SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of September 21, 2001 (this
"AGREEMENT"), by the undersigned shareholders (collectively, the
"SHAREHOLDERS") of Imatron, Inc., a New Jersey corporation (the "COMPANY"),
for the benefit of General Electric Company, a New York corporation
("PARENT").
RECITALS
A. Parent, Ruby Merger Corp., a New Jersey corporation and a direct
wholly owned subsidiary of Parent ("SUB"), and the Company are entering into
the Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), whereby, upon the terms and subject to the conditions set forth
in the Merger Agreement, each issued and outstanding share of Common Stock,
no par value per share, of the Company ("COMPANY COMMON STOCK"), not owned
directly or indirectly by Parent or the Company, will be converted into
shares of Common Stock, par value $.06 per share, of Parent ("PARENT COMMON
STOCK");
B. As of the date hereof, each Shareholder owns that number of shares of
Company Common Stock appearing opposite his name on SCHEDULE A (a number of
shares equal to 70% of (i) such shares of Company Common Stock, and (ii) any
other shares of capital stock of the Company acquired by such Shareholder
after the date hereof during the term of this Agreement, whether upon the
exercise of options or warrants or by means of purchase, dividend,
distribution or otherwise, being collectively referred to herein as the
"SUBJECT SHARES"); and
C. As a condition to its willingness to enter into the Merger Agreement,
Parent has required that the Shareholders agree, and in order to induce
Parent to enter into the Merger Agreement the Shareholders have agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. COVENANTS OF SHAREHOLDERS. Until the termination of this Agreement in
accordance with Section 8, the Shareholders agree as follows:
(a) The Shareholders shall attend the Shareholder Meeting, in
person or by proxy, and at the Shareholder Meeting (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
Shareholders shall vote (or cause to be voted) the Subject Shares in favor of
the Merger, the adoption of the Merger Agreement and the approval of the
terms thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Shareholders' vote, consent or other approval is sought, the Shareholders
shall vote (or cause to be voted) the Subject Shares against (i) 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 Subsidiary
or any Takeover Proposal or (ii) any amendment of the Company's Amended and
Restated Certificate of Incorporation, or By-laws or other proposal or
transaction involving the Company or any of its Subsidiaries, which amendment
or other proposal or transaction would in any manner impede, frustrate,
prevent or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any manner the
voting rights of any class of capital stock of the Company. The Shareholders
further agrees not to commit or agree to take any action inconsistent with
the foregoing.
(c) The Shareholders agree not to (i) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively,
"TRANSFER"), or enter into any contract, option or other arrangement
(including any profit-sharing arrangement) with respect to the Transfer of
the Subject Shares to any person or (ii) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in relation to the Subject
Shares, and agree not to commit or agree to take any of the foregoing actions.
(d) The Shareholders shall not, nor shall the Shareholders
authorize any investment banker, attorney or other advisor or representative
of the Shareholders to, directly or indirectly (i) solicit, initiate or
encourage the submission of, any Takeover Proposal or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to the Company or any Subsidiary in connection with,
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
Takeover Proposal.
(e) The Shareholders shall use the Shareholders' reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with Parent in doing, all things necessary,
proper or advisable to support and to consummate and make effective, in the
most expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement.
(f) The Shareholders agree to promptly notify Parent in writing of
the nature and amount of any acquisition by such Shareholder of any voting
securities of the Company acquired by such Shareholder hereafter.
(g) The Shareholders shall not knowingly take or fail to take any
action which would cause any of the representations and warranties set forth
in the Shareholder Tax Certificate attached hereto as SCHEDULE B to be untrue
or incorrect.
