Exhibit 2.2
Execution Version
VOTING AGREEMENT
THIS VOTING AGREEMENT
(
“Agreement” ) is entered into as of
November 8, 2008, by and between FAVRILLE, INC. , a
Delaware corporation ( “Parent” ), and
[ ],
[an individual] [a
corporation] ( “Stockholder” ).
This Agreement is one of a series of Voting Agreements entered into
by and between Parent and each of the persons and entities set
forth on the Schedule of Stockholders attached as
Exhibit A hereto pursuant to the terms and conditions
of that certain Agreement and Plan of Merger and Reorganization of
even date herewith (the “Merger
Agreement” ), by and among Parent, MONTANA MERGER
SUB, INC. , a Delaware corporation and a wholly-owned
subsidiary of Parent ( “Merger Sub” ),
and MYMEDICALRECORDS.COM, INC. , a Delaware corporation (the
“Company” ).
RECITALS
A.
Stockholder is a holder of record
and the “beneficial owner” (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act” ))
of the shares, and rights to purchase shares, of Company Capital
Stock indicated on the signature page to this
Agreement.
B.
The Merger Agreement provides
(subject to the conditions set forth therein) for the merger of
Merger Sub with and into the Company (the
“Merger” ).
C.
In order to induce Parent to enter
into the Merger Agreement, Stockholder is entering into this
Agreement.
AGREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
SECTION 1.
CERTAIN
DEFINITIONS
1.1.
Capitalized terms used but not
otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement. In addition, for
purposes of this Agreement:
(a)
Stockholder shall be deemed to
“Own” or to have acquired
“Ownership” of a security if Stockholder:
(i) is the record owner of such security; or (ii) is the
“beneficial owner” (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of such
security, regardless of whether Stockholder Owns such security on
the date hereof or has acquired Ownership of such security at any
time after the date hereof and regardless of the manner in which
Stockholder has acquired Ownership of such security, including,
without limitation, as a result of the exercise of any options or
warrants, the conversion of any convertible securities, the
exchange of any securities or otherwise.
(b)
“Person” shall mean any individual, corporation, limited
liability company, partnership, joint venture, trust, any other
corporate entity, any unincorporated association or organization
and any Governmental Body.
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(c)
“Subject
Securities” shall mean (i) all securities of the
Company (including all shares of Company Capital Stock and all
options, warrants and other rights to acquire shares of Company
Capital Stock) Owned by Stockholder as of the date of this
Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Capital Stock and all
additional options, warrants and other rights to acquire shares of
Company Capital Stock) of which Stockholder acquires Ownership
during the Voting Covenant Period.
(d)
A Person shall be deemed to have a
effected a “Transfer” of a security if
such Person directly or indirectly: (i) sells, pledges,
tenders, assigns, encumbers, grants an option with respect to,
transfers or otherwise disposes of such security or any interest in
such security to any Person other than Parent; (ii) enters
into an agreement or commitment contemplating the possible sale of,
pledge of, tender of, assignment of, encumbrance of, grant of an
option with respect to, transfer of or other disposition of such
security or any interest therein to any Person other than Parent;
or (iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
(e)
“Voting Covenant
Expiration Date” shall mean the earlier of the date upon which
the Merger Agreement is validly terminated, or the date upon which
the Merger is consummated.
(f)
“Voting Covenant
Period” shall
mean the period commencing from the date of this Agreement and
ending on the Voting Covenant Expiration Date.
SECTION 2.
TRANSFER OF SUBJECT SECURITIES
AND VOTING RIGHTS
2.1.
Restriction on Transfer of
Subject Securities. Subject to Section 2.3, during the Voting
Covenant Period, Stockholder shall not, directly or indirectly,
cause or permit any Transfer of any of the Subject Securities to be
effected; provided, however , that nothing contained in this
Agreement will be deemed to restrict the ability of Stockholder to
exercise any Company Options or Company Warrants held by
Stockholder during the Voting Covenant Period, and upon any such
exercise, the Company Capital Stock acquired by Stockholder shall
be Subject Securities hereunder.
