EXHIBIT 2.5
TENDER AND OPTION AGREEMENT
This TENDER AND OPTION AGREEMENT (the "Agreement") is entered into as
of November 22, 1995 by and among Xxxxxx Healthcare Corporation, a Delaware
corporation ("Parent"), Baxter CVG Services II, Inc., a Pennsylvania corporation
and a wholly owned subsidiary of Parent ("Purchaser"), and Xx. Xxxxxxx X.
Xxxxxxx, Xxx. Xxxxx X. Xxxxxxx and the Xxxxxxx Family Trust, of which Mr. and
Xxx. Xxxxxxx are co-settlors and co-trustees (the "Trust" and, together with Mr.
and Xxx. Xxxxxxx, the "Shareholders").
RECITALS
WHEREAS, concurrently herewith, Parent and Purchaser are entering into
an Agreement and Plan of Merger (the "Merger Agreement") with PSICOR, Inc., a
Pennsylvania corporation (the "Company"), pursuant to which Parent will acquire
the Company, on the terms and subject to the conditions set forth in the Merger
Agreement, by means of a tender offer by Purchaser (the "Offer") for all
outstanding shares of common stock, no par value, of the Company (the "Company
Common Stock"), at $17.50 per share, net to the seller in cash, followed by a
merger (the "Merger") of the Company into Purchaser (capitalized terms used
herein and not otherwise defined are used as defined in the Merger Agreement);
and
WHEREAS, as of the date hereof the Shareholders together beneficially
own directly or indirectly 1,931,426 shares of Company Common Stock (the
"Existing Shares" and, together with any After-Acquired Shares (as defined
below), the "Shares"), which Shares constitute approximately 45% of the issued
and outstanding shares of Company Common Stock; and
WHEREAS, as an inducement to Parent to acquire the Company, and as a
condition to Parent's willingness to enter into the Merger Agreement and
consummate the transactions contemplated thereby, Parent and Purchaser have
required that the Shareholders agree, and the Shareholders have agreed (i) to
grant Parent and Purchaser an irrevocable option to buy the Shares at $17.50
per share (the "Option"); (ii) to tender and, in the event such option is not
theretofore
exercised, sell the Shares in the Offer and vote their Shares in favor of the
Merger; and (iii) not to compete with Parent, Purchaser, the Company or the
Surviving Corporation to the extent set forth herein, in each case upon the
terms and subject to the conditions set forth herein; and
WHEREAS, the Board of Directors of the Company has approved this
Agreement, the Merger Agreement, the Offer, the Merger and the transactions
contemplated thereby.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and such other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. AGREEMENT TO TENDER; OPTION.
1.1 TENDER OF SHARES. The Shareholders hereby agree (a) to validly
tender (or cause the record owner of any Shares to tender) all Shares pursuant
to the Offer, not later than the fifth business day after commencement of the
Offer or, with respect to After-Acquired Shares, within one business day
following the acquisition thereof, (b) not to withdraw any Shares so tendered
without the prior written consent of Parent except as otherwise provided in
Section 1.1(c) and (c) to withdraw all Shares tendered in the Offer immediately
upon receipt of notice from Parent that it is exercising the Option in order
that Purchaser may acquire such Shares in accordance with Section 1.2(a) hereof.
The Shareholders hereby acknowledge and agree that Purchaser's obligation to
accept for payment and pay for the Shares in the Offer is subject to the terms
and conditions of the Offer.
1.2 OPTION.
(a) In order to induce Parent and Purchaser to enter into the
Merger Agreement, each of the Shareholders hereby irrevocably grants to Parent
and Purchaser the Option exercisable in whole but not in part from and after the
date hereof, to purchase Shares at a purchase price of $17.50 per Share. The
Option shall terminate and shall no longer be exercisable, nor shall Shares
subject to the Option be purchasable hereunder at a Closing (as defined below)
notwithstanding any notice of exercise contemplated by Section 1.2(c) with
respect thereto, from and after the earlier of (i) termination of the Merger
Agreement pursuant to Sections 8.1(a), (c)(ii) or (c)(iii) thereof or (ii) May
21, 1996 .
