1
EXHIBIT 2
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
January 26, 1997, between Endosonics Corporation, a Delaware corporation
("Acquiror"), and the undersigned stockholder ("Stockholder") of Cardiometrics,
Inc., a Delaware corporation ("Target").
RECITALS
A. Pursuant to an Agreement and Plan of Reorganization dated as
of January 26, 1997 (the "Reorganization Agreement") by and among Acquiror,
River Acquisition Corporation, a Delaware corporation ("Merger Sub") and
wholly-owned subsidiary of Acquiror, and Target, Merger Sub is merging with and
into Target (the "Merger") and Target, as the surviving corporation of the
Merger, will remain as a wholly-owned subsidiary of Acquiror;
B. Pursuant to Section 5.7 of the Reorganization Agreement, in
order to induce Acquiror to enter into the Reorganization Agreement, Target has
agreed to use its best efforts to solicit the proxy of certain significant
stockholders of Target on behalf of Acquiror, and to cause certain significant
stockholders of Target to execute and deliver to Acquiror Voting Agreements;
C. The Stockholder 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 Common Stock, $0.01 par value
per share, of Target as is indicated on the final page of this Agreement (the
"Shares"); and
D. In consideration of the execution of the Reorganization
Agreement by Acquiror, Stockholder agrees not to transfer or otherwise dispose
of any of the Shares, or any other shares of capital stock of Target acquired by
Stockholder hereafter and prior to the Expiration Date (as defined in Section
1.1 below), and agrees to vote the Shares and any other such shares of capital
stock of Target so as to facilitate consummation of the Merger.
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Stockholder agrees not to
transfer (except as may be specifically required by court order or by operation
of law), sell, exchange, pledge (except in connection with a bona fide loan
transaction, provided that any pledgee agrees not to transfer, sell, exchange,
pledge or otherwise dispose of or encumber the Shares or any New Shares (as
defined in Section 1.2) prior to the Expiration Date and to be subject to the
2
Proxy (as defined in Section 3)) or otherwise dispose of or encumber the Shares
or any New Shares, or to make any offer or agreement relating thereto, at any
time prior to the Expiration Date. As used herein, the term "Expiration Date"
shall mean 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
Reorganization Agreement and (ii) six months after the date of termination of
the Reorganization Agreement.
1.2 New Shares. Stockholder agrees that any shares of capital stock
of Target that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares. At every meeting of the stockholders of
Target called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Target with respect to any of the following, Stockholder shall vote the
Shares and any New Shares (i) in favor of approval of the Reorganization
Agreement and the Merger and any matter that could reasonably be expected to
facilitate the Merger and (ii) against any proposal for any recapitalization,
merger, sale of assets or other business combination (other than the Merger)
between Target and any person or entity other than Acquiror or any other action
or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Target under the Reorganization
Agreement or which would result in any of the conditions to Target's obligations
under the Reorganization Agreement not being fulfilled.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Acquiror a proxy in the form
attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the
extent provided in Section 212 of the Delaware General Corporation Law, covering
the total number of Shares and New Shares beneficially owned or as to which
beneficial ownership is acquired (as such term is defined in Rule 13d-3 under
the Exchange Act) by Stockholder set forth therein.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Acquiror that
Stockholder (i) is the beneficial owner of the Shares, which at the date of this
Agreement and at all times up until the Expiration Date will be free and clear
of any liens, claims, options, charges or other encumbrances; (ii) does not
beneficially own any shares of capital stock of Target other than the Shares
(excluding shares as to which Stockholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
2.
3
5. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, as
reasonably agreed to between Acquiror and Stockholder, to carry out the purpose
and intent of this Agreement.
6. Consent and Waiver. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
8.1 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.
8.2 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 the prior written consent of the other. This Agreement is
intended to bind Stockholder as a stockholder of Target only with respect to the
specific matters set forth herein.
8.3 Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
8.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Acquiror 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 Acquiror upon any such violation,
Acquiror shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Acquiror at law or in equity.
8.5 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
3.
4
(a) if to Acquiror or Merger Sub, to:
Endosonics Corporation
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: President
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Target, to:
Cardiometrics, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: President
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
4.
5
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
8.6 Governing Law. This Amendment shall be governed by, construed
and enforced in accordance with the internal laws of the State of Delaware.
8.7 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 matters.
8.8 Counterpart. 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.
8.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
5.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed on the day and year first above written.
ACQUIROR:
ENDOSONICS CORPORATION
By _____________________________________
Xxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
STOCKHOLDER
By: _____________________________________
Stockholder's Address for Notice:
__________________________________________
__________________________________________
__________________________________________
Shares beneficially owned:
____________ shares of Target Common Stock
[SIGNATURE PAGE TO VOTING AGREEMENT]
7
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
CARDIOMETRICS, INC.
The undersigned stockholder of Cardiometrics, Inc., a Delaware
corporation ("Target"), hereby irrevocably (to the full extent permitted by
Section 212 of the Delaware General Corporation Law) appoints the members of the
Board of Directors of Endosonics Corporation, a Delaware corporation
("Acquiror"), 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 Target that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Target 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 stockholder of Target 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 extent provided in Section 212 of the
Delaware General Corporation Law), is granted pursuant to that certain Voting
Agreement dated as of January 26, 1997, by and among Acquiror and the
undersigned stockholder (the "Voting Agreement"), and is granted in
consideration of Acquiror entering into that certain Agreement and Plan of
Reorganization, dated January 26, 1997, by and among Target, Acquiror and River
Acquisition Corporation, a Delaware corporation ("Merger Sub") and wholly-owned
subsidiary of Acquiror (the "Reorganization Agreement"). The Reorganization
Agreement provides for the merger of Merger with and into Target (the "Merger").
As used herein, the term "Expiration Date" shall mean 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 Reorganization Agreement and (ii) six months
after the date of termination of the Reorganization 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 and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General Corporation Law), at
every annual, special or adjourned meeting of the stockholders of Target and in
every written consent in lieu of such meeting (i) in favor of approval of the
Merger and the Reorganization Agreement and in favor of any matter that could
reasonably
8
be expected to facilitate the Merger and (ii) against any proposal for any
recapitalization, merger, sale of assets or other business combination (other
than the Merger) between Target and any person or entity other than Acquiror or
any other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Target under
the Reorganization Agreement or which could result in any of the conditions to
Target's obligations under the Reorganization Agreement not being fulfilled. The
attorneys and proxies named above may not exercise this Proxy on any other
matter except as provided above. The undersigned stockholder 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 extent provided in Section 212 of the
Delaware General Corporation Law).
Dated: ___________, 1997
__________________________________________
(Signature of Stockholder)
__________________________________________
(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of Target Common Stock
[SIGNATURE PAGE TO PROXY]
