AGREEMENT TO FACILITATE MERGER
DATE: August 26, 1999
PARTIES:
Medtronic, Inc., (hereinafter "Parent")
a Minnesota corporation
and
----------------------------,
an individual officer and/or director
of Xomed Surgical Products, Inc. (hereinafter "Security Holder")
RECITALS:
A. Security Holder is the legal or beneficial owner of shares of Common
Stock of Xomed Surgical Products, Inc., a Delaware corporation (the "Company"),
and/or the holder of options, warrants, or other rights to acquire shares of
Company Common Stock.
B. Parent, the Company, and a wholly-owned subsidiary of Parent are
entering, or have entered, into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which it is proposed that Parent's subsidiary will merge
with and into the Company (the "Merger") and as a result of which the
outstanding shares of Company Common Stock shall be converted into Parent Common
Stock.
C. Security Holder deems it to be in Security Holder's best interest
and in the best interests of the Company and all other stockholders of the
Company that the Merger Agreement be approved, ratified, and confirmed by the
stockholders of the Company, and it is a condition to Parent's obligations under
the Merger Agreement that Security Holder enter into this Agreement.
D. It is understood and acknowledged by Security Holder that Parent's
execution of the Merger Agreement is being done in reliance, in part, upon the
contemporaneous execution and delivery of this Agreement, that Parent will incur
substantial expenses proceeding toward consummation of the Merger as
contemplated by the Merger Agreement, and that such expenses will be undertaken,
in part, in reliance upon and as a result of the agreements and undertakings of
Security Holder set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and in order to
induce Parent to execute the Merger Agreement and to proceed as contemplated by
the Merger Agreement toward the consummation of the Merger, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1
AGREEMENTS:
1. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating upon the earlier of (i) the effective time of the Merger,
and (ii) the termination of the Merger Agreement in accordance with its terms,
Security Holder agrees to vote (or cause to be voted) all shares of Company
Common Stock presently beneficially owned by Security Holder, and all shares of
Company Common Stock with respect to which Security Holder in the future
acquires beneficial ownership, at any meeting of the stockholders of the
Company, and in any action by written consent of the stockholders of the
Company, in favor of the approval, consent, and ratification of the Merger
Agreement and the Merger. To the extent inconsistent with the foregoing
provisions of this Section 1, Security Holder hereby revokes any and all
previous proxies with respect to any shares of Company Common Stock that
Security Holder owns or has the right to vote. Nothing in this Agreement shall
be deemed to restrict or limit Security Holder's right to act in his capacity as
an officer or director of the Company consistent with his fiduciary obligations
in such capacity.
2. Representations and Warranties of Security Holder. Security Holder
represents and warrants to Parent that Security Holder has the legal capacity to
enter into and perform all of Security Holder's obligations under this
Agreement. The execution, delivery, and performance of this Agreement by
Security Holder will not violate any other agreement to which Security Holder is
a party, including, without limitation, any voting agreement, stockholders
agreement, or voting trust. This Agreement has been duly executed and delivered
by Security Holder and constitutes a legal, valid, and binding agreement of
Security Holder, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws, now or hereafter in
effect.
3. Successors and Assigns. This Agreement shall be binding upon any
purchasers, donees, pledgees, and other transferees of Company Common stock
legally or beneficially owned by Security Holder. During the period commencing
on the date hereof and terminating upon the earlier of the effective time of the
Merger and the termination of the Merger Agreement in accordance with its terms,
Security Holder agrees not to make any sales, gifts, transfers, pledges, or
other dispositions of Company Common Stock without first making any such
transferee or pledgee fully aware of Security Holder's obligations under this
Agreement and obtaining such transferee's or pledgee's written agreement to
comply with all terms hereof.
4. Injunctive Relief. Security Holder agrees that in the event of
Security Holder's breach of any provision of this Agreement, Parent may be
without an adequate remedy at law. Security Holder therefore agrees that in the
event of Security Holder's breach of any provision of this Agreement, Parent may
elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining any such relief, Parent will not be precluded from seeking
or obtaining any other relief to which it may be entitled.
5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
2
6. Further Assurances. Security Holder shall execute and deliver such
additional documents and take such further action as may be necessary or
desirable to consummate the transactions contemplated by this Agreement.
7. Third-Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties hereto any
legal or equitable right, remedy, or claim under or by reason of this Agreement
or any provision contained herein.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota (regardless of the laws that
might otherwise govern under applicable Minnesota principles of conflicts of
laws).
9. Effectiveness. If this Agreement is executed by Security Holder
prior to the approval of the Merger Agreement by the Company's Board of
Directors, then this Agreement shall be subject to, and shall become effective
only upon, the approval of the Merger Agreement by the Company's Board of
Directors and the execution and delivery of the Merger Agreement by the Company,
Parent and Parent's subsidiary. This Agreement shall terminate upon termination
of the Merger Agreement in accordance with its terms.
IN WITNESS WHEREOF, Parent has caused this Agreement to Facilitate
Merger to be executed by its duly authorized officer, and Security Holder has
executed this Agreement, as of the date and year first above written.
Medtronic, Inc.
By:____________________________________
Its:________________________________
_______________________________________
[Signature]
_______________________________________
[Print Name]
3