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(b) The obligation of the Shareholders to sell Shares at Closing
is subject to the following conditions:
(i) neither Parent nor Purchaser shall be in
breach in any material respect of the Merger Agreement;
(ii) Parent shall have accepted Shares for
payment pursuant to the Offer, or the Offer shall have otherwise
expired or been terminated in accordance with its terms;
(iii) neither Parent nor Purchaser shall
have the right to terminate the Merger Agreement under
Sections 8.1(d)(i) or (iii) thereof;
(iv) all waiting periods under the HSR Act
and any securities laws applicable to the exercise of the
Option shall have expired or been terminated;
(v) there shall be no preliminary or
permanent injunction or other order, decree or ruling issued
by any Governmental Entity, nor any statute, rule,
regulation or order promulgated or enacted by any
Governmental Entity prohibiting, or otherwise restraining,
such exercise of the Option;
(vi) the conditions set forth in Section
7.1(a), (b) and (c) of the Merger Agreement shall have
theretofore been satisfied or are not impossible to satisfy
(other than due to a material breach of the Merger Agreement
by Parent or Purchaser); and
(vii) the Option shall be exercised on or
after January 3, 1996.
(c) In the event Parent or Purchaser wish to exercise the
Option, Parent shall deliver notice thereof to each of the Shareholders,
specifying the date, time and place for the closing of such purchase. A closing
of the purchase of Shares pursuant to the Option (a "Closing") shall take place
on the date, at the time and at the place specified in such notice; PROVIDED,
that if at such date any of the conditions specified in Section 1.2(b) hereof
shall not have been satisfied or waived, Parent may postpone such Closing until
a date within two
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business days after such conditions are satisfied or waived. At the Closing,
each of the Shareholders will deliver to Parent or Purchaser (in accordance with
Parent's instructions) the certificates representing the Shares being purchased
pursuant to Section 1.2, duly endorsed or accompanied by stock powers duly
executed in blank. At such Closing, Parent or Purchaser shall either (i) wire
transfer to the account designated by the Shareholders or (ii) deliver to each
Shareholder a certified or bank cashier's check payable to or upon the order of
such Shareholder, in each case in an amount equal to the number of Shares being
purchased from such Shareholder at such Closing multiplied by $17.50 in
immediately available funds.
1.3 ASSIGNMENT OF DIVIDENDS AND OTHER DISTRIBUTIONS. The
Shareholders hereby assign to Purchaser any and all dividends and other
distributions that may be declared, set aside or paid by the Company with
respect to the Shares during the term of this Agreement.
1.4 NO LIENS. The Shareholders agree that, in connection with the
transfer of Shares to Purchaser in the Offer or to Parent or Purchaser pursuant
to the Option, they shall transfer to and unconditionally vest in the Purchaser
or Parent, as the case may be, good and valid title to such Shares, free and
clear of all claims, liens, restrictions, security interests, pledges,
limitations and encumbrances whatsoever, except those arising hereunder.
1.5 NO PURCHASE. Purchaser may allow the Offer to expire without
accepting for payment or paying for any Shares, as set forth in the Offer to
purchase, and Parent and Purchaser may allow the Option to terminate without
purchasing all or any Shares pursuant to the exercise thereof. If any Shares
are not accepted for payment in accordance with the terms of the Offer or
purchased pursuant to the Option, they shall be returned to the respective
Shareholder, whereupon they shall continue to be held by such Shareholder
subject to the terms and conditions of this Agreement.
2. VOTING. Each Shareholder hereby agrees that (for so long as the
Merger Agreement is in effect), at any meeting of the holders of Company Common
Stock, however called, or in connection with any written consent of the holders
of Company Common Stock, it shall vote (or cause to be voted) the Shares (a) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; (b) against any action or
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agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement; and (c) except as otherwise agreed
to in writing in advance by Parent, against any of the following actions or
agreements (other than the Merger Agreement or the transactions contemplated
thereby): (i) any action or agreement that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone or attempt to discourage or
adversely affect the Merger, the Offer and the transactions contemplated by this
Agreement and the Merger Agreement; (ii) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company and its Subsidiaries; (iii) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (iv) any change in the management or Board of Directors of the
Company, except as provided in Section 1.3 of the Merger Agreement; (v) any
change in the present capitalization or dividend policy of the Company; (vi) any
amendment of the Company's articles of incorporation or bylaws; or (vii) any
other material change in the Company's corporate structure or business.
Notwithstanding anything to the contrary contained in this Agreement, Mr. and
Xxx. Xxxxxxx shall be free to act in their respective capacities as members of
the Board of Directors of the Company and to discharge their fiduciary duties as
such.
