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EXHIBIT 99.1
ECLIPSE SURGICAL TECHNOLOGIES, INC.
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of October
__, 1998, between Cardiogenesis Corporation, a Delaware corporation ("COMPANY"),
and the undersigned shareholder ("SHAREHOLDER") of Eclipse Surgical
Technologies, Inc., a California corporation (the "PARENT").
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 Shareholder is the beneficial owner of the number of outstanding
shares of Common Stock of the Parent stated on the signature page of this
Agreement. In addition, the Shareholder holds options to purchase the number of
shares of Common Stock of the Parent (if any) stated on the signature page of
this Agreement.
C. As a material inducement to enter into the Merger Agreement, the
Company desires the Shareholder to agree, and the Shareholder is willing to
agree, 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 agree as
follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1 Agreement to Vote Shares. At every meeting of the shareholders of
the Parent called with respect to the approval of the issuance of shares of
Parent Common Stock to be issued in the Merger (the "PARENT STOCK ISSUANCE"),
and at every adjournment thereof, and on every action or approval by written
consent of the shareholders of the Parent with respect to any of the foregoing,
Shareholder shall cause the Shares and any New Shares (as defined below) to be
voted in favor of approval of the Parent Stock Issuance.
1.2 Definition. For purposes of this Agreement, "SHARES" shall mean
all issued and outstanding shares of Common Stock of the Parent owned of record
or beneficially (over which
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beneficially-owned shares the Shareholder exercises voting power) by the
Shareholder as of the record date for persons entitled (a) to receive notice of,
and to vote at the meeting of the shareholders of the Parent 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 shareholders of the Parent with respect to the
matter referred to in Section 1.1
1.3 Additional Purchases. Shareholder agrees that any shares of
capital stock of the Parent that Shareholder purchases or with respect to which
Shareholder otherwise acquires beneficial ownership (over which
beneficially-owned shares Shareholder 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,
Shareholder agrees to deliver to Company a proxy in the form attached hereto as
Exhibit A (the "PROXY") with respect to the Shares.
3. Representations and Warranties of the Shareholder. Shareholder (i) is
the owner of the shares of Common Stock of the Parent, and the options to
purchase shares of Common Stock of the Parent, 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
Shareholder's performance of his obligations hereunder; (ii) does not
beneficially own any securities of the Parent other than the shares of Common
Stock of the Parent, and options to purchase shares of Common Stock of the
Parent, 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. Shareholder and the Company hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Company or Shareholder, as the case may be, to carry
out the intent of this Agreement.
5. Shareholder Capacity Only: Consent and Waiver. As of the date of this
Agreement, Shareholder is an officer and/or director of the Company. Shareholder
does not make any agreement or enter into any understanding herein in his
capacity as an officer and/or director of the Company. Shareholder is signing
this Agreement solely in his capacity as a shareholder of the Company and
nothing herein shall limit or affect any actions taken or to be taken by
Shareholder in his capacity as an officer and/or director of the Company.
Shareholder hereby gives any consents or waivers that are reasonably required in
his capacity as a shareholder of the Parent, and in no other capacity, 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.
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
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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 Company 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
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Company upon any such violation, Company
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Company 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 Company: Cardiogenesis Corporation
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
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With a copy to: Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Shareholder: To the address for notice set forth on the
signature page hereof.
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
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 California
(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.
COMPANY
By:
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Name:
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Title:
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SHAREHOLDER:
By:
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Name:
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Title:
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Shareholder's Address for Notice:
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______ Outstanding Shares of Common Stock of
the Parent
______ Outstanding Shares of Common Stock of
the Parent subject to outstanding stock options
***PARENT VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Shareholder of Eclipse Surgical Technologies, Inc., a
California corporation (the "PARENT"), hereby irrevocably appoints the directors
on the Board of Directors of Cardiogenesis Corporation, a Delaware corporation
(the "COMPANY"), 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 the Company and the Shareholder (the "VOTING AGREEMENT")) on the matter
described below (and on no other matter), until such time as that certain
Agreement and Plan of Reorganization dated as of October __, 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 Company 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 Parent's shareholders, and in every written consent of shareholders in lieu
of such a meeting, or otherwise, to vote the Shares in favor of approval of the
Parent Stock Issuance.
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 Shareholders of
the Parent and in every written consent in lieu of such meeting, in favor of
approval of the Parent Stock Issuance. The undersigned Shareholder 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 __, 1998
Signature of Shareholder:
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Print Name of Shareholder:
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***PARENT PROXY***
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