STOCKHOLDER SUPPORT AGREEMENT
Exhibit
2.2
STOCKHOLDER
SUPPORT AGREEMENT, dated as of May 30, 2009 (this “Agreement”), by and
among Merge Healthcare Incorporated, a Delaware corporation (“Parent”), and (the
“Stockholder”). This Agreement shall be effective as of May 30,
2009. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Merger Agreement (as defined
below).
W
I T N E S S E T H:
WHEREAS,
Parent, Merge Acquisition Corp., a Delaware corporation and a wholly-owned
Subsidiary of Parent (“Purchaser”), and etrials Worldwide, Inc., a Delaware
corporation (the “Company”), are, concurrently with the execution and delivery
of this Agreement, entering into an Agreement and Plan of Merger, dated as of
the date hereof (the “Merger Agreement”); and
WHEREAS,
as of the date hereof, each Stockholder is the beneficial owner (as defined
under Rule 13d-3 of the Exchange Act) of the outstanding shares of the Company’s
Common Stock, par value $0.0001 per share (the “Common Stock”), set forth under
such Stockholder’s name on the signature page to this Agreement (the “Existing
Shares” and, together with any other shares of Common Stock, or other capital
stock of the Company acquired by the Stockholder after the date hereof,
collectively, the “Shares”); and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that the Stockholder enter into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE
I
AGREEMENTS
1.1. Agreement
to Tender. Unless this Agreement shall have previously been
terminated in accordance with its terms, each Stockholder agrees to accept the
Offer with respect to all the Shares (excluding for purposes of this Section 1.1
Shares that are subject to unexercised Stock Options until such time as such
Stock Options are exercised) and to tender all the Shares pursuant to the
Offer. Such tender shall be made within ten Business Days of the
commencement of the Offer, and with respect to any Shares obtained after such
date (by way of exercise of Stock Options or otherwise, promptly after such
Shares are obtained). The Stockholder shall not withdraw any Shares
tendered pursuant to the Offer unless either (i) this Agreement terminates
pursuant to Section 4.1 or (ii) the Offer shall have been terminated pursuant to
the terms of the Merger Agreement. Parent or Purchaser shall pay the
Stockholder for any Shares tendered in accordance with the Merger Agreement and
not withdrawn on the date of acceptance of shares for payment pursuant to the
Offer. If the Offer is terminated by Parent or Purchaser or the
Company, or this Agreement is terminated in accordance with its
terms, Parent and Purchaser shall cause the depository acting on behalf of
Parent and Purchaser to return all tendered Shares to the Stockholder promptly.
The Stockholder
agrees to permit
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Parent
and Purchaser to publish and disclose in the Offer Documents and, if approval of
the Company’s or Parent’s stockholders is required under the Delaware General
Corporate Law (“DGCL”), any proxy statement (including all related documents and
schedules filed with the SEC), his or its identity and ownership of Shares, the
nature of his or its commitments, arrangements and understandings under this
Agreement and any other information required by applicable Law.
1.2. Agreement
to Vote. From and after the date hereof and until this
Agreement terminates pursuant to Section 4.1, at every meeting of the
stockholders of the Company, however called, and at every adjournment or
postponement thereof, or in connection with any written consent of the
stockholders of the Company, relating to any proposed action by the stockholders
of the Company with respect to the matters set forth in Section 1.2(b) below,
the Stockholder irrevocably agrees to, with respect to any Shares not purchased
in the Offer:
(a) appear at
each such meeting or otherwise cause the Shares owned beneficially or of record
by the Stockholder to be counted as present thereat for purposes of calculating
a quorum; and
(b) vote
(or cause to be voted), in person or by proxy, all the Shares owned beneficially
or of record by the Stockholder, and any other voting securities of the Company
(whenever acquired), that are owned beneficially or of record by the Stockholder
or as to which it has, directly or indirectly, the right to vote or direct the
voting, (i) in favor of approval of the Merger Agreement and each of the other
transactions contemplated thereby, (ii) against any action or agreement
submitted for approval of the stockholders of the Company that Parent has
provided the Stockholder with advance notice is or would reasonably be expected
to result in any of the conditions to the Company’s obligations under the Merger
Agreement not being fulfilled or would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of the Stockholder contained in this
Agreement, (iii) against any action, agreement or transaction submitted for
approval to the stockholders of the Company that would reasonably be expected to
materially impede, interfere or be inconsistent with, delay, postpone,
discourage or materially and adversely affect the timely consummation of the
Offer or the Merger, and (iv) against any other action, agreement or transaction
submitted for approval to the stockholders of the Company that would constitute
a Superior Proposal.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1. Representations
and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent as follows:
(a) Authorization;
Validity of Agreement; Necessary Action. Such Stockholder has
all requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. To the extent
applicable, the execution and delivery of this Agreement and the consummation by
the Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder. This Agreement has been duly
executed and delivered by such Stockholder and constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance with its terms (except
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as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and to general equity
principles). If such Stockholder is married and the Shares set forth
on the signature page hereto constitute community property under applicable
laws, this Agreement has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, such Stockholder’s
spouse.