3. REPRESENTATION AND WARRANTIES. The Shareholders jointly and
severally represent and warrant to Parent and Purchaser as follows:
3.1 OWNERSHIP OF SHARES. On the date hereof, each Shareholder is the
record owner of the Existing Shares as set forth opposite each such
Shareholder's name on the signature page hereto and, on the date hereof, such
Existing Shares constitute all of the shares of Company Common Stock owned of
record and beneficially by each such Shareholder other than, with respect to Mr.
and Xxx. Xxxxxxx, the 4,971 and 1,763 shares of Company Common Stock
beneficially owned by each of them, respectively, that are allocated to each of
them under the Company's Employee Stock Ownership Plan. Each Shareholder has
sole voting power, sole power of disposition and sole power to agree to all of
the matters set forth in this Agreement with respect to all of the Existing
Shares, with no limitations, qualifications or restrictions on such rights, and
the Existing Shares are the only shares of Company Common Stock over which any
of the Shareholders has such powers or otherwise are owned of record or
beneficially by any of the Shareholders as of the date hereof.
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3.2 POWER; BINDING AGREEMENT. The Trust is a valid revocable trust
created under the laws of the State of California. Each Shareholder has
the legal capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Shareholders will not violate any other agreement to which
any of the Shareholders is a party, including without limitation any voting
agreement, shareholders agreement or voting trust. This Agreement has been duly
and validly executed and delivered by the Shareholders and constitutes a valid
and binding agreement of the Shareholders, enforceable against each of the
Shareholders in accordance with its terms, except that such enforceability may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights.
3.3 NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act, (a) no filing with, and no permit, authorization, consent or
approval of, any Federal, state or foreign public body or authority is necessary
for the execution of this Agreement by the Shareholders and the consummation by
the Shareholders of the transactions contemplated hereby and (b) neither the
execution and delivery of this Agreement by the Shareholders nor the
consummation by the Shareholders of the transactions contemplated hereby nor
compliance by the Shareholders with any of the provisions hereof shall (i)
conflict with or result in any breach of any applicable organizational documents
applicable to the Trust, (ii) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation to which any
Shareholder is a party or by which any Shareholder or any of its properties
or assets may be bound or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to any Shareholder or any of its
properties or assets.
3.4 ENCUMBRANCES. The Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholders, or by a nominee or custodian for the benefit of such Shareholders,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
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3.5 FINDER'S FEES. No investment banker, broker, financial advisor,
finder or other person is entitled to a commission or fee from Parent, Purchaser
or the Company in respect of this Agreement or the transactions contemplated
hereby based upon any arrangement or agreement made by or on behalf of any
Shareholder, except as otherwise specifically provided in the Merger Agreement
or arrangements or agreements made by or on behalf of Parent or Purchaser by its
authorized representatives.
3.6 RELIANCE BY PARENT. Each Shareholder understands and
acknowledges that Parent is entering into, and causing Purchaser to enter into,
the Merger Agreement in reliance upon the Shareholders' execution and delivery
of this Agreement and the representations, warranties and covenants of the
Shareholders set forth herein.
3.7 OWNERSHIP OF SHARES. All Shares owned beneficially of record by
each of the Shareholders were acquired at such a time and in such a manner as
set forth on the certificate attached hereto as Exhibit 3.7.
4. OTHER COVENANTS OF THE SHAREHOLDERS. The Shareholders hereby
jointly and severally covenant and agree as follows:
4.1 NO SOLICITATION. The Shareholders shall not (in the capacity of
a shareholder of the Company or otherwise, including without limitation in the
case of Mr. and Xxx. Xxxxxxx as an officer and/or director of the Company),
directly or indirectly solicit (including by way of furnishing information) or
respond to any inquiries or the making of any proposal by any person or entity
(other than Parent or any affiliate of Parent) concerning any Acquisition
Proposal, except as permitted by Section 6.1 of the Merger Agreement. If any
Shareholder receives any such inquiry or proposal with respect to the sale of
Shares, then the Shareholder shall promptly inform Parent in the same manner as
set forth in Section 6.1 of the Merger Agreement. The Shareholders shall
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
4.2 NON-COMPETITION; NONDISCLOSURE.
(a) In addition to being the controlling shareholders of the
Company, Xx. Xxxxxxx founded the Company in 1968 and is currently the Chief
Executive Officer, Chairman of the Board and President of the Company, and Xxx.
