EXHIBIT 2
STOCKHOLDERS AGREEMENT
Dated as of May 13, 2002
By and Among
BOSTON SCIENTIFIC CORPORATION,
BROADWAY ACQUISITION CORP.,
and
THE STOCKHOLDERS NAMED HEREIN
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of May 13, 2002 (this "AGREEMENT"),
among Boston Scientific Corporation, a Delaware corporation ("PARENT"), Broadway
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("PURCHASER"), and each of the parties identified on SCHEDULE A hereto
(each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS"), as stockholders
of BEI Medical Services Company, Inc., 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 (A) all of the issued and outstanding
shares of common stock, par value $0.001 per share, of the Company ("COMMON
STOCK"), including the Rights, for $6.8426 per share of Common Stock (such
amount, or any greater amount per share of Common Stock paid pursuant to the
Offer, being the "COMMON PURCHASE PRICE"), and (B) all of the issued and
outstanding shares of Series A Convertible Preferred stock, par value $0.001 per
share, of the Company ("SERIES A STOCK"), for $13.6852 per share of Series A
Stock (such amount, or any greater amount per share of Common Stock paid
pursuant to the Offer, being the "PREFERRED PURCHASE PRICE"), and, together with
the Common Purchase Price, the "PURCHASE PRICE", as applicable); 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 and Series A Stock (together with any shares of
Common Stock and Series A Stock acquired after the date hereof, such
Stockholder's "SHARES") and options to purchase Common Stock (together with any
options to purchase Common Stock acquired after the date hereof, the "STOCK
OPTIONS" and, together with the Shares, the "OPTIONED SECURITIES") 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:
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 such Stockholder's Shares as set forth on SCHEDULE A, together with any
Shares subsequently acquired by such Stockholder 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 the 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, and in any action by consent or otherwise of the
stockholders of the Company, such Stockholder 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 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, any 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 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 HIS OR HER
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 any
Stockholder with respect thereto. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of any Stockholder and any
obligation of the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
SECTION 2.03. CONFLICTS. Without limiting the obligations of any
Stockholder hereunder in his capacity as a holder of Shares, in the case of any
Stockholder who is an officer or director of the Company, no provision of this
Agreement shall prevent or interfere with such Stockholder's performance of his
obligations, if any, solely in his capacity as an officer or director of the
Company, including, without limitation, the fulfillment of his fiduciary duties.
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 (i) the Common Stock held by such
Stockholder for an amount per share in cash equal to the Common Purchase Price,
(ii) the Series A Stock held by such Stockholder for an amount per share in cash
equal to the Preferred Purchase Price, and (iii) each option or warrant to
purchase Common Stock held by such Stockholder for an amount in cash equal to
the excess, if any, of (x) the Common Purchase Price over (y) the per share
exercise price of such option or warrant, multiplied by the number of shares of
Common Stock subject to such option or warrant immediately prior to the exercise
of the Option with respect to such option or warrant. 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, solely in connection with or at any time following Purchaser's
initial purchase of Shares pursuant to the Offer (the "CONSUMMATION 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
and a number of Shares are concurrently purchased in the Offer such that, after
giving effect to such exercises and purchases, the Purchaser or an affiliate
thereof would own Common Stock, Series A Stock and Stock Options constituting
not less than a majority of the then outstanding Common Stock (including,
without limitation, all Common Stock issuable upon the conversion of the Series
A Stock or upon the exercise or conversion of any options, warrants, rights or
other convertible securities), or such higher percentage of Common Stock as may
be required to approve the Merger pursuant to the Restated Certificate of
Incorporation of the Company or applicable law.
(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 the 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 every day except (x) Saturdays,
(y) Sundays or (z) any day on which banks are required or authorized by law or
executive order to be closed in Boston, Massachusetts.
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(c) To the extent that any Optioned Securities may not be assigned by
such Stockholder to Purchaser without exercising, exchanging or converting such
Optioned Security for or into Common Stock, each Stockholder agrees to exercise,
exchange or convert such Optioned Security for or into Common Stock prior to the
Closing.
