Exhibit 10.1
Form of Voting Agreement
VOTING AGREEMENT, dated as of January [__], 2006 (this "Agreement"),
between GUIDANT CORPORATION, an Indiana corporation (the "Company"), and
[_____________][, a [____________ limited partnership]] (the "Stockholder").
WHEREAS, concurrently herewith, Boston Scientific Corporation, a
Delaware corporation ("Parent"), Galaxy Merger Sub, Inc., an Indiana
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and the
Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement"; capitalized terms used but not defined in this Agreement shall have
the meanings ascribed to them in the Merger Agreement), pursuant to which, upon
the terms and subject to the conditions thereof, Merger Sub will merge with and
into the Company (the "Merger"), and each issued and outstanding share of
common stock, without par value, of the Company ("Company Common Stock"), other
than shares of Company Common Stock directly owned by Parent, Merger Sub or the
Company, will be converted into the right to receive (a) a number of validly
issued, fully paid and nonassessable shares (the "Shares") of common stock, par
value $0.01 per share, of Parent ("Parent Common Stock"), (b) $42.00 in cash,
without interest, and (c) if the Closing shall not have occurred on or prior to
March 31, 2006, an amount in cash equal to $0.0132 per day for each day during
the period commencing April 1, 2006 through the date of the Closing;
WHEREAS, Stockholder beneficially owns [________] Shares of Parent
Common Stock (the "Owned Shares" and, together with any shares of Parent Common
Stock of which Stockholder acquires beneficial ownership after the date hereof
and prior to the termination hereof, whether by purchase or upon exercise of
options, warrants, conversion of other convertible securities or otherwise, are
collectively referred to herein as the "Covered Shares");
WHEREAS, in connection with, and as a condition to, the Merger, the
stockholders of Parent must (i) adopt an amendment to Parent's Second Restated
Certificate of Incorporation, as amended, to increase the authorized number of
shares of Parent Common Stock from 1,200,000,000 to 2,000,000,000 (the
"Amendment"), and (ii) approve the issuance of the Shares to the shareholders
of the Company pursuant to the terms of the Merger Agreement (the "Share
Issuance"); and
WHEREAS, the Stockholder acknowledges that the Company is entering
into the Merger Agreement in reliance on the representations, warranties,
covenants and other agreements of the Stockholder set forth in this Agreement
and would not enter into the Merger Agreement if the Stockholder did not enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Agreement to Vote.
(a) Prior to any termination of this Agreement, the Stockholder
hereby agrees that it shall, and shall cause any other holder of record of any
Covered Shares to, at any meeting of the stockholders of Parent (whether annual
or special and whether or not an adjourned or postponed meeting), however
called, (i) when a meeting is held, appear at such meeting or otherwise cause
the Covered Shares to be counted as present thereat for the purpose of
establishing a quorum, and (ii) vote (or caused to be voted) in person or by
proxy all Covered Shares (A) in favor of the Amendment and the Share Issuance
and (B) against any proposal, action or transaction involving Parent or any of
its Subsidiaries, which proposal, action or transaction would impede,
frustrate, prevent or materially delay the consummation of the Merger or the
other transactions contemplated by the Merger Agreement or this Agreement or
the approval of the Amendment or the Share Issuance.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, THE COMPANY, THE
CHIEF EXECUTIVE OFFICER OF THE COMPANY AND THE SECRETARY OF THE COMPANY, IN
THEIR RESPECTIVE CAPACITIES AS OFFICERS OF THE COMPANY, AND ANY OTHER DESIGNEE
OF THE COMPANY, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S IRREVOCABLE (UNTIL
THE TERMINATION DATE, AS DEFINED BELOW) PROXY AND ATTORNEY-IN-FACT (WITH FULL
POWER OF SUBSTITUTION) TO VOTE THE COVERED SHARES AS INDICATED IN CLAUSE (a) OF
THIS SECTION 1. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE, AS DEFINED BELOW) AND COUPLED WITH AN INTEREST AND WILL TAKE
SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE COVERED SHARES (THE STOCKHOLDER
REPRESENTING TO THE COMPANY THAT ANY SUCH PROXY IS NOT IRREVOCABLE).
