Exhibit 3
FORM OF VOTING AGREEMENT
This Voting Agreement is entered into as of March 12, 2001, by and between
Data Critical Corporation, a Delaware corporation ("Acquiror"), and ____________
(together, in the case of any individual, with such person's spouse,
"Stockholder").
Recitals
A. Acquiror, Viper Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Acquiror ("Merger Sub"), and VitalCom Inc., a Delaware
corporation ("Target"), are entering into an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement") which provides (subject to the
conditions set forth therein) for the merger of Merger Sub into Target (the
"Merger").
B. In order to induce Acquiror and Merger Sub to enter into the Merger
Agreement, Stockholder is entering into this Voting Agreement.
Agreement
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
Section 1. Certain Definitions
For purposes of this Voting Agreement:
(a) All capitalized terms used but not otherwise defined in this
Voting Agreement have the meanings given to them in the Merger Agreement.
(b) "Effective Time" shall have the meaning given such term in
the Merger Agreement.
(c) "Expiration Date" shall mean the earlier of (i) the date
upon which the Merger Agreement is validly terminated in accordance with Section
7.1 of the Merger Agreement, or (ii) the Effective Time.
(d) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(e) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(f) "Stockholder Board Member" shall mean the person selected by
Stockholder for election to the Board of Directors of Acquiror at Acquiror's
annual meeting of stockholders in accordance with Section 3.3 of this Voting
Agreement and subsequently elected to the Board of Directors of Acquiror.
(g) "Subject Securities" shall mean: (i) all securities of
Target (including all shares of Target Common Stock and all options, warrants
and other rights to acquire shares of Target Common Stock) Owned by Stockholder
as of the date of this Voting Agreement; and (ii) all additional securities of
Target (including all additional shares of Target Common Stock and all
additional options, warrants and
other rights to acquire shares of Target Common Stock) of which Stockholder
acquires Ownership during the period from the date of this Voting Agreement
through the Expiration Date, in each case, which securities entitle, or are
convertible into or exercisable for, securities entitling the holder thereof to
vote in respect of the Merger.
(h) "Target Common Stock" shall mean the common stock, $.0001
par value per share, of Target.
(i) A Person shall be deemed to have a effected a "Transfer" of
a security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
(j) "Voting Percentage" means, as of a particular date, a
quotient, expressed as a percentage, equal to (i) the total number of votes
represented by the shares of capital stock of Acquiror Owned by Stockholder as
of such date, divided by (ii) the total number of votes represented by the
shares of capital stock of Acquiror outstanding as of such date.
Section 2. Restrictions On Transfer Of Subject Securities
2.1 No Transfer of Subject Securities. Stockholder agrees that, during
the period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall not cause or permit any Transfer of any of the Subject
Securities or any interest therein to be effected, and any such attempted
Transfer shall be null and void; provided, however, that nothing in this Voting
Agreement shall restrict Stockholder's ability to exercise any options to
acquire shares of Target Common Stock.
2.2 No Transfer of Voting Rights. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is subject to
or deposited into a voting trust; and (b) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of the
Subject Securities (other than pursuant to this Voting Agreement), and the
execution and delivery hereof by the Stockholder shall be deemed a continuing
representation as to such facts by such Stockholder.
Section 3. Voting Of Shares; Board Representation
3.1 Voting Agreement. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of Target, however called,
and at any adjournments or postponements of such meeting, or in any other
circumstances upon which a vote, consent or approval from stockholders of Target
is sought, Stockholder shall vote or shall cause all outstanding shares of
Target Common Stock that are Owned by Stockholder as of the record date fixed
for such meeting to be voted:
(i) in favor of the adoption of the Merger Agreement and
in favor of each of the other actions contemplated by the Merger Agreement;
and
(ii) against the following actions (other than the Merger
and the other transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving Target; (B)
any sale, lease or transfer of a material amount of assets of Target (other
than in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of any of Target; (D) any
removal of or change in a majority of the board of directors of Target as
constituted as of the date hereof; (E) any amendment to Target's
certificate of incorporation; (F) any material change in the capitalization
of Target or Target's corporate structure or the voting rights of any class
of Target's capital stock; and (G) any other action that is inconsistent
with the Merger or that is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger
Agreement or this Voting Agreement;
(b) in the event written consents are solicited or otherwise
sought from stockholders of Target with respect to the adoption of the Merger
Agreement, with respect to the approval of the Merger or with respect to any of
the other actions contemplated by the Merger Agreement, Stockholder shall cause
to be executed, with respect to all outstanding shares of Target Common Stock
that are Owned by Stockholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such proposed action;
and
(c) in the event written consents are solicited or otherwise
sought from stockholders of Target with respect to any of the matters referred
to in clauses "(A)" through "(G)" of clause "(ii)" of paragraph "(a)" of this
Section 3.1, Stockholder shall cause to be executed, with respect to all
outstanding shares of Target Common Stock that are Owned by Stockholder as of
the record date fixed for the consent to the proposed action, a written consent
or written consents against such proposed action.