(h) The Shareholder hereby revokes any and all prior proxies or
powers of attorney in respect of any of Subject Shares and constitutes and
appoints Sub and Parent, or any nominee of Sub and Parent, or any of them,
with full power of substitution and resubstitution, at any time during the
term hereof, as its true and lawful attorney and proxy (its "Proxy"), for and
in its name, place and stead (i) to demand that the Secretary of the Company
call a special meeting of the shareholders of the Company for the purpose of
considering any matter referred to in Section 1(a) and 1(b) hereof, (ii) to
vote each of such Subject Shares as provided in Sections 1(a) and 1(b) as its
proxy at every annual, special, adjourned or postponed meeting of the
shareholders of the Company, including the right to sign its name (as
shareholder) to any
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consent, certificate or other document relating to the Company that New
Jersey Law may permit or require as provided in Sections 1(a) and 1(b) and
(iii) to approve any other motion or action in furtherance of the foregoing.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST THROUGHOUT THE TERM OF THIS AGREEMENT.
2. REPRESENTATIONS AND WARRANTIES. Each Shareholder represents and
warrants with respect to himself to Parent as follows:
(a) The Shareholder is the record and beneficial owner of, and has
good and marketable title to, the Subject Shares. The Shareholder does not
own, of record or beneficially, any shares of capital stock of the Company
other than the Subject Shares. The Shareholder has the sole right to vote,
and the sole power of disposition with respect to, the Subject Shares, and
none of the Subject Shares is subject to any voting trust, proxy or other
agreement, arrangement or restriction with respect to the voting or
disposition of such Subject Shares, except as contemplated by this Agreement.
(b) This Agreement has been duly executed and delivered by the
Shareholder. Assuming the due authorization, execution and delivery of this
Agreement by Parent, this Agreement constitutes the valid and binding
agreement of the Shareholder enforceable against the Shareholder in
accordance with its terms. The execution and delivery of this Agreement by
the Shareholder does not and will not conflict with any agreement, order or
other instrument binding upon the Shareholder, nor require any regulatory
filing or approval, other than pursuant to the HSR Act (as defined below).
(c) To the knowledge of the Shareholder, the representations set
forth in the Shareholder Tax Certificate attached hereto as Schedule B, if
made on the date hereof (assuming the Merger were consummated as of the date
hereof), would be true and correct.
3. THE OPTION; EXERCISE; ADJUSTMENTS. Each Shareholder hereby grants to
Parent an irrevocable option (the "OPTION") to purchase from time to time the
Subject Shares, upon the terms and subject to the conditions set forth herein
(the "OPTIONED SHARES"). Subject to the conditions set forth in Section 4,
the Option may be exercised by Parent in whole or from time to time in part,
at any time following the occurrence of a Triggering Event (as defined below)
and prior to the termination of the Option in accordance with Section 8. In
the event Parent wishes to exercise the Option, Parent shall send a written
notice to the applicable Shareholder (the "STOCK EXERCISE NOTICE") specifying
the total number of Optioned Shares it wishes to purchase and a date (not
later than 20 business days and not earlier than two business days from the
date such notice is given) for the closing of such purchase (the "CLOSING
DATE"). Parent may revoke an exercise of the Option at any time prior to the
Closing Date by written notice to the applicable Shareholder. In the event of
any change in the number of issued and outstanding shares of Subject Shares
by reason of any stock dividend, stock split, split-up, recapitalization,
merger or other change in the corporate or capital structure of the Company,
the number of Optioned Shares subject to the Option and the Exercise Price
(as hereinafter defined) per Optioned Share shall be appropriately adjusted.
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4. CONDITIONS TO EXERCISE OF OPTION AND DELIVERY OF OPTIONED SHARES.
