exv10w2






Exhibit 10.2




VOTING AND PROXY AGREEMENT




     THIS VOTING AND PROXY AGREEMENT (this “Agreement”) is made and entered into as of May 16, 2010
by and among Generation Capital Partners VRC LP, a Delaware limited partnership, Generation
Members’ Fund II LP, a Delaware limited partnership and Generation Capital Partners II LP, a
Delaware limited partnership (each a “Stockholder,” and together, the “Stockholders”) and Viking
Holdings LLC, a Delaware limited liability company (“Parent”).



     WHEREAS, concurrently herewith, Parent, Viking Acquisition Corporation, a Delaware corporation
(“Merger Sub”), and Virtual Radiologic Corporation, a Delaware corporation (the “Company”) have
entered into an Agreement and Plan of Merger (as amended from time to time, the “Merger
Agreement”), pursuant to which Merger Sub will merge with and into the Company;



     WHEREAS, each Stockholder owns the number of shares of Company Common Stock set forth opposite
its name on Schedule I hereto as of the date of this Agreement (such Company Common Stock
held by each Stockholder as set forth on Schedule I, together with any other shares of
capital stock of the Company acquired by each Stockholder after the date hereof and during the term
of this Agreement, whether by purchase or upon exercise of options, warrants, conversion of other
convertible securities or otherwise, being collectively referred to herein as the “Shares”);



     WHEREAS, obtaining appropriate stockholder approval is a condition to the Merger;



     WHEREAS, as an inducement to Parent to enter into the Merger Agreement, Parent and the
Stockholders have agreed to enter into this Agreement; and



     WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Merger 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. Until the Termination Date, each Stockholder shall not, and shall not
authorize or permit any of its directors, officers, members, managers, partners, employees,
stockholders, controlled Affiliates, representatives or agents (collectively, the
“Representatives”) to, directly or indirectly, (i) solicit, initiate or knowingly encourage an
Acquisition Proposal, (ii) furnish or disclose to any third Person non-public information with
respect to an Acquisition Proposal, (iii) negotiate or engage in discussions with any third Person
with respect to an Acquisition Proposal, (iv) enter into
any agreement (whether or not binding) or agreement in principle with respect to an
Acquisition Proposal or (v) otherwise cooperate in any way with, or assist or participate in, any
effort or attempt by another Person to do or seek any of the foregoing.



 









 





               (b) Ongoing Discussions. Each Stockholder shall (and shall cause its 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. Each Stockholder agrees, until
the Termination Date, not to (and to cause its Representatives not to) release any third party from
the confidentiality and standstill provisions of any agreement relating to the Company or any of
its Subsidiaries.



               (c) Fiduciary Duties. Nothing in this Agreement shall limit or restrict any Affiliate
or designee of the Stockholders who serves as a member of the Board of Directors in acting in his
or her capacity as a director of the Company and exercising his or her fiduciary duties in such
capacity.



          Section 2. Agreement to Vote; Restrictions on Dispositions; Irrevocable Proxy.




               (a) Agreement to Vote. Each Stockholder hereby agrees, until the Termination Date, to
vote its 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 stockholders of the Company at which
the Merger Agreement or the transactions contemplated thereunder are submitted for the vote of such
Stockholder or in any written consent in respect thereof, (ii) against any other Acquisition
Proposal, without regard to any Board recommendation to stockholders concerning such Acquisition
Proposal, and without regard to the terms of such Acquisition Proposal, (iii) against any
agreement, amendment of any agreement (including the Company’s Certificate 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 contemplated by this Agreement or the Merger Agreement,
and (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 each Stockholder 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. Each Stockholder, severally and not jointly, hereby
agrees, until the Termination Date, that, without the prior written consent of Parent, such
Stockholder 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”) other than to its
Affiliates, provided that as a condition to such Transfer, such Affiliate shall execute an
agreement that is identical to this Agreement (except to reflect the change of such Stockholder).



