EXHIBIT G
VOTING AGREEMENT
This Voting Agreement is entered into as of September 28,
1997 by and between Lumisys Incorporated, a Delaware corporation
("Parent"), and ___________________
("Stockholder").
Recitals
A. Parent, SAC Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and CompuRAD, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger and
Reorganization of even date herewith (as amended from time to
time, the "Reorganization Agreement"; capitalized terms used but
not otherwise defined in this Voting Agreement have the meanings
assigned to such terms in the Reorganization Agreement), which
provides (subject to the conditions set forth therein) for the
merger of Merger Sub with and into the Company (the "Merger").
B. As of the date hereof, Stockholder owns the number of
shares of Company Common Stock set forth below Stockholder's name
on the signature page hereto (all such shares, together with any
shares of Company Common Stock or other shares of capital stock
of the Company that may hereafter be acquired by Stockholder,
being referred to herein as the "Subject Shares").
C. As a condition to the willingness of Parent and Merger
Sub to enter into the Reorganization Agreement, Parent and Merger
Sub have required that Stockholder agree, and in order to induce
Parent and Merger Sub to enter into the Reorganization Agreement
Stockholder has agreed, to enter into this Voting Agreement.
Agreement
The parties to this Voting Agreement, intending to be legally
bound, agree as follows:
1. Transfer of Subject Shares
1.1. Transfer of Voting Rights. Stockholder covenants and agrees
that, prior to the earlier to occur of: (i) the Effective Time, or
(ii) the valid termination of the Reorganization agreement (the
"Expiration Date"), and except as otherwise contemplated hereby,
Stockholder will not deposit any of the Subject Shares into a
voting trust or grant a proxy or enter into a voting agreement or
similar agreement with respect to any of the Subject Shares.
1.2. Obligations of Transferees. Each transferee or any
subsequent transferee of the Subject Shares or any interest in
such Subject Shares, shall hold such Subject Shares or interest in
the Subject Shares subject to all the provisions of this Voting
Agreement. Each transferee shall sign a counterpart of this
Agreement, agreeing to be bound by the terms and conditions
hereof, prior to receipt of any Subject Shares.
2. Voting of Subject Shares
2.1. Pre-Termination Voting Agreement. Without in any way
limiting the Stockholder's right to vote the Subject Shares in his
sole discretion on any other matters that may be submitted to a
stockholder vote, consent or other approval (including by written
consent), at any meeting of the stockholders of the Company called
to vote upon the Merger and the Reorganization Agreement or at any
adjournment thereof or in any other circumstances upon which a
vote, consent or other approval (including by written consent)
with respect to the Merger and the Reorganization Agreement is
sought, the Stockholder hereby agrees that, prior to the
Expiration Date, at any meeting of the stockholders of the
Company, however called, and in any written action by consent of
stockholders of the Company, Stockholder shall vote the Subject
Shares in favor of: (i) the Merger, (ii) the execution and
delivery by the Company of the Reorganization Agreement, (iii) the
adoption and approval of the terms thereof and (iv) in favor of
each of the other actions contemplated by the Reorganization
Agreement and any action required in furtherance hereof or
thereof.
Prior to the Expiration Date, Stockholder shall not enter into any
agreement or understanding with any Person to vote or give
instructions with respect to the Subject Shares regarding the
Merger and the Reorganization Agreement, other than any agreement
or understanding to vote or give instructions in favor of the
Merger and the Reorganization Agreement.
2.2. Proxy; Further Assurances. Contemporaneously with the
execution of this Voting Agreement, Stockholder shall deliver to
Parent a proxy in the form attached hereto as Exhibit A, which
shall be irrevocable to the fullest extent permitted by law, with
respect to the Subject Shares (the "Proxy").
3. Waiver of Appraisal Rights.
Stockholder hereby waives any rights of appraisal and any
dissenters' rights that Stockholder may have in connection with
the Merger.
4. No Solicitation
Stockholder covenants and agrees that, during the period
commencing on the date of this Voting Agreement and ending on the
Expiration Date, Stockholder shall not, directly or indirectly,
and shall not authorize or permit any Representative of
Stockholder, directly or indirectly, to: (i) solicit, initiate,
encourage or induce the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be
expected to lead to an Acquisition Proposal; (ii) furnish any
information regarding the Company to any Person in connection
with or in response to an Acquisition Proposal or potential
Acquisition Proposal; (iii) engage in discussions with any Person
with respect to any Acquisition Proposal; (iv) approve, endorse
or recommend any Acquisition Proposal; or (v) enter into any
letter of intent or other similar document or any Contract
contemplating or otherwise relating to any Acquisition Proposal.