(b) Ownership. As
of the date hereof, the number of shares of Common Stock beneficially owned (as
defined under Rule 13d-3 of the Exchange Act) by such Stockholder is set forth
under such Stockholder’s name on the signature page to this
Agreement. The Existing Shares are, and (except as otherwise
expressly permitted by this Agreement) any additional shares of Common Stock and
any options and warrants to purchase shares of Common Stock, or any other
securities of the Company convertible, exercisable or exchangeable into shares
of Common Stock that are acquired by the Stockholder after the date hereof and
prior to the Effective Time will be, owned beneficially by the
Stockholder. As of the date hereof, the Existing Shares constitute
all of the securities of the Company (other than options to purchase shares of
Common Stock outstanding as of the date hereof and set forth under such
Stockholder’s name on the signature page to this Agreement) held of record,
beneficially owned by or for which voting power or disposition power is held or
shared by the Stockholder. Such Stockholder has and (except as
otherwise expressly permitted by this Agreement) will have at all times through
the Effective Time sole voting power, sole power of disposition, sole power to
issue instructions with respect to the matters set forth in Article I or Section
3.1 hereof, and sole right, power and authority to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the Existing
Shares and with respect to all of the Shares at all times through the Effective
Time, with no limitations, qualifications or restrictions on such rights,
subject to applicable federal securities laws and the terms of this
Agreement. Such Stockholder has good, valid and marketable title to
the Existing Shares, free and clear of any Liens and such Stockholder will have
good, valid and marketable title to all Shares at all times through the
Effective Time, free and clear of any Liens. Such Stockholder further
represents that any proxies heretofore given in respect of the Shares owned
beneficially and of record by such Stockholder, if any, are revocable, and
hereby revokes such proxies.
(c) No
Violation. The execution and delivery of this Agreement by
such Stockholder does not, and the performance by such Stockholder of its
obligations under this Agreement will not, (i) assuming the filing of such
reports as may be required under Sections 13(d) and 16 of the Exchange Act,
which such Stockholder will file, conflict with or violate any Law applicable to
such Stockholder or by which any of his or its assets or properties is bound or
(ii) conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or require payment under, or result in the creation of any Lien on the
properties or assets of such Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or any of his or its assets or properties is bound, except for any
of the foregoing as could not reasonably be expected, either individually or in
the aggregate, to materially impair the ability of such
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Stockholder
to perform his or its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis. The execution and delivery of
this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to any (i)
Governmental Entity, except for filings that may be required under the Exchange
Act or (ii) third party (including with respect to individuals, any spouse, and
with respect to trusts, any co-trustee or beneficiary).
(d) Information. None
of the information relating to such Stockholder provided by or on behalf of such
Stockholder in writing for inclusion in the Offer Documents, the Schedule 14D-9
or any proxy statement will, at the respective times such documents are filed
with the SEC or are first published, sent or given to stockholders of the
Company, contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) Reliance.
Such Stockholder understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon such Stockholder’s execution and delivery of
this Agreement.
