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EXHIBIT 99.2
CARDIOGENESIS CORPORATION
AFFILIATE AGREEMENT
This AFFILIATE AGREEMENT ("AGREEMENT") is dated as of October 21, 1998,
between Cardiogenesis Corporation, a Delaware corporation ("CARDIOGENESIS"),
Eclipse Surgical Technologies, Inc., a California corporation ("ECLIPSE"), and
the undersigned affiliate ("AFFILIATE") of Cardiogenesis.
RECITALS
A. Eclipse, RW Acquisition Corporation, a wholly-owned subsidiary of Eclipse,
and Cardiogenesis are concurrently herewith entering into an Agreement and Plan
of Reorganization ("MERGER AGREEMENT") which provides for Eclipse and
Cardiogenesis to enter into a business combination transaction to pursue their
long term business strategies (the "MERGER") (capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Merger Agreement).
B. Pursuant to the Merger, at the Effective Time all outstanding shares of
Cardiogenesis Common Stock, including any shares owned by Affiliate, will be
converted into the right to receive shares of Eclipse Common Stock as set forth
in the Merger Agreement.
C. Affiliate has been advised that Affiliate may be deemed to be an
"affiliate" of Cardiogenesis, as the term "affiliate" is used for purposes of
paragraphs (c) and (d) of Rule 145 of the Rules and Regulations of the
Securities and Exchange Commission (the "SEC"), as amended, although nothing
contained herein shall be construed as an admission by Affiliate that Affiliate
is in fact an affiliate of Cardiogenesis.
D. It will be a condition to effectiveness of the Merger pursuant to the
Merger Agreement that the independent accounting firms that audit the annual
financial statements of Cardiogenesis and Eclipse will have delivered their
written opinion that the Merger will be accounted for as a pooling of interests
under Accounting Principles Board Opinion No. 16.
E. The execution and delivery of this Agreement by Affiliate is a material
inducement to Eclipse to enter into the Merger Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
1. Acknowledgments by Affiliate. Affiliate acknowledges and understands
that the representations, warranties and covenants by Affiliate set forth herein
will be relied upon by Eclipse, Cardiogenesis, and their respective affiliates,
counsel and accounting firms, and that substantial
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losses and damages may be incurred by these persons if Affiliate's
representations, warranties or covenants are breached. Affiliate has carefully
read this Agreement and the Merger Agreement and understands the terms hereof
and thereof.
2. Covenants Related to Pooling of Interests. During the period beginning
from the date hereof and ending on the second day after the day that Eclipse
publicly announces financial results covering at least 30 days of combined
operations of Eclipse and Cardiogenesis, Affiliate will not sell, exchange,
transfer, pledge, distribute, make any gift or otherwise dispose of or grant any
option, establish any "short" or put-equivalent position with respect to or
enter into any similar transaction (through derivatives or otherwise) intended
or having the effect, directly or indirectly, to reduce Affiliate's risk
relative to any shares of Eclipse Common Stock or Cardiogenesis Common Stock.
Eclipse may, at its discretion, place a stock transfer notice consistent with
the foregoing with its transfer agent with respect to Affiliate's shares.
Notwithstanding the foregoing, Affiliate will not be prohibited by the foregoing
from selling or disposing of shares so long as such sale or disposition is in
accordance with the "de minimis" test set forth in SEC Staff Accounting Bulletin
No. 76.
3. Beneficial Ownership of Stock. Except as set forth on the last page of
this Agreement, Affiliate does not beneficially own or hold voting power over
any shares of Cardiogenesis Common Stock or any other equity securities of
Cardiogenesis or any options, warrants or other rights to acquire any equity
securities of Cardiogenesis.
