EXHIBIT 2
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VOTING AGREEMENT
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VOTING AGREEMENT, dated as of March 5, 2000 (this "AGREEMENT"), by
and among Comverse Technology, Inc., a New York corporation ("PARENT") and
______________ (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, Comverse Acquisition Corp., a
Nevada corporation and wholly-owned subsidiary of Parent ("MERGER SUB") and
Loronix Information Systems, Inc., a Nevada corporation (the "COMPANY"), are
entering into an Agreement and Plan of Merger (as such agreement may hereafter
be amended from time to time, the "MERGER AGREEMENT"; capitalized terms used and
not defined herein have the respective meanings ascribed to them in the Merger
Agreement) pursuant to which Merger Sub will be merged with and into the
Company, with the Company as the Surviving Corporation (the "MERGER");
WHEREAS, the Stockholder beneficially owns _______ shares (the
"SHARES") of Common Stock of the Company; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Merger Sub have required that the Stockholder agree, and
the Stockholder has agreed, to enter into this Agreement; and further the
Stockholder has agreed to enter into this Agreement strictly in his capacity as
a beneficial owner of the Shares and not in his capacity as a director or
officer of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. Provisions Concerning the Shares. (a) The Stockholder hereby
agrees that during the period commencing on the date hereof and continuing until
this provision terminates pursuant to Section 5 hereof, at any meeting of the
holders of shares of Common Stock of the Company, however called, or in
connection with any written consent of the holders of shares of Common Stock of
the Company, the Stockholder shall vote, (or cause to be voted) any shares of
Common Stock of the Company held of record or Beneficially Owned (as defined
below) by the Stockholder, including the Shares, whether heretofore owned or
hereafter acquired, in favor of the Merger and the adoption of the Merger
Agreement and any actions required in furtherance thereof and hereof.
(b) The Stockholder shall not enter into any agreement or
understanding with any Person (as defined below) the effect of which would be
inconsistent or violative of the provisions of this Agreement.
(c) For purposes of this Agreement:
NY2:\888374\01
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing; without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act; and
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(d) In the event of a stock dividend or distribution, or any change
in the Common Stock of the Company by reason of any stock dividend, stock split,
recapitalization, reclassification, combination, exchange of shares, merger or
the like, the term "SHARES" as used in this Agreement shall be deemed to refer
to and include the Shares as well as all such stock dividends and distributions
and any shares or other securities into which or for which any or all of the
Shares may be converted, changed or exchanged.
2. Representations and Warranties. As of the date hereof, the
Stockholder hereby represents and warrants to Merger Sub as follows:
(a) Ownership of Shares. The Stockholder is the Beneficial Owner of
all of the Shares. On the date hereof, the Shares constitute all of the shares
of Common Stock of the Company owned of record or Beneficially Owned by the
Stockholder. The Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power of disposition and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Shares, with no
limitations, qualifications or restrictions on such rights (subject to
applicable securities laws).
(b) Power; Binding Agreement. The Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity). There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is settlor or trustee or
any other person whose consent is required for the execution and delivery of
this Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
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(c) No Conflicts. (i) Except for filings under the HSR Act, if any,
and filings under the Exchange Act, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by the Stockholder
and the consummation by the Stockholder of the transactions contemplated hereby
and (ii) none of the execution and delivery of this Agreement by the
Stockholder, the consummation by the Stockholder of the transactions
contemplated hereby or compliance by the Stockholder with any of the provisions
hereof will (A) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any declaration of trust,
note, bond, mortgage, indenture, security or pledge agreement, voting agreement,
stockholders' agreement or voting trust, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder or any of
the Stockholder's properties or assets may be bound, or (B) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets.
(d) Reliance by Parent. The Stockholder understands and acknowledges
that Parent and Merger Sub are entering into the Merger Agreement in reliance
upon execution and delivery of this Agreement by the Stockholder.
(e) Sophistication. The Stockholder acknowledges being an informed
and sophisticated investor and, together with the Stockholder's advisors, has
undertaken such investigation as they have deemed necessary, including the
review of the Merger Agreement and this Agreement, to enable the Stockholder to
make an informed and intelligent decision with respect to the Merger Agreement
and this Agreement and the transactions contemplated thereby and hereby.
(f) No Broker. No broker, investment banker, financial adviser or
other Person is entitled to any commission, broker's fee, finder's fee,
adviser's fee or similar fee in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of the Stockholder.
