EXHIBIT 99.2
VOTING, PROXY AND OPTION AGREEMENT
THIS VOTING, PROXY AND OPTION AGREEMENT (this "Agreement") is made and
entered into as of November 24, 2004 by and between Xxxxx Xxxxxx ("Shareholder")
and Merge Technologies Incorporated, a Wisconsin corporation ("Merge").
WHEREAS, concurrently herewith, Merge, ADI Acquisition Corp., a Nevada
corporation ("Merger Sub"), AccuImage Diagnostics Corp., a Nevada corporation
(together with its subsidiaries, the "Company"), and Shareholder have entered
into a merger agreement (as amended from time to time, the "Merger Agreement")
and, unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed thereto in the Merger Agreement; and
WHEREAS, as of the date hereof, Shareholder is the record and
beneficial owner of that number of shares of common stock of the Company set
forth on the signature page hereof (such shares, together with any other shares
of capital stock of the Company acquired by Shareholder after the date hereof,
being collectively referred to herein as the "Shares; and
WHEREAS, obtaining appropriate shareholder approval is a condition to
the consummation of the transactions contemplated by the Merger Agreement; and
WHEREAS, in the event the Merger Agreement is terminated in accordance
with certain provisions of the Merger Agreement, Shareholder desires to grant
Merge an option to purchase the Shares from Shareholder.
WHEREAS, as an inducement to Merge to enter into the Merger Agreement,
Merge and Shareholder have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. NO SHOP
(a) GENERAL. Shareholder will not, and will not
permit any of his Affiliates, attorneys, representatives or agents
(collectively, the "Representatives") to, directly or indirectly, (i) discuss,
negotiate, undertake, authorize, recommend, propose or enter into, either as the
proposed surviving, merged, acquiring or acquired corporation, any transaction
involving a merger, consolidation, business combination or similar transaction
involving the Company or any purchase or disposition of any amount of the assets
of the Company outside the ordinary course of business or (ii) any purchase or
disposition of any capital stock of the Company in each case other than the
transactions contemplated by the Merger Agreement (an "Alternative
Transaction"), (ii) facilitate, encourage, solicit or initiate discussions,
negotiations or submissions of proposals or offers in respect of an Alternative
Transaction, (iii) furnish or cause to be furnished, to any Person, any
information concerning the business, operations, properties or assets of the
Company in connection with an Alternative Transaction, or (iv) otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage,
any effort or attempt by any other Person to do or seek any of the foregoing.
(b) NOTIFICATION. Shareholder shall notify Merge
orally and in writing promptly (but in no event later than twenty-four (24)
hours) after receipt of any proposal or offer from any Person to effect an
Alternative Transaction or any request for non-public information relating to
the Company or for access to the properties, books or records of the Company by
any Person other than Merge. Such notice shall indicate the identity of the
Person making the proposal or offer, or intending to make a proposal or offer or
requesting non-public information or access to the books and records of the
Company, the material terms of any such proposal or offer, or modification or
amendment to such proposal or offer and copies of any written proposals or
offers or amendments or supplements thereto. The Shareholder shall keep Merge
informed, on a current basis, of any material changes in the status and any
material changes or modifications in the material terms of any such proposal,
offer, indication or request.
(c) ONGOING DISCUSSIONS. Shareholder shall (and shall
cause his Representatives to) immediately cease and cause to be terminated any
existing discussions or negotiations with any Persons conducted heretofore with
respect to any of the foregoing. The Shareholder agrees not to (and to cause his
Representatives not to) release any third party from the confidentiality and
standstill provisions of any agreement relating to the Company.
Section 2. AGREEMENT TO VOTE; DISPOSITIONS; IRREVOCABLE PROXY;
OPTIONS.
(a) AGREEMENT TO VOTE. Shareholder hereby agrees to
vote the Shares or execute a written consent in respect thereof (i) for approval
and adoption of the Merger Agreement (as amended from time to time) and the
transactions contemplated by the Merger Agreement, as applicable, at any meeting
or meetings of the shareholders of the Company at which the Merger Agreement or
the transactions contemplated thereunder are submitted for the vote of such
Shareholder or in any written consent in respect thereof, (ii) against any
Alternative Transaction, without regard to any Board recommendation to
shareholders concerning such Alternative Transaction, and without regard to the
terms of such Alternative Transaction, (iii) against any agreement, amendment of
any agreement (including the Company's Articles of Incorporation or By-Laws), or
any other action that is intended or could reasonably be expected to prevent,
impede, interfere with, delay, postpone, or discourage the transactions
contemplated by the Merger Agreement, other than those specifically permitted by
this Agreement or the Merger Agreement, or (iv) against any action, agreement,
transaction or proposal that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the Company in the Merger
Agreement. Any such vote shall be cast (or consent shall be given) by
Shareholder in accordance with the procedures relating thereto so as to ensure
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that it is duly counted, including for purposes of determining that a quorum is
present and for the purposes of recording such vote (or consent).