(c) Except as set forth in clause (a) of this Section 1, the
Stockholder shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of Parent.
(d) If for any reason the proxy granted herein is not irrevocable,
then, if instructed by the Company in writing, the Stockholder agrees to vote
(or cause to be voted) the Covered Shares in a manner consistent with clause
(a) of this Section 1.
2. Termination. This Agreement shall terminate upon the earliest of
(a) the Effective Time, (b) the termination of the Merger Agreement in
accordance with its terms, and (c) written notice of termination of this
Agreement by the Company to the Stockholder, such earliest date being referred
to herein as the "Termination Date"; provided, however, that the provisions set
forth in Section 10 to 17 shall survive the termination of this Agreement;
provided, further, however, that termination of this Agreement shall not
prevent any party hereunder from seeking any remedies (at law or in equity)
against any other party hereto for such party's breach of any of the terms of
this Agreement prior to termination.
3. Representations and Warranties.
(a) Representations and Warranties of the Company. The Company hereby
represents and warrants to the Stockholder as follows:
(i) Organization and Authority. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Indiana and has all necessary corporate power and authority to
enter into, execute and deliver this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Company, the
performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the
other parties hereto, this Agreement is a legal, valid and binding
obligation of the Company, enforceable against it in accordance with its
terms.
(ii) Consents; No Conflicts. Except for the applicable requirements
of the Exchange Act, the execution, delivery and performance by the
Company of this Agreement do not and will not (A) require any consent,
approval, authorization or other order of, action by, filing with, or
notification to, any Governmental Entity, (B) violate, conflict with or
result in the breach of any provision of the certificate of incorporation
or bylaws (or similar organizational documents) of the Company, (C)
conflict with or violate any Law or Order applicable to the Company or its
assets, properties or businesses or (D) conflict with, result in any
breach of, constitute a default (or event which with the giving of notice
or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which the Company
is a party, except, in the case of clauses (C) and (D), as would not
materially and adversely affect the ability of the Company to carry out
its obligations under, and to consummate the transactions contemplated by,
this Agreement.
(b) Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to the Company as follows:
(i) Ownership of Securities. As of the date of this Agreement, [(A)]
the Stockholder is the [record and] beneficial owner of, and has sole [or
shared] voting power and sole [or shared] power of disposition with
respect to, the Owned Shares, free and clear of Liens, proxies, powers of
attorney, voting trusts or agreements (other than any Lien or proxy
created by this Agreement or pursuant to any pledge in existence as of the
date hereof, none of which would materially and adversely affect the
ability of the Stockholder to carry out the Stockholder's obligations
under, and to consummate the transactions contemplated by, this
Agreement)[, and (B) the Stockholder beneficially owns [____________]
Shares of Parent Common Stock issuable upon the exercise of currently
exercisable stock options]. [As of the date of this Agreement, Schedule I
is true and correct in all material respects with respect to those Persons
listed under ▇▇▇▇ ▇. ▇▇▇▇▇.] [As of the date of this Agreement, Schedule I
is true and correct in all material respects with respect to those Persons
listed under ▇▇▇▇ ▇▇▇▇▇▇▇▇.] As used in this Agreement, the terms
"beneficial owner", "beneficial ownership", "beneficially owns" or "owns
beneficially", with respect to any securities, refer to the beneficial
ownership of such securities as determined under Rule 13d-3(a) of the
Exchange Act.
(ii) Organization and Authority. [The Stockholder is a [limited
partnership] duly formed, validly existing and in good standing under the
laws of the jurisdiction of its formation and has all necessary power and
authority to enter into, execute and deliver this Agreement, to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby, and the execution and delivery of this Agreement by the
Stockholder, the performance by it of its obligations hereunder and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of the Stockholder.] [The
Stockholder has all necessary power and capacity to enter into, execute
and deliver this Agreement, to carry out his obligations hereunder and to
consummate the transactions contemplated hereby.] This Agreement has been
duly executed and delivered by the Stockholder, and, assuming due
authorization, execution and delivery by the other parties hereto, this
Agreement is a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms. [If the
Stockholder is married, and any of the Covered Shares constitute community
property or otherwise need spousal or other approval for this Agreement to
be legal, valid and binding, this Agreement has been duly authorized,
executed and delivered by, and constitutes the legal, valid and binding
obligation of, Stockholder's spouse, enforceable in accordance with its
terms.]