Xxxxxxx has been a director of the Company since 1982 and is the Vice
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President, Secretary and Assistant Treasurer. Accordingly, the Shareholders
recognize and expressly acknowledge that (i) Mr. and Xxx. Xxxxxxx have developed
a highly valuable expertise in the business of cardiovascular perfusion and
ancillary services, including without limitation delivery of perfusion services
and sales of supplies in connection therewith, which expertise is of a special,
unique and extraordinary character (as such perfusion and related business is
presently conducted by the Company and its Subsidiaries, the "Company
Business"); (ii) Parent and Purchaser and, after the consummation of the
transactions contemplated hereby and by the Merger Agreement, the Company and
the Surviving Corporation, would be irreparably damaged, and the substantial
investment by Parent and Purchaser in the business of the Company and the
Surviving Corporation materially and irreparably harmed and impaired, if the
Shareholders were to (x) engage in any activity competing with the Company
Business in violation of the terms of this Agreement or (y) disclose in
violation of this Agreement or make unauthorized use of any confidential
information concerning the Company Business; (iii) they are voluntarily entering
into this Agreement, including without limitation this Section 4.2, with the
intent that the covenants in this Section 4.2 shall be valid and enforceable;
and (iv) the terms and conditions of this Agreement and this Section 4.2 are
fair and reasonable to the Shareholders in all respects and will not create any
hardship for such Shareholders.
(b) In light of the foregoing, and for and in consideration of
benefits derived directly and indirectly from this Agreement, the Shareholders
jointly and severally covenant and agree as follows:
(i) for a period of three years from the date of the sale of the
Shares (the "Noncompete Term") no Shareholder will, alone or as a member,
employee or agent of any partnership or as an officer, agent, employee,
consultant, director, shareholder (except for passive investments of not more
than (x) two percent (2%) of the outstanding shares of, or any other equity
interest in, any company or entity (other than one listed or traded on a
national securities exchange or on an over-the-counter securities market) and
(y) five percent (5%) of the outstanding shares of, or any other equity interest
in, any company or entity listed or traded in a national securities exchange or
over-the-counter securities market) of any corporation or entity, directly or
indirectly manage, operate, join, control or participate in the management,
operation or control of, or work for (as an employee, consultant, independent
contractor or otherwise) or permit the use of its name by, or be connected in
any manner with any business or activity which is in competition with the
Company Business in any town, county, parish or other municipality in any state
of the United States in which the Company
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Business is presently conducted and in any town, county, parish or municipality
adjacent thereto;
(ii) during the Noncompete Term, the Shareholders shall not,
directly or indirectly, solicit, induce, or attempt to solicit or induce (x)
any employee of the Company or its Subsidiaries, affiliates, successors or
assigns to terminate his or her employment relationship with the Company or its
Subsidiaries, affiliates, successors or assigns for the purpose of associating
with any competitor of the Company or its Subsidiaries, affiliates, successors
or assigns; or (y) any customer, client, vendor, supplier or consultant then
under contract to the Company or its Subsidiaries, affiliates, successors or
assigns, to terminate his, her or its relationship with the Company or its
Subsidiaries, affiliates, successors or assigns, for the purpose of associating
with any competitor of the Company or its Subsidiaries, affiliates, successors
or assigns; and
(iii) unless otherwise required by any applicable law or rules
and regulations of any national exchange, not to disclose to any person any
trade secrets or confidential information with respect to any of the Company's
patents, trademarks, products, improvements, formulas, designs or styles,
processes, customers, methods of distribution or methods of manufacture;
PROVIDED, HOWEVER, that such trade secrets or confidential information shall not
include any information known generally to the public (other than as a result of
unauthorized disclosure by any Shareholder).
(c) The Shareholders recognize and acknowledge that the
expertise of Mr. and Xxx. Xxxxxxx is of a special, unique and extraordinary
character and that (i) in the event of any Shareholder's failure to comply with
any of the restrictions contained in this Section 4.2, it may be impossible to
measure in money the damage to Parent, Purchaser, the Company and the Surviving
Corporation and (ii) in the event of any such failure, such persons may not have
an adequate remedy at law. It is therefore agreed that Parent, Purchaser, the
Company and the Surviving Corporation, in addition to any other rights or
remedies which they may have, shall be entitled to immediate injunctive relief
to enforce such restrictions, and specific enforcement of the provisions of this
Section 4.2 in the event of any breach or threatened breach hereof.
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(d) The Shareholders further acknowledge and agree that these
covenants are reasonable and valid in geographic and temporal scope and in all
other respects and that if any court determines that any of these covenants, or
any part thereof, is invalid or unenforceable, the remainder of these covenants
shall not thereby be affected and shall be given full effect without regard to
the invalid portions. If any court determines that any of these covenants, or
any part thereof, is unenforceable because of the duration or scope of such
provision, such court shall have the power to reduce the duration or scope of
such provision, as the case may be, and, in its reduced form, such provision
shall then be enforceable.
(e) In the event that Xxxxxxx Holdings, Inc. ("Xxxxxxx
Holdings") acquires Psicor Office Laboratories, Inc. ("POL") then
notwithstanding anything to the contrary in Section 4.2(b)(i) hereof, neither
Mr. nor Xxx. Xxxxxxx shall be prohibited from directly or indirectly owning, or
participating in the conduct of the physician office laboratory services
business of POL, whether such business is conducted by Mr. and Xxx. Xxxxxxx
through POL or otherwise.