(f) Absence
of Litigation. As of the date hereof, there is no suit,
action, investigation or proceeding pending or, to the knowledge of such
Stockholder, threatened against such Stockholder before or by any Governmental
Entity that would impair the ability of such Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
(g) Stockholder
has Adequate Information. Such Stockholder is a sophisticated
seller with respect to the Shares and has adequate information concerning the
business and financial condition of the Company to make an informed decision
regarding the sale of the Shares and has independently and without reliance upon
either Purchaser or Parent and based on such information as such Stockholder has
deemed appropriate, made its own analysis and decision to enter into this
Agreement. Such Stockholder acknowledges that neither Purchaser nor Parent has
made and neither makes any representation or warranty, whether express or
implied, of any kind or character except as expressly set forth in this
Agreement. Each Stockholder acknowledges that the agreements
contained herein with respect to the Shares by such Stockholder is irrevocable,
except in the event of the termination of this Agreement pursuant to Section
4.1, below.
2.2. Representations
and Warranties of Parent and Purchaser. Each of Parent and Purchaser,
jointly and severally, hereby represents and warrants to the Stockholder as
follows:
(a) Authorization;
Validity of Agreement; Necessary Action. Each of Parent and Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Each of Parent and Purchaser has all requisite
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation by Parent and Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Parent and Purchaser. This Agreement has been duly executed
and delivered by Parent and Purchaser and
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constitutes
a valid and binding obligation of each of them, enforceable in accordance with
its terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and to general equity principles).
(b) No
Conflicts. The execution and delivery of this Agreement by Parent and
Purchaser does not, and the performance by each of them of its obligations under
this Agreement will not, (i) conflict with or violate any Law applicable to
Parent and Purchaser or by which any of their assets or properties is bound or
(ii) conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or require payment under, or result in the creation of any Lien on the
properties or assets of Parent or Purchaser pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Parent or Purchaser is a party or by
which Parent or Purchaser or any of their respective assets or properties is
bound, except for any of the foregoing in (i) or (ii) above as could not
reasonably be expected, either individually or in the aggregate, to materially
impair the ability of Parent and Purchaser to perform their obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis. The execution and delivery of this Agreement by Parent and
Purchaser does not, and the performance of this Agreement by Parent and
Purchaser will not, require any consent, approval, authorization or permit of,
or filing with or notification to any (i) Governmental Entity, except for
filings that may be required under the Exchange Act or (ii) third party, except
in the case of (i) or (ii) above, as could not reasonably be expected, either
individually or in the aggregate, to materially impair the ability of Parent and
Purchaser to perform their obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
ARTICLE
III
OTHER
COVENANTS
3.1. Further
Agreements of Stockholder. (a) The Stockholder
hereby agrees, while this Agreement is in effect, and except as expressly
contemplated hereby, not to, directly or indirectly (i) grant any proxies
or enter into any voting trust or other agreement or arrangement with respect to
the voting of any Shares or (ii) sell, transfer, pledge, encumber, assign,
distribute, gift or otherwise dispose of (including by operation of law, other
than by death of any person) (collectively, a “Transfer”) or enter into any
contract, option or other arrangement or understanding with respect to any
Transfer (whether by actual disposition or effective economic disposition due to
hedging, cash settlement or otherwise) of, any of the Existing Shares or other
securities of the Company owned beneficially or of record as of the date hereof,
any additional shares of Common Stock and other securities of the Company
acquired beneficially or of record by the Stockholder after the date hereof, or
any interest therein; provided, however, that this Agreement shall not restrict
Transfers to any members of such Stockholder’s immediate family, a family trust
of such Stockholder, limited partners or other beneficial owners of the Shares,
or a charitable institution, but only if in each case prior to the effectiveness
of the Transfer, the permitted transferee of such Shares agrees in writing to
be
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bound by
the terms hereof (or an agreement that is substantively identical to this
Agreement). Such Stockholder shall not take any of the actions that
the Company is prohibited from taking under Section 6.7 of the Merger
Agreement.
(b) In case
of a stock dividend or distribution, or any change in Common Stock by reason of
any stock dividend or distribution, split-up, recapitalization, combination,
exchange of shares or the like, the term “Shares” shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any securities into which or for which any or all of the Shares may be changed
or exchanged or which are received in such
transaction.
(c) Such
Stockholder agrees, while this Agreement is in effect, to notify Parent promptly
in writing of the number of any additional shares of Common Stock or other
securities of the Company acquired by such Stockholder, if any, after the date
hereof.