3.2 Proxy. Contemporaneously with the execution of this Voting
Agreement: (i) Stockholder shall deliver to Acquiror a proxy in the form
attached to this Voting Agreement as Exhibit A, which shall be irrevocable to
the fullest extent permitted by law, with respect to the shares referred to
therein (the "Proxy"); and (ii) Stockholder shall cause to be delivered to
Acquiror an additional proxy (in the form attached hereto as Exhibit A) executed
on behalf of the record owner of any outstanding shares of Target Common Stock
that are owned beneficially (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934), but not of record, by Stockholder.
3.3 Board Representation. Acquiror agrees to take such actions so that,
effective upon the Effective Time, one (1) person selected by Stockholder shall
be elected or otherwise appointed to the Board of Directors of Acquiror. From
and after the Effective Time and for so long as Stockholder's Voting Percentage
is greater than or equal to 10%, Acquiror, through its Board of Directors or any
nominating committee thereof, shall nominate and solicit proxies for the re-
election of the Stockholder Board Member or such one (1) other person selected
by Stockholder for election to the Board of Directors of Acquiror at Acquiror's
annual meeting of stockholders. Upon such time as Stockholder's Voting
Percentage falls below 10%, Stockholder shall direct the Stockholder Board
Member to immediately tender his resignation from the Board of Directors, and
Stockholder shall have no further rights under this Section 3.3. Stockholder's
rights under this Section 3.3 are conditioned upon the receipt by Acquiror of a
written agreement of the Stockholder Board Member to comply with any request by
Stockholder to resign from Acquiror's Board of Directors.
3.4 Certain Approval Rights. Stockholder acknowledges and agrees that
Acquiror shall have the right to review and approve in writing (such approval to
be granted in Acquiror's sole discretion) any payments made or caused to be made
by, from or on the account of Target or Stockholder to any employee or
consultant of Target, unless such payments are specifically identified and
permitted under such employee or consultant's employment contract (or agreement
of a similar nature) with Acquiror. Stockholder shall not make any such payment
prior to such written approval being delivered by Acquiror to Stockholder.
Section 4. Waiver Of Appraisal Rights
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Target Common Stock Owned by Stockholder.
Section 5. Lockup Agreement
Stockholder agrees that, in the event that (i) the Stockholder Board Member
resigns from Acquiror's Board of Directors within six (6) months of the
Effective Time and (ii) at the time of such resignation, the Stockholder's
Voting Percentage is not at least 5% or higher, then for a period of one hundred
eighty (180) calendar days following the date of such resignation, Stockholder
shall not Transfer or in any other way reduce Stockholder's risk of ownership of
or investment in any shares of Acquiror Common Stock which Stockholder currently
owns or purchases or otherwise acquires after the date hereof, whether pursuant
to the Merger or otherwise (including any securities which may be paid as a
dividend or otherwise distributed thereon or with respect thereto or issued or
delivered in exchange or substitution therefor) (all such securities being
referred to herein collectively as "Restricted Acquiror Securities"), or any
option, right or other interest with respect to any Restricted Acquiror
Securities; provided, however, that nothing herein shall restrict Stockholder's
ability to exercise options to acquire shares of Acquiror Common Stock (it being
understood, however, that any shares of Acquiror Common Stock issued to
Stockholder upon exercise of such options shall become "Restricted Acquiror
Securities" that are subject to the prohibitions described in this Section 5).
Stockholder also understands and agrees that stop transfer instructions may be
given to Acquiror's transfer agent with respect to certificates evidencing the
Restricted Acquiror Securities to enforce Stockholder's compliance with this
Section 5.
