Exhibit 10.2
V OTING A GREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is entered into as of October 16,
2005, by and between Natus Medical Incorporated, a Delaware
corporation (“ Acquiror ”), and the undersigned
stockholder (“ Stockholder ”) of Bio-logic
Systems Corp., a Delaware corporation (the “ Company
”). Terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement (as
defined below).
R ECITALS
A. The execution and delivery of
this Agreement by Stockholder is a material inducement to the
willingness of Acquiror to enter into that certain Agreement and
Plan of Merger, dated as of October 16, 2005 (the “
Merger Agreement ”), by and among Acquiror, Summer
Acquisition Corporation, a Delaware corporation and wholly owned
subsidiary of Acquiror (“ Sub ”), and the
Company, pursuant to which Sub will merge with and into the Company
(the “ Merger ”), and the Company will survive
the Merger and become a wholly owned subsidiary of Acquiror
(subject to the terms and conditions contained in the Merger
Agreement).
B. Stockholder understands and
acknowledges that the Company and Acquiror are entitled to rely on
(i) the truth and accuracy of Stockholder’s
representations contained herein and (ii) Stockholder’s
performance of the obligations set forth herein.
NOW, THEREFORE, in consideration of
the premises and the covenants and agreements set forth in the
Merger Agreement and in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Restrictions on Shares .
Until the Expiration Date (as defined below), subject to the terms
and conditions herein and in the Merger Agreement,
(a) Stockholder shall not, directly
or indirectly, transfer (except as may be specifically required by
court order or by operation of law), grant an option with respect
to, sell, exchange, pledge or otherwise dispose of or encumber the
Shares (as such term is defined in Section 4 below) or any New
Shares (as such term is defined in Section 1(d) below), or
make any offer or enter into any agreement providing for any of the
foregoing, at any time prior to the Expiration Date (as defined
below); provided , however , that nothing contained
herein will be deemed to restrict the ability of Stockholder to
exercise, prior to the Expiration Date, any Company Stock Options
(as such term is defined in Section 2.07 of the Merger
Agreement) held by Stockholder. Notwithstanding the foregoing or
anything else contrary herein, (a) Stockholder may sell New
Shares (as defined below) acquired upon exercise of Company Stock
Options, provided that the number of New Shares sold does not
exceed
, and (b) Stockholder may transfer any or all of the Shares or
New Shares during Stockholder’s lifetime by gift to, or on
Stockholder’s death by will or intestacy to,
Stockholder’s Immediate Family (as defined below) or to a
trust for the benefit of Stockholder or Stockholder’s
Immediate Family or to a charitable organization (the “
Permitted Transfer Shares ”), provided that each
transferee or other recipient of Permitted Transfer Shares
expressly agrees in a writing satisfactory to Parent that the
provisions of this Agreement will continue to apply to the
Permitted Transfer Shares in the hands of such transferee or other
recipient and such transferee or other recipient executes and
delivers to Parent an irrevocable proxy in a form substantially
identical to the Proxy (as such term is defined in Section 3
below). As used herein, the term “ Immediate Family
” shall mean Stockholder’s spouse, lineal descendant or
antecedent, brother or sister, adopted child or grandchild or the
spouse of any child, adopted child, grandchild or adopted
grandchild of Stockholder. As used herein, the term “
Expiration
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Date ” shall mean the earlier of (i) the
Effective Time and (ii) the date and time of the valid
termination of the Merger Agreement in accordance with its
terms.
(b) Except pursuant to the terms of
this Agreement, Stockholder shall not, directly or indirectly,
grant any proxies or powers of attorney with respect to any of the
Shares, deposit any of the Shares into a voting trust, or enter
into a voting agreement (other than this Agreement) or similar
arrangement or commitment with respect to any of the
Shares.
(c) Stockholder shall not, directly
or indirectly, take any action that would make any representation
or warranty contained herein untrue or incorrect or have the effect
of impairing the ability of Stockholder to perform its obligations
under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
(d) Any shares of the common stock
of the Company (the “ Common Stock ”) or other
securities of the Company that Stockholder purchases or with
respect to which Stockholder otherwise acquires voting rights after
the date of this Agreement and prior to the Expiration Date,
including pursuant to the exercise of Company Stock Options,
options or warrants to purchase shares of Common Stock
(collectively, the “ New Shares ”) shall be
subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2. Agreement to Vote Shares .