2.2.
Restriction on Transfer of Voting
Rights. During the
Voting Covenant Period, Stockholder shall ensure that:
(a) none of the Subject Securities is deposited into a voting
trust; and (b) no proxy or power of attorney is granted (other
than in connection with Stockholder’s compliance with
Section 3.2 of this Agreement), and no voting agreement or
similar agreement is entered into, with respect to any Subject
Securities.
2.3.
Permitted
Transfers. Section 2.1 shall not prohibit a Transfer
of any Subject Securities by Stockholder (a) to Parent or to
any wholly-owned subsidiary of Parent, (b) if Stockholder is
an individual (i) to any member of Stockholder’s
immediate family, or to a trust for the benefit of Stockholder or
any member of Stockholder’s immediate family or
(ii) upon the death of Stockholder, or (c) if Stockholder
is corporation, to an affiliated corporation under common control
with Stockholder; provided, however, in the case of each of
clauses (b) and (c) above, that a transfer referred to in
this sentence shall be permitted only if, as a precondition
to
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such transfer, the transferee agrees
in a writing, satisfactory in form and substance to Parent, to be
bound by the terms of this Agreement and delivers a duly executed
proxy in the form attached hereto as Exhibit B with
respect to such transferred Subject Securities.
SECTION 3.
VOTING OF SHARES
3.1.
Voting Covenant Prior to
Termination of Merger Agreement. Stockholder hereby covenants and agrees that,
during the Voting Covenant Period, at any meeting (whether annual
or special or whether or not an adjourned or postponed meeting) of
the stockholders of the Company, however called, and in connection
with any written action by consent of stockholders of the Company,
unless otherwise directed in writing by Parent, Stockholder shall
cause any and all Subject Securities to be voted:
(a)
in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and
the adoption and approval of the Merger Agreement and the terms
thereof, in favor of each of the other actions contemplated by the
Merger Agreement and in favor of any action in furtherance of any
of the foregoing;
(b)
to the extent such Stockholder holds
shares of Company Preferred Stock, in favor of the conversions of
Company Preferred Stock contemplated by the Merger Agreement,
whereby, effective immediately prior to the Merger, shares of
Company Preferred Stock will be converted into shares of Company
Common Stock in accordance with the conversion provisions of the
Company Preferred Stock set forth in the Company Certificate of
Incorporation (the “ Conversion ” ), and
in favor of any action in furtherance of any of the
foregoing;
(c)
against any action or agreement that
would result in a breach of any representation, warranty, covenant
or obligation of the Company in the Merger Agreement;
and
(d)
against any of the following (or any
agreement, to enter into, effectuate, facilitate or support any of
the following) (other than the Merger and the transactions
contemplated by the Merger Agreement, including the Conversion and
the transactions contemplated thereby): (A) any
Acquisition Proposal; (B) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company; (C) any sale, lease,
transfer or other disposition of a material amount of assets of the
Company; (D) any reorganization, recapitalization, dissolution
or liquidation of the Company; (E) any change in a majority of
the board of directors of the Company; (F) any amendment to
the Company’s Certificate of Incorporation or bylaws;
(G) any material change in the capitalization of the Company
or the Company’s corporate structure; and (H) any other
action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by
the Merger Agreement or this Agreement.
Stockholder hereby agrees and
covenants that during the Voting Covenant Period, Stockholder shall
not enter into any agreement or understanding with any Person to
vote or give instructions in any manner inconsistent with clause
“(a)”, “(b)”, “(c)” or
“(d)” of this Section 3.1.
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3.2.
Proxy; Further
Assurances.
(a)
Contemporaneously with the execution
of this Agreement: (i) Stockholder shall deliver to
Parent a proxy in the form attached to this Agreement as
Exhibit B , which shall be irrevocable to the fullest
extent permitted by law at all times during the Voting Covenant
Period with respect to the Subject Securities of the Stockholder
(the “Proxy” ); and (ii) Stockholder
shall cause to be delivered to Parent an additional proxy (in the
form attached hereto as Exhibit B ) executed on behalf
of the record owner of any outstanding shares of Company Capital
Stock that are owned beneficially (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), but not of
record, by Stockholder.
