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OPHTHALMIC IMAGING SYSTEMS
VOTING AGREEMENT
This VOTING AGREEMENT (this “Agreement”)
is made and entered into as of March 25, 2008, by and among
Ophthalmic Imaging Systems, a California corporation
(“OIS”), and the parties listed on
Schedule A (the
“Principal MV Shareholders”) (OIS and the Principal MV
Shareholders may be referred to in this Agreement collectively as
the “Parties” and individually, as a
“Party”).
WHEREAS, on the date hereof, OIS, MediVision Medical
Imaging Ltd., an Israeli company (“MediVision”), and MV
Acquisitions Ltd., an Israeli company and a wholly-owned subsidiary
of OIS (“Merger Sub”), are entering into an Agreement
and Plan of Merger (the “Merger Agreement”), providing
for the merger (the “Merger”) of Merger Sub with and
into MediVision, and the conversion of the outstanding ordinary
shares of MediVision into shares of the common stock, no par value,
of OIS (the “Common Stock”), with MediVision surviving
as a wholly-owned subsidiary of OIS; and
WHEREAS, each of the Principal MV Shareholders is,
directly or through a wholly-owned subsidiary, a holder, or a
member of a group of related parties that holds, more than 5% of
the outstanding ordinary shares of MediVision; and
WHEREAS, the Parties desire to set forth herein
certain matters regarding the voting of the stock of OIS following
the closing of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises,
and of the representations, warranties, covenants and agreements
contained herein, the Parties hereto agree as follows:
ARTICLE 1
VOTING
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Section 1.1
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Vote and Consent in Favor of the
Merger .
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(a) Subject
to that certain Stockholders’ Agreement dated as of
[ ___________ __
] , 2008, by and among
the Principal MV Shareholders and certain other parties listed
therein, each Principal MV Shareholder agrees to vote (or cause to
be voted) all shares of MediVision presently beneficially owned by
such Principal MV Shareholder and all shares of MediVision with
respect to which such Principal MV Shareholder in the future
acquires beneficial ownership, at any meeting of the shareholders
of MediVision, and in any action by written consent of the
shareholders of MediVision, in favor of the approval, consent and
ratification of the Merger Agreement and the Merger; provided,
however, that each of the Principal MV Shareholders shall have been
satisfied that such vote or action by written consent, at the time
it is cast or executed, as the case may be, is not in breach of its
duty, in its capacity as a shareholder of MediVision, to act bona
fide in exercising its voting rights and not do so in a manner
which may constitute deprivation of the minority shareholders(the
“Shareholder’s Duty”). Each of the Principal MV
Shareholders hereby confirms that at the date of executing this
Agreement, such Principal MV Shareholder is satisfied that its
Shareholder’s Duty is fulfilled under the terms
and
conditions hereof, assuming that the Closing (as
defined in the Merger Agreement) were effected on the date of
execution of this Agreement. To the extent inconsistent with the
foregoing provisions of this Section 1.1, each Principal MV
Shareholder hereby revokes any and all previous proxies with
respect to any shares of MediVision stock that such Principal MV
Shareholder owns or has the right to vote.
(b) In
furtherance of the foregoing, pursuant to Article 51A of the
Articles of Association of MediVision, and any other provisions of
any agreement relating to the ownership by Agfa Gevaert N.V. and
its affiliates (collectively, “Agfa”), Agfa hereby
consents to the entry by MediVision into the Merger Agreement and
to the consummation of the Merger and the other transactions and
actions to be taken pursuant to the Merger Agreement.