               (c) Irrevocable Proxy. In furtherance of each Stockholder’s agreement in Section 2(a)
above and subject to Section 2(f) and the last two sentences of this Section 2(c), each Stockholder
hereby irrevocably (until the Termination Date)



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appoints Parent or Parent’s designee as such
Stockholder’s agent, attorney and proxy, to vote (or cause to be voted) such Stockholder’s Shares
in accordance with Section 2(a) hereof. This proxy is irrevocable (pursuant to Section 212(e) of
the DGCL) until the Termination Date and coupled with an interest and is granted in consideration
of the Company, Parent and Merger Sub entering into the Merger Agreement. In the event that such
Stockholder fails for any reason to vote its Shares in accordance with the requirements of Section
2(a) hereof, then the proxyholder shall have the right to vote such Stockholder’s Shares in
accordance with the provisions of the first sentence of this Section 2(c). The vote of the
proxyholder shall control in any conflict between the vote by the proxyholder of the Shares and a
vote by such Stockholder of its Shares.



               (d) Revocation of Prior Proxies. Each Stockholder hereby revokes any and all prior
proxies or powers of attorney given by such Stockholder prior to the execution hereof with respect
to any Shares inconsistent with the terms of this Section 2.



               (e) No Inconsistent Agreements. Each Stockholder, severally but not jointly, hereby
covenants and agrees that, except for this Agreement, such Stockholder, directly or indirectly, (i)
has not entered into, and shall not enter into at any time while this Agreement remains in effect,
any voting agreement or voting trust with respect to the Shares owned beneficially or of record by
such Stockholder, (ii) has not granted, and shall not grant at any time while this Agreement
remains in effect, a proxy, a consent or power of attorney with respect to the Shares owned
beneficially or of record by such Stockholder and (iii) has not entered into any agreement or
knowingly taken any action (and shall not enter into any agreement or knowingly take any action )
that would make any representation or warranty of such Stockholder contained herein untrue or
incorrect in any material respect or have the effect of preventing such Stockholder from performing
any of its material obligations under this Agreement.



               (f) Except as set forth in Section 2(a), no Stockholder shall be restricted from voting in
favor of, against or abstaining with respect to any matter presented to the stockholders of the
Company. In addition, nothing in this Agreement shall give Parent or Parent’s designee the right
to vote any Shares at any meeting of the stockholders of the Company other than as provided in
Section 2(c).



          Section 3. Representations, Warranties and Covenants of the Stockholders. Each
Stockholder, severally but not jointly, represents and warrants to Parent as follows: (i) such
Stockholder has all necessary power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; (ii) this Agreement has been duly executed and delivered by such
Stockholder and the execution, delivery and performance of this Agreement by such Stockholder and
the consummation of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of such Stockholder; (iii) assuming the due authorization, execution
and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding
agreement of such Stockholder enforceable against such Stockholder in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may affect the enforcement of
creditors, rights generally and by general equitable principles; (iv) the execution and delivery of
this Agreement by such Stockholder does not conflict with or



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violate any law or agreement binding
upon it, nor require any consent, notification, regulatory filing or approval and (v) except for
restrictions in favor of Parent pursuant to this Agreement and except for such transfer
restrictions of general applicability as may be provided under the Securities Act of 1933, as
amended, and the “blue sky” laws of the various States of the United States, each Stockholder owns,
beneficially, all of its Shares, as applicable, free and clear of any proxy, voting restriction,
adverse claim or other lien and has voting power and power of disposition with respect to all of
its Shares, with no restrictions on such Stockholder’s rights of voting or disposition pertaining
thereto and no Person other than such Stockholder has any right to direct or approve the voting or
disposition of any of its Shares, except in the case of clause (iv) and (v) for violations,
breaches or defaults that would not in the aggregate materially impair the ability of such
Stockholder to perform its obligations hereunder. Notwithstanding anything contained to the
contrary in this Agreement, in the event a Stockholder (or any Representative of a Stockholder) is
a director or officer of the Company, nothing in this Agreement is intended or shall be construed
to require such Stockholder (or Representative), solely in his or her capacity as a director or
officer of the Company, to act or fail to act in any manner inconsistent with (i) his or her
fiduciary duties in such capacity and (ii) the Merger Agreement. Furthermore, no Stockholder (or
any Representative of a Stockholder) who is or becomes (during the term hereof) a director or
officer of the Company makes any agreement or understanding herein solely in his or her capacity as
a director or officer, and nothing herein will limit or affect, or give rise to any liability of
any Stockholder (or Representative) solely in such Person’s capacity as a director or officer of
the Company.




