Exhibit 4.1
STOCKHOLDER SUPPORT AGREEMENT
BY AND AMONG
INTUITIVE SURGICAL, INC.,
IRON ACQUISITION CORPORATION
AND
CERTAIN STOCKHOLDERS OF COMPUTER MOTION, INC.
DATED AS OF MARCH 7, 2003
STOCKHOLDER SUPPORT AGREEMENT, dated as of March 7, 2003 (this
"Agreement"), by and among Intuitive Surgical, Inc., a Delaware corporation
("Parent"), Iron Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the parties listed on Annex A
hereto (each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Merger Sub and Computer Motion, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement") (with all capitalized terms used but not defined herein having the
meanings set forth in the Merger Agreement), pursuant to which Merger Sub will
merge with and into the Company, with the Company continuing as the surviving
corporation and a wholly owned subsidiary of Parent (the "Merger"), which Merger
Agreement has been approved by the Boards of Directors of the Company, Merger
Sub and Parent;
WHEREAS, each Stockholder owns the number of shares of Company
Common Stock set forth opposite its name on Annex A hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by such Stockholder after the date hereof and during the term
of this Agreement, including any shares issued upon the exercise of any warrants
or options, the conversion of any convertible securities or otherwise, being
collectively referred to herein as the "Subject Shares");
WHEREAS, as a condition to the willingness of Parent and Merger Sub
to enter into the Merger Agreement, Parent has required that each Stockholder
agree and, in order to induce Parent and Merger Sub to enter into the Merger
Agreement, each Stockholder has agreed, to enter into this Agreement; and
WHEREAS, this Agreement has been approved by the Board of Directors
of the Company for purposes of Section 203 of the General Corporation Law of the
State of Delaware (the "DGCL").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and intending to be legally bound, the parties hereto agree as
follows:
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ARTICLE 1.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to Parent and Merger Sub as follows:
Section 1.1 Organization. Such Stockholder is either (a) a
corporation, partnership or limited liability company, duly organized, validly
existing and in good standing under the laws of the jurisdiction of such
Stockholder's organization, or (b) a natural person residing in the United
States.
Section 1.2 Authority. Such Stockholder has all necessary power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement to
be consummated by such Stockholder. The execution and delivery of this Agreement
by such Stockholder and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary action of such
Stockholder and no other proceedings on the part of such Stockholder are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly authorized and validly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
Section 1.3 The Subject Shares. Such Stockholder is the record and
beneficial owner of, and has good and marketable title to, the Subject Shares
set forth opposite its name on Annex A hereto. Such Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company (or rights to
acquire any such shares) other than the Subject Shares set forth opposite its
name on Annex A hereto. Such Stockholder has (a) the sole right to vote, (b) the
sole power of disposition, (c) the sole power to issue instructions with respect
to the matters set forth in Articles 3, 4 and 5 hereof, (d) the sole power to
demand appraisal rights, if applicable, and (e) the sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
such Stockholder's Subject Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. Except for this Agreement, none of such
Stockholder's Subject Shares are subject to any voting trust or other agreement,
arrangement or restriction with respect to the
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voting or disposition of such Stockholder's Subject Shares. To such
Stockholder's knowledge, all of its Subject Shares are validly issued, fully
paid and non-assessable.
Section 1.4 No Conflicts. The execution and delivery of this
Agreement by such Stockholder do not, and the performance of this Agreement by
such Stockholder will not, (a) conflict with or violate any provision of the
certificate or articles of incorporation or by-laws or any equivalent
organizational documents of such Stockholder, (b) conflict with or violate any
Law applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected, (c) require any consent or approval under,
result in any breach of, or loss of any benefit under, or constitute a change of
control or default (or any event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
vesting, amendment, acceleration or cancellation of, or result in the creation
of a lien or other encumbrance on any property or asset of such Stockholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit or other instrument or obligation. The execution and delivery of
this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity or other person.
Section 1.5 Brokers. No broker, finder or investment banker (other
than the Company Financial Advisor) is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger based upon arrangements
made by or on behalf of such Stockholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub, jointly and severally, hereby
represents and warrants to each Stockholder as follows:
Section 2.1 Organization. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
Section 2.2 Authority. Each of Parent and Merger Sub has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated by this Agreement to be consummated by Parent and Merger Sub,
respectively. The execution and delivery of this
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Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub
of the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action of Parent and Merger Sub and no other corporate
proceedings on the part of Parent or Merger Sub are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby (other than the
approval of Parent, as sole stockholder of Merger Sub, to the Merger and the
approval of the stockholders of Parent to the Share Issuance). This Agreement
has been duly authorized and validly executed and delivered by Parent and Merger
Sub and constitutes a legal, valid and binding obligation of Parent and Merger
Sub, enforceable against Parent and Merger Sub in accordance with its terms.
