EXECUTION VERSION
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STOCKHOLDER AGREEMENT
Dated as of June 28, 2001
By and Among
BOSTON SCIENTIFIC CORPORATION,
▇▇▇▇ ACQUISITION 2001 INC.,
and
▇▇▇ ▇▇▇▇▇▇▇ FUNDS, INC.
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Table of Contents
Page
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ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares.................................................2
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement.................................................2
SECTION 2.02. Irrevocable Proxy................................................2
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option..................................................3
SECTION 3.02. Exercise of Option...............................................3
SECTION 3.03. Purchaser Obligation.............................................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
SECTION 4.01. Organization, Authority and Qualification of the Stockholder.....4
SECTION 4.02. No Conflict; Required Filings and Consents.......................5
SECTION 4.03. Ownership of Securities..........................................5
SECTION 4.04. Absence of Litigation............................................6
SECTION 4.05. Brokers..........................................................6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01. Corporate Organization...........................................6
SECTION 5.02. Organization and Authority of Parent and Purchaser...............6
SECTION 5.03. No Conflict; Required Filings and Consents.......................6
SECTION 5.04. No Distribution..................................................7
SECTION 5.05. Brokers..........................................................7
SECTION 5.06. Financing........................................................7
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ARTICLE VI
COVENANTS OF THE STOCKHOLDER
SECTION 6.01. No Disposition or Encumbrance of Optioned Securities.............7
SECTION 6.02. No Solicitation of Transactions..................................8
SECTION 6.03. Further Action; Reasonable Best Efforts..........................8
SECTION 6.04. Disclosure.......................................................8
ARTICLE VII
TERMINATION
SECTION 7.01. Termination......................................................8
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices..........................................................9
SECTION 8.02. Severability....................................................10
SECTION 8.03. Entire Agreement; Assignment....................................10
SECTION 8.04. Parties in Interest.............................................10
SECTION 8.05. Specific Performance............................................10
SECTION 8.06. Governing Law...................................................10
SECTION 8.07. Waiver of Jury Trial............................................11
SECTION 8.08. Headings........................................................11
SECTION 8.09. Counterparts....................................................11
SECTION 8.10. Amendment.......................................................11
SECTION 8.11. Waiver..........................................................11
SECTION 8.12. Expenses........................................................11
SECTION 8.13. Adjustments.....................................................11
SECTION 8.14. Further Assurances..............................................12
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of June 28, 2001 (this "Agreement"),
among BOSTON SCIENTIFIC CORPORATION, a Delaware corporation ("Parent"), ▇▇▇▇
2001 ACQUISITION INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser") AND ▇▇▇ ▇▇▇▇▇▇▇ FUNDS, INC., a Maryland corporation
("Stockholder" or "Stockholders") as stockholders of Cardiac Pathways
Corporation, a Delaware corporation (the "Company").
WHEREAS, Parent and Purchaser are entering into an Agreement and Plan
of Merger dated as of the date hereof (as amended from time to time, the "Merger
Agreement"; capitalized terms used but not defined in this Agreement have the
meanings attributed to such terms in the Merger Agreement), with the Company,
pursuant to which (i) Purchaser agrees to commence a cash tender offer (as such
tender offer may hereafter be amended from time to time, in accordance with the
Merger Agreement, the "Offer") to acquire all the issued and outstanding shares
of common stock, par value $0.001 per share, of the Company ("Common Stock"),
including the Rights, for $5.267 per share of Common Stock (such amount, or any
greater amount per share of Common Stock paid pursuant to the Offer, being the
"Purchase Price"); and (ii) following consummation of the Offer, Purchaser shall
merge with and into the Company (the "Merger");
WHEREAS, each Stockholder is the record or beneficial owner of the
number of shares of Common Stock (together with any shares of Common Stock
acquired after the date hereof, the "Shares") set forth on Schedule A hereto
opposite such Stockholder's name;
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Stockholders agree to enter into this
Agreement; and
WHEREAS, the Stockholders wish to induce Parent and Purchaser to enter
into the Merger Agreement and, therefore, the Stockholders are willing to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
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ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Each Stockholder agrees to tender,
pursuant to and in accordance with the terms of the Offer, and not withdraw
(except following the termination of the Offer in accordance with its terms),
all of such Stockholder's Shares as set forth on Schedule A, together with any
Shares subsequently acquired by Stockholders after the date hereof and prior to
the consummation of the Offer. Such Stockholder acknowledges and agrees that
Purchaser's obligation to accept for payment shares of Common Stock in the
Offer, including any Shares tendered by the Stockholders is subject to the terms
and conditions of the Merger Agreement and the Offer.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Each Stockholder hereby agrees that,
from and after the date hereof and until the earlier to occur of the
consummation of the Offer in which such Stockholder's Shares are purchased and
the termination of this Agreement, at any meeting of the stockholders of the
Company, however called, such Stockholders shall vote (or cause to be voted)
such Stockholder's Shares (i) in favor of the approval and adoption of the
Merger Agreement, the Merger and all the transactions contemplated by the Merger
Agreement and this Agreement and otherwise in such manner as may be necessary to
consummate the Merger; (ii) against any action, proposal, agreement or
transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of the Company under the Merger Agreement
or of such Stockholder contained in this Agreement; and (iii) against any
action, agreement, transaction (other than the Merger Agreement or the
transactions contemplated thereby) or proposal (including any Acquisition
Proposal) that could be reasonably be expected to result in any of the
conditions to the Company's obligations under the Merger Agreement not being
fulfilled or that is intended, or could reasonably be expected, to impede,
interfere, delay, discourage or adversely affect the Merger Agreement, the
Offer, the Merger or this Agreement. Any vote by such Stockholder that is not in
accordance with this Section 2.01 shall be considered null and void, and the
provisions of Section 2.02 shall be deemed to take immediate effect.