(b)
The Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of
this Agreement. The Stockholder hereby affirms that the
irrevocable Proxy contemplated hereby is given in connection with
the execution of the Merger Agreement, and that such irrevocable
Proxy is given to secure performance of the duties of Stockholder
under this Agreement. Stockholder shall, at
Stockholder’s own expense, perform such further acts and
execute such further proxies and other documents and instruments as
may reasonably be required to vest in Parent the power to carry out
and give effect to the provisions of this Agreement with respect to
the Subject Securities.
SECTION 4.
WAIVER OF APPRAISAL
RIGHTS
Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to
prevent the exercise of, any rights of appraisal, any
dissenters’ rights and any similar rights relating to the
Merger or any related transaction that Stockholder or any other
Person may have by virtue of any outstanding shares of Company
Capital Stock Owned by Stockholder ( “Appraisal
Rights” ), including, without limitation, any
Appraisal Rights under the DGCL and the California Corporations
Code.
SECTION 5.
NO SOLICITATION
Stockholder hereby represents and
warrants that he or she has read Section 4.4 of the Merger
Agreement and agrees to be bound by the provisions of
Section 4.4 in the same manner as the Company as if
Stockholder were the Company.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDER
Stockholder hereby represents and
warrants to Parent as follows:
6.1.
Authorization,
Etc. Stockholder
has the absolute and unrestricted right, power, authority and
capacity to execute and deliver this Agreement and the Proxy and to
perform Stockholder’s obligations hereunder and
thereunder. Stockholder has sole power of disposition, sole
power of conversion, sole power to demand Appraisal Rights, and
sole power to vote or otherwise agree to all of the matters set
forth in this Agreement, in each case with respect to all Subject
Securities Owned by Stockholder, with no material limitations,
qualifications, or restrictions on such rights. This
Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with
their terms, subject to (a) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and
(b) rules of law
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governing specific performance,
injunctive relief and other equitable remedies. If
Stockholder is a corporation, then Stockholder is a corporation
duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it was organized. If this
Agreement is being executed in a representative capacity with
respect to Stockholder, the Person signing this Agreement has full
power and authority to enter into and perform this
Agreement.
6.2.
No Conflicts or
Consents.
(a)
The execution and delivery of this
Agreement and the Proxy by Stockholder do not, and the performance
of this Agreement and the Proxy by Stockholder will not:
(i) conflict with or violate any law, rule, regulation, order,
decree or judgment applicable to Stockholder or by which
Stockholder or any of Stockholder’s properties is or may be
bound or affected; or (ii) result in or constitute (with or
without notice or lapse of time) any breach of or default under, or
give to any other Person (with or without notice or lapse of time)
any right of termination, amendment, acceleration or cancellation
of, or result (with or without notice or lapse of time) in the
creation of any encumbrance or restriction on any of the Subject
Securities pursuant to, any contract to which Stockholder is a
party or by which Stockholder or any of Stockholder’s
Affiliates or properties is or may be bound or affected.
(b)
The execution and delivery of this
Agreement and the Proxy by Stockholder do not, and the performance
of this Agreement and the Proxy by Stockholder will not, require
any consent or approval of any Person.
6.3.
Title to Securities
. As of the date of this
Agreement: (a) Stockholder holds of record (free and
clear of any encumbrances or restrictions) the number of
outstanding shares of Company Common Stock and Company Preferred
Stock set forth under the headings “Shares of Company Common
Stock Held of Record” and “Shares of Company Preferred
Stock Held of Record” on the signature page hereof;
(b) Stockholder holds (free and clear of any encumbrances or
restrictions) the options, warrants and other rights to acquire
shares of Company Capital Stock set forth under the headings
“Company Options and Company Warrants Exercisable for Company
Common Stock” and “Company Opti
