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EXHIBIT 99.1
CARDIOGENESIS CORPORATION
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
October 21, 1998, between Eclipse Surgical Technologies, Inc., a California
corporation ("PARENT"), and the undersigned stockholder ("STOCKHOLDER") of
Cardiogenesis Corporation, a Delaware corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the
Company and RW Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("MERGER SUB"), are entering into an Agreement
and Plan of Reorganization (the "MERGER AGREEMENT") which provides for the
merger (the "MERGER") of Merger Sub with and into the Company. Pursuant to the
Merger, shares of capital stock of the Company will be converted into Common
Stock of Parent on the basis described in the Merger Agreement.
B. The Stockholder has the power to vote the number of outstanding
shares of Common Stock of the Company stated on the signature page of this
Agreement. In addition, the Stockholder holds options to purchase the number of
shares of Common Stock of the Company (if any) stated on the signature page of
this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires the Stockholder to agree, and the Stockholder is willing to agree, to
vote the Shares (as defined below) and other such shares of capital stock of the
Company over which Stockholder has voting power so as to facilitate consummation
of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1 Agreement to Vote Shares. At every meeting of the
stockholders of the Company called with respect to the approval and adoption of
the Merger Agreement and the Merger, 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 foregoing, Stockholder shall cause the Shares and any
New Shares (as defined below) to be voted in favor of the approval and adoption
of the Merger Agreement and the Merger.
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1.2 Definition. For purposes of this Agreement, "SHARES" shall
mean all issued and outstanding shares of Common Stock of the Company owned of
record or beneficially (over which beneficially-owned shares the Stockholder
exercises voting power) by the Stockholder as of the record date for persons
entitled (a) to receive notice of, and to vote at the meeting of the
stockholders of the Company called for the purpose of voting on the matter
referred to in Section 1.1, or (b) to take action by written consent of the
stockholders of the Company with respect to the matter referred to in Section
1.1
1.3 Additional Purchases. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership (over which
beneficially-owned shares Stockholder exercises voting power) after the
execution of this Agreement and prior to the date of termination of this
Agreement ("NEW SHARES") shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "PROXY") with respect to the Shares.
3. Representations and Warranties of the Stockholder. Stockholder (i) is
the owner of the shares of Common Stock of the Company, and the options to
purchase shares of Common Stock of the Company, indicated on the signature page
of this Agreement, which at the date hereof are free and clear of any liens,
claims, options, charges or other encumbrances that could prevent or impair
Stockholder's performance of his obligations hereunder; (ii) does not
beneficially own any securities of the Company other than the shares of Common
Stock of the Company, and options to purchase shares of Common Stock of the
Company, indicated on the signature page of this Agreement; and (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement.
4. Additional Documents. Stockholder and Parent hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Parent or Stockholder, as the case may be, to carry
out the intent of this Agreement.
5. Stockholder Capacity Only: Consent and Waiver. As of the date of this
Agreement, Stockholder is an officer and/or director of the Company. Stockholder
does not make any agreement or enter into any understanding herein in his
capacity as an officer and/or director of the Company. Stockholder is signing
this Agreement solely in his capacity as a stockholder of the Company and
nothing herein shall limit or affect any actions taken or to be taken by
Stockholder in his capacity as an officer and/or director of the Company.
Stockholder hereby gives any consents or waivers that are reasonably required in
his capacity as a stockholder
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of the Company, and in no other capacity, for the consummation of the Merger
under the terms of any agreements to which Stockholder is a party or pursuant to
any rights Stockholder may have.
6. Termination. This Agreement shall automatically terminate and shall
have no further force or effect upon the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement or (ii) such date and time as the Merger
Agreement shall have been terminated pursuant to the terms thereof.
7. Miscellaneous.
7.1 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.
7.2 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.
7.3 Amendments and Modification. 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.
7.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any 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.
7.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered by
hand, including prepaid recognized courier, telegram or facsimile, or sent by
mail (registered or certified mail, postage prepaid, return receipt requested)
to the respective parties as follows:
If to Parent: Eclipse Surgical Technologies, Inc.
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000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
J. Xxxxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
With a copy to: Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
7.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
PARENT
By: ____________________________________
Name: __________________________________
Title: _________________________________
STOCKHOLDER
By: ____________________________________
Name: __________________________________
Title: _________________________________
Stockholder's Address for Notice:
____________ Outstanding Shares of
Common Stock of the Company
____________ Outstanding Shares of
Common Stock of the Company subject to
outstanding stock options
***COMPANY VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of Cardiogenesis Corporation, a Delaware
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of Eclipse Surgical Technologies, Inc., a California
corporation ("PARENT"), and each of them, as the sole and exclusive
attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to the voting of the Shares (as defined in the Voting Agreement of
even date between Parent and the Stockholder (the "VOTING AGREEMENT")) on the
matter described in the next paragraph (and on no other matter), until such time
as that certain Agreement and Plan of Reorganization dated as of October 21,
1998 (the "MERGER AGREEMENT"), among Parent, RW Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"), and
the Company, shall be terminated in accordance with its terms or the Merger (as
defined in the Merger Agreement) becomes effective. Upon the execution hereof,
all prior proxies given by the undersigned with respect to the Shares and any
and all other shares or securities issued or issuable in respect thereof on or
after the date hereof which would in any manner be inconsistent with the
understandings and obligations under the Voting Agreement are hereby revoked and
no subsequent proxies will be given during the life of this proxy which would in
any manner be inconsistent with the Voting Agreement and this proxy.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
and is granted in consideration of Parent entering into the Merger Agreement.
The attorneys-in-fact and proxies named above will be empowered at any time
prior to the earlier of termination of the Merger Agreement or the date on which
the Merger becomes effective, to exercise all voting rights (including, without
limitation, the power to execute and deliver written consents with respect to
the Shares) of the undersigned at every annual, special or adjourned meeting of
the Company's stockholders, and in every written consent of stockholders in lieu
of such a meeting, or otherwise, to vote the Shares in favor of approval and
adoption of the Merger Agreement and the Merger.
The attorneys-in-fact and proxies named above may only exercise this
proxy to vote the Shares subject hereto at any time prior to the earlier of
termination of the Merger Agreement or the date on which the Merger becomes
effective, at every annual, special or adjourned meeting of the Stockholders of
the Company and in every written consent in lieu of such meeting, in favor of
approval and adoption of the Merger Agreement and the Merger. The undersigned
Stockholder may vote, and may grant proxies to vote, the Shares on all other
matters.
This proxy shall automatically terminate upon the termination of the
Voting Agreement.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: October 21, 1998
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Signature of Stockholder:_____________________________
Print Name of Stockholder:____________________________
***COMPANY PROXY***