SECTION 2.02. Irrevocable Proxy. If, and only if, such Stockholder
fails to comply with the provisions of Section 2.01, such Stockholder hereby
agrees that such failure shall result, without any further action by such
Stockholder effective as of the date of such failure, in the constitution and
appointment of Parent and each of its officers from and after the date of such
determination until the earlier to occur of the Closing and the termination of
this Agreement (at which point such constitution and appointment shall
automatically be revoked) as such Stockholder's attorney, agent and proxy, (such
constitution and appointment, the "Irrevocable Proxy") with full power of
substitution, to vote and otherwise act with respect to the Stockholder's Shares
at any meeting of stockholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting), on the matters and in the
manner specified in Section 2.01. THIS PROXY AND POWER OF ATTORNEY ARE
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IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A STOCKHOLDER
MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS AGREEMENT. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to such
Stockholder's Shares that may have heretofore been appointed or granted, and no
subsequent proxy or power of attorney shall be given (and if given, shall not be
effective) by such Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of
such Stockholder and any obligation of such Stockholder under this Agreement
shall be binding upon the heirs, personal representatives, successors and
assigns of such Stockholder.
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option. Each Stockholder hereby grants to
Purchaser an irrevocable option (each, the "Option" and, collectively, the
"Options") to purchase any or all of such Stockholder's Shares at the Purchase
Price net to such Stockholder in cash. The Options shall expire if not exercised
prior to the termination of the Merger Agreement.
SECTION 3.02. Exercise of Option. (a) Each Option may be exercised by
Purchaser, in whole but not in part, at any time following termination of the
Offer until the expiration or termination of the Option; provided that no Option
may be exercised unless a number of Options are concurrently exercised, a number
of Series B Shares and Warrants are concurrently purchased and a number of
Options are exercised pursuant to the terms of the other Stockholder Agreements
such that, after giving effect to such exercise or purchase and the exercise
hereunder, the Purchaser or an affiliate thereof would own Series B Shares,
Warrants and Shares constituting a majority of the outstanding Shares on a fully
diluted basis.
(b) If Purchaser wishes to exercise an Option, Purchaser shall send a
written notice (the "Exercise Notice") to the applicable Stockholder of its
intention to exercise the Option, specifying the place, and, if then known, the
time and the date (the "Closing Date") of the closing of such purchase (the
"Closing"). The Closing Date shall occur on the third business day (or such
longer period as may be required by applicable law or regulation) after the
later of (i) the date on which such Exercise Notice is delivered and (ii) the
satisfaction of the conditions set forth in Section 3.02(d). For the purposes of
this Agreement, the term "business day" means a Saturday, a Sunday or a day on
which banks are not required or authorized by law or executive order to be
closed in the City of New York.
(c) At the Closing, (i) the Stockholder, with respect to those Shares
that are being purchased, shall deliver to Purchaser (or its designee) the
Stockholder's Shares by delivery of a certificate or certificates evidencing
such Shares duly endorsed to Purchaser or accompanied by stock powers duly
executed in favor of Purchaser, with all necessary stock transfer stamps
affixed, and (ii) Purchaser shall pay to the Stockholder the aggregate Purchase
Price for the Stockholder's Shares.