(a) Parent's right to exercise the Option is subject to the
following conditions:
(i) Neither Parent nor Sub shall have breached any of its
material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States invalidating the grant or prohibiting the exercise of the Option or
the delivery of the Optioned Shares shall be in effect;
(iii) All waiting periods under the HSR Act (as defined
below) applicable to the exercise of the Option shall have expired or been
terminated; and
(iv) One or more of the following events shall have occurred
on or after the date hereof: (A) any person, corporation, partnership,
limited liability company or other entity or group (such person, corporation,
partnership, limited liability company or other entity or group, other than
Parent or an affiliate of Parent, being referred to hereinafter, singularly
or collectively, as a "PERSON"), acquires or becomes the beneficial owner of
20% or more of the outstanding shares of Company Common Stock; (B) any group
is formed which beneficially owns 20% or more of the outstanding shares of
Company Common Stock; (C) any Person shall have commenced a tender or
exchange offer for 20% or more of the then outstanding shares of Company
Common Stock or publicly proposed any bona fide merger, consolidation or
acquisition of all or substantially all the assets of the Company, or other
similar business combination involving the Company; (D) the Company enters
into, or announces that it proposes to enter into, an agreement, including,
without limitation, an agreement in principle, providing for a merger or
other business combination involving the Company or a "significant
subsidiary" (as defined in Rule 1.02(w) of Regulation S-X as promulgated by
the Securities and Exchange Commission (the "SEC")) of the Company or the
acquisition of a substantial interest in, or a substantial portion of the
assets, business or operations of, the Company or a significant subsidiary
(other than the transactions contemplated by the Merger Agreement); (E) any
Person is granted any option or right, conditional or otherwise, to acquire
or otherwise become the beneficial owner of shares of Company Common Stock
which, together with all shares of Company Common Stock beneficially owned by
such Person, results or would result in such Person being the beneficial
owner of 20% or more of the outstanding shares of Company Common Stock; or
(F) there is a public announcement with respect to a plan or intention by the
Company, other than Parent or its affiliates, to effect any of the foregoing
transactions. For purposes of this subparagraph (iii), the terms "group" and
"beneficial owner" shall be defined by reference to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the
rules and regulations promulgated thereunder.
(b) Parent's obligation to purchase the Optioned Shares following
the exercise of the Option, and the Company's obligation to deliver the
Optioned Shares, are subject to the conditions that:
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(i) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate
Rule 10b-18 promulgated under the Exchange Act; and
(iii) All applicable waiting periods under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), shall have expired or been terminated.
5. EXERCISE PRICE FOR OPTIONED SHARES. At any Closing Date, the
applicable Shareholder will deliver to Parent a certificate or certificates
representing the Optioned Shares in the denominations designated by Parent in
its Stock Exercise Notice and Parent will purchase the Optioned Shares from
such Shareholder at a price per Optioned Share equal to $1.89 (the "EXERCISE
PRICE"), payable in cash. Payment made by Parent to such Shareholder pursuant
to this Agreement shall be made by wire transfer of federal funds to a bank
designated by such Shareholder or a check payable in immediately available
funds. After payment of the Exercise Price for the Optioned Shares covered by
the Stock Exercise Notice, the Option shall be deemed exercised to the extent
of the Optioned Shares specified in the Stock Exercise Notice as of the date
such Stock Exercise Notice is given to such Shareholder.
6. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to the Company that (a) the execution and delivery of this Agreement
by Parent and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and this Agreement has been duly executed and delivered by Parent and
constitutes a valid and binding agreement of Parent; and (b) Parent is
acquiring the Option and, if and when it exercises the Option, will be
acquiring the Optioned Shares issuable upon the exercise thereof, for its own
account and not with a view to distribution or resale in any manner which
would be in violation of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and will not sell or otherwise dispose of the Optioned
Shares except pursuant to an effective registration statement under the
Securities Act or a valid exemption from registration under the Securities
Act.
7. THE CLOSING. Any closing hereunder shall take place on the Closing
Date specified by Parent in its Stock Exercise Notice pursuant to Section 3
at 10:00 A.M., local time, or the first business day thereafter on which all
of the conditions in Section 4 are met, at the principal executive office of
the Company, or at such other time and place as the parties hereto may agree.
8. TERMINATION. The obligations of the Shareholders hereunder shall
terminate upon the earlier to occur of (i) 60 days after the termination of
the Merger Agreement pursuant to Section 7.1 thereof and (ii) the Effective
Time; PROVIDED, HOWEVER, that if the Merger Agreement is terminated by the
Company pursuant to Section 7.1(b), (c) or (d) thereof (other than a
termination pursuant to Section 7.1(d)(i) following receipt of a Superior
Proposal) or if the Merger Agreement is terminated pursuant to Section 7.1(a)
thereof, then such obligations shall terminate upon the termination of the
Merger Agreement. No such termination of this
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Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
9. WAIVER OF REGISTRATION RIGHTS. The Shareholders hereby waive,
relinquish and forego any and all registration rights and or obligations of
the Company, Parent, the Surviving Corporation, or any of their respective
affiliates to register any equity securities of the Company or any equity
securities of Parent received in exchange for securities of the Company.
