VOTING AND PROXY AGREEMENT
EXHIBIT
99.2
THIS
VOTING AND PROXY AGREEMENT (this “Agreement”)
is made and entered into as of May 16, 2010 by and among Generation Capital
Partners VRC LP, a Delaware limited partnership, Generation Members’ Fund II LP,
a Delaware limited partnership and Generation Capital Partners II LP, a Delaware
limited partnership (each a “Stockholder,”
and together, the “Stockholders”)
and Viking Holdings LLC, a Delaware limited liability company (“Parent”).
WHEREAS,
concurrently herewith, Parent, Viking Acquisition Corporation, a Delaware
corporation ( “Merger
Sub”), and Virtual Radiologic Corporation, a Delaware corporation (the
“Company”)
have entered into an Agreement and Plan of Merger (as amended from time to time,
the “Merger
Agreement”), pursuant to which Merger Sub will merge with and into the
Company;
WHEREAS,
each Stockholder owns the number of shares of Company Common Stock set forth
opposite its name on Schedule I hereto as
of the date of this Agreement (such Company Common Stock held by each
Stockholder as set forth on Schedule I, together
with any other shares of capital stock of the Company acquired by each
Stockholder after the date hereof and during the term of this Agreement, whether
by purchase or upon exercise of options, warrants, conversion of other
convertible securities or otherwise, being collectively referred to herein as
the “Shares”);
WHEREAS,
obtaining appropriate stockholder approval is a condition to the
Merger;
WHEREAS,
as an inducement to Parent to enter into the Merger Agreement, Parent and the
Stockholders have agreed to enter into this Agreement; and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Merger 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. Until
the Termination Date, each Stockholder shall not, and shall not authorize or
permit any of its directors, officers, members, managers, partners, employees,
stockholders, controlled Affiliates, representatives or agents (collectively,
the “Representatives”)
to, directly or indirectly, (i) solicit, initiate or knowingly encourage an
Acquisition Proposal, (ii) furnish or disclose to any third Person non-public
information with respect to an Acquisition Proposal, (iii) negotiate or engage
in discussions with any third Person with respect to an Acquisition Proposal,
(iv) enter into any agreement (whether or not binding) or agreement in principle
with respect to an Acquisition Proposal or (v) otherwise cooperate in any way
with, or assist or participate in, any effort or attempt by another Person to do
or seek any of the foregoing.
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(b) Ongoing
Discussions. Each Stockholder shall (and shall cause its
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. Each Stockholder agrees, until the
Termination Date, not to (and to cause its Representatives not to) release any
third party from the confidentiality and standstill provisions of any agreement
relating to the Company or any of its Subsidiaries.
(c) Fiduciary
Duties. Nothing in this Agreement shall limit or restrict any
Affiliate or designee of the Stockholders who serves as a member of the Board of
Directors in acting in his or her capacity as a director of the Company and
exercising his or her fiduciary duties in such capacity.
Section
2. Agreement to Vote;
Restrictions on Dispositions; Irrevocable Proxy.
(a) Agreement to
Vote. Each Stockholder hereby agrees, until the Termination
Date, to vote its 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 stockholders of the Company at which the Merger
Agreement or the transactions contemplated thereunder are submitted for the vote
of such Stockholder or in any written consent in respect thereof, (ii) against
any other Acquisition Proposal, without regard to any Board recommendation to
stockholders concerning such Acquisition Proposal, and without regard to the
terms of such Acquisition Proposal, (iii) against any agreement, amendment of
any agreement (including the Company's Certificate 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 contemplated
by this Agreement or the Merger Agreement, and (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 each Stockholder in accordance with the procedures relating
thereto so as to ensure 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. Each Stockholder, severally and not jointly,
hereby agrees, until the Termination Date, that, without the prior written
consent of Parent, such Stockholder 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”)
other than to its Affiliates, provided that as a condition to such Transfer,
such Affiliate shall execute an agreement that is identical to this Agreement
(except to reflect the change of such Stockholder).