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(d) The Closing shall be subject to the satisfaction of each of the
following conditions:
(i) no Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Law which is then in effect and
has the effect of making the acquisition of the Shares by Purchaser
pursuant to the exercise of the Options illegal or otherwise
restricting, preventing, delaying or prohibiting consummation of the
purchase and sale of the Shares pursuant to the exercise of the
Options;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares pursuant to the exercise of the Options
under the HSR Act shall have expired or been terminated; and
(iii) Purchaser or Parent shall have purchased (or shall
concurrently purchase with the consummation of this Agreement), a
number of Common Shares under the Stock Purchase Agreement and the
other Stockholder Agreement such that, together with the Series B
Shares, Warrants and Shares to be purchased hereunder, the Purchaser or
an affiliate thereof would own a majority of the outstanding Shares on
a fully diluted basis.
SECTION 3.03. Purchaser Obligation. Notwithstanding anything to the
contrary contained in this Agreement, Purchaser and its affiliates shall acquire
all the Common Shares, Series B Shares and Warrants subject to any of the
Stockholder Agreements, unless the failure to acquire such Shares, Series B
Shares or Warrants is due to the breach or default of any other party hereunder
or thereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants individually, and not
jointly or severally, to Parent and to Purchaser as follows:
SECTION 4.01. Organization, Authority and Qualification of the
Stockholder. (a) Such Stockholder is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation and has all necessary power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. Such Stockholder is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified would not adversely affect or materially delay the
ability of such Stockholder to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement. The execution and
delivery of this Agreement by such Stockholder, the performance by such
Stockholder of its obligations hereunder and the consummation by such
Stockholder of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of such Stockholder. This Agreement has been
duly and validly executed and delivered by such Stockholder and (assuming
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due authorization, execution and delivery by Parent and Purchaser) this
Agreement constitutes a legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditor rights
and for general equitable and public policy principles.
SECTION 4.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder shall not, (i) conflict with
or violate the agreement of limited partnership, certificate of incorporation or
by-laws or equivalent organizational documents of such Stockholder, (ii)
assuming satisfaction of the requirements set forth in 4.02(b) below, conflict
with or violate any Law applicable to such Stockholder or by which any property
or asset of such Stockholder is bound or affected or (iii) result in any breach
of, or constitute a default (or 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 result in the creation of a Lien
on any Shares (other than pursuant to this Agreement) pursuant to, any note,
bond, mortgage, indenture, contract agreement, lease, license, permit, franchise
or other instrument or obligation, except for any such conflicts, violations,
breaches, defaults or other occurrences that would not adversely affect or
materially delay the ability of such Stockholder to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder do
not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws, state takeover laws
and the premerger notifications of the HSR Act, (ii) for those required to be
made with self-regulatory organizations and Governmental Authorities regulating
brokers, dealers, investment advisors, investment companies, banks, trust
companies and insurance companies and (iii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not adversely affect or materially delay the ability of
such Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement.
SECTION 4.03. Ownership of Securities. As of the date hereof, such
Stockholder is the record or beneficial owner of, and has good title to, the
number of Shares set forth opposite such Stockholder's name on Schedule A
hereto. Except as set forth on Schedule A, such Shares are all the securities of
the Company owned, either of record or beneficially, by such Stockholder as of
the date hereof and such Stockholder does not have any option or other right to
acquire any other securities of the Company. Except as set forth on Schedule A,
the Shares owned by such Stockholder are owned free and clear of all Liens,
other than any Liens created by this Agreement. Except as provided in this
Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by
such Stockholder. At the Closing, if any, such Stockholder shall deliver, and
upon such delivery and payment of the Purchase Price therefor, as applicable,
Purchaser shall receive good, valid and marketable title to such Stockholder's
Shares free and clear of any Liens, other than pursuant to this Agreement and
any Liens created by Parent or Purchaser.
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SECTION 4.04. Absence of Litigation. As of the date hereof, there is no
litigation, suit, claim, action, proceeding or investigation (an "Action")
pending or, to the knowledge of such Stockholder, threatened against such
Stockholder, or any property or asset of such Stockholder, before any
Governmental Authority that seeks to delay or prevent the consummation of the
transactions contemplated by this Agreement.
SECTION 4.05. Brokers. Other than ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (in accordance
with the arrangement set forth in Section 6.01(f) of the Disclosure Schedule),
no broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
As an inducement to each Stockholder to enter into this Agreement,
Parent and Purchaser hereby, jointly and severally, represent and warrant to
each Stockholder as follows:
SECTION 5.01. Corporate Organization. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or in good standing or to have such power,
authority and governmental approvals would not prevent or materially delay
consummation of the transactions contemplated by this Agreement or otherwise
prevent or materially delay Parent or Purchaser from performing its obligations
under this Agreement.