Section 2.3 No Conflicts. The execution and delivery of this
Agreement by Parent and Merger Sub do not, and the performance of this Agreement
by Parent and Merger Sub will not, (a) conflict with or violate any provision of
the certificate of incorporation or by-laws of Parent or Merger Sub, (b)
conflict with or violate any Law applicable to Parent or Merger Sub or by which
any property or asset of Parent or Merger Sub is bound or affected, (c) require
any consent or approval under, result in any breach of, or loss of any benefit
under, or constitute a change of control or default (or any event which with
notice or lapse of time or both would become a default) under, or give to others
any right of termination, vesting, amendment, acceleration or cancellation of,
or result in the creation of a lien or other encumbrance on any property or
asset of Parent or Merger Sub pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit or other instrument or obligation.
The execution and delivery of this Agreement by Parent and Merger Sub do not,
and the performance of this Agreement by Parent and Merger Sub will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity or other person, except as may be
required under the Exchange Act, the Securities Act, any applicable Blue Sky Law
or, the rules and regulations of Nasdaq.
ARTICLE 3.
AGREEMENT TO VOTE
Each Stockholder, severally and not jointly, agrees that:
Section 3.1 Agreement to Vote in Favor of the Adoption of the Merger
Agreement. At any Company Stockholders' Meeting called to vote upon the Merger
Agreement and the transactions contemplated thereby, however called, or at any
adjournment thereof or in
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connection with any written consent of the holders of Company Common Stock or in
any other circumstances upon which a vote, consent or other approval with
respect to the Merger Agreement and the transactions contemplated thereby is
sought, such Stockholder shall be present (in person or by proxy) and shall vote
(or cause to be voted) all Subject Shares then beneficially owned by such
Stockholder in favor of (a) the Merger and adoption of the Merger Agreement and
the transactions contemplated thereby and (b) any other matter necessary for the
consummation of the transactions contemplated by the Merger Agreement. In
addition, each Stockholder agrees that it will, upon request by Parent, furnish
written confirmation, in form and substance reasonably satisfactory to Parent,
of such Stockholder's support for the Merger Agreement and the Merger. Each
Stockholder acknowledges receipt and review of a copy of the Merger Agreement.
Section 3.2 Agreement to Vote Against Acquisition Proposals. At any
Company Stockholders' Meeting, however called, or at any adjournment thereof or
in connection with any written consent of the holders of Company Common Stock or
in any other circumstances upon which a vote, consent or other approval is
sought, such Stockholder shall be present (in person or by proxy) and shall vote
(or cause to be voted) all Subject Shares then beneficially owned by such
Stockholder against any action or agreement that would impede, interfere with,
delay, postpone or attempt to discourage the Merger or the other transactions
contemplated by this Agreement and the Merger Agreement, including, but not
limited to the following: (a) any Acquisition Proposal or extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries (other than the
Merger); (b) a sale, lease, license or transfer of a material amount of assets
of the Company or any of its subsidiaries or a reorganization, recapitalization,
dissolution, winding up or liquidation of the Company or any of its
subsidiaries; (c) any change in the management or board of directors of the
Company, except as contemplated by the Merger Agreement or otherwise agreed to
in writing by Parent; (d) any material change in the present capitalization or
dividend policy of the Company; (e) any material change in the Company's
corporate structure, business, the Company Certificate or the Company By-laws;
or (f) any action or agreement that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
under the Merger Agreement or which could result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled.
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ARTICLE 4.
GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY
Section 4.1 Grant of Proxy. Each Stockholder hereby irrevocably
grants to and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in their respective
capacities as officers of Parent, and any individual who shall hereafter succeed
to their respective offices of Parent, and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject
Shares, (a) in favor of the Merger and adoption of the Merger Agreement and the
transactions contemplated thereby and any other matter necessary for the
consummation of the transactions contemplated by the Merger Agreement and (b)
against any action or agreement that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the other transactions
contemplated by this Agreement and the Merger Agreement, including, but not
limited to: (i) any Acquisition Proposal or extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the
Company or any of its subsidiaries (other than the Merger); (ii) a sale, lease,
license or transfer of a material amount of assets of the Company or any of its
subsidiaries or a reorganization, recapitalization, dissolution, winding up or
liquidation of the Company or any of its subsidiaries; (iii) any change in the
management or board of directors of the Company, except as contemplated by the
Merger Agreement or otherwise agreed to in writing by Parent; (iv) any material
change in the present capitalization or dividend policy of the Company; (v) any
material change in the Company's corporate structure, business, the Company
Certificate or the Company By-laws or (vi) any action or agreement that would
result in a breach of any representation, warranty, covenant, agreement or other
obligation of the Company under the Merger Agreement or which could result in
any of the conditions to the Company's obligations under the Merger Agreement
not being fulfilled.