(d) At the Closing, (i) each Stockholder whose Optioned Securities are
being purchased shall deliver to Purchaser (or its designee) such Stockholder's
Optioned Securities by delivery of a certificate or certificates evidencing such
Optioned Securities in the denominations designated by Purchaser, in its
Exercise Notice delivered pursuant to Section 3.02(b), 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 each such Stockholder the aggregate Purchase Price for such Stockholder's
Optioned Securities.
(e) 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 Optioned Securities 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 Optioned Securities pursuant to the exercise
of the Options; and
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Optioned Securities pursuant to the exercise
of the Options under the HSR Act shall have expired or been terminated.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants individually, and not
severally and jointly, to Parent and to Purchaser as follows:
SECTION 4.01. ORGANIZATION, AUTHORITY AND QUALIFICATION OF THE
STOCKHOLDERS. Such Stockholder has all legal capacity to enter into this
Agreement, to carry out his or her obligations hereunder and to consummate the
transactions contemplated hereby. 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 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) 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 (ii) 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 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.
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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 Optioned Securities set forth opposite such Stockholder's name on
SCHEDULE A hereto. Except as set forth on SCHEDULE A, such Optioned Securities
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 Optioned Securities 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 Optioned Securities 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 Optioned Securities free
and clear of any Liens, other than pursuant to this Agreement and any Liens
created by Parent or Purchaser.
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. 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 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
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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 Optioned Securities 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 STOCKHOLDERS
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 with respect to, any of such Stockholder's Optioned Securities (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.
SECTION 6.02. NO SOLICITATION OF TRANSACTIONS. Except to the limited
extent that members of the Board of Directors of the Company are permitted to
take certain actions under Section 7.05(c) of 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. Each 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.
Each 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 Optioned Securities and the nature of his or her commitments,
arrangements and understandings under this Agreement.
SECTION 6.05. CONVERSION OF SERIES A STOCK. Each Stockholder hereby (i)
elects and agrees to convert, pursuant to Section 4 of the Company's Certificate
of Designations, Preferences and Rights of Series A Convertible Preferred Stock
(the "Certificate of Designations"), all shares of Series A Stock beneficially
owned by the Stockholder into shares of Common Stock at the applicable Series A
Preferred Conversion Rate (as defined in the Certificate of Designations),
effective immediately prior to, and conditioned upon, the Consummation of the
Offer, and waives any rights to liquidation preferences that the Stockholder
would otherwise be entitled to in connection with the Offer or the Merger if the
Series A Stock was not converted into Common Stock in accordance with this
section, and (ii) to the extent that the Stockholders constitute holders of a
majority of the outstanding Series A Stock on an as-converted basis, elects to
cause all of the outstanding shares of Series A Stock to be converted into
shares of Common Stock at the applicable Series A Preferred Conversion Rate,
effective immediately prior to, and conditioned upon, the Consummation of the
Offer. Each Stockholder acknowledges that upon election by the holders of a
majority of the outstanding shares of Series A Stock to convert their shares of
Series A Stock into Common Stock as
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contemplated by this section, all outstanding shares of Series A Stock will
automatically convert into Common Stock in accordance with the automatic
conversion provisions of Section 4(q) of the Certificate of Designations. By
virtue of the Company being a signatory to this Agreement, the Stockholder's
election to convert as provided by this section shall serve as, and the Company
agrees that this section constitutes, effective notice to the Company of the
Stockholder's election to convert in accordance with the Certificate of
Designations. In connection with the Consummation of the Offer, the certificates
representing the Series A Stock held by the Stockholder shall be deemed to
represent the right to receive that number of shares of Common Stock into which
the number of shares of Series A Stock evidenced by the certificate was
converted at the applicable Series Preferred Conversion Rate, and in connection
with the Offer, the right to receive, upon consummation of the Offer and such
Stockholder's tender of the Series A Stock into the Offer, the Per Share Common
Amount (as defined in the Merger Agreement) for each share of Common Stock that
the Series A Stock certificate represents. The Company and the Stockholder agree
that the delivery of Series A Stock certificates to the Paying Agent (as defined
in the Merger Agreement) shall satisfy the requirements of Section 4(d) of the
Certificate of Designations with respect to the Stockholder's election to
convert the Series A Stock in accordance with this section.