          Section 4. Effectiveness and Termination. It is a condition precedent to the
effectiveness of this Agreement that the Merger Agreement shall have been fully executed and
delivered and be in full force and effect, and this Agreement shall become effective at such time.
This Agreement shall automatically terminate and be of no further force or effect upon (i) the
mutual written consent of the Parent and the Stockholders, (ii) any material amendment, supplement
or modification to the Merger Agreement solely with respect to a decrease in the Merger
Consideration or a change in the form of the consideration payable to stockholders or (iii) the
termination of the Merger Agreement in accordance with its terms or upon the consummation of the
Merger (other than with respect to this Section 4 and Section 5, which shall survive any
termination of this Agreement) (with respect to each of (i), (ii) and (iii), as applicable, the
“Termination Date”).




          Section 5. Miscellaneous.




               (a) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have (if any) under applicable law.



               (b) Expenses. Each party shall bear its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby.



               (c) Notices. All notices and other communications under this Agreement shall be in
writing and shall be deemed given (i) when delivered personally, (ii) on the third business day
after being mailed by certified mail, return receipt requested, (iii) the next business day after
delivery to a recognized overnight courier, or (iv) upon



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transmission and confirmation of receipt
by a facsimile operator if sent by facsimile (and shall also be transmitted by facsimile to the
Persons receiving copies thereof), to the parties at the following addresses or facsimile numbers
(or to such other address and facsimile number as a party may have specified by notice given to the
other party pursuant to this provision):


If to Parent, to



Viking Holdings LLC

c/o Providence Equity Partners

50 Kennedy Plaza, 18th Floor

Providence, RI 02903

Facsimile: (401) 751-1790

Attention: Peter O. Wilde



and



Viking Holdings LLC

c/o Providence Equity Partners

9 West 57th Street, Suite 4700

New York, New York 10019

Facsimile: (212) 644-1200

Attention: Jesse M. Du Bey



with a copy to (which shall not constitute notice):



Weil, Gotshal & Manges, LLP

50 Kennedy Plaza, 11th Floor

Facsimile: (401) 278-4701

Attention: David K. Duffell, Esq.



and



Weil, Gotshal & Manges, LLP

767 Fifth Avenue, 31st Floor

New York, New York 10153

Facsimile: (212) 310-8007

Attention: Michael E. Weisser, Esq.



If to the Stockholders, to



Generation Capital Partners

One Greenwich Office Park

Greenwich, CT 06831



with a copy to (which shall not constitute notice):



Oppenheimer Wolff & Donnelly LLP




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Plaza VII, Suite 3300

45 South Seventh Street

Minneapolis, MN 55402

Facsimile: (612) 607-7100

Attention: Bruce Machmeier, Esq. and William McDonald, Esq.



and



Gibson, Dunn & Crutcher LLP

200 Park Ave

New York, NY 10166

Facsimile: (212) 351-5222

Attention: Sean Griffiths




               (d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument in writing signed
by Parent and each Stockholder.



               (e) Successors and Assigns. No party may assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent of the other parties, except
that Parent may, without the consent of the Stockholders, assign any of its rights and delegate any
of its obligations under this Agreement to any Affiliate of Parent. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of and be enforceable
by the parties and their respective successors and assigns, including without limitation any
corporate successor by merger or otherwise. Notwithstanding any Transfer of Shares consistent with
this Agreement, the transferor shall remain liable for the performance of all obligations of
transferor under this Agreement.



               (f) No Third Party Beneficiaries. Nothing expressed or referred to in this Agreement
will be construed to give any Person, other than the parties to this Agreement, any legal or
equitable right, remedy or claim under or with respect to this Agreement or any provision of this
Agreement except as such rights as may inure to a successor or permitted assignee under Section
5(e).