10. FURTHER ASSURANCES. The Shareholders 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.
11. SUCCESSORS, ASSIGNS AND TRANSFEREES BOUND. Any successor, assignee
or transferee (including a successor, assignee or transferee as a result of
the death of the Shareholder, such as an executor or heir) shall be bound by
the terms hereof, and the Shareholders shall take any and all actions
necessary to obtain the written confirmation from such successor, assignee or
transferee that it is bound by the terms hereof.
12. AFFILIATE LETTER; SHAREHOLDER TAX CERTIFICATE. The Shareholders
agree to execute and deliver on a timely basis, when and if requested by
Parent, (i) a written agreement in substantially the form of Exhibit E to the
Merger Agreement and (ii) the Shareholder Tax Certificate attached hereto as
SCHEDULE B.
13. REMEDIES. The Shareholders acknowledge that money damages would be
both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause Parent irreparable harm.
Accordingly, the Shareholders agree that in the event of any breach or
threatened breach of this Agreement, Parent, in addition to any other
remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief,
including injunctive relief and specific performance.
14. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction,
or the validity or enforceability of any provision of this Agreement in any
other jurisdiction.
15. AMENDMENT. This Agreement may be amended only by means of a written
instrument executed and delivered by both the Shareholders and Parent.
16. JURISDICTION. Each party hereby irrevocably submits to the exclusive
jurisdiction of the U.S. District Court for the Southern District of New York
in any action, suit or proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding shall be brought only in
such courts (and waives any objection based on FORUM NON CONVENIENS or any
other objection to venue therein). Each party hereto waives any right to a
trial by jury in connection with any such action, suit or proceeding.
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17. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
18. EXPENSES. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise specified in the Merger
Agreement.
19. NOTICE. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and
if served by personal delivery upon the party for whom it is intended or if
sent by telex or telecopier (and also confirmed in writing) to the person at
the address set forth below, or such other address as may be designated in
writing hereafter, in the same manner, by such person:
(a) if to Parent or Sub, to:
GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attn: General Counsel
with copies to:
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Vice President and Senior Counsel - Transactions
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx , Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
(b) if to the Company, to:
Imatron Inc.
000 Xxxxxx Xxxxx Xxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: S. Xxxxx Xxxxx
with a copy to:
Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
0
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Facsimile No.: 000-000-0000
20. CAPITALIZED TERMS. Capitalized terms used in this Agreement that are
not defined herein shall have such meanings as set forth in the Merger
Agreement.
21. COUNTERPARTS. For the convenience of the parties, this Agreement may
be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
22. NO LIMITATION ON ACTIONS OF THE SHAREHOLDERS AS DIRECTOR.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Shareholders to
take or in any way limit any action that the Shareholders may take to
discharge the Shareholders' fiduciary duties as a director of the Company,
including but not limited to the right to vote for or support a Superior
Proposal in accordance with the terms of the Merger Agreement.
23. WAIVER OF APPRAISAL RIGHTS. Each Shareholder hereby waives any
rights of appraisal or rights to dissent from the Merger.
24. STOP TRANSFER. The Shareholders shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Subject Shares, unless such
transfer is made in compliance with this Agreement.
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IN WITNESS WHEREOF, the Shareholders and Parent have caused this
Agreement to be duly executed and delivered on the day first above written.
GENERAL ELECTRIC COMPANY,
a New York corporation
By: /s/ J. Xxxxx Xxxxxx
-------------------
Name: J. Xxxxx Xxxxxx
Signature Page to Shareholder Agreement
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IN WITNESS WHEREOF, the Shareholders and Parent have caused this
Agreement to be duly executed and delivered on the day first above written.
SHAREHOLDER
/s/ Xxxxx Xxxx
---------------
Xxxxx Xxxx
Signature Page to Shareholder Agreement
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