Exhibit 10.1
FORM OF VOTING AGREEMENT
AGREEMENT, dated as of August 23, 1999 between General
Acquisition Corp., a Nevada corporation ("PARENT") and a wholly-owned subsidiary
of Tyco International Ltd., and _______________ ("SHAREHOLDER").
In order to induce Parent and General Sub Acquisition Corp., a
California corporation and a direct wholly-owned subsidiary of Parent ("MERGER
SUB") to enter into an Agreement and Plan of Merger, dated as of the date hereof
(the "MERGER AGREEMENT"), with General Surgical Innovations, Inc., a California
corporation (the "COMPANY"), Parent has requested Shareholder, and Shareholder
has agreed, to enter into this Agreement with respect to the shares of common
stock, par value $0.001 per share, of the Company ("COMMON STOCK") that
Shareholder beneficially owns and the shares of Common Stock that Shareholder
may beneficially own as a result of the exercise of Company Stock Options or
other rights, if any, as indicated on the signature page hereof (collectively,
the "SHARES").
Any capitalized term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. VOTING AGREEMENT. Shareholder hereby irrevocably
and unconditionally agrees to vote all Shares and all Acquired Shares (as
defined below) that Shareholder is entitled to vote at the time of any vote to
approve and adopt the Merger Agreement, the Merger and all agreements related to
the Merger and any actions related thereto at any meeting of the shareholders of
the Company, and at any adjournment thereof, at which such Merger Agreement and
other related agreements (or any amended version thereof), or such other
actions, are submitted for the consideration and vote of the shareholders of the
Company.
SECTION 1.02. IRREVOCABLE PROXY. Shareholder hereby revokes
any and all previous proxies granted with respect to the Shares. By entering
into this Agreement, Shareholder hereby grants a proxy appointing Parent as
Shareholder's attorney-in-fact and proxy, with full power of substitution, for
and in Shareholder's name, to vote, express, consent or dissent, or otherwise to
utilize such voting power in the manner contemplated by Section 1.01 above as
Parent or its proxy or substitute shall, in Parent's sole discretion, deem
proper with respect to the Shares. The proxy granted by Shareholder pursuant to
this Article 1
is irrevocable and is granted in consideration of Parent entering into this
Agreement and the Merger Agreement and incurring certain related fees and
expenses. The proxy granted by Shareholder shall be revoked upon termination of
this Agreement in accordance with its terms.
SECTION 1.03. ACQUISITION OF ADDITIONAL COMMON STOCK.
Shareholder agrees that any Common Stock that it acquires on or after the date
hereof (any such shares, "ACQUIRED SHARES"), including, without limitation, by
exercise of any option, warrant or right to acquire Common Stock, will be
subject to the terms of this Agreement. In furtherance of the foregoing,
Shareholder understands that, by its terms, the rights granted under the
irrevocable proxy pursuant to Section 1.02 to this Agreement shall be extended,
without any action by any party, to all Acquired Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Parent that:
SECTION 2.01. AUTHORIZATION. The execution, delivery and
performance by Shareholder of this Agreement and the consummation by Shareholder
of the transactions contemplated hereby are within the powers of Shareholder.
This Agreement constitutes a valid and binding Agreement of Shareholder. If
Shareholder is married and the Shares set forth on the signature page hereto
opposite such Shareholder's name constitute community property under applicable
laws, this Agreement has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, such Shareholder's spouse.
SECTION 2.02. NON-CONTRAVENTION. The execution, delivery and
performance by Shareholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not, (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (ii) require any
consent or other action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration or to a loss of
any benefit to which Shareholder is entitled under any provision of any
agreement or other instrument binding on Shareholder or (iii) result in the
imposition of any encumbrance on any asset of Shareholder.
SECTION 2.03. OWNERSHIP OF SHARES. Shareholder is the record
and beneficial owner of the Shares, free and clear of any encumbrance and any
other limitation or restriction (including any restriction on the right to vote
or otherwise dispose of the Shares). None of the Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares.
2
SECTION 2.04. TOTAL SHARES. Except for the Shares, Shareholder
does not beneficially own any (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or exchangeable
for shares of capital stock or voting securities of the Company or (iii) options
or other rights to acquire from the Company any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of the Company.