4. Compliance with Rule 145 and the Act.
(a) Affiliate has been advised that (i) the resale of the shares of
Eclipse Common Stock issued to Affiliate in connection with the Merger will be
subject to the restrictions set forth in Rule 145 of the Securities Act of 1933,
as amended (the "ACT"), unless otherwise transferred pursuant to an effective
registration statement under the Act or an appropriate exemption from
registration, (ii) Affiliate may be deemed to be an affiliate of Cardiogenesis,
(iii) no sale, transfer or other disposition by Affiliate of any Eclipse Common
Stock received by Affiliate will be registered under the Act OTHER THAN IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. Affiliate accordingly agrees not to
sell, transfer or otherwise dispose of any Eclipse Common Stock issued to
Affiliate in the Merger unless (i) such sale, transfer or other disposition is
made in conformity with the requirements of Rule 145(d) promulgated under the
Act, or (ii) Affiliate delivers to Eclipse a written opinion of counsel,
reasonably acceptable to Eclipse in form and substance, that such sale, transfer
or other disposition is otherwise exempt from registration under the Act.
(b) Eclipse will give stop transfer instructions to its transfer
agent with respect to any Eclipse Common Stock received by Affiliate pursuant to
the Merger and there will be placed on the certificates representing such
Eclipse Common Stock, or any substitutions therefor, a legend stating in
substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
APPLIES AND MAY ONLY BE TRANSFERRED IN CONFORMITY WITH RULE 145(d) UNDER
SUCH ACT
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OR IN ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL, REASONABLY ACCEPTABLE
TO THE ISSUER IN FORM AND SUBSTANCE THAT SUCH TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED."
The legend set forth above shall be removed (by delivery of a
substitute certificate without such legend) and Eclipse shall so instruct its
transfer agent, if Affiliate delivers to Eclipse (i) satisfactory written
evidence that the shares have been sold in compliance with Rule 145 (in which
case, the substitute certificate will be issued in the name of the transferee),
or (ii) an opinion of counsel, in form and substance reasonably satisfactory to
Eclipse, to the effect that public sale of the shares by the holder thereof is
no longer subject to Rule 145.
(c) To the extent required by applicable securities laws, Eclipse
agrees, for a period of two (2) years from the date of this Agreement, to file
with the SEC in a timely manner all reports and other documents required of
Eclipse under the Act and the Securities Exchange Act of 1934, as amended.
5. Miscellaneous.
(a) For the convenience of the parties hereto, this Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
(b) This Agreement shall be enforceable by, and shall inure to the
benefit of and be binding upon, the parties hereto and their respective
successors and assigns. As used herein, the term "successors and assigns" shall
mean, where the context so permits, heirs, executors, administrators, trustees
and successor trustees, and personal and other representatives.
(c) This Agreement shall be governed by and construed, interpreted
and enforced in accordance with the internal laws of the State of Delaware.
(d) If a court of competent jurisdiction determines that any
provision of this Agreement is not enforceable or enforceable only if limited in
time and/or scope, this Agreement shall continue in full force and effect with
such provision stricken or so limited. The parties to this Agreement agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void and unenforceable provision.
(e) Counsel to and accountants for the parties to the Agreement shall
be entitled to rely upon this Agreement as needed.
(f) This Agreement shall not be modified or amended, or any right
hereunder waived or any obligation excused, except by a written agreement signed
by both parties.
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(g) This Agreement shall automatically terminate and have no further
force and effect upon such date and time as the Merger Agreement shall have been
terminated pursuant to the terms thereof, but will survive the consummation of
Merger if such consummation occurs.
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Executed as of the date shown on the first page of this Agreement.
CARDIOGENESIS CORPORATION
By:
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Name:
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Title:
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AFFILIATE
By:
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Name of Affiliate:
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Name of Signatory (if different from name of
Affiliate):
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Title of Signatory
(if applicable):
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Number of shares of the Cardiogenesis Common Stock beneficially owned
by Affiliate:
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Number of shares of the Cardiogenesis Common Stock subject to options
beneficially owned by Affiliate:
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***CARDIOGENESIS AFFILIATE AGREEMENT***
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