Exhibit 2.2
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 Aviel Faliks
(“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 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 sent