Stockholder shall immediately cease any existing discussions
with any Person that relate to any Acquisition Proposal.
Notwithstanding the foregoing, Stockholder shall not be prevented
from taking any action that is not prohibited under Section 4.4
of the Reorganization Agreement, whether he is acting in his
capacity as a Stockholder of the Company or as an officer or
director of the Company; provided that nothing herein shall be
deemed to excuse Stockholder's performance of his voting
obligations hereunder.
5. Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as
follows:
5.1. Authorization, etc. Stockholder has all requisite power and
capacity to execute and deliver this Voting Agreement and to
perform his obligations hereunder. This Voting Agreement has been
duly executed and delivered by Stockholder and constitutes a
legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and
the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
5.2. No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Voting Agreement by
Stockholder do not, and the performance of this Voting Agreement
by Stockholder will not: (i) conflict with or violate any Legal
Requirement, order, decree or judgment applicable to Stockholder
or by which he or any of his properties is bound or affected; or
(ii) result in any breach of or constitute a default (with notice
or lapse of time, or both) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result
in the creation of an Encumbrance on the Subject Shares pursuant
to, any Contract to which Stockholder is a party or by which
Stockholder or any of his properties is bound or affected.
(b) The execution and delivery of this Voting Agreement by
Stockholder do not, and the performance of this Voting Agreement
by Stockholder will not, require any Consent of any Person.
5.3. Title to Subject Shares. Stockholder owns of record and
beneficially the Subject Shares set forth under Stockholder's name
on the signature page hereof and does not directly or indirectly
own, either beneficially or of record, any shares of capital stock
of the Company, or rights to acquire any shares of capital stock
of the Company, other than the Subject Shares set forth below
Stockholder's name on the signature page hereof.
5.4. Accuracy of Representations. The representations and
warranties contained in this Voting Agreement are accurate in all
respects as of the date of this Voting Agreement, will be accurate
in all respects at all times through the Expiration Date and will
be accurate in all respects as of the date of the consummation of
the Merger as if made on that date.
6. Covenants of Stockholder
6.1. Further Assurances. From time to time and without
additional consideration, Stockholder will execute and deliver, or cause
to be executed and delivered, such additional or further transfers,
assignments, endorsements, proxies, consents and other instruments
as Parent may reasonably request for the purpose of effectively
carrying out and furthering the intent of this Voting Agreement.
6.2. Legend. Promptly after the date of this Voting Agreement,
and in any event, no later than two business days following the
date of this Voting Agreement, Stockholder shall instruct the
Company to cause each certificate of Stockholder evidencing the
Subject Shares to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE VOTING AGREEMENT
DATED AS OF SEPTEMBER 28, 1997, AS IT MAY BE AMENDED, BETWEEN THE
ISSUER AND THE REGISTERED HOLDER OF THIS CERTIFICATE, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
7. Miscellaneous
7.1. Survival of Representations, Warranties and Agreements.
This Voting Agreement shall terminate, and the provisions hereof shall
be of no further force or effect upon the Expiration Date.
7.2. Indemnification. Without in any way limiting any of the
rights or remedies otherwise available to Parent, Stockholder
shall hold harmless and indemnify Parent from and against, and
shall compensate and reimburse Parent for, any Damages (regardless
of whether or not such Damages relate to a third-party claim)
which are directly or indirectly suffered or incurred at any time
by Parent, or to which Parent otherwise becomes subject, and that
arise from or are directly or indirectly connected with any breach
of any representation, warranty, covenant or obligation of
Stockholder contained herein.
7.3. Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Voting Agreement shall be
paid by the party incurring such costs and expenses.
7.4. Notices. Any notice or other communication required or
permitted to be delivered to either party under this Voting
Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth
beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a
written notice given to the other party hereto):
if to Stockholder:
at the address set forth below Stockholder's
signature on the signature page hereto;
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
if to Parent:
Lumisys Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Cooley Godward llp
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
7.5. Severability. Any term or provision of this Voting Agreement
which is 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 Voting Agreement or
affecting the validity or enforceability of any of the terms or
provisions of this Voting Agreement in any other jurisdiction. If
any provision of this Voting Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
7.6. Entire Agreement. This Voting Agreement and any documents
delivered by the parties in connection herewith constitute the
entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and
understandings between the parties with respect thereto. No
addition to or modification of any provision of this Voting
Agreement shall be binding upon either party hereto unless made in
writing and signed by both parties hereto. The parties hereto
waive trial by jury in any action at law or suit in equity based
upon, or arising out of, this Voting Agreement or the subject
matter hereof.