Section 6. Representations And Warranties Of Stockholder
Stockholder hereby represents and warrants to Acquiror as follows:
6.1 Authorization, etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform Stockholder's obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with their terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
6.2 No Conflicts or Consents. The execution and delivery of this Voting
Agreement and the Proxy by Stockholder do not, and the performance of this
Voting Agreement and the Proxy by Stockholder will not: (i) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which he or any of his properties is or may be bound or
affected; or (ii) result in or constitute (with or without notice or lapse of
time) any breach of or default under, or give to any other Person (with or
without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to, any contract to which Stockholder is a party or by which
Stockholder or any of his affiliates or properties is or may be bound or
affected. The execution and delivery of this Voting Agreement and the Proxy by
Stockholder do not, and the performance of this Voting Agreement and the Proxy
by Stockholder will not, require any consent or approval of any Person. Any
proxies executed or delivered by Stockholder with respect to the Subject
Securities prior to execution and delivery of this Voting Agreement and the
Proxy are not irrevocable and, to the extent such proxies exist, are hereby
revoked.
6.3 Title to Securities. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Target Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Target Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of Target set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; (d) Stockholder has
the sole right to vote and dispose of the Subject Securities (free and clear of
any encumbrances or restrictions); and (e) Stockholder does not directly or
indirectly Own any shares of capital stock or other securities of Target, or any
option, warrant or other right to acquire (by purchase, conversion or otherwise)
any shares of capital stock or other securities of Target, other than the shares
and options, warrants and other rights set forth on the signature page hereof.
6.5 Certain Other Representations. Stockholder acknowledges and agrees
that none of Vertical Life Sciences, L.P., Vertical Fund Associates, L.P. and
ABS Capital Partners, L.P. are or will be, as of and after the Effective Time,
subject to any contractual lockup agreement with Acquiror in respect of the
Transfer of any shares of Acquiror Common Stock that are Owned by such person.
6.4 Accuracy of Representations. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
Section 7. Miscellaneous
7.1 Further Assurances. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as Acquiror
may request for the purpose of carrying out and furthering the intent of this
Voting Agreement.
7.2 Notices. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) when delivered by
hand, or (b) two business days after sent by courier or express delivery service
or by facsimile, to the address or facsimile telephone number set forth beneath
the name of such party below (or to such other address or facsimile telephone
number as such party shall have specified in a written notice given to the other
party):
if to Stockholder:
at the address set forth below Stockholder's signature on
the signature page hereof
if to Acquiror or Merger Sub:
Data Critical Corporation
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Attention: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
in each case with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
7.3 Severability. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
7.4 Entire Agreement. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
7.5 Assignment; Binding Effect. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Acquiror and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Notwithstanding any
other provisions set forth herein, the rights of Stockholder under Section 3.3.
of this Voting Agreement shall not be assigned or delegated by Stockholder and
any attempted or purported assignment or delegation of any of such rights shall
be null and void. Nothing in this Voting Agreement is intended to confer on any
Person (other than Acquiror and its successors and assigns) any rights or
remedies of any nature.
7.6 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance
with its specific terms or was otherwise breached. Stockholder agrees that, in
the event of any breach or threatened breach by Stockholder of any covenant or
obligation contained in this Voting Agreement or in the Proxy, Acquiror shall be
entitled (in addition to any other remedy that may be available to it, including
monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
Stockholder further agrees that neither Acquiror nor any other Person shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 7.6,
and Stockholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
7.7 Governing Law; Waiver of Jury Trial. This Voting Agreement and the
Proxy shall be construed in accordance with, and governed in all respects by,
the laws of the State of Delaware (without giving effect to principles of
conflicts of laws). STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
7.8 Counterparts. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
7.9 Captions. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
7.10 Waiver. No failure on the part of Acquiror to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Acquiror in exercising any power, right, privilege or remedy under this
Voting Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Acquiror shall not be deemed to have waived
any claim available to Acquiror arising out of this Voting Agreement, or any
power, right, privilege or remedy of Acquiror under this Voting Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of
Acquiror; and any such waiver shall not be applicable or have any effect except
in the specific instance in which it is given.
7.11 Construction.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
In Witness Whereof, Acquiror and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
Data Critical Corporation
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
Stockholder
By:
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Name:
Title:
Address: ___________________________
___________________________
___________________________
Facsimile: _________________________
Additional Securities
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Shares Held of Record Options and Other Rights Beneficially Owned
--------------------- ------------------------ ------------------
Common Stock _____________ Common Stock______________