(d) Such
Stockholder agrees, while this Agreement is in effect, (i) not to take, agree or
commit to take any action that would reasonably be expected to make any
representation and warranty of such Stockholder, as applicable, contained in
this Agreement inaccurate in any respect as of any time during the term of this
Agreement or (ii) to take all reasonable action necessary to prevent any such
representation or warranty from being inaccurate in any respect at any such
time. Such Stockholder further agrees that it shall use commercially
reasonable efforts to cooperate with Parent, as and to the extent reasonably
requested by Parent, to effect the transactions contemplated hereby including
the Offer and the Merger.
(e) Each
Stockholder hereby waives, and agrees not to exercise or assert, if applicable,
any appraisal rights under Section 262 of the DGCL in connection with the Merger
and to take all actions necessary to opt out of any class in any class action
with respect to, any claim, derivative or otherwise, against the Company or any
of its subsidiaries (or any of their respective successors) relating to the
negotiation, execution and delivery of this Agreement or the Merger Agreement or
the consummation of the Merger or any of the other transactions contemplated
hereby or thereby.
ARTICLE
IV
MISCELLANEOUS
4.1. Termination. This
Agreement shall terminate automatically, without any action on the part of any
party hereto, upon the earlier to occur of (a) the Effective Time, and (b) the
termination of the Merger Agreement pursuant to its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder except that (i) the obligations of the Stockholder under this Article
IV shall survive termination and (ii) such termination shall not relieve any
party from liability for any breach of this Agreement prior to such
termination.
4.2. Stockholder
Capacity. No person executing this Agreement, or any officer,
director, partner, employee, agent or representative of such Person, who is or
becomes during the term of this Agreement a director or officer of the Company
shall be deemed to make any agreement or understanding in this Agreement in such
Person’s capacity as a director or officer of the Company. Each
Stockholder is entering into this Agreement solely in his capacity as the record
holder or beneficial owner of, or the
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trustee
of a trust whose beneficiaries are the beneficial owners of, such Stockholder’s
Shares and nothing herein shall limit or affect any actions taken by a
Stockholder in his capacity as a director or officer of the
Company.
4.3. Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if
to Parent or Purchaser to:
Merge
Healthcare Incorporated
0000
X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attention:
Chief Executive Officer
with
additional copies (which shall not constitute notice)
to:
XxXxxxxxx
Will & Xxxxx LLP
000
X. Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attention: Xxxx
X. Xxxxxx
if
to the Stockholder, at the address set forth under such Stockholder’s name on
the signature page to this Agreement.
4.4.
Counterparts. This
Agreement may be executed in several counterparts, each of which, when so
executed, shall be deemed to be an original, and such counterparts shall,
together, constitute and be one and the same
instrument.
4.5.
Entire
Agreement. This Agreement (together with the Merger Agreement,
to the extent applicable) constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties or any of them
with respect to the subject matter hereof.
4.6.
Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE CONFLICT OF LAWS RULES ANY OTHER JURISDICTION THAT WOULD CALL FOR THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS, FOR ITSELF AND ITS LEGAL
REPRESENTATIVES, SUCCESSORS AND ASSIGNS, TO THE EXCLUSIVE JURISDICTION OF A
COURT LOCATED IN THE STATE OF DELAWARE FOR ALL
PURPOSES
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IN
CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES FROM OR RELATES TO THIS
AGREEMENT, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO PERSONAL SERVICE OF
SUMMONS, COMPLAINT, OR OTHER PROCESS IN CONNECTION THEREWITH, AND AGREES THAT
SERVICE MAY BE MADE ON SUCH PARTY AND SENT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 4.3 HEREOF.
4.7. Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY OR DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS
SECTION 4.7.
4.8. Amendment. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
4.9. Enforcement
of the Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties and other persons
entitled to enforce this Agreement pursuant to this Agreement shall be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and
to seek to enforce specifically the terms and provisions hereof in any federal
or state court located in Delaware (as to which the parties hereby irrevocably
agree to submit to jurisdiction for the purposes of such
action).
4.10.
Severability. Any
term or provision of this Agreement that is determined by a court of competent
jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction, and
if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable, in all cases so long as neither the economic nor legal substance of
the transactions contemplated hereby is affected in any manner materially
adverse to any party or its stockholders or limited
partners.