(iii) Consents; No Conflicts. Except for the applicable requirements
of the Exchange Act, the execution, delivery and performance by the
Stockholder of this Agreement do not and will not (A) require any consent,
approval, authorization or other order of, action by, filing with, or
notification to, any Governmental Entity [or violate, conflict with or
result in the breach of any provision of the organizational documents of
the Stockholder], (B) conflict with or violate any Law or Order applicable
to the Stockholder or the Stockholder's assets, properties or businesses
or (C) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other instrument
or arrangement to which the Stockholder is a party, except, in the case of
clauses (B) and (C), as would not materially and adversely affect the
ability of the Stockholder to carry out the Stockholder's obligations
under, and to consummate the transactions contemplated by, this Agreement.
4. Restriction on Transfer, Proxies. The Stockholder hereby agrees,
while this Agreement is in effect, not to (a) except as set forth in Section 7
hereof or pursuant to pledges in existence as of the date hereof (none of which
would materially and adversely affect the ability of the Stockholder to carry
out the Stockholder's obligations under, and to consummate the transactions
contemplated by, this Agreement), sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any Contract, option or other arrangement
or understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Covered Shares, (b) grant any
proxies or powers of attorney, deposit any Covered Shares into a voting trust
or enter into a voting agreement with respect to any Covered Shares or (c) take
any action that would make any representation or warranty of the Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling the Stockholder from performing its obligations under this Agreement.
5. Further Assurances. From time to time, at the another party's
request and without further consideration, each party hereto shall take such
reasonable further action as may reasonably be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary: (a) the Stockholder makes no agreement or understanding herein in
any capacity other than in his capacity as a record holder and beneficial owner
of Covered Shares and (b) nothing herein shall be construed to limit or affect
any action or inaction by the Stockholder acting in his capacity as a director
or officer of Parent in a manner consistent with the Merger Agreement.
7. Permitted Transfers. Notwithstanding anything in this Agreement to
the contrary, the Stockholder may transfer any or all of the Covered Shares, in
accordance with provisions of applicable Law, to [his spouse, ancestors,
descendants or] any trust controlled by the Stockholder for any of their
benefit; provided, however, that, prior to and as a condition to the
effectiveness of such transfer, each Person to which any of such Covered Shares
or any interest in any of such Covered Shares is or may be transferred shall
have executed and delivered to the Company a counterpart of this Agreement
pursuant to which such Person shall be bound by all of the terms and provisions
of this Agreement, and shall have agreed in writing with the Company to hold
such Covered Shares or interest in such Covered Shares subject to all of the
terms and provisions of this Agreement.
8. No Control. Nothing contained in this Agreement shall give the
Company the right to control or direct Parent or Parent's operations.
9. Amendment. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
10. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (which is confirmed) or sent by overnight
courier (providing proof of delivery) to the 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 10):
(a) if to the Company:
Guidant Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇
(b) if to the Stockholder:
[_______________________]
Telecopy No.:
11. 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 are 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 contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
12. Entire Agreement; Assignment. This Agreement (together with the
Merger Agreement to the extent referred to herein) (a) constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
among the parties hereto with respect to the subject matter hereof, and (b)
shall not be assigned by operation of law or otherwise without the prior
written consent of the other parties hereto.
13. 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 hereto shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
14. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware. All Actions arising out
of or relating to this Agreement shall be heard and determined exclusively in
any New York federal court sitting in the Borough of Manhattan of The City of
New York; provided, however, that if such federal court does not have
jurisdiction over such action, such action shall be heard and determined
exclusively in any New York state court sitting in the Borough of Manhattan of
The City of New York. Consistent with the preceding sentence, the parties
hereto hereby (a) submit to the exclusive jurisdiction of any federal or state
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
either 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 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 or the transactions contemplated by this Agreement may not
be enforced in or by any of the above-named courts.
15. 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 OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (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 THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 15.
16. 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.
17. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
[STOCKHOLDER]
By:
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Name:
[Title:]
GUIDANT CORPORATION
By:
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Name:
[Title:]