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EXHIBIT 99.2
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:
SECTION 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.
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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.
SECTION 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").
SECTION 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.
SECTION 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
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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.
SECTION 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
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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.
SECTION 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.
SECTION 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
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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:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
if to Parent:
Lumisys Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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
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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;
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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.
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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:
__________________________________
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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 Sub, Inc., 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.
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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:________________________
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