(b) RESTRICTIONS ON DISPOSITIONS. Shareholder hereby
agrees that, without the prior written consent of Merge, Shareholder shall not,
directly or indirectly, sell, offer to sell, give, pledge, encumber, assign,
grant any option for the sale of or otherwise transfer or dispose of, or enter
into any agreement, arrangement or understanding to sell, any Shares
(collectively, "Transfer"), and as a condition to any such Transfer which is
consented to by Merge, such transferee shall execute an agreement that is
identical to this Agreement (except to reflect the change of the identity of the
holder of Shares).
(c) IRREVOCABLE PROXY. Subject to the last two
sentences of this subsection (c), Shareholder hereby irrevocably appoints Merge
or its designee as Shareholder's agent, attorney and proxy, to vote (or cause to
be voted) the Shares owned by Shareholder in favor of approval of the Merger
Agreement and the transactions contemplated by the Merger Agreement, as
applicable. This proxy is irrevocable and coupled with an interest and is
granted in consideration of the Company, Merge and Merger Sub entering into the
Merger Agreement. In the event that the Shareholder fails for any reason to vote
the Shares in accordance with the requirements of Section 2(a) hereof, then the
proxyholder shall have the right to vote the Shares in accordance with the
provisions of the first sentence of this subsection (c). The vote of the
proxyholder shall control in any conflict between the vote by the proxyholder of
the Shares and a vote by Shareholder of the Shares.
(d) INCONSISTENT AGREEMENTS. Shareholder hereby
agrees that, he shall not enter into any agreement, contract or understanding
with any Person prior to the termination of the Merger Agreement directly or
indirectly to vote, grant a proxy or power of attorney or give instructions with
respect to the voting of the Shares in any manner which is inconsistent with
this Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Shareholder represents and warrants to Merge as follows: (i) Shareholder has all
necessary power and authority to execute and deliver this Agreement and to
perform his obligations hereunder; (ii) this Agreement has been duly executed
and delivered by Shareholder; (iii) assuming the due authorization, execution
and delivery of this Agreement by Merge, this Agreement constitutes the legal,
valid and binding agreement of Shareholder, enforceable against Shareholder in
accordance with its terms; (iv) the execution and delivery of this Agreement by
Shareholder does not conflict with or violate any law or agreement binding upon
him, nor require any consent, notification, regulatory filing or approval; (v)
except for restrictions in favor of Merge pursuant to this Agreement,
Shareholder owns, beneficially and of record, all of the Shares free and clear
of any proxy, voting restriction, adverse claim or other lien and has sole
voting power and sole power of disposition with respect to all of the Shares,
with no restrictions on Shareholder's rights of voting or disposition pertaining
thereto and no Person other than Shareholder has any right to direct or approve
the voting or disposition of any of the Shares; and (vi) as of the date hereof,
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Shareholder does not own beneficially or of record any securities of the Company
other than the shares of common stock and Options with an aggregate exercise
price all as set forth on the signature page hereof.
Section 4. REPRESENTATIONS AND WARRANTIES OF MERGE. Merge
represents and warrants to Shareholder as follows: (i) Merge has all necessary
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder; (ii) this Agreement has been duly executed and delivered
by Merge; (iii) assuming the due authorization, execution and delivery of this
Agreement by Shareholder, this Agreement constitutes the legal, valid and
binding agreement of Merge, enforceable against Merge in accordance with its
terms; (iv) the execution and delivery of this Agreement by Merge does not
conflict with or violate any law or agreement binding upon it, nor require any
consent, notification, regulatory filing or approval; and (v) Merge has filed
all reports and proxy and other statements with the Securities and Exchange
Commission (the "SEC") which are required by the Exchange Act to be filed since
January 1, 2004 (collectively, and in each case including all exhibits and
schedules thereto and documents incorporated by reference therein, the "Merge
SEC Documents").
Section 5. FURTHER ASSURANCES. At the request of Merge,
Shareholder shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of his obligations under this
Agreement.
Section 6. TERMINATION. Except for the provisions of Section 7
hereof, this Agreement shall terminate upon the termination of the Merger
Agreement in accordance with its terms. The foregoing shall not relieve
Shareholder of any liability for breach of this Agreement.