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4.11. Assignment;
Third Party Beneficiaries. Neither this Agreement nor any of
the rights, interests or obligations of any party hereunder shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without
the prior
written consent of the other party. Any purported assignment without
such consent shall be void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted
assigns. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder’s Shares and shall be
binding upon any Person to whom legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise, including such
Stockholder’s heirs, guardians, administrators or successors. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
4.12. No
Waiver. The terms and provisions hereof may not be waived
except by an instrument signed on behalf of the party waiving
compliance. The failure of any party to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect of this
Agreement at law or in equity, or to insist upon compliance by any other party
with its obligations under this Agreement, and any custom or practice of the
parties at variance with the terms of this Agreement, shall not constitute a
waiver by such party of such party’s right to exercise any such or other right,
power or remedy or demand such compliance.
4.13. Further
Assurances. Subject to the terms and conditions of this
Agreement, the Stockholder shall use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary to fulfill such Stockholder’s obligations under this
Agreement.
4.14. Stockholder
Obligations Several and Not Joint. The obligations of
Stockholder hereunder shall be several and not joint and no Stockholder shall be
liable for any breach of the terms of this Agreement by any other
Stockholder.
4.15. Stop
Transfer Instruction; Legends.
(a) Promptly
following the date hereof, the Stockholder shall cause the Company to deliver
written instructions to the Company’s transfer agent stating that the Shares may
not be sold, transferred, pledged, encumbered, assigned, distributed, given as a
gift or otherwise disposed of during the term of this Agreement without the
prior written consent of Parent, except as otherwise provided in Section
3.1.
(b) Promptly
following the date hereof, each Stockholder shall cause the Company to instruct
its transfer agent to place a legend on the certificates (to the extent the
shares are certificated) representing the Existing Shares and on any other
securities acquired by the Stockholder after the date hereof as follows: “The
Securities represented by this certificate are subject to restrictions on
transfer and may not be sold, transferred, pledged, encumbered, assigned,
distributed, given as a gift or otherwise disposed of except in accordance with
and subject to the terms and conditions of the Stockholder Support Agreement,
dated May 30, 2009, between the registered holder hereof and Merge Healthcare
Incorporated.”
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(c) The
parties hereto agree that the legend set forth above shall be removed and the
restrictions set forth in the legend above shall be of no further force and
effect, in each case, upon termination of this Agreement in accordance with
Section 4.1 hereof.
[Remainder
of Page Left Blank Intentionally]
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IN
WITNESS WHEREOF, the parties hereto have caused this Stockholder Support
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
Merge
Healthcare Incorporated
By: /s/
Xxxxxx X.
Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer
[Stockholder]
By:
Name:
Notice
address of Stockholder:
Facsimile:
With
additional copies (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxx & Xxxxxx LLP
0000 Xxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxx
X. Xxxxxxxx
Facsimile: 000-000-0000
See
Schedule A
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SCHEDULE
A – BENEFICIAL OWNERSHIP
|
Owned
|
||
|
Shareholder
|
Shares
|
Options
|
|
Xxxxxx
Xxxxx(1)
|
0
|
101,675
|
|
Xxxx
Xxxxxxxx
|
0
|
101,675
|
|
Xxx
Xxxxxxx
|
276,750
|
50,000
|
|
Xxxxx
Xxxxxxx
|
0
|
50,000
|
|
Xxxxxxx
Xxxxxxxx
|
0
|
50,000
|
|
M.
Xxxxx Xxxxxxxxx
|
237,432
|
350,000
|
|
Xxxxxxx
Xxxxxxx
|
37,160
|
100,000
|
|
Xxxxxx
Xxxxxxxxx III
|
77,946
|
100,000
|
|
E.
Xxxxx Xxxxxxx
|
73,875
|
75,000
|
|
Newlight
Associates II, LP
|
665,191
|
|
|
Newlight
Associates II (BVI), LP
|
229,950
|
|
|
Newlight
Associates II-E, LP
|
96,012
|
|
|
MiniDoc
AB
|
1,319,747
|
|
|
InfoLogix
(BVI) Limited
|
607,236
|
|
|
Total:
|
3,621,299
|
978,350
|
(1) Xx. Xxxxx
is a general partner of each of the three Newlight Associates II entities and
exercises voting control over the shares of etrials common stock held by the
three Newlight Associates II entities.