7.7. Assignment; Binding Effect. Except as provided herein,
neither this Voting Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other party, except that Parent may
assign all or any of its rights hereunder to any affiliate of
Parent. Subject to the preceding sentence, this Voting Agreement
shall be binding upon and shall inure to the benefit of (i)
Stockholder and his heirs, successors and assigns and (ii) Parent
and its successors and assigns. Notwithstanding anything
contained in this Voting Agreement to the contrary, nothing in
this Voting Agreement, expressed or implied, is intended to confer
on any Person other than the parties hereto or their respective
heirs, successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Voting Agreement.
7.8. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the
provisions of this Voting Agreement was not performed in
accordance with its specific terms or was otherwise breached. It
is accordingly agreed that Parent shall be entitled to an
injunction or injunctions to prevent breaches of this Voting
Agreement and to enforce specifically the terms and provisions
hereof in any Delaware court or other court of proper
jurisdiction, this being in addition to any other remedy to which
Parent is entitled at law or in equity.
7.9. Other Agreements. Nothing in this Voting Agreement shall
limit any of the rights or remedies of Parent or any of the
obligations of Stockholder under any Affiliate Agreement between
Parent and Stockholder or any other agreement.
7.10. Governing Law. This Voting Agreement shall be governed in
all respects by the laws of the State of Delaware, as applied to
contracts entered into and to be performed entirely within the
State of Delaware.
7.11. Counterparts. This Voting Agreement may be executed by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same
instrument.
7.12. Construction.
(a) Headings of the Sections of this Voting Agreement are
for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(b) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and
neuter genders; and the neuter gender shall include masculine and
feminine genders.
(c) The parties hereto agree that any rule of construction
to the effect that ambiguities are to be resolved against the drafting
party shall not be applied in the construction or interpretation
of this Voting Agreement.
(d) As used in this Voting Agreement, the words "include"
and "including," and variations thereof, shall not be deemed to be
terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
(e) Except as otherwise indicated, all references in this
Voting Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Voting Agreement and Exhibits to this Voting
Agreement.
In Witness Whereof, Parent and Stockholder have caused this
Voting Agreement to be executed as of the date first written
above.
Lumisys Incorporated
By:__________________________
Name:_________________________
Title:________________________
Stockholder
______________________________
Name:_________________________
Address:______________________
______________________
Facsimile:____________________
Number of Shares of Company
Common Stock owned of record
as of the date of this Voting
Agreement:____________________
Exhibit A
Irrevocable Proxy
The undersigned stockholder of CompuRAD, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes ___________________,
_________________ and Lumisys, Incorporated, a Delaware corporation
("Parent"), and each of them, the attorneys and proxies of the
undersigned with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to (i) the shares
of capital stock of the Company owned by the undersigned as of the date
of this proxy, which shares are specified on the final page of this
proxy and (ii) any and all other shares of capital stock of the Company
which the undersigned may acquire after the date hereof. (The shares of
the capital stock of the Company referred to in clauses (i) and (ii)
of the immediately preceding sentence are collectively referred to as
the "Shares.") Upon the execution hereof, all prior proxies given by
the undersigned with respect to any of the Shares are hereby revoked,
and no subsequent proxies will be given with respect to any of the
Shares.
This proxy is irrevocable and is coupled with an interest.
This proxy is granted in connection with the Voting Agreement of
even date herewith between Parent and the undersigned (the "Voting
Agreement") and in consideration of Parent entering into the
Agreement and Plan of Merger and Reorganization of even date
herewith among Parent, SAC Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of Parent, and the Company
(the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings assigned to such
terms in the Reorganization Agreement.
The attorneys and proxies named above will be empowered, and
may exercise this proxy, to vote the Shares at any time at any
meeting of the stockholders of the Company, however called, or in
any written action by consent of stockholders of the Company,
until the earlier to occur of the valid termination of the
Reorganization Agreement or the Effective Time, as follows: (i) in
favor of the Merger, (ii) in favor of the execution and delivery
by the Company of the Reorganization Agreement and the adoption
and approval of the terms thereof and (iii) in favor of each of
the other actions contemplated by the Reorganization Agreement and
any action required in furtherance hereof or thereof.
This proxy shall be binding upon the heirs, successors and
assigns of the undersigned (including any transferee of any of the
Shares).
Dated: September 28, 1997
______________________________
Name:_________________________
Number of Shares of Company
Common Stock:_________________
