EXHIBIT 2.2
SUPPORT AGREEMENT
SUPPORT AGREEMENT, dated as of October 5, 1997, between Guidant Corporation,
an Indiana corporation ("Guidant"), and the undersigned stockholders of
EndoVascular Technologies, Inc., a Delaware corporation ("EVT") (the
"Stockholders," each a "Stockholder").
WHEREAS, as of the date hereof, each of the Stockholders own (either
beneficially or of record) that amount of shares of common stock, par value
$0.00001 per share ("EVT Common Stock"), of EVT as set forth opposite such
Stockholder's name on Schedule A attached hereto (all such shares and any
shares hereafter acquired by the Stockholder prior to the termination of this
Agreement being referred to herein as the "Shares");
WHEREAS, concurrently herewith, Guidant, Ski Acquisition Corp. ("Merger
Sub") and EVT are entering into an Agreement and Plan of Merger (as such
Agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which, upon the terms and subject to the conditions thereof,
Merger Sub will be merged with and into EVT (the "Merger"), and the Surviving
Corporation (as defined in the Merger Agreement) will be a wholly owned
subsidiary of Guidant; and
WHEREAS, as a condition to the willingness of Guidant to enter into the
Merger Agreement, Guidant has requested that the Stockholders agree, and, in
order to induce Guidant to enter into the Merger Agreement, the Stockholders
have agreed, to grant Guidant proxies to vote such Stockholder's Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
1.1 Voting of Shares. Until the termination of this Agreement in accordance
with Section 4.13 hereof, each Stockholder hereby agrees as follows:
(a) The Stockholder shall, including by initiating a written consent
solicitation if requested by Guidant, vote (or cause to be voted) the
Shares in favor of the Merger, the approval and adoption of the Merger
Agreement and the approval of the other transactions contemplated by the
Merger Agreement, at any meeting of stockholders of EVT called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger and the Merger Agreement is
sought (the "Special Meeting").
(b) The Stockholder, and any beneficiary of a revocable trust for which
the Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit
or frustrate the Stockholder's right to vote the Shares on behalf of such
trust in accordance with this Agreement. Each such beneficiary hereby
acknowledges and agrees to be bound by the terms of this Agreement
applicable to it.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy. (a) The Stockholder
hereby irrevocably grants to, and appoints, Guidant and Xxxxx X. Xxxxxxxxx,
Xxxxxx X. Xxxxxxx and X.X. Xxxx, in their respective capacities as officers of
Guidant, and any individual who shall hereafter succeed to any such office of
Guidant, and each of them individually, the Stockholder's proxy and attorney-
in-fact (with full power of substitution), for and in the name, place and
stead of the Stockholder, to vote the Shares, or grant a consent or approval
in respect of the Shares, in favor of adoption of the Merger Agreement.
(b) The Stockholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that all such proxies are
hereby revoked. The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 1.2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully
do or cause to be done by virtue hereof. Such irrevocable proxy is executed
and intended to be irrevocable in accordance with the provisions of Section
212(e) of the Delaware General Corporation Law (the "DGCL").
1.3 Restrictions on Transfer and Conversion. (a) Until the close of business
on the date of the Special Meeting, the Stockholder will not (i) sell, assign,
transfer, pledge or otherwise dispose of any of its Shares, (ii) deposit its
Shares into a voting trust or enter into a voting agreement or arrangement
with respect to such Shares or grant any proxy with respect thereto, or (iii)
enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect acquisition or sale, assignment, transfer or
other disposition of any EVT Common Stock.
(b) If, at the time the Merger Agreement is submitted for approval to the
stockholders of EVT, the Stockholder is an "affiliate" of EVT for purposes
of Rule 145 under the Securities Act of 1933, as amended, or for purposes
of qualifying the Merger for pooling of interests accounting treatment
under Accounting Principles Board Opinion No. 16 and applicable Securities
and Exchange Commission ("SEC") rules and regulations, the Stockholder
shall deliver to Guidant on or prior to the Closing Date (as defined in the
Merger Agreement) a written agreement substantially in the form attached as
Exhibit A to the Merger Agreement.
(c) The Stockholder agrees to tender to Ski, within 10 business days
after the date hereof (or, in the event the Shares are acquired subsequent
to the date hereof within 10 business days after the date of such
acquisition), any and all certificates representing the Shares in order
that Ski may inscribe upon such certificates the legend in accordance with
Section 5.14 of the Merger Agreement, if such legend is required by law to
be placed upon such certificates.
ARTICLE 2
2.1 Authority. The Stockholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms. If the
Stockholder is a natural person and is married, and the Shares constitute
community property or otherwise require spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such spouse in
accordance with its terms. No trust of which the Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
2.2 The Shares. The Stockholder is the record and beneficial owner of or is
trustee of a trust that is the record holder of, and whose beneficiaries are
the beneficial owners of, and has good and marketable title to, the Shares,
free and clear of any Liens whatsoever. The Stockholder does not own, of
record or beneficially, any shares of capital stock of EVT other than as set
forth on Schedule A. The Stockholder has the sole right to vote the Shares,
and none of such Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Shares, except
as contemplated by this Agreement.