Section 7. OPTION. In the event the Merger Agreement is
terminated pursuant to Sections 9.1 (b), (d), (e) or (g) of the Merger
Agreement, Shareholder hereby grants to Merge an option to purchase all, but not
fewer than all, of the Shares, exercisable for a period of two years from the
date of termination of the Merger Agreement, at an aggregate purchase price of
0.95x the Merger Consideration per Share (the "Option").
Section 8. MISCELLANEOUS.
(a) EXPENSES. Except as may be otherwise provided in
this Agreement or the Merger Agreement, each party shall bear his or its own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(b) NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed given (i) when
delivered personally. (ii) on the third business day after being mailed by
certified mail, return receipt requested. (iii) the next business day after
delivery to a recognized overnight courier, or (iv) upon transmission and
confirmation of receipt by a facsimile operator if sent by facsimile (and shall
also be transmitted by facsimile to the Persons receiving copies thereof), to
the parties at the following addresses or facsimile numbers (or to such other
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address and facsimile number as a party may have specified by notice given to
the other party pursuant to this provision):
If to the Shareholder:
00 Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx & Xxxxxx LLP
000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax: (000) 000-0000
If to Merge:
Merge Technologies Incorporated
0000 X. 00xx Xxxxxx, Xxxxx 000X
Xxxxxxxxx Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, CEO
Fax: (000) 000-0000
With copies (which shall not constitute notice)to:
Xxxxxxx Xxxx & Xxxxxxxxx
Attn: Xxxxxxxx Xxxxxx, Esq.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
and
Xxxxxx X. Xxxxx, Esq.
Suite 800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
(c) AMENDMENTS, WAIVERS, ETC. This Agreement may not
be amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Merge and Shareholder.
(d) SUCCESSORS AND ASSIGNS. No party may assign any
of its or his rights or delegate any of its or his obligations under this
Agreement without the prior written consent of the other party, except that
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Merge may, without the consent of Shareholder, assign any of its rights and
delegate any of its obligations under this Agreement to any Affiliate of Merge.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation any corporate
successor by Merger or otherwise. Notwithstanding any Transfer of Shares
consistent with this Agreement, the transferor shall remain liable for the
performance of all obligations of transferor under this Agreement.
(e) NO THIRD PARTY BENEFICIARIES. Nothing expressed
or referred to in this Agreement will be construed to give any Person, other
than the parties to this Agreement, any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this
Agreement, except to a successor or permitted assignee under Section 5(d).
(f) ENTIRE AGREEMENT. This Agreement embodies the
entire agreement and understanding between the parties relating to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter other than the Merger Agreement and any other agreement,
document or instrument expressly referenced therein.
(g) SEVERABILITY. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
unenforceability of any other provisions of this Agreement.
(h) SPECIFIC PERFORMANCE; REMEDIES CUMULATIVE. The
parties hereto acknowledge that money damages are not an adequate remedy for
violations of this Agreement and that any party, in addition to any other rights
and remedies which the parties may have hereunder or at law or in equity, may,
in his or its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunction or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief. 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 or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such rights, powers or remedies by such party.
(i) 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 his or 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 his or its right to exercise any such or other right,
power or remedy or to demand such compliance.
(j) GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Wisconsin without
giving effect to the principles of conflict of laws thereof.
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(k) JURISDICTION. Each of the parties hereto submits
to the exclusive jurisdiction of any state or federal court of the United States
located in the State of Wisconsin with respect to any claim or cause of action
arising out of this Agreement or the transactions contemplated hereby (and
agrees that no such action, suit or proceeding relating to this Agreement or any
transaction contemplated hereby shall be brought by him or it except in such
courts). Each of the parties hereto, irrevocably and unconditionally, waives
(and agrees not to plead or claim) any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in any state or federal court of the United States located
in the State of Wisconsin, or that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum. Shareholder also
agrees that any final and unappealable judgment against such party in connection
with any such action, suit or other proceeding shall be conclusive and binding
on such party and that such award or judgment may be enforced in any court of
competent jurisdiction, either within or outside of the United States. A
certified or exemplified copy of such award or judgment shall be conclusive
evidence of the fact and amount of such award or judgment.
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(l) WAIVER OF JURY TRIAL. The parties hereto hereby
waive, to the fullest extent permitted by applicable law, any right he or it may
have to a trial by jury in respect of any litigation directly or indirectly
arising out of, under or in connection with this Agreement.
(m) COUNTERPARTS. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date and year first written above.
Merge Technologies Incorporated
By: /s/ XXXXXXX XXXXXX
---------------------
Name: Xxxxxxx Xxxxxx
Title: President and CEO
/s/ XXXXX XXXXXX
-------------------------
Shareholder
Number of Shares Owned: 34,050,000
