Exhibit 2.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of July 19, 2001 (this "Agreement"),
by the undersigned stockholder (the "Stockholder") of Data Critical Corporation,
a Delaware corporation (the "Company"), for the benefit of General Electric
Company, a New York corporation ("Parent").
RECITALS
WHEREAS, Parent, Ether Merger Corp., a Delaware 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 July 19, 2001 (the "Merger
Agreement"), which provides for the merger of Sub with and into the Company;
WHEREAS, the Stockholder owns that number of shares of common stock,
par value $.001 per share, of the Company ("Company Common Stock"), appearing on
the signature page hereof (such shares of Company 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, 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 required that the Stockholder agree, and in order to
induce Parent to enter into the Merger Agreement the Stockholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Stockholder agrees as follows:
1. Covenants of Stockholder. Until the termination of this Agreement
in accordance with Section 3:
(a) The Stockholder shall attend the Stockholder Meeting, in person
or by proxy, and at the Stockholder 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
Stockholder 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 stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the Stockholder
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 of its Subsidiaries or any other Takeover Proposal or (ii)
any amendment of the Company's
Certificate of Incorporation, as amended, or Amended and Restated Bylaws 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 Stockholder further agrees not to commit or agree
to take any action inconsistent with the foregoing.
(c) The Stockholder agrees 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
agrees not to commit or agree to take any of the foregoing actions.
(d) The Stockholder shall not, nor shall the Stockholder authorize
any investment banker, attorney or other advisor or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) directly or indirectly
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 Stockholder shall use the Stockholder's 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 Stockholder agrees to promptly notify Parent in writing of
the nature and amount of any acquisition by such Stockholder of any voting
securities of the Company acquired by such Stockholder hereafter.
2. Representations and Warranties. The Stockholder represents and
warrants to Parent as follows:
(a) The Stockholder is the record and beneficial owner of, and has
good and marketable title to, the Subject Shares. The Stockholder does not
own, of record or beneficially, any shares of capital stock of the Company
other than the Subject Shares. The Stockholder 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 and except for Subject Shares that are subject to the Stockholder
Stock Options.
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(b) This Agreement has been duly executed and delivered by the
Stockholder. Assuming the due authorization, execution and delivery of this
Agreement by Parent, this Agreement constitutes the valid and binding
agreement of the Stockholder enforceable against the Stockholder in
accordance with its terms. The execution and delivery of this Agreement by
the Stockholder does not and will not conflict with any agreement, order or
other instrument binding upon the Stockholder, nor require any regulatory
filing or approval.
3. Termination. The obligations of the Stockholder hereunder shall
terminate upon the earlier to occur of (i) six months 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.
4. Further Assurances. The 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.
5. Successors, Assigns and Transferees Bound. Any successor,
assignee or transferee (including a successor, assignee or transferee as a
result of the death of the Stockholder, such as an executor or heir) shall be
bound by the terms hereof, and the Stockholder 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.
6. Remedies. The Stockholder acknowledges 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 Stockholder agrees 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.
7. 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.
8. Amendment. This Agreement may be amended only by means of a
written instrument executed and delivered by both the Stockholder and Parent.
9. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for either the
District of Connecticut or the Eastern District of Wisconsin 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
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therein). Each party hereto waives any right to a trial by jury in connection
with any such action, suit or proceeding.
10. Governing Law. Except to the extent that the laws of the State
of Delaware are mandatorily applicable to the Merger, 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.
11. 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, to:
If to Parent, to:
General Electric Company
x/x XX Xxxxxxx Xxxxxxx
X.X. Xxx 000, X-000
Milwaukee, Wisconsin 53201
Attention: General Counsel
Facsimile No.: 000-000-0000
for overnight courier deliveries, to:
General Electric Company
c/o GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
with copies to:
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Vice President and Senior
Counsel - Transactions
Facsimile No.: 000-000-0000
and
Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
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(b) if to the Stockholder to:
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Attention:
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Facsimile No.:
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with a copy to:
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Attention:
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Facsimile No.:
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12. Capitalized Terms. Capitalized terms used in this Agreement that
are not defined herein shall have such meanings as set forth in the Merger
Agreement.
13. 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.
14. No Limitation on Actions of the Stockholder as Director.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Stockholder to take
or in any way limit any action that the Stockholder may take to discharge the
Stockholder's 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
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Name:
Number of shares of Company Common Stock
owned on the date hereof:
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Accepted and Agreed to
as of the date set forth above:
GENERAL ELECTRIC COMPANY
By:
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Name:
Title:
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