2.3 No Violation. Neither the execution and delivery by the Stockholder of
this Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby in accordance with the terms hereof, will: (i) conflict
with, or result in a breach of any provision of the Certificate of
Incorporation or Bylaws (or
other comparable organizational documents, if any) of the Stockholder; (ii)
violate, conflict with, result in a breach of any provision of, constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, any trust agreement, loan or credit agreement,
bond, note, mortgage, indenture, lease or other contract, agreement,
obligation, commitment, arrangement, understanding, instrument, permit,
concession, franchise, license, statute, law, ordinance, rule, regulation,
judgment, order, notice or decree, applicable to the Stockholder or to the
Stockholder's property or assets, including the Shares; (iii) other than the
expiration or termination of the waiting periods under the HSR Act (as defined
in the Merger Agreement) and informational filings with the SEC, require any
filing with, or permit, authorization, consent or approval of, any Federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental and regulatory authority or agency, domestic
or foreign, or (iv) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Stockholder or any of the Stockholder's
properties or assets, including the Shares.
ARTICLE 3
3.1 No Solicitation. Prior to the Effective Time (as defined in the Merger
Agreement), (a) the Stockholder shall not, and shall not permit any agents and
representatives (including, without limitation, any investment banker,
attorney or accountant retained by it) to, initiate, solicit or encourage,
directly or indirectly, any inquiries or the making or implementation of any
proposal or offer (including, without limitation, any proposal or offer to
EVT's shareholders) with respect to an Alternative Proposal (as defined in the
Merger Agreement) or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Alternative Proposal, or otherwise facilitate any effort or
attempt to make or implement an Alternative Proposal and (b) the Stockholder
will notify Guidant immediately in writing if any such inquiries or proposals
are received in writing by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued with,
it. Nothing in this section 3.1 shall preclude any Stockholder who is also a
director of EVT from taking any action solely in his capacity as a director of
EVT which is permitted by Section 5.1 of the Merger Agreement.
ARTICLE 4
4.1 Notices. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier
number specified below:
If to Guidant:
Guidant Corporation
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxxxx X. Xxxxxxxx, Esq.
If to the Stockholder, to the address indicated on Schedule A attached
hereto for each respective Stockholder.
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx., Esq.
Xxxxxx Xxxxxx, Esq.
4.2 Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including the Stockholder's
heirs, guardians, administrators or successors. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of EVT affecting the EVT Common Stock, or the
acquisition of additional shares of EVT Common Stock or other voting
securities of EVT by the Stockholder, the number of Shares listed herein shall
be adjusted appropriately and this Agreement and the obligations hereunder
shall attach to any additional shares of EVT Common Stock or other voting
securities of EVT issued to or acquired by the Stockholder.
4.3 Assignment; Binding Effect. 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. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
4.4 Entire Agreement. This Agreement constitutes the entire agreement of the
parties and supersedes all prior agreements and undertakings, both written and
oral, between the parties, or any of them, with respect to the subject matter
hereof.
4.5 Amendments. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
4.6 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
principles of conflicts of laws.
4.7 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
4.8 Voidability. If prior to the execution hereof, the Board of Directors of
EVT shall not have duly and validly authorized and approved by all necessary
corporate action, this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, so that by the execution and delivery hereof
Guidant would become, or could reasonably be expected to become an "interested
stockholder" with whom EVT would be prevented for any period pursuant to
Section 203 of the DGCL from engaging in any "business combination" (as such
terms are defined in Section 203 of the DGCL), then this Agreement shall be
void and unenforceable until such time as such authorization and approval
shall have been duly and validly obtained.
4.9 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby 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 to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
4.10 Public Announcements. Except as required by law, the Stockholder shall
not issue any press release or other public statement with respect to the
transactions contemplated by this Agreement and the Merger Agreement without
the prior written consent of Guidant.
4.11 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
4.12 Counterparts. This Agreement may be executed 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.
4.13 Termination. This Agreement shall terminate automatically immediately
following the earlier of (i) termination of the Merger Agreement and (ii) the
closing of the Merger.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Guidant Corporation
By: /s/ Xxx Xxxxxxx
----------------------------------
Name: X. Xxxxxx (Xxx) Xxxxxxx, III
Title: Vice President
Menlo Evergreen V, L.P.
Menlo Ventures IV, L.P.
By MV Management IV, L.P. General
Partner
By: /s/ X. XxXxxx Xxxxxxxxxx
----------------------------------
X. XxXxxx Xxxxxxxxxx,
General Partner
X. XxXxxx Xxxxxxxxxx
/s/ X. XxXxxx Xxxxxxxxxx
-------------------------------------
X. XxXxxx Xxxxxxxxxx
W. Xxxxx Xxxxxxxxxxx
/s/ W. Xxxxx Xxxxxxxxxx
-------------------------------------
W. Xxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
SCHEDULE A
SHAREHOLDER SHARES OWNED
----------- ------------
XxXxxx Xxxxxxxxxx........................................... 33,325
c/o Menlo Ventures
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Menlo Ventures and its affiliated entities.................. 2,107,921
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxx Xxxxxx............................................... 23,809
000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxx X. Xxxxx............................................... 26,190
0000 Xxxxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxxxx*.......................................... 49,613
* c/o EndoVascular Technologies, Inc.
0000 X'Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