Prior to the Expiration Date, at every meeting of the stockholders
of the Company called with respect to any of the following matters,
and at every adjournment or postponement thereof, and on every
action or approval by written consent or resolution of the
stockholders of the Company with respect to any of the following
matters, Stockholder shall vote, to the extent not voted by the
person(s) appointed under the Proxy (as defined in Section 3
below), the Shares and any New Shares in favor of the approval of
the Merger Agreement and any matter that could reasonably be
expected to facilitate the Merger, and against any Competing
Transaction (as such term is defined in Article I of the Merger
Agreement) and any other matter that might reasonably be expected
to impede, interfere with, delay, postpone or adversely affect the
Merger or any of the transactions contemplated by the Merger
Agreement. Stockholder may vote the Shares and any New Shares, in
Stockholder’s discretion, on all other matters.
3. Irrevocable Proxy .
Concurrently with the execution and delivery of this Agreement,
Stockholder shall deliver to Acquiror a duly executed proxy in the
form attached hereto as Exhibit A (the “ Proxy
”), which proxy is coupled with an interest, and, until the
Expiration Date, shall be irrevocable to the fullest extent
permitted by law, with respect to each and every meeting of
stockholders of the Company or action or approval by written
resolution or consent of stockholders of the Company with respect
to the matters contemplated by Section 2 covering the total
number of Shares and New Shares in respect of which Stockholder is
entitled to vote at any such meeting or in connection with any such
written consent. Upon the execution of this Agreement by
Stockholder, (i) Stockholder hereby revokes any and all prior
proxies (other than the Proxy) given by Stockholder with respect to
the subject matter contemplated by Section 2, and
(ii) Stockholder shall not grant any subsequent proxies with
respect to such subject matter, or enter into any agreement or
understanding with any Person to vote or give instructions voting
with respect to the Shares and New Shares in any manner
inconsistent with the terms of Section 2, until after the
Expiration Date.
4. Representations, Warranties
and Covenants of Stockholder . Stockholder hereby represents,
warrants and covenants to Acquiror as follows:
(a) Stockholder is the beneficial
owner (as determined pursuant to Rule 13d-3 under the Exchange Act)
of, and exercises voting power over, that number of shares of
Company Common
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Stock set forth on the signature
page hereto (all such shares owned beneficially by Stockholder, and
over which Stockholder exercises voting power, on the date hereof,
collectively, the “ Shares ”). The Shares,
together with the other shares of Common Stock set forth on the
signature page hereto, constitute all of the shares of Common Stock
owned of record or beneficially by Stockholder. No person not a
signatory to this Agreement has a right to acquire or vote any of
the Shares (other than, (i) if Stockholder is a partnership,
the rights and interest of persons and entities that own
partnership interests in Stockholder under the partnership
agreement governing Stockholder and applicable partnership law or
(ii) if Stockholder is a married individual and resides in a
State with community property laws, the community property interest
of his or her spouse to the extent applicable under such community
property laws). Except as set forth on the signature pages hereto,
the Shares are and will be at all times up until the Expiration
Date free and clear of any security interests, liens, claims,
pledges, options, rights of first refusal, co-sale rights,
agreements, limitations on Stockholder’s voting rights,
charges and other encumbrances of any nature that would adversely
affect the Merger or the exercise or fulfillment of the rights and
obligations of the Company under the Merger Agreement or of the
parties to this Agreement. Stockholder’s principal residence
or place of business is set forth on the signature page
hereto.
(b) Stockholder has all requisite
power, capacity and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action, if any, on the part of
Stockholder. This Agreement has been duly executed and delivered by
Stockholder and, assuming the due authorization, execution and
delivery of this Agreement by Acquiror, constitutes a valid and
binding obligation of Stockholder, enforceable against Stockholder
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
(c) The execution and delivery of
this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will
not, conflict with, result in a breach or violation of or default
(with or without notice or lapse of time or both) under, or require
notice to or the consent of any person under, any agreement, law,
rule, regulation, judgment, order or decree by which Stockholder is
bound, except for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, prevent or delay
consummation of the Merger and the other transactions contemplated
by the Merger Agreement or prevent or delay Stockholder from
performing his, her or its obligations under this
Agreement.
(d) Until the Expiration Date,
Stockholder, in his, her or its capacity as a stockholder of the
Company, shall not, and shall not authorize, knowingly encourage or
direct any person or entity on Stockholder’s behalf to,
directly or indirectly, take any action that would, or could
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