Exhibit
2.6
STOCKHOLDER SUPPORT
AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT, dated as of May
30, 2009 (this “Agreement”), by and among Merge
Healthcare Incorporated, a Delaware corporation
(“Parent”), and (the “Stockholder”). This
Agreement shall be effective as of May 30,
2009. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Merger Agreement
(as defined below).
W I T N E S S E T
H:
WHEREAS , Parent, Merge Acquisition Corp., a Delaware
corporation and a wholly-owned Subsidiary of Parent
(“Purchaser”), and etrials Worldwide, Inc., a Delaware
corporation (the “Company”), are, concurrently with the
execution and delivery of this Agreement, entering into an
Agreement and Plan of Merger, dated as of the date hereof (the
“Merger Agreement”); and
WHEREAS, as of the date hereof, each Stockholder is the
beneficial owner (as defined under Rule 13d-3 of the Exchange Act)
of the outstanding shares of the Company’s Common Stock, par
value $0.0001 per share (the “Common Stock”), set forth
under such Stockholder’s name on the signature page to this
Agreement (the “Existing Shares” and, together with any
other shares of Common Stock, or other capital stock of the Company
acquired by the Stockholder after the date hereof, collectively,
the “Shares”); and
WHEREAS , as a condition to its willingness to enter
into the Merger Agreement, Parent has requested that the
Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
AGREEMENTS
1.1.
Agreement to
Tender . Unless this Agreement shall have
previously been terminated in accordance with its terms, each
Stockholder agrees to accept the Offer with respect to all the
Shares (excluding for purposes of this Section 1.1 Shares that are
subject to unexercised Stock Options until such time as such Stock
Options are exercised) and to tender all the Shares pursuant to the
Offer. Such tender shall be made within ten Business
Days of the commencement of the Offer, and with respect to any
Shares obtained after such date (by way of exercise of Stock
Options or otherwise, promptly after such Shares are
obtained). The Stockholder shall not withdraw any Shares
tendered pursuant to the Offer unless either (i) this Agreement
terminates pursuant to Section 4.1 or (ii) the Offer shall have
been terminated pursuant to the terms of the Merger
Agreement. Parent or Purchaser shall pay the Stockholder
for any Shares tendered in accordance with the Merger Agreement and
not withdrawn on the date of acceptance of shares for payment
pursuant to the Offer. If the Offer is terminated by
Parent or Purchaser or the Company, or this Agreement is terminated
in accordance with its terms, Parent and Purchaser shall cause
the depository acting on behalf of Parent and Purchaser to return
all tendered Shares to the Stockholder promptly. The Stockholder
agrees to permit Parent and Purchaser to publish and disclose in
the Offer Documents and, if approval of the Company’s or
Parent’s stockholders is required under the Delaware General
Corporate Law (“DGCL”), any proxy statement (including
all related documents and schedules filed with the SEC), his or its
identity and ownership of Shares, the nature of his or its
commitments, arrangements and understandings under this Agreement
and any other information required by applicable Law.
1.2.
Agreement to
Vote . From and after the date hereof and
until this Agreement terminates pursuant to Section 4.1, at every
meeting of the stockholders of the Company, however called, and at
every adjournment or postponement thereof, or in connection with
any written consent of the stockholders of the Company, relating to
any proposed action by the stockholders of the Company with respect
to the matters set forth in Section 1.2(b) below, the Stockholder
irrevocably agrees to, with respect to any Shares not purchased in
the Offer:
(a)
appear at each such meeting or otherwise cause the Shares owned
beneficially or of record by the Stockholder to be counted as
present thereat for purposes of calculating a quorum;
and
(b)
v ote (or cause to be
voted), in person or by proxy, all the Shares owned beneficially or
of record by the Stockholder, and any other voting securities of
the Company (whenever acquired), that are owned beneficially or of
record by the Stockholder or as to which it has, directly or
indirectly, the right to vote or direct the voting, (i) in favor of
approval of the Merger Agreement and each of the other transactions
contemplated thereby, (ii) against any action or agreement
submitted for approval of the stockholders of the Company that
Parent has provided the Stockholder with advance notice is or would
reasonably be expected to result in any of the conditions to the
Company’s obligations under the Merger Agreement not being
fulfilled or would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company contained in the Merger Agreement or of the Stockholder
contained in this Agreement, (iii) against any action, agreement or
transaction submitted for approval to the stockholders of the
Company that would reasonably be expected to materially impede,
interfere or be inconsistent with, delay, postpone, discourage or
materially and adversely affect the timely consummation of the
Offer or the Merger, and (iv) against any other action, agreement
or transaction submitted for approval to the stockholders of the
Company that would constitute a Superior Proposal.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
2.1.