3. No Solicitation. (a) From and after the date hereof and continuing
until this provision terminates pursuant to Section 5 hereof, the Stockholder
shall not directly or indirectly, initiate, solicit or encourage (including by
way of furnishing non-public information or assistance), or take any other
action to facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition Proposal
with respect to the Company or enter into or maintain or continue discussions or
negotiate with any Person in furtherance of such inquiries or to obtain such a
Acquisition Proposal or agree to or endorse any such Acquisition Proposal, and
the Stockholder shall promptly notify Parent or Merger Sub orally (in all events
within 24 hours) and in writing (as promptly thereafter as practicable) of the
material terms and status of all inquiries and proposals which the Stockholder
or any agent of the Stockholder may receive after the date hereof relating to
any of such matters and, if such inquiry or proposal is in writing, the
Stockholder shall deliver to Parent or Merger Sub a
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copy of such inquiry or proposal promptly; provided, however, that,
notwithstanding any other provision of this Agreement, the Stockholder may take
any action in his capacity as a director or officer of the Company as the board
of directors of the Company directs him to take in compliance with Section 6.4
of the Merger Agreement or in order to permit the Board to comply with its
fiduciary duties under applicable law as advised by counsel. The Stockholder
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations, with any parties conducted heretofore with respect
to any of the foregoing.
(b) Parent acknowledges that this Agreement is entered into by the
Stockholder in such Stockholder's capacity as a beneficial owner of the Shares,
and that nothing in this Agreement shall in any way restrict or limit the
Stockholder from taking any action in his capacity as a director or officer of
the Company or otherwise fulfilling his fiduciary obligations as a director or
officer of the Company, notwithstanding that any such action would be
inconsistent with or violative of the Stockholder's obligations under this
Agreement if taken in his capacity as a beneficial owner of the Shares.
4. Restriction on Transfer; Proxies; Non-Interference; Stop
Transfers; etc.
(a) The Stockholder shall not, directly or indirectly, during the
period commencing on the date hereof and continuing until this provision
terminates pursuant to Section 5 hereof: (i) except as contemplated by the
Merger Agreement offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or grant or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Shares or any interest therein; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney, deposit
any Shares into a voting trust or enter into a voting agreement with respect to
any Shares; or (iii) take any action that would make any of the Stockholder's
representations or warranties contained herein untrue or incorrect or have the
effect of preventing or disabling the Stockholder from performing his/her
respective obligations under this Agreement; provided that the foregoing shall
not prevent the Stockholder from (x) disposing of not greater than 40,000 Shares
or (y) pledging any of the Shares to a bank or other financial institution or to
prevent such bank or financial institution from selling the Shares on
foreclosure so long as the Stockholder retains the right to vote such Shares if
the pledge has not been foreclosed upon.
(b) Without limiting the generality of Section 4(a) above, the
Stockholder agrees with, and covenants to, Parent that the Stockholder shall
not, during the period set forth in Section 4(a), request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing the Shares, unless such transfer is made in
compliance with this Agreement.
5. Termination. Except as otherwise provided herein, the covenants
and agreements contained in Sections 1, 3 and 4 hereof shall terminate (i) in
the event the Merger Agreement is terminated in accordance with the terms
thereof, upon such
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termination, and (ii) in the event the Merger is consummated, upon the Effective
Time. Notwithstanding anything to the contrary herein no termination of this
Agreement shall relieve any party of liability for a breach hereof prior to
termination.
6. Further Assurances. From time to time, at the other party's
request and without further consideration, the Stockholder and Merger Sub shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
7. Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
8. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
Person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without limitation,
the Stockholder's heirs, executors, guardians, administrators, trustees or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
9. Assignment. This Agreement shall not be assigned by any party
hereto, by operation of law or otherwise, without the prior written consent of
the other party, and any purported assignment without such consent shall be null
and void; provided, however, that Parent may assign, in its sole discretion, its
rights and obligations hereunder to Merger Sub or any direct or indirect wholly
owned subsidiary of Parent without the consent of the Stockholder. All covenants
and agreements contained in this Agreement by or on behalf of the parties hereto
shall be binding on and inure to the benefit of the respective successors, heirs
and permitted assigns of the parties hereto.
10. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except upon
the execution and delivery of a written agreement executed by each of the
parties hereto.
11. 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 received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses: (i) if to Parent, to its address
set forth in the Merger Agreement; and (ii) if to the Stockholder, to the
address set forth under the Stockholder's signature on the signature page
hereto; or, in each case, to such other address as the Person to whom
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notice is given may have previously furnished to the others in writing in the
manner set forth above.
12. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
13. Specific Performance. The Stockholder recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause Parent to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore the Stockholder agrees that in
the event of any such breach Parent party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which Parent may be
entitled, at law or in equity.
14. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
15. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
16. No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any Person who or which
is not a party hereto .
17. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Nevada, without giving effect to the
principles of conflicts of law thereof.
18. Waiver of Jury Trial. The parties hereto waive all right to trial
by jury in any action or proceeding to enforce or defend any rights under this
Agreement and any document executed in connection herewith.
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19. Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
[signature page follows]
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IN WITNESS WHEREOF, Parent and the Stockholder have executed and
delivered this Agreement as of the day and year first above written.
COMVERSE TECHNOLOGY, INC.
By:
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Name:
Title:
STOCKHOLDER
By:
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