Section 4.2 Revocation of Prior Proxies. Such Stockholder represents
that any proxies heretofore given in respect of such Stockholder's Subject
Shares are revocable, and that all such proxies are hereby revoked.
Section 4.3 Irrevocable Proxy Coupled With an Interest. Such
Stockholder hereby affirms that the irrevocable proxy set forth in this Article
4 is coupled with an interest, and may under no circumstances be revoked. Such
Stockholder hereby ratifies and confirms all
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that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the DGCL.
ARTICLE 5.
COVENANTS AND AGREEMENTS
Section 5.1 Restriction on Transfer. Each Stockholder agrees not (a)
to sell, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, "Transfer"), or enter into any contract, option or other
arrangement or understanding with respect to the Transfer by such Stockholder
of, any of the Subject Shares or offer any interest in any thereof to any Person
other than pursuant to the terms of the Merger or this Agreement, (b) to enter
into any voting arrangement or understanding, whether by proxy, power of
attorney, voting agreement, voting trust or otherwise with respect to the
Subject Shares in connection with, directly or indirectly, any Acquisition
Proposal or otherwise and agrees not to commit or agree to take any of the
foregoing actions or (c) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing its
obligations under this Agreement. Notwithstanding the foregoing, each
Stockholder shall have the right to Transfer Subject Shares to an Affiliate upon
the due execution and delivery to Parent by such transferee of a legal, valid
and binding counterpart to this Agreement so long as any such Transfer is not
intended to circumvent the provisions of this Agreement.
Section 5.2 No Solicitation of Alternative Transactions. No
Stockholder shall, directly or indirectly, take any action to, and each
Stockholder shall use its reasonable best efforts to cause its agents and
representatives (including investment bankers, attorneys or accountants) not to,
(a) encourage (including by way of furnishing non-public information), solicit,
initiate or facilitate any Acquisition Proposal, (b) enter into any agreement
with respect to any Acquisition Proposal or enter into any agreement,
arrangement or understanding requiring the Company to abandon, terminate or fail
to consummate the Merger or any other transaction contemplated by this Agreement
or the Merger Agreement or (c) participate in any way in discussions or
negotiations with, or furnish any information to, any person in connection with,
or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or could reasonably be expected to lead to, any
Acquisition Proposal. Upon the execution of this
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Agreement, each Stockholder shall cease immediately and cause to be terminated
any and all existing discussions or negotiations with any parties conducted
heretofore with respect to any Acquisition Proposal and promptly request that
all confidential information with respect thereto furnished by such Stockholder
be returned. Each Stockholder shall, as promptly as practicable (and in no event
later than 24 hours after receipt thereof), advise Parent of any inquiry
received by it relating to any potential Acquisition Proposal and of the
material terms of any proposal or inquiry, including the identity of the person
and its affiliates making the same, that it may receive in respect of any such
potential Acquisition Proposal, or of any information requested from it or of
any negotiations or discussions being sought to be initiated with it, and shall
furnish to Parent a copy of any such proposal or inquiry, if it is in writing,
or a written summary of any such proposal or inquiry, if it is not in writing,
and shall keep Parent fully informed on a prompt basis with respect to any
developments with respect to the foregoing.
Section 5.3 Further Assurances. From time to time and without
additional consideration, each Stockholder shall use its reasonable best efforts
to assist and cooperate with Parent and 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 any applicable Law or otherwise to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement. Without limiting the
generality of the foregoing, each Stockholder shall, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments and shall take all such other action
as Parent may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and the Merger Agreement, including
promptly making all regulatory filings and applications, and to obtain all
licenses, permits, consents, approvals, authorizations, qualification and orders
of governmental authorities and parties to contracts as are necessary for the
consummation of the transactions contemplated by this Agreement and the Merger
Agreement.
Section 5.4 Waiver of Dissenter's and Appraisal Rights. Each
Stockholder agrees that it will not exercise any rights to dissent from the
Merger or request appraisal of its respective Subject Shares pursuant to Section
262 of the DGCL or any other similar provisions of law in connection with the
Merger.