4.3 RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE; STOP
TRANSFER ORDER.
(a) Each Shareholder hereby agrees, while this Agreement is in
effect, and except as specifically contemplated hereby, not to (i) offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any of the Shares or any interest therein,
(ii) grant any proxies or powers of attorney, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares or (iii) take
any action that would make any representation or warranty of any Shareholders
contained herein untrue or incorrect or have the effect of preventing or
disabling any Shareholder from performing its obligations under this Agreement.
(b) In furtherance of the provisions of Section 4.3(a) hereof,
concurrently herewith the Shareholders shall and hereby do authorize the
Company's counsel to notify the Company's transfer agent that there is a stop
transfer order with respect to all of the Existing Shares and any additional
Shares of Common Stock acquired by any Shareholder after the date hereof (and
that this Agreement places limits on the voting and transfer of such shares).
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4.4 NOTICE OF ADDITIONAL SHARES. Each Shareholder hereby agrees to
promptly notify Parent in writing of the number of After-Acquired Shares that
may be acquired by such Shareholder, if any, after the date hereof.
4.5 PUBLIC DISCLOSURE. The Shareholders hereby agree that Parent and
Purchaser may publish and disclose in the Offer Documents and, if approval of
the Company's shareholders is required under applicable law, the Company Proxy
Statement (including all documents and schedules filed with the SEC) their
identity and ownership of Company Common Stock and the nature of their
commitments, arrangements and understandings under this Agreement.
4.6 NO INCONSISTENT AGREEMENTS. No Shareholder shall enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions of this Agreement.
4.7 FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
5. MISCELLANEOUS.
5.1 FEES AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in this Agreement shall survive the delivery of and
payment for the Shares.
5.3 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented in any and all respects by written agreement of the
parties hereto.
5.4 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that (i) Purchaser may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to
Parent, and (ii) Purchas-
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er or Parent may assign, in their sole discretion, any or all of their
respective rights, interests and obligations hereunder to Xxxxxx International
Inc., the owner of all of the outstanding shares of Parent, or to any direct or
indirect wholly owned subsidiary of Xxxxxx International Inc. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by, the parties and their respective successors and assigns.
5.5 SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
5.6 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given upon personal delivery, facsimile
transmission (which is confirmed), telex or delivery by an overnight express
courier service (delivery, postage or freight charges prepaid), or on the fourth
day following deposit in the United States mail (if sent by registered or
certified mail, return receipt requested, delivery, postage or freight charges
prepaid), addressed to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to a Shareholder:
c/o PSICOR, Inc.
00000 Xxx xxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
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and a copy to:
Xxxxx & XxXxxxxx
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
If to Parent or Purchaser, to:
00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
Vice President, Law
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
5.7 DEFINITIONS; INTERPRETATION.
(a) As used in this Agreement, (i) the term "After-Acquired
Shares" shall mean any shares of Company Common Stock acquired directly or
indirectly, or otherwise beneficially owned, by any of the Shareholders in any
capacity after the date hereof and prior to the termination hereof, whether upon
the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of a purchase, dividend,
distribution, gift, bequest, inheritance or as a successor in interest in any
capacity (including a fiduciary capacity) or otherwise; (ii) the term
"affiliate(s)" shall have the meaning set forth in Rule 12b-2 of the Exchange
Act and (ii) the phrases "beneficially own" or "beneficial ownership" with
respect to any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing (without duplicative counting of the same securities by the same
holder, securities beneficially owned
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by a person shall include securities beneficially owned by all other persons
with whom such Person would constitute a "group" within the meaning of Rule 13d-
5 of the Exchange Act).
(b) When a reference is made in this Agreement to a Section,
such reference shall be to a Section in this Agreement unless otherwise
indicated. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The descriptive headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5.9 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES, RIGHTS OF
OWNERSHIP. This Agreement (a) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, and (b) is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
5.10 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
5.11 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Pennsylvania without giving effect
to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, Parent, Purchaser and each of the Shareholders
have caused this Agreement to be duly executed as of the day and year first
above written.
XXXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Group President,
Cardiovascular Group
BAXTER CVG SERVICES II, INC.
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
Number of Existing Shares: 13,900 /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Number of Existing Shares: 0 /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Number of Existing Shares: 1,917,526 XXXXXXX FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Co-settlor and Co-trustee
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Co-settlor and Co-trustee
15