(c) Irrevocable
Proxy. In furtherance of each Stockholder's agreement in
Section 2(a) above and subject to Section 2(f) and the last two sentences of
this Section 2(c), each Stockholder hereby irrevocably (until the Termination
Date)
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appoints
Parent or Parent’s designee as such Stockholder’s agent, attorney and proxy, to
vote (or cause to be voted) such Stockholder’s Shares in accordance with Section
2(a) hereof. This proxy is irrevocable (pursuant to Section 212(e) of
the DGCL) until the Termination Date and coupled with an interest and is granted
in consideration of the Company, Parent and Merger Sub entering into the Merger
Agreement. In the event that such Stockholder fails for any reason to
vote its Shares in accordance with the requirements of Section 2(a) hereof, then
the proxyholder shall have the right to vote such Stockholder’s Shares in
accordance with the provisions of the first sentence of this Section
2(c). The vote of the proxyholder shall control in any conflict
between the vote by the proxyholder of the Shares and a vote by such Stockholder
of its Shares.
(d) Revocation of Prior
Proxies. Each Stockholder hereby revokes any and all prior
proxies or powers of attorney given by such Stockholder prior to the execution
hereof with respect to any Shares inconsistent with the terms of this Section
2.
(e) No Inconsistent
Agreements. Each Stockholder, severally but not jointly,
hereby covenants and agrees that, except for this Agreement, such Stockholder,
directly or indirectly, (i) has not entered into, and shall not enter into at
any time while this Agreement remains in effect, any voting agreement or voting
trust with respect to the Shares owned beneficially or of record by such
Stockholder, (ii) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy, a consent or power of attorney with
respect to the Shares owned beneficially or of record by such Stockholder and
(iii) has not entered into any agreement or knowingly taken any action (and
shall not enter into any agreement or knowingly take any action ) that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect in any material respect or have the effect of preventing such
Stockholder from performing any of its material obligations under this
Agreement.
(f) Except as
set forth in Section 2(a), no Stockholder shall be restricted from voting in
favor of, against or abstaining with respect to any matter presented to the
stockholders of the Company. In addition, nothing in this Agreement
shall give Parent or Parent's designee the right to vote any Shares at any
meeting of the stockholders of the Company other than as provided in Section
2(c).
Section
3. Representations, Warranties
and Covenants of the Stockholders. Each Stockholder, severally
but not jointly, represents and warrants to Parent as follows: (i) such
Stockholder 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 such Stockholder and the execution, delivery and
performance of this Agreement by such Stockholder and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of such Stockholder; (iii) assuming the due
authorization, execution and delivery of this Agreement by Parent, this
Agreement constitutes the valid and binding agreement of such Stockholder
enforceable against such Stockholder in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors, rights generally and by general equitable principles; (iv) the
execution and delivery of this Agreement by such Stockholder does not conflict
with or
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violate
any law or agreement binding upon it, nor require any consent, notification,
regulatory filing or approval and (v) except for restrictions in favor of Parent
pursuant to this Agreement and except for such transfer restrictions of general
applicability as may be provided under the Securities Act of 1933, as amended,
and the “blue sky” laws of the various States of the United States, each
Stockholder owns, beneficially, all of its Shares, as applicable, free and clear
of any proxy, voting restriction, adverse claim or other lien and has voting
power and power of disposition with respect to all of its Shares, with no
restrictions on such Stockholder’s rights of voting or disposition pertaining
thereto and no Person other than such Stockholder has any right to direct or
approve the voting or disposition of any of its Shares, except in the case of
clause (iv) and (v) for violations, breaches or defaults that would not in the
aggregate materially impair the ability of such Stockholder to perform its
obligations hereunder. Notwithstanding anything contained to the contrary in
this Agreement, in the event a Stockholder (or any Representative of a
Stockholder) is a director or officer of the Company, nothing in this Agreement
is intended or shall be construed to require such Stockholder (or
Representative), solely in his or her capacity as a director or officer of the
Company, to act or fail to act in any manner inconsistent with (i) his or her
fiduciary duties in such capacity and (ii) the Merger
Agreement. Furthermore, no Stockholder (or any Representative of a
Stockholder) who is or becomes (during the term hereof) a director or officer of
the Company makes any agreement or understanding herein solely in his or her
capacity as a director or officer, and nothing herein will limit or affect, or
give rise to any liability of any Stockholder (or Representative) solely in such
Person's capacity as a director or officer of the Company.
Section
4. Effectiveness and
Termination. It is a condition precedent to the effectiveness
of this Agreement that the Merger Agreement shall have been fully executed and
delivered and be in full force and effect, and this Agreement shall become
effective at such time. This Agreement shall automatically terminate
and be of no further force or effect upon (i) the mutual written consent of the
Parent and the Stockholders, (ii) any material amendment, supplement or
modification to the Merger Agreement solely with respect to a decrease in the
Merger Consideration or a change in the form of the consideration payable to
stockholders or (iii) the termination of the Merger Agreement in accordance with
its terms or upon the consummation of the Merger (other than with respect to
this Section 4 and Section 5, which shall survive any termination of this
Agreement) (with respect to each of (i), (ii) and (iii), as applicable, the
"Termination
Date").