Representations and Warranties
of the Stockholder . The Stockholder hereby represents
and warrants to Parent as follows:
(a)
Authorization; Validity of Agreement; Necessary Action
. Such Stockholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. To the extent
applicable, the execution and delivery of this Agreement and the
consummation by the Stockholder of the transactions contemplated
hereby have been duly authorized by all necessary action (corporate
or otherwise) on the part of such Stockholder. This Agreement has
been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder,
enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and to general equity
principles). If such Stockholder is married and the
Shares set forth on the signature page hereto constitute community
property under applicable laws, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid
and binding agreement of, such Stockholder’s
spouse.
(b)
Ownership . As of the date hereof, the number of
shares of Common Stock beneficially owned (as defined under Rule
13d-3 of the Exchange Act) by such Stockholder is set forth under
such Stockholder’s name on the signature page to this
Agreement. The Existing Shares are, and (except as
otherwise expressly permitted by this Agreement) any additional
shares of Common Stock and any options and warrants to purchase
shares of Common Stock, or any other securities of the Company
convertible, exercisable or exchangeable into shares of Common
Stock that are acquired by the Stockholder after the date hereof
and prior to the Effective Time will be, owned beneficially by the
Stockholder. As of the date hereof, the Existing Shares
constitute all of the securities of the Company (other than options
to purchase shares of Common Stock outstanding as of the date
hereof and set forth under such Stockholder’s name on the
signature page to this Agreement) held of record, beneficially
owned by or for which voting power or disposition power is held or
shared by the Stockholder. Such Stockholder has and
(except as otherwise expressly permitted by this Agreement) will
have at all times through the Effective Time sole voting power,
sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Article I or Section 3.1
hereof, and sole right, power and authority to agree to all of the
matters set forth in this Agreement, in each case with respect to
all of the Existing Shares and with respect to all of the Shares at
all times through the Effective Time, with no limitations,
qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this
Agreement. Such Stockholder has good, valid and
marketable title to the Existing Shares, free and clear of any
Liens and such Stockholder will have good, valid and marketable
title to all Shares at all times through the Effective Time, free
and clear of any Liens. Such Stockholder further
represents that any proxies heretofore given in respect of the
Shares owned beneficially and of record by such Stockholder, if
any, are revocable, and hereby revokes such proxies.
(c)
No Violation . The execution and delivery of this
Agreement by such Stockholder does not, and the performance by such
Stockholder of its obligations under this Agreement will not, (i)
assuming the filing of such reports as may be required under
Sections 13(d) and 16 of the Exchange Act, which such Stockholder
will file, conflict with or violate any Law applicable to such
Stockholder or by which any of his or its assets or properties is
bound or (ii) conflict with, result in any breach of or constitute
a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require
payment under, or result in the creation of any Lien on the
properties or assets of such Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder or any of his
or its assets or properties is bound, except for any of the
foregoing as could not reasonably be expected, either individually
or in the aggregate, to materially impair the ability of such
Stockholder to perform his or its obligations hereunder or to
consummate the transactions contemplated hereby on a timely
basis. The execution and delivery of this Agreement by
such Stockholder does not, and the performance of this Agreement by
such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to any
(i) Governmental Entity, except for filings that may be required
under the Exchange Act or (ii) third party (including with respect
to individuals, any spouse, and with respect to trusts, any
co-trustee or beneficiary).
(d)
Information . None of the information relating to
such Stockholder provided by or on behalf of such Stockholder in
writing for inclusion in the Offer Documents, the Schedule 14D-9 or
any proxy statement will, at the respective times such documents
are filed with the SEC or are first published, sent or given to
stockholders of the Company, contain any untrue statement of
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(e)
Reliance . Such Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon
such Stockholder’s execution and delivery of this
Agreement.
(f)
Absence of Litigation . As of the date hereof,
there is no suit, action, investigation or proceeding pending or,
to the knowledge of such Stockholder, threatened against such
Stockholder before or by any Governmental Entity that would impair
the ability of such Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby on
a timely basis.
(g)
Stockholder has Adequate Information . Such
Stockholder is a sophisticated seller with respect to the Shares
and has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the
sale of the Shares and has independentl