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) 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.
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 BEI Medical Systems Company, Inc.
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Attn: President
if to Parent or Purchaser:
Boston Scientific Corporation
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Attn: General Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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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 Commonwealth of Massachusetts
applicable to contracts executed in and to be performed in that Commonwealth
(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 Massachusetts state
or federal court sitting in Suffolk County, Massachusetts. The parties hereto
hereby (a) submit to the exclusive jurisdiction of any state or federal court
sitting in the Suffolk County, Massachusetts 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 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.
-7-
SECTION 8.13. ADJUSTMENTS.
(a) In the event of (i) any increase or decrease or other
change in the Optioned Securities by reason of stock dividend, stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) a
Stockholder becomes the beneficial owner of any additional Optioned Securities
or other securities of the Company, then the terms of this Agreement, including
the term "SHARES" as defined herein, shall apply to the shares of capital stock
and other securities of the Company held by such Stockholder immediately
following the effectiveness of the events described in clause (i), or such
Stockholder becoming the beneficial owner thereof pursuant to clause (ii).
(b) Each Stockholder hereby agrees to promptly notify Parent
and Purchaser of the number of any new Optioned Securities acquired by such
Stockholder, if any, after the date hereof.
SECTION 8.14. FURTHER ASSURANCES. Each 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-8-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: /S/ ▇▇▇▇▇▇▇▇ ▇. BEST
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: Chief Financial Officer
BROADWAY ACQUISITION CORP.
By: /S/ ▇▇▇▇▇▇▇▇ ▇. BEST
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Best
Title: Chief Financial Officer
BEI MEDICAL SYSTEMS COMPANY, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
STOCKHOLDER SIGNATURE PAGES FOLLOW]
-9-
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
MEDCAPITAL LLC
By: /S/ JAN ROCK
------------------------------------------
Name: Jan Rock
Title: President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ C/F ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇. UTMA/MA
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Custodian
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ C/F ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
UTMA/MA
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Custodian
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
DELTA OPPORTUNITY FUND, LTD.
BY: ▇▇▇▇ & ALTSCHUL ADVISORS, LLC
By: /S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
DELTA OPPORTUNITY FUND, (INSTITUTIONAL) LLC
BY: ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ADVISORS, LLC
By: /S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
FUND B FOR BENEFIT OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1974 TRUST
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1974 TRUST
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trustee
FIRST CHICAGO EQUITY CORPORATION
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
CROSS CREEK PARTNERS XI, LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇▇ CAPITAL ADVISORS, LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
OVERBROOK FUND I, LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Member
ALTSCHUL INVESTMENT GROUP
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: General Partner
/S/ ▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
RADIUS VENTURE PARTNERS I, L.P.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Partner
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Partner
SCHEDULE A
SERIES A STOCK STOCK
NAME (AS CONVERTED) COMMON STOCK WARRANTS OPTIONS
First Chicago Equity Corporation and 533,336
affiliates:
Cross Creek Partners XI, LLC
▇▇▇▇▇▇▇ Capital Advisors, LLC
▇▇▇▇ & Altschul, LLC and affiliates: 133,334 71,190
Overbrook Fund I, LLC
Altschul Investment Group
▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇
Delta Opportunity Fund family: 266,668 325,377 187,521
Delta Opportunity Fund, Ltd.
Delta Opportunity Fund (Institutional), LLC
Delta Private Equity Fund, L.P.
MedCapital, LLC 266,666
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and affiliated trusts: 468,966 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ c/f ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇. UTMA/MA
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ c/f ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ UTMA/MA
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and affiliated trusts: 1,549,404
Fund B for Benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1974 Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1974 Trust
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 105,161 75,000
▇▇▇▇▇▇ ▇▇▇▇▇/ Radius Venture Partners I, L.P. 533,334 65,076 36,442 20,000
TOTAL 2,202,304 2,121,208 223,963 95,000