Section
5. Miscellaneous.
(a) Waiver of Appraisal
Rights. Each Stockholder hereby waives any rights of appraisal
or rights to dissent from the Merger that it may have (if any) under applicable
law.
(b) Expenses. Each
party shall bear its own expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
(c) 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
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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
address and facsimile number as a party may have specified by notice given to
the other party pursuant to this provision):
If to
Parent, to
c/o
Providence Equity Partners
00
Xxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxx
and
c/o
Providence Equity Partners
0 Xxxx
00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Du Xxx
with a
copy to (which shall not constitute notice):
Weil,
Gotshal & Xxxxxx, LLP
00
Xxxxxxx Xxxxx, 00xx Xxxxx
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxxx, Esq.
and
Weil,
Gotshal & Xxxxxx, LLP
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxxx
X. Xxxxxxx, Esq.
If to the
Stockholders, to
Generation
Capital Partners
Xxx
Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
with a
copy to (which shall not constitute notice):
0
Xxxxxxxxxxx
Xxxxx & Xxxxxxxx XXX
Xxxxx
XXX, Xxxxx 0000
00 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx, Esq. and Xxxxxxx XxXxxxxx, Esq.
and
Xxxxxx,
Xxxx & Xxxxxxxx LLP
000 Xxxx
Xxx
Xxx Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx Xxxxxxxxx
(d) 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 Parent and each Stockholder.
(e) Successors and
Assigns. No party may assign any of its rights or delegate any
of its obligations under this Agreement without the prior written consent of the
other parties, except that Parent may, without the consent of the Stockholders,
assign any of its rights and delegate any of its obligations under this
Agreement to any Affiliate of Parent. 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.
(f) 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 as such rights as
may inure to a successor or permitted assignee under Section 5(e).
(g) No Partnership, Agency, or
Joint Venture. This Agreement is intended to create, and
creates, a contractual relationship and is not intended to create, and does not
create, any agency, partnership, joint venture or any like relationship between
the parties hereto.
(h) Entire
Agreement. This Agreement embodies the entire agreement and
understanding among 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.
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(i) 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.
(j) 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 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.
(k) 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.
(l) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof.
(m) 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 Delaware 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 Delaware ,
or that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. Each Stockholder 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.
(n) Waiver of Jury
Trial. Each Stockholder hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of, under or in connection
with
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this
Agreement. Each Stockholder (i) certifies that no representative of
any other party has represented, expressly or otherwise, that such other party
would not, in the event of any such litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it has been induced to enter into this
Agreement by, among other things, the consideration received by such Stockholder
in respect of its Shares pursuant to the transactions contemplated by the Merger
Agreement.
(o) Drafting and
Representation. The parties have participated jointly in the
negotiation and drafting of this Agreement. No provision of this
Agreement will be interpreted for or against any party because that party or its
legal representative drafted the provision.
(p) Name, Captions,
Gender. Section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement. Whenever the context may require,
any pronoun used herein shall include the corresponding masculine, feminine or
neuter forms.
(q) 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.
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of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date and year first written above.
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PARENT
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By:
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/s/ Xxxxx Du Xxx | |
| Name: Xxxxx Du Bey | |||
| Title: President | |||
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THE
STOCKHOLDERS
GENERATION CAPITAL PARTNERS VRC
LP
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By:
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/s/ Xxxx Xxxxxxxx | |
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Managing
Member of its General Partner,
Generation
Partners VRC LLC
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GENERATION
CAPITAL PARTNERS II LP
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By:
|
/s/ Xxxx Xxxxxxxx | |
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Managing
Member of its General Partner,
Generation
Partners II LLC
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GENERATION
MEMBERS’ FUND II LP
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By:
|
/s/ Xxxx Xxxxxxxx | |
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Managing
Member of its General Partner,
Generation
Partners LLC
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Schedule
I
The
Stockholders
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Name of Stockholder
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Number of Shares Owned
|
|
Generation
Capital Partners VRC LP
Generation
Capital Partners II LP
Generation
Members’ Fund II LP
|
1,156,914
265,100
2,708,686
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