EXHIBIT 10.2
EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of May 21,
1997, among XXXXXXX & XXXXXXX, a New Jersey
corporation ("Parent"), and the individuals
and other parties listed on Schedule A
attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS Parent, Palisades Merger Corp., a Delaware corporation
and a wholly owned subsidiary of Parent ("Sub"), and Biopsys Medical, Inc.,
a Delaware corporation (the "Company"), propose to enter into an Agreement
and Plan of Merger dated as of the date hereof (as the same may be amended
or supplemented, the "Merger Agreement"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement)
providing for the merger of Sub with and into the Company (the "Merger"),
upon the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS each Stockholder owns the number of shares of common
stock, par value $.001 per share, of the Company, including the associated
rights (the "Rights") to purchase the Company's Series A Participating
Preferred Stock, par value $.001 per share (such common stock, together
with the Rights, the "Common Stock"), set forth opposite his or its name on
Schedule A attached hereto (such shares of Common Stock, together with any
other shares of capital stock of the Company acquired by such Stockholder
after the date hereof and during the term of this Agreement (including
through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the "Subject
Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that each Stockholder enter into
this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in
consideration of its entering into, the Merger
Agreement, and in consideration of the promises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. Representations and Warranties of each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Parent as of the date hereof in respect of himself or itself as follows:
(a) 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. Except for the expiration or termination of the waiting periods
under the HSR Act and informational filings with the SEC, the execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, (i)
conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of the articles of
incorporation or by-laws (if any) of the Stockholder, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or to the Stockholder's property or assets,
(ii) 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 or regulatory
authority or agency, domestic, foreign or supranational or (iii) 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 Subject Shares. If the Stockholder is a natural person and is
married, and the Stockholder's Subject Shares constitute community property
or otherwise need 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 such 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.
(b) The Subject 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, or is the beneficial
owner of, and is the owner of a sole proprietorship that is the record
holder of, and has good and valid title to, the Subject Shares set forth
opposite his or its name on Schedule A attached hereto, free and clear of
any Liens whatsoever. The Stockholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the
Subject Shares set forth opposite his or its name on Schedule A attached
hereto. The Stockholder has the sole right to vote such Subject Shares, and
none of such Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of such
Subject Shares, except as contemplated by this Agreement.
2. Representations and Warranties of Parent. Parent hereby
represents and warrants to each Stockholder that Parent has all requisite
corporate 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 Parent and constitutes a valid
and binding obligation of Parent enforceable against Parent in accordance
with its terms. Except for the expiration or termination of the waiting
periods under the HSR Act and informational filings with the SEC, the
execution and delivery of this Agreement do not, and the consummation of
the transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, the
articles of incorporation or by-laws of Parent, any trust agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Parent or to Parent's property or assets.
3. Covenants of each Stockholder. Until the termination of this
Agreement in accordance with Section 8, each Stockholder, severally and not
jointly, agrees as follows:
(a) At any meeting of stockholders of the Company 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
with respect to the Merger and the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject
Shares (and each class thereof) in favor of the Merger, the adoption by the
Company of the Merger Agreement and the approval of the terms thereof and
each of the other transactions contemplated by the Merger Agreement.
(b) The Stockholder shall not, except as contemplated by this
Agreement, directly or indirectly, grant any proxies or powers of attorney
with respect to the Subject Shares, deposit the Subject Shares into a
voting trust or enter into a voting agreement with respect to the Subject
Shares.
(c) Subject to the terms of Section 12, during the term of this
Agreement, the Stockholder shall not, nor shall it permit any director,
officer, partner, employee or agent or any investment banker, attorney or
other adviser or representative of the Stockholder to, directly or
indirectly, (i) solicit, initiate or encourage the submission of, any
merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of
or by the Company or any other Takeover Proposal as such term is defined in
Section 4.02(a) of the Merger Agreement (a "Competing Proposal") or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Competing Proposal. Without
limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by an investment banker or
attorney retained by, or other adviser or representative of, such
Stockholder, whether or not such person is purporting to act on behalf of
such Stockholder, shall be deemed to be a violation of this Section 3(c) by
such Stockholder.
(d) Subject to the terms of Section 12, until after the Merger is
consummated or the Merger Agreement is terminated, the Stockholder shall
use all reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Merger
and the other transactions contemplated by the Merger Agreement; provided,
however, that nothing in this paragraph 3(d) shall limit or affect any
actions taken by a Stockholder in good faith in his or her capacity as an
officer or director of the Company.
(e) If, at the time the Merger Agreement is submitted for
approval to the stockholders of the Company, a Stockholder is an
"affiliate" of the Company for purposes of Rule 145 under the Securities
Act or for purposes of qualifying the Merger for pooling of interests
accounting treatment under Opinion 16 of the Accounting Principles Board
and applicable SEC rules and regulations, such Stockholder shall deliver to
Parent on or prior to the Closing Date a written agreement substantially in
the form attached as Exhibit A to the Merger Agreement.