SECTION 5.02. Organization and Authority of Parent and Purchaser.
Parent and Purchaser are both corporations, duly incorporated and validly
existing under the laws of the State of Delaware and have all necessary
corporate power and authority to enter into this Agreement, to carry out their
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Parent and Purchaser, the
performance by Parent and Purchaser of their obligations hereunder and the
consummation by Parent and Purchaser of the transactions contemplated hereby
have been duly authorized by all requisite action on the part of Parent and
Purchaser. This Agreement has been duly executed and delivered by Parent and
Purchaser, and (assuming due authorization, execution and delivery by the
Stockholders) this Agreement constitutes a legal, valid and binding obligation
of Parent and Purchaser enforceable against Parent and Purchaser in accordance
with its terms.
SECTION 5.03. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Parent and Purchaser do not, and the
performance of this Agreement by Parent and Purchaser shall not, (i) conflict
with or violate the certificate of incorporation or by-laws of Parent or
Purchaser, (ii) assuming satisfaction of the requirements set forth in 5.03(b)
below, conflict with or violate any Law applicable to Parent or Purchaser or by
which any property or asset of Parent or Purchaser is bound or affected or (iii)
result in any breach of, or constitute a default (or event that with notice or
lapse of time or both would become
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a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a Lien on any
property or asset of Parent or Purchaser pursuant to, any note, bond, mortgage,
indenture, contract agreement, lease, license, permit, franchise or other
instrument or obligation, except for any such conflicts, violations, breaches,
defaults or other occurrences that would not adversely affect or materially
delay the ability of Parent or Purchaser to carry out its obligations under, and
to consummate the transactions contemplated by, this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance of this Agreement by Parent and Purchaser
shall not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of state takeover laws and the premerger notifications of
the HSR Act, (ii) for those required to be made with self-regulatory
organizations and Governmental Authorities regulating brokers, dealers,
investment advisors, investment companies, banks, trust companies and insurance
companies and (iii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
adversely affect or materially delay the ability of Parent or Purchaser to carry
out their obligations under, and to consummate the transactions contemplated by,
this Agreement.
SECTION 5.04. No Distribution. Purchaser is not acquiring the
Stockholder's Shares and Warrants with a view to, or for offer or sale in
connection with, any distribution thereof.
SECTION 5.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Parent or
Purchaser.
SECTION 5.06. Financing. Purchaser has and will have at the closing of
the Offer and the Merger, as applicable, sufficient funds or available borrowing
capacity to permit Parent and Purchaser to consummate all of the Transactions.
ARTICLE VI
COVENANTS OF THE STOCKHOLDER
SECTION 6.01. No Disposition or Encumbrance of Optioned Securities.
Each Stockholder hereby agrees that, except as contemplated by this Agreement,
such Stockholder shall not (i) sell, transfer, tender (except into the Offer),
pledge, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to (other
than the Irrevocable Proxy), deposit into any voting trust, enter into any
voting agreement, or create or permit to exist any Liens of any nature
whatsoever (other than pursuant to this Agreement) with respect to, any of such
Stockholder's Shares (or agree or consent to, or offer to do, any of the
foregoing), or (ii) take any action that would make any representation or
warranty of such Stockholder herein untrue or incorrect in any material respect
or have the effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations hereunder.
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SECTION 6.02. No Solicitation of Transactions. Except as permitted by
the Merger Agreement, each Stockholder agrees that between the date of this
Agreement and the date of termination of the Merger Agreement, such Stockholder
shall not, directly or indirectly, through any director, officer, affiliate,
employee, representative, agent or otherwise, (i) solicit, initiate, endorse,
accept or encourage the submission of any Acquisition Proposal, or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or otherwise participate in, assist,
facilitate, endorse or encourage any proposal that constitutes, or may
reasonably be expected to lead to, an Acquisition Proposal. Such Stockholder
shall, and shall direct or cause its directors, officers, affiliates, employees,
representatives and agents to, immediately cease and cause to be terminated any
discussions or negotiations with any parties that may be ongoing with respect to
any Acquisition Proposal. Such Stockholder shall promptly advise Parent orally
and in writing of any Acquisition Proposal or any request for information with
respect to any Acquisition Proposal, the material terms and conditions of such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon the terms
and subject to the conditions hereof, Parent, Purchaser and each Stockholder
shall use their reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective this Agreement.
