VOTING AND PROXY AGREEMENT
Exhibit
99.3
THIS
VOTING AND PROXY AGREEMENT (this “Agreement”)
is made and entered into as of May 16, 2010 by and between Xxxxxx Xxxxxx, M.D.,
Ph.D. (the “Stockholder”)
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,
as the of the date of this Agreement, the Stockholder (i) owns 881,692 shares of
Company Common Stock, and (ii) is the trustee of a grantor retained annuity
trust for the benefit of Stockholder’s children (the “Michel
Trust”) that owns 100,000 shares of Company Common Stock (such Company
Common Stock held by the Stockholder, the Company Common Stock held by the
Michel Trust and any other shares of capital stock of the Company acquired by
the Stockholder after the date hereof and during the term of this Agreement,
whether by purchase or by vesting of Company Restricted Stock or upon exercise
of options (whether such options are held as of the date of this Agreement or
acquired after the date hereof), 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
Stockholder 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, the Stockholder (in his capacity as a stockholder and as
the trustee of the Michel Trust) shall not, and shall not authorize or permit
any of his representatives (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.
(b) Ongoing
Discussions. The Stockholder (in his capacity as a stockholder
and as the trustee of the Michel Trust) 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 Stockholder (in his capacity as a
stockholder and as the trustee of the Michel Trust) agrees, until the
Termination Date, 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 or any of its Subsidiaries.
(c) Fiduciary
Duties. Nothing in this Agreement shall limit or restrict the
Stockholder in his capacity as a director and officer of the Company and
exercising his fiduciary duties in such capacity.
Section
2. Agreement to Vote;
Restrictions on Dispositions; Irrevocable Proxy.
(a) Agreement to
Vote. The Stockholder hereby agrees, until the Termination
Date, to vote or cause to be voted the Shares or execute or cause to be executed
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 the
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
the 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. The Stockholder (in his capacity as a
stockholder and as the trustee of the Michel Trust) hereby agrees, until the
Termination Date, that, without the prior written consent of Parent, the
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”).
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(c) Irrevocable
Proxy. In furtherance of the Stockholder's agreement in
Section 2(a) above and subject to Section 2(f) and the last two sentences of
this Section 2(c), the Stockholder (in his capacity as a stockholder and as the
trustee of the Michel Trust) hereby irrevocably (until the Termination Date)
appoints Parent or Parent’s designee as the Stockholder’s agent, attorney and
proxy, to vote (or cause to be voted) the 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 the Stockholder fails for any reason to
vote (or cause to be voted) 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 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 the Stockholder
of the Shares.
(d) Revocation of Prior
Proxies. The Stockholder (in his capacity as a stockholder and
as the trustee of the Michel Trust) hereby revokes any and all prior proxies or
powers of attorney given by the Stockholder prior to the execution hereof with
respect to any Shares inconsistent with the terms of this Section
2.
(e) No Inconsistent
Agreements. The Stockholder hereby covenants and agrees that,
except for this Agreement, the Stockholder, directly or indirectly (in his
capacity as a stockholder and as the trustee of the Michel Trust) (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 the 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 the 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 the Stockholder
contained herein untrue or incorrect in any material respect or have the effect
of preventing the Stockholder from performing any of his material obligations
under this Agreement.
(f) Except as
set forth in Section 2(a), the Stockholder (in his capacity as a stockholder and
as the trustee of the Michel Trust) shall not 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 Stockholder. The Stockholder (in his
capacity as a stockholder and as the trustee of the Michel Trust) represents and
warrants to Parent as follows: (i) the Stockholder 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 the
Stockholder and the execution, delivery and performance of this Agreement by the
Stockholder and the consummation of the transactions contemplated hereby have
been
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duly
authorized by the Stockholder; (iii) assuming the due authorization, execution
and delivery of this Agreement by Parent, this Agreement constitutes the valid
and binding agreement of the Stockholder enforceable against the 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 the Stockholder does not conflict with or violate any law or
agreement binding upon him, 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 the 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, the
Stockholder owns, beneficially, or has control over, all of the 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
Shares, with no restrictions on the Stockholder’s rights of voting or
disposition pertaining thereto and no Person other than the Stockholder has any
right to direct or approve the voting or disposition of any 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 the Stockholder to perform
his obligations hereunder. Notwithstanding anything contained to the contrary in
this Agreement, nothing in this Agreement is intended or shall be construed to
require the Stockholder, solely in his capacity as a director or officer of the
Company, to act or fail to act in any manner inconsistent with (i) his fiduciary
duties in such capacity and (ii) the Merger Agreement. Furthermore,
the Stockholder, who is a director and officer, of the Company does not make any
agreement or understanding herein solely in his capacity as a director or
officer, and nothing herein will limit or affect, or give rise to any liability
of the Stockholder solely in his 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 Stockholder, (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. The Stockholder hereby waives any rights of appraisal
or rights to dissent from the Merger that he 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.
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(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
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
Stockholder, to
Xxxxxx
Xxxxxx, M.D., Ph.D.
c/o
Virtual Radiologic Corporation
00000
Xxxxxxxxxx Xxxx, Xxxxx 000
0
Xxxxxxxxxx,
XX 00000
with a
copy to (which shall not constitute notice):
Xxxxxxxxxxx
Xxxxx & Xxxxxxxx LLP
Plaza
VII, Suite 3300
00 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx, Esq. and Xxxxxxx XxXxxxxx, Esq.
(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 the 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 Stockholder,
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.
(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
6
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. The 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. The Stockholder hereby waives, to the fullest extent
permitted by applicable law, any right he 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. The 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 he has been induced to enter
into this Agreement by, among other things, the consideration received by the
Stockholder in respect of the Shares pursuant to the transactions contemplated
by the Merger Agreement.
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(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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IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date and year first written above.
PARENT
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By:
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/s/ Xxxxx Du Xxx | |
Name: Xxxxx Du Bey | |||
Title: President | |||
THE STOCKHOLDER | |||
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By:
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/s/ Xxxxxx Xxxxxx, M.D., Ph.D. | |
Xxxxxx Xxxxxx, M.D., Ph.D. | |||
(MICHEL
VOTING AND PROXY AGREEMENT SIGNATURE PAGE)