SECTION 2.05. FINDER'S FEES. No investment banker, broker,
finder or other intermediary is entitled to a fee or commission from Parent or
the Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Shareholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Shareholder:
SECTION 3.01. CORPORATE AUTHORIZATION. The execution, delivery
and performance by Parent of this Agreement and the consummation by Parent of
the transactions contemplated hereby are within the corporate powers of Parent
and have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of Parent.
ARTICLE 4
COVENANTS OF SHAREHOLDER
Shareholder hereby covenants and agrees that:
SECTION 4.01. NO PROXIES FOR OR ENCUMBRANCES ON SHARES. Except
pursuant to the terms of this Agreement, Shareholder shall not, without the
prior written consent of Parent, directly or indirectly, (i) grant any proxies
or enter into any voting trust or other agreement or arrangement with respect to
the voting of any Shares or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any shares of Common Stock during the term
of this Agreement. Shareholder shall not seek or solicit any such acquisition or
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify
Parent promptly, and to provide all details requested by Parent, if Shareholder
shall be approached or solicited, directly or indirectly, by any Person with
respect to any of the foregoing.
3
SECTION 4.02. NO SOLICITATION. (a) From the date hereof until
the termination hereof, Shareholder, in its capacity as a Shareholder, will not,
and will cause any investment bankers, attorneys, accountants, consultants and
other agents or advisors ("REPRESENTATIVES") of Shareholder not to, directly or
indirectly, (i) take any action to solicit, initiate, facilitate or encourage
the submission of any Acquisition Proposal, (ii) engage in any discussions or
negotiations with, or disclose any nonpublic information relating to the Company
or any of its subsidiaries or afford access to the properties, books or records
of the Company or any of its subsidiaries to, any Person who may be considering
making, or has made, an Acquisition Proposal or (iii) grant any waiver or
release under any standstill or similar agreement to which Shareholder is a
party with respect to any class of equity securities of the Company; PROVIDED,
that notwithstanding any other provision of this Agreement, Shareholder may take
any action in its capacity as a director of the Company that the Board of
Directors would be permitted to take in accordance with the terms and conditions
of the Merger Agreement.
(b) Shareholder will notify Parent promptly (but in no event
later than 24 hours) upon obtaining any knowledge of any Acquisition Proposal,
any indication that a Person is considering making an Acquisition Proposal or of
any request for nonpublic information relating to the Company or any of its
subsidiaries or for access to the properties, books or records of the Company or
any of its subsidiaries by any Person who may be considering making, or has
made, an Acquisition Proposal. Shareholder shall provide such notice orally and
in writing and shall identify the material terms and conditions of any such
Acquisition Proposal, indication or request. Shareholder shall keep Parent fully
informed, on a current basis, of the status and material terms of any such
Acquisition Proposal, indication or request. Shareholder shall, and shall cause
its Representatives to, cease immediately and cause to be terminated all
activities, discussions or negotiations, if any, with any Persons conducted
prior to the date hereof with respect to any Acquisition Proposal.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. FURTHER ASSURANCES. Parent and Shareholder will
each execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Agreement.
SECTION 5.02. AMENDMENTS; TERMINATION. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement or in the case of a
4
waiver, by the party against whom the waiver is to be effective. This Agreement
shall terminate upon the termination of the Merger Agreement in accordance with
its terms.
SECTION 5.03. EXPENSES. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.04. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; PROVIDED that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto, except that Parent
may transfer or assign its rights and obligations to Guarantor or any
wholly-owned subsidiary of Guarantor.
SECTION 5.05. GOVERNING LAW. This Agreement shall construed in
accordance with and governed by the laws of the State of New York.
SECTION 5.06. COUNTERPARTS; EFFECTIVENESS. This Agreement may
be signed in counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
SECTION 5.07. SEVERABILITY. If any term, provision or covenant
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions and covenants of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
SECTION 5.08. SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
is 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 to which they are entitled at law or in equity.
5
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
GENERAL ACQUISITION CORP.
By:
--------------------------------
Name:
Title:
-----------------------------------
[SHAREHOLDER]
Number of Shares
-----------------------
Number of Shares
issuable upon
exercise of Company
Stock Options or
other rights
-----------------------
Address of Shareholder
for notices:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
6