(f) The Stockholder, and any beneficiary of a revocable trust for
which such 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 in any way the transactions contemplated by
this Agreement. Each such beneficiary hereby acknowledges and agrees to be
bound by the terms of this Agreement applicable to it.
4. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each
Stockholder hereby irrevocably grants to, and appoints, Parent and Xxxxx X.
Xxxxxxxx and Xxxxxxx X. Xxxxxxx, in their respective capacities as officers
of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, such Stockholder's proxy
and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of such Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject
Shares, in favor of adoption of the Merger Agreement.
(b) Such Stockholder represents that any proxies heretofore given
in respect of such Stockholder's Subject Shares are not irrevocable, and
that all such proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 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. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Such
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").
5. Further Assurances. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional
or further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
6. Certain Events. (a) Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise, including such 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 the Company affecting the Common Stock, or the
acquisition of additional shares of Common Stock or other voting securities
of the Company by any Stockholder, the number of Subject Shares listed in
Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to any additional shares of Common Stock or other voting securities of the
Company issued to or acquired by such Stockholder.
(b) Each Stockholder agrees that such Stockholder will tender to
the Company, within 10 business days after the date hereof (or, in the
event Subject Shares are acquired subsequent to the date hereof within 10
business days after the date of such acquisition), any and all certificates
representing such Stockholder's Subject Shares in order that the Company
may inscribe upon such certificates the legend in accordance with Section
5.13 of the Merger Agreement.
7. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Stockholder, on
the one hand, without the prior written consent of Parent nor by Parent, on
the other hand, without the prior written consent of the Stockholders,
except that Parent may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent. 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.
8. Termination. This Agreement shall terminate on the earlier of
(i) the Effective Time or (ii) the date
upon which the Merger Agreement is terminated in accordance with its terms.
9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance
with Section 8.02 of the Merger Agreement and to the Stockholders at their
respective addresses set forth on Schedule A attached hereto (or at such
other address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. 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. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
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 (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
(g) Voidability. If prior to the execution hereof, the Board of
Directors of the Company 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 Parent or Sub would become, or could
reasonably be expected to become an "interested stockholder" with whom the
Company 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.
10. 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 located in the State of Delaware or in a
Delaware state court, 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 (i) consents to submit such party to the personal jurisdiction of
any court of the United States located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (iii) agrees that such
party will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than a court of the
United States located in the State of Delaware or a Delaware state court.
11. Public Announcements. No Stockholder shall 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 Parent.
12. Stockholder Capacity. No person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in his or her capacity as such
director or officer. Without limiting the generality of the foregoing, each
Stockholder signs solely in his or her
capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, or as the
beneficial owner of, and as the owner of a sole proprietorship that is the
record holder of, such Stockholder's Subject Shares and nothing herein
shall limit or affect any actions taken by a Stockholder in his or her
capacity as an officer or director of the Company in exercising its rights
under the Merger Agreement.
13. 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. 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.
IN WITNESS WHEREOF, Parent has caused this Agreement to be signed
by its officer thereunto duly authorized and each Stockholder has signed
this Agreement, all as of the date first written above.
XXXXXXX & XXXXXXX,
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
STOCKHOLDERS:
BRENTWOOD ASSOCIATES VI, L.P.
By: /s/ Brentwood VI Ventures, L.P.
its General Partner
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: General Partner
/s/ X. X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
ST. XXXX FIRE AND MARINE INSURANCE CO.
By: /s/ Xxxxxxx X. Hoof
----------------------------------
Name: Xxxxxxx X. Hoof
Title: Vice President
THREE ARCH PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
THREE ARCH ASSOCIATES, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, M.D., as Trustee of
the Xxxxxxx Family Revocable Trust dated
9/14/71, as amended and restated 2/14/91
XXXXXXX ENGINEERING
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxx
-----------------------------------------
Xxxxxx X. Xxx, as Trustee of the Gex
Family Trust U/D/T dated June 26, 1992
and as custodian for his minor children
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx, M.D., individually and as
custodian for his minor children
SCHEDULE A
Name and Number of Shares
Address of of Common Stock
Stockholder Owned of Record
------------ ----------------
Brentwood Associates VI, L.P. 640,450
Xxxxx X. Xxxxxxxx 36,799
c/o Brentwood Associates
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
St. Xxxx Fire and Marine Insurance Company 1,136,136
c/o St. Xxxx Venture Capital, Inc.
0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Three Arch Partners, L.P. 290,943
Three Arch Associates, L.P. 65,453
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxx, M.D., 456,263
as Trustee of the Fogarty
Family Revocable Trust
Fogarty Engineering 228,967
0000 Xxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Xxxxxx X. Xxx, 195,166
as Trustee of the Gex Family
Trust U/D/T dated June 26, 1992 and as
custodian for his minor children
c/o Biopsys Medical, Inc.
3 Morgan
Xxxxxx, XX 00000
Xxxxx Xxxxxx, M.D. 226,937
individually and as custodian -------
for his minor children
c/o Radiology Imaging Associates, Inc.
0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
TOTAL 3,277,114