               (g) No Partnership, Agency, or Joint Venture. This Agreement is intended to create,
and creates, a contractual relationship and is not intended to create, and does not create, any
agency, partnership, joint venture or any like relationship between the parties hereto.



               (h) Entire Agreement. This Agreement embodies the entire agreement and understanding
among the parties relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter other than the Merger Agreement and any other
agreement, document or instrument expressly referenced therein.



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               (i) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other provisions of this
Agreement.



               (j) Specific Performance; Remedies Cumulative. The parties hereto acknowledge that
money damages are not an adequate remedy for violations of this Agreement and that any party, in
addition to any other rights and remedies which the parties may have hereunder or at law or in
equity, may, in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunction or such other relief as such court may deem just and proper in order to
enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable
law, each party waives any objection to the imposition of such relief. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of any other such
rights, powers or remedies by such party.



               (k) No Waiver. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to demand such
compliance.



               (l) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the principles of conflict of laws
thereof.



               (m) Jurisdiction. Each of the parties hereto submits to the exclusive jurisdiction of
any state or federal court of the United States located in the State of Delaware with respect to
any claim or cause of action arising out of this Agreement or the transactions contemplated hereby
(and agrees that no such action, suit or proceeding relating to this Agreement or any transaction
contemplated hereby shall be brought by him or it except in such courts). Each of the parties
hereto, irrevocably and unconditionally, waives (and agrees not to plead or claim) any objection to
the laying of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in any state or federal court of the United States located in the
State of Delaware , or that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. Each Stockholder also agrees that any final and unappealable
judgment against such party in connection with any such action, suit or other proceeding shall be
conclusive and binding on such party and that such award or judgment may be enforced in any court
of competent jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of
such award or judgment.



               (n) Waiver of Jury Trial. Each Stockholder hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection with



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this Agreement. Each Stockholder (i) certifies that no representative of any other party has
represented, expressly or otherwise, that such other party would not, in the event of any such
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it has been induced to
enter into this Agreement by, among other things, the consideration received by such Stockholder in
respect of its Shares pursuant to the transactions contemplated by the Merger Agreement.



               (o) Drafting and Representation. The parties have participated jointly in the
negotiation and drafting of this Agreement. No provision of this Agreement will be interpreted for
or against any party because that party or its legal representative drafted the provision.



               (p) Name, Captions, Gender. Section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or interpretation of this
Agreement. Whenever the context may require, any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms.



               (q) Counterparts. This Agreement may be executed by facsimile and in any number of
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies each signed by less
than all, but together signed by all, the parties hereto.



[remainder of page intentionally left blank]






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     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the date and year first written above.



	 	 	 	 	 
	 	PARENT



VIKING HOLDINGS LLC

 	 
	 	By:  	/s/ Jesse Du Bey	 
	 	 	Name:  	Jesse Du Bey	 
	 	 	Title:  	President	 
	 



(VOTING AND PROXY AGREEMENT SIGNATURE PAGE — VIKING HOLDINGS LLC)





 









 






	 	 	 	 	 	 	 

	 	 	THE STOCKHOLDERS	 	 
	 
	 	 	 	 	 	 
	 	 	GENERATION CAPITAL PARTNERS VRC LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark E. Jennings	 	 
	 	 	Managing Member of its General Partner,

Generation Partners VRC LLC	 	 
	 
	 	 	 	 	 	 
	 	 	GENERATION CAPITAL PARTNERS II LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark E. Jennings	 	 
	 	 	Managing Member of its General Partner,

Generation Partners II LLC	 	 
	 
	 	 	 	 	 	 
	 	 	GENERATION MEMBERS’ FUND II LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark E. Jennings	 	 
	 	 	Managing Member of its General Partner,

Generation Partners LLC	 	 






(VOTING
AND PROXY AGREEMENT SIGNATURE PAGE — THE STOCKHOLDERS)




 









 





Schedule I




The Stockholders



	 	 	 	 	 
	Name of Stockholder	 	Number of Shares Owned
	Generation Capital Partners VRC LP
	 	 	1,156,914	 
	Generation Capital Partners II LP
	 	 	265,100	 
	Generation Members’ Fund II LP
	 	 	2,708,686