SECTION 6.04. Disclosure. Each Stockholder agrees to permit Parent and
Purchaser to publish and disclose in the Offer Documents and the Proxy Statement
and related filings under the securities laws such Stockholder's identity and
ownership of Shares and the nature of its commitments, arrangements and
understandings under this Agreement.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. Each Stockholder's obligation hereunder to
tender, and not withdraw, its Shares pursuant to the Offer shall terminate on
the expiration date of the Offer. The Options (including any Option as to which
an Exercise Notice has been delivered but for which the Closing has not
occurred) shall terminate in accordance with the provisions of Section 3.01. The
remaining provisions of this Agreement, and all other rights and obligations of
the parties hereunder, shall terminate, and no party shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect upon the earliest of (i) the Effective Time, (ii) 10 business
days following the later to occur of (A) the expiration or termination of the
applicable waiting period under the HSR Act and (B) the termination of the
Merger Agreement and (iii) the date upon which Purchaser shall have purchased
and paid for all of the Shares in accordance with the terms of the Offer or
pursuant to the exercise of the Option granted by the Stockholder hereunder.
Nothing in this Section 7.01 shall relieve any party of liability for any breach
of this Agreement. Parent and Purchaser acknowledge that, in the event of
termination of this Agreement, the Stockholders shall no longer have the
obligation to tender, and may withdraw, their Shares.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 8.01):
if to any of the Stockholders:
c/o ▇▇▇ ▇▇▇▇▇▇▇ Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Shartsis, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and with a further copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
if to Parent or Purchaser:
Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (508) 650- 8960
Attention: Assistant General Counsel
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with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇
SECTION 8.02. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 8.03. Entire Agreement; Assignment. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
This Agreement shall not be assigned by operation of law or otherwise, except
that Parent and Purchaser may assign all or any of their rights and obligations
hereunder to any affiliate of Parent, provided that no such assignment shall
relieve Parent or Purchaser of its obligations hereunder.
SECTION 8.04. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 8.05. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 8.06. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State (other than those
provisions set forth herein that are required to be governed by Delaware Law).
All actions and proceedings arising out of or relating to this Agreement shall
be heard and determined exclusively in any New York state or federal court
sitting in the Borough of Manhattan of The City of New York. The parties hereto
hereby (a) submit to the exclusive jurisdiction of any state or federal court
sitting in the Borough of Manhattan of The City of New York for the purpose of
any Action arising out of or relating to this Agreement brought by any party
hereto, and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune
11
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement may not
be enforced in or by any of the above-named courts.
SECTION 8.07. Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 8.07.
SECTION 8.08. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 8.09. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 8.10. Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
SECTION 8.11. Waiver. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 8.12. Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred. Notwithstanding the
foregoing, Parent shall cause the Company to reimburse the Stockholder for its
out-of-pocket fees and expenses of Shartsis, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP incurred in
connection with this Agreement and the transactions contemplated hereby and by
the Merger Agreement; provided that any such fees and expenses shall be payable
only to the extent the Company has not otherwise incurred fees and expenses in
excess of $2.5 million, as set forth in section 6.01(f) of the Merger Agreement.
SECTION 8.13. Adjustments. (a) In the event of (i) any increase or
decrease or other change in the Shares by reason of stock dividend, stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) the
Stockholder becomes the beneficial owner of any additional Shares or other
securities of the Company, then the terms of this
12
Agreement, including the term "Shares" as defined herein, shall apply to the
shares of capital stock and other securities of the Company held by the
Stockholder immediately following the effectiveness of the events described in
clause (i), or the Stockholder becoming the beneficial owner thereof pursuant to
clause (ii).
(b) The Stockholder hereby agrees to promptly notify Parent and
Purchaser of the number of any new Shares or other securities acquired by the
Stockholder, if any, after the date hereof.
SECTION 8.14. Further Assurances. The Stockholder, Parent and Purchaser
shall execute and deliver all such further documents and instruments and take
all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
▇▇▇ ▇▇▇▇▇▇▇ FUNDS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BOSTON SCIENTIFIC CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. Best
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: CFO
▇▇▇▇ ACQUISITION 2001 INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. Best
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: CFO
Acknowledged and Agreed
(with respect to Article II)
CARDIAC PATHWAYS CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President/CEO
SCHEDULE A
Name Common Stock
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▇▇▇ ▇▇▇▇▇▇▇ Funds, Inc. 4,681,762