Section
1.2 Election of Directors . Following the
Closing (as defined in the Merger Agreement), OIS will use its best
efforts to cause to be nominated for election to OIS’s Board
of Directors (the “Board of Directors”), and each
Principal MV Shareholder agrees to vote all OIS voting securities
(or the holders thereof shall consent pursuant to an action by
written consent of the stockholders), whether directly or
indirectly owned, and whether now owned or hereafter acquired, or
which a Party may be empowered to vote (“OIS Shares”),
from time to time and at all times, in whatever manner shall be
necessary for the election of, at each annual or special meeting of
shareholders at which an election of directors is held or pursuant
to any written consent of the shareholders, for the following
nominees:
(a) Two
persons named by InterGamma Investment Ltd. or its subsidiary,
Delta Trading and Services (1986) Ltd. (collectively,
“InterGamma”), so long as InterGamma holds at least 12%
of the outstanding Common Stock, on a fully diluted basis (as
defined below), or one person named by InterGamma so long as
InterGamma holds less than 12% but at least 5% of the outstanding
Common Stock; plus, in either case, one additional person named by
InterGamma so long as Ariel Shenhar remains (i) either Chief
Financial Officer or a senior executive officer of OIS and (ii) a
director of OIS;
(b) Ariel
Shenhar, so long as he remains Chief Financial Officer or a senior
executive officer of OIS;
(c) One
person (in addition to Ariel Shenhar, if Mr. Shenhar is a director
by virtue of Section 1.2(b)) named by Noam Allon, Gil Allon, Shlomo
Allon, Ariel Shenhar and Yuval Shenhar (collectively, the
“Allon/Shenhar Group”), so long as the Allon/Shenhar
Group holds at least 5% of the outstanding Common Stock;
(d) One
person named by Agfa, so long as Agfa holds at least 5% of the
outstanding Common Stock on a fully diluted basis, plus, if
InterGamma actually nominates a third director pursuant to Section
1.2(a), a second person named by Agfa;
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(e)
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The then-current Chief Executive Officer of
OIS;
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(f) Two
“Independent Directors” as defined under the listing
standards of Nasdaq, regardless of whether the Common Stock is then
listed on Nasdaq, and all other applicable listing standards, and
provided that each such person also has not been affiliated with
MediVision for at least three years prior to his or her
appointment, which two directors initially
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shall consist of Mr. William Greer and Mr. Jonathan
R. Phillips, with all future Independent Directors to be nominated
by the Board of Directors’ Nominating Committee
(“Nominating Committee”), subject to approval by the
full Board of Directors, as mandated by Nasdaq’s listing
requirements, regardless of whether the Common Stock is then listed
on Nasdaq, plus, if Agfa nominates a second director pursuant to
Section 1.2(d), a third Independent Director whom OIS shall use its
reasonable best efforts to nominate in the manner described herein;
and
(g) Such
other directors as may be nominated by the Nominating Committee,
subject to approval by the full Board of Directors; provided that,
so long as any Principal MV Shareholder retains the right, as set
forth above, to name one or more directors for nomination, the
total number of directors shall not be less than seven (7) nor more
than eleven (11).
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Section 1.3
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Election of Chairman and Vice Chairman
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(a) The
Parties agree to use their best efforts to cause a nominee of
InterGamma serving as a member of the Board of Directors pursuant
to Section 1.2(a) to be named by the Board of Directors as Chairman
immediately following the Closing for as long as InterGamma holds
at least 12% of the outstanding Common Stock on a fully diluted
basis, or until his death, disability, removal or resignation from
such position.
(b) The
Parties agree to use their best efforts to cause Mr. Noam Allon to
be named by the Board of Directors as Vice Chairman immediately
following the Closing to serve until his death, disability, removal
or resignation from such position.
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Section 1.4
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Death, Disability, Removal or Resignation of
Directors .
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(a) Any
vacancy created by the death, disability, resignation or removal of
a director elected pursuant to Section 1.2 shall be filled in
accordance with the provisions of Section 1.2.
(b) If any
Party entitled to nominate a director for election pursuant to
Section 1.2 (the “Nominating Party”) serves notice on
the Board of Directors and the other Parties, whereby the
Nominating Party wishes to remove or replace a serving director
nominated thereby pursuant to Section 1.2, then all other Parties
agree to vote in favor (or approve by written consent) of removing
said director, and further agree that the Nominating Party shall
have the right to nominate a replacement director for submission to
a vote or consent of the other Parties of such new nominee to fill
the vacancy, and in such event all other Parties undertake to vote
in favor (or approve by written consent) of electing such new
nominee as a replacement director.
Section
1.5 Determination of Ownership Percentage on a Fully Diluted
Basis . The term “on a fully
diluted basis” when used with respect to the ownership
percentage of any Principal MV Shareholder on any date means the
number of shares of Common Stock held by such Party on such date
divided by the number of shares of Common Stock issued and
outstanding on such date plus the number of shares of Common Stock
issuable on exercise or conversion of any options, warrants,
convertible securities, or other rights to acquire shares of Common
Stock outstanding as of such date.
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ARTICLE 2
TERMINATION
This Agreement shall continue in full force and
effect with respect to each of the Parties, from the date hereof
through the occurrence of any of the following:
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(a)
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The termination of the Merger Agreement prior to the
Closing; or
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(b) No
Principal MV Shareholders owns a number of shares of Common Stock
that would entitle it to name persons to serve on the Board of
Directors pursuant to Section 1.2.
ARTICLE 3
MISCELLANEOUS
Section
3.1 No
Liability for Election of Recommended Directors
. None of OIS, the Principal MV Shareholders, nor
any officer, director, stockholder, partner, employee o
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