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Section 5.5 Lock-Up Agreement. Each Stockholder agrees that, in
connection with any public offering of Parent Common Stock or securities
convertible into Parent Common Stock conducted by Parent after the Effective
Time (a "Financing") and at the request of any managing underwriter of such
Financing, it will enter into a customary "lock-up" agreement pursuant to which
it will agree beginning on the date of the final prospectus delivered in
connection with such Financing and ending on a date no later than ninety (90)
days thereafter, to not, directly or indirectly, without the prior written
consent of such managing underwriter, issue, sell, offer or agree to sell, grant
any option for the sale of, pledge, make any short sale or maintain any short
position, establish or maintain any "put equivalent position" (within the
meaning of Rule 16-a-1(h) under the Exchange Act), enter into any swap,
derivative or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Parent Common Stock (whether
any such transaction is to be settled by delivery of Parent Common Stock, other
securities, cash or other consideration) or otherwise dispose of, any Parent
Common Stock (or any securities convertible into, exercisable for or
exchangeable for Parent Common Stock) or interest therein of Parent or any
Parent Subsidiary.
ARTICLE 6.
GENERAL PROVISIONS
Section 6.1 Termination. Except with respect to Sections 5.5 and
6.3, which shall survive termination, this Agreement, and all obligations,
agreements and waivers hereunder, will terminate and be of no further force and
effect on the earliest of (a) 5:00 p.m., Pacific Standard Time, on the second
anniversary of the date hereof, (b) the Effective Time and (c) 120 days after
payment of any termination fee set forth in Section 7.2.5 of the Merger
Agreement; provided, however, that nothing herein shall relieve any party from
liability for any breach hereof.
Section 6.2 Board of Directors Action. No action taken by the Board
of Directors of the Company (including, without limitation, the withdrawal,
modification or amendment of the recommendation of the Board of Directors of the
Company that the stockholders of the Company vote in favor of the adoption of
the Merger Agreement) shall modify, alter, change or otherwise affect the
obligations of any Stockholder hereunder.
Section 6.3 Stockholder Capacity. No person executing this Agreement
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or
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understanding herein in his or her capacity as such director or officer. Each
Stockholder signs solely in its capacity as the record holder and beneficial
owner of such Stockholder's Subject Shares and nothing herein shall limit or
affect any actions taken by any Stockholder in his or her capacity as an officer
or director of the Company to the extent specifically permitted by the Merger
Agreement. This Section 6.3 shall survive termination of this Agreement.
Section 6.4 Parent Guarantee. Parent hereby guarantees the due
performance of any and all obligations and liabilities of Merger Sub under or
arising out of this Agreement and the transactions contemplated hereby.
Section 6.5 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to the remedy of
specific performance of such provisions and to an injunction or injunctions
and/or such other equitable relief as may be necessary to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of competent jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
Section 6.6 Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, each Stockholder shall, and hereby does authorize the
Company's counsel to, notify the Company's transfer agent that there is a stop
transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting and transfer of such shares).
Section 6.7 Adjustments to Prevent Dilution, Etc. In the event of a
stock dividend or distribution, or any change in the Company's capital stock by
reason of any stock dividend, split-up, reclassification, recapitalization,
combination or the exchange of shares, the term "Subject Shares" shall be deemed
to refer to and include the Subject Shares as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Subject Shares may be changed or exchanged. In such event, the amount to be paid
per share by Parent in the Merger shall be proportionately adjusted.
Section 6.8 Amendments. This Agreement may not be modified, altered,
supplemented or amended except by an instrument in writing signed by each of the
parties hereto.
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Section 6.9 Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered in person or upon
confirmation or receipt when transmitted by facsimile transmission (but only if
followed by transmittal by national overnight courier or hand for delivery on
the next business day) or on receipt after dispatch by registered or certified
mail, postage prepaid, addressed, or on the next business day if transmitted by
national overnight courier to Parent or Merger Sub in accordance with Section
8.2 of the Merger Agreement and to the Stockholders at their respective
addresses set forth in Annex A hereto (or to such other address as any party may
have furnished to the other parties in writing).
Section 6.10 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.11 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been signed
by each of the parties and delivered to the other party, it being understood
that each party need not sign the same counterpart.
Section 6.12 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 contemplated hereby 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 an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 6.13 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including, without limitation, the documents and instruments referred
to herein) (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and
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oral, among the parties with respect to the subject matter hereof and (b) is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
Section 6.14 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to laws that may be applicable under conflicts of laws principals.
Section 6.15 Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
Section 6.16 Multiple Stockholders. All representations, warranties,
covenants and agreements of the Stockholders in this Agreement are several and
not joint, and solely relate to matters involving the subject Stockholder and
not any of the other Stockholders.
(Signature Pages Follow)
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IN WITNESS WHEREOF, Parent, Merger Sub and each Stockholder have
caused this Agreement to be signed by their respective officer thereunto duly
authorized as of the date first written above.
INTUITIVE SURGICAL, INC.
By:
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Name:
Title:
IRON ACQUISITION CORPORATION
By:
-----------------------------
Name:
Title:
STOCKHOLDER
By:
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Name:
Title:
S-1
ANNEX A
NAME ADDRESS NUMBER OF SUBJECT SHARES
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A-1