and (ii) agreed in writing to hold such Shares (or interest
in such Shares) subject to all of the terms and provisions of this Agreement.
B. Transfer of Voting Rights. Shareholder agrees that,
during the period from the date of this Agreement through the Expiration Date,
Shareholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Shareholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the
shareholders of the Company called, and at every adjournment thereof, and on
every action or approval by written consent of the shareholders of the Company,
Shareholder shall cause the Shares to be voted (i) in favor of approval of the
Merger Agreement and the Merger; (ii) in favor of any matter that could
reasonably be expected to facilitate the Merger and (iii) in such manner as
Parent may direct with respect to all other proposals submitted to the
shareholders of the Company which, directly or indirectly, in any way relates to
the Merger; provided, however, that clauses (ii) and (iii) of this Section 3.
shall not be construed to require any action that would contravene Paragraph
47(c) of Opinion 16 of the Accounting Principles Board and applicable SEC rules
and regulations.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Parent a proxy in the form attached
hereto as EXHIBIT A (the "Proxy"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. Representations and Warranties of the Shareholder.
Shareholder (i) is the beneficial owner of the shares of Common Stock of the
Company, Preferred Stock of the Company and the options and warrants to purchase
shares of Common Stock of the Company
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indicated on the final page of this Agreement, free and clear of any liens,
claims, options, rights of first refusal, co-sale rights, charges or other
encumbrances; (ii) does not beneficially own any securities of the Company other
than the shares of Common Stock of the Company and options and warrants to
purchase shares of Common Stock of the Company indicated on the final page of
this Agreement and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
6. Additional Documents. Shareholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the intent of this Agreement.
7. Consent and Waiver. Shareholder (not in his capacity as a
director or officer of the Company) hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which Shareholder is a party or pursuant to any rights
Shareholder may have.
8. No Solicitation. Until the Merger is consummated or the Merger
Agreement is terminated, Shareholder shall not, nor shall Shareholder permit any
investment banker, attorney or other advisor or representative of Shareholder
to, directly or indirectly, take any action prohibited by Section 5.1. of the
Merger Agreement.
9. Legending of Shares. If so requested by Parent, Shareholder
agrees that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. Subject to the terms of Section 2.
hereof, Shareholder agrees that Shareholder shall not Transfer the Shares
without first having the aforementioned legend affixed to the certificates
representing the Shares.
10. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
11. Miscellaneous.
A. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
B. Binding Effect and Assignment. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
C. Amendments and Modifications. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
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D. Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
E. Notices. All notices and other communications
pursuant to this Agreement shall be in writing and deemed to be sufficient if
contained in a written instrument and shall be deemed given if delivered
personally, telecopied, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: InfoCure Corporation
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Telecopier No.: (000) 000-0000
If to Shareholder: To the address for notice set
forth on the signature page
hereof.
F. Governing Law. This Agreement shall be governed by
the laws of the State of Delaware, without reference to rules of conflicts of
law.
G. Entire Agreement. This Agreement and the Proxy
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matter.
H. Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
I. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
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J. Documents Delivered. Shareholder acknowledges
receipt of copies of the following documents: (i) the Merger Agreement and all
Exhibits and Schedules thereto and (ii) the Parent SEC reports referenced in
Section 4.5. of the Merger Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
PARENT: SHAREHOLDER:
InfoCure Corporation
By: By:
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Signature of Authorized Signatory Signature
Name: Name: Xxxxx X. Xxxxx, M.D.
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Title: Title:
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Print Address
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Telephone
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Telecopier No.
Shares beneficially owned:
_________ shares of Company Common Stock
_________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
SHAREHOLDER:
By:
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Signature
Name: Xxx Xxxxxxx Xxxxx
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Title:
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Print Address
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Telephone
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Telecopier No.
Shares beneficially owned:
_________ shares of Company Common Stock
_________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
SHAREHOLDER:
By:
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Signature
Name: Xxxxxx X. Xxxxxxxx
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Title:
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Print Address
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Telephone
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Telecopier No.
Shares beneficially owned:
_________ shares of Company Common Stock
_________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
SHAREHOLDER:
By:
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Signature
Name: Xxxx X. Xxx
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Title:
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Print Address
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Telephone
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Telecopier No.
Shares beneficially owned:
_________ shares of Company Common Stock
_________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
SHAREHOLDER:
By:
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Signature
Name: Van X. Xxxxxxx
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Title:
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Print Address
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Telephone
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Telecopier No.
Shares beneficially owned:
_________ shares of Company Common Stock
_________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
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EXHIBIT A
Irrevocable Proxy
The undersigned shareholder of Medical Dynamics, Inc., a Colorado
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of InfoCure
Corporation, a Delaware corporation ("Parent"), and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Shareholder
Agreement of even date herewith by and among Parent and the undersigned
Shareholder (the "Shareholder Agreement"), and is granted in consideration of
Parent entering into that certain Agreement and Plan of Merger and
Reorganization (the "Merger Agreement"), among Parent, CADI Acquisition
Corporation, a Colorado corporation and a wholly-owned subsidiary of Parent
("Merger Sub") and the Company. The Merger Agreement provides for the merger of
Merger Sub with and into the Company in accordance with its terms (the
"Merger"). As used herein, the term "Expiration Date" shall mean the earlier of
(i) such date and time as the Merger Agreement shall have been validly
terminated pursuant to Section 8. thereof or (ii) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of shareholders
of the Company and in every written consent in lieu of such meeting (i) in favor
of approval of the Merger Agreement and the Merger; (ii) in favor of any matter
that could reasonably be expected to facilitate the Merger and (iii) in such
manner as Parent may direct with respect to other proposals submitted to the
shareholders of Company which, directly or indirectly, in any way relate to the
Merger; provided, however, that clauses (ii) and (iii) hereof shall not be
construed to require any action that would contravene Paragraph 47(c) of Opinion
16 of the Accounting Principles Board and applicable Securities Exchange
Commission rules and regulations.
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The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned shareholder may vote
the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: December ___, 1999
Signature of Shareholder:
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Print Name of Shareholder:
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Shares beneficially owned:
_____ shares of the Company Common Stock
_____ shares of the Company Common Stock
issuable upon exercise of outstanding
options or warrants
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