Exhibit 4.2
STOCKHOLDER SUPPORT AGREEMENT
BY AND AMONG
INTUITIVE SURGICAL, INC.,
IRON ACQUISITION CORPORATION
AND
CERTAIN STOCKHOLDERS OF INTUITIVE SURGICAL, INC.
DATED AS OF MARCH 7, 2003
STOCKHOLDER SUPPORT AGREEMENT, dated as of March 7, 2003 (this
"Agreement"), by and among Intuitive Surgical, Inc., a Delaware corporation
("Parent"), Iron Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the parties listed on Annex A
hereto (each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Merger Sub and Computer Motion, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement") (with all capitalized terms used but not defined herein having the
meanings set forth in the Merger Agreement), pursuant to which Merger Sub will
merge with and into the Company, with the Company continuing as the surviving
corporation and a wholly owned subsidiary of Parent (the "Merger"), which Merger
Agreement has been approved by the Boards of Directors of the Company, Merger
Sub and Parent;
WHEREAS, in accordance with the Merger Agreement, Parent will issue
shares (the "Share Issuance") of common stock, par value $0.001 per share
("Parent Common Stock"), as consideration for the acquisition by Parent of all
outstanding equity interests of the Company (the "Merger Consideration");
WHEREAS, each Stockholder owns the number of shares of Parent Common
Stock set forth opposite its name on Annex A hereto (such shares of Parent
Common Stock, together with any other shares of capital stock of Parent acquired
by such Stockholder after the date hereof and during the term of this Agreement,
including any shares issued upon the exercise of any warrants or options, the
conversion of any convertible securities or otherwise, being collectively
referred to herein as the "Subject Shares");
WHEREAS, as a condition to the willingness of the Company to enter
into the Merger Agreement, the Company has required that each Stockholder agree
and, in order to induce the Company to enter into the Merger Agreement, each
Stockholder has agreed, to enter into this Agreement; and
WHEREAS, this Agreement has been approved by the Board of Directors
of the Company for purposes of Section 203 of the General Corporation Law of the
State of Delaware (the "DGCL").
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NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE 1.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to Parent and Merger Sub as follows:
Section 1.1 Organization. Such Stockholder is either (a) a
corporation, partnership or limited liability company, duly organized, validly
existing and in good standing under the laws of the jurisdiction of such
Stockholder's organization, or (b) a natural person residing in the United
States.
Section 1.2 Authority. Such Stockholder has all necessary power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement to
be consummated by such Stockholder. The execution and delivery of this Agreement
by such Stockholder and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary action of such
Stockholder and no other proceedings on the part of such Stockholder are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly authorized and validly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
Section 1.3 The Subject Shares. Such Stockholder is the record and
beneficial owner of, and has good and marketable title to, the Subject Shares
set forth opposite its name on Annex A hereto. Such Stockholder does not own, of
record or beneficially, any shares of capital stock of Parent (or rights to
acquire any such shares) other than the Subject Shares set forth opposite its
name on Annex A hereto. Such Stockholder has (a) the sole right to vote, (b) the
sole power of disposition, (c) the sole power to issue instructions with respect
to the matters set forth in Articles 3, 4 and 5 hereof, (d) the sole power to
demand appraisal rights, if applicable, and (e) the sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
such Stockholder's Subject Shares, with no limitations, qualifications or
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restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. Except for this Agreement, none of such
Stockholder's Subject Shares are subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or disposition of such
Stockholder's Subject Shares. To such Stockholder's knowledge, all of its
Subject Shares are validly issued, fully paid and non-assessable.
Section 1.4 No Conflicts. The execution and delivery of this
Agreement by such Stockholder do not, and the performance of this Agreement by
such Stockholder will not, (a) conflict with or violate any provision of the
certificate or articles of incorporation or by-laws or any equivalent
organizational documents of such Stockholder, (b) conflict with or violate any
Law applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected, (c) require any consent or approval under,
result in any breach of, or loss of any benefit under, or constitute a change of
control or default (or any event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
vesting, amendment, acceleration or cancellation of, or result in the creation
of a lien or other encumbrance on any property or asset of such Stockholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit or other instrument or obligation. The execution and delivery of
this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity or other person.
Section 1.5 Brokers. No broker, finder or investment banker (other
than the Company Financial Advisor) is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger based upon arrangements
made by or on behalf of such Stockholder.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub, jointly and severally, hereby
represents and warrants to each Stockholder as follows:
Section 2.1 Organization. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
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Section 2.2 Authority. Each of Parent and Merger Sub has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated by this Agreement to be consummated by Parent and Merger Sub,
respectively. The execution and delivery of this Agreement by Parent and Merger
Sub and the consummation by Parent and Merger Sub of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of Parent and Merger Sub and no other corporate proceedings on
the part of Parent or Merger Sub are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby (other than the approval of
Parent, as sole stockholder of Merger Sub, to the Merger and the approval of the
stockholders of Parent to the Share Issuance). This Agreement has been duly
authorized and validly executed and delivered by Parent and Merger Sub and
constitutes a legal, valid and binding obligation of Parent and Merger Sub,
enforceable against Parent and Merger Sub in accordance with its terms.
Section 2.3 No Conflicts. The execution and delivery of this
Agreement by Parent and Merger Sub do not, and the performance of this Agreement
by Parent and Merger Sub will not, (a) conflict with or violate any provision of
the certificate of incorporation or by-laws of Parent or Merger Sub, (b)
conflict with or violate any Law applicable to Parent or Merger Sub or by which
any property or asset of Parent or Merger Sub is bound or affected, (c) require
any consent or approval under, result in any breach of, or loss of any benefit
under, or constitute a change of control or default (or any event which with
notice or lapse of time or both would become a default) under, or give to others
any right of termination, vesting, amendment, acceleration or cancellation of,
or result in the creation of a lien or other encumbrance on any property or
asset of Parent or Merger Sub pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit or other instrument or obligation.
The execution and delivery of this Agreement by Parent and Merger Sub do not,
and the performance of this Agreement by Parent and Merger Sub will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity or other person, except as may be
required under the Exchange Act, the Securities Act, any applicable Blue Sky Law
or, the rules and regulations of Nasdaq.
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ARTICLE 3.
AGREEMENT TO VOTE
Each Stockholder, severally and not jointly, agrees that:
Section 3.1 Agreement to Vote in Favor of the Approval of the Share
Issuance. At any Parent Stockholders' Meeting called to vote upon the Share
Issuance, however called, or at any adjournment thereof or in connection with
any written consent of the holders of Parent Common Stock or in any other
circumstances upon which a vote, consent or other approval with respect to the
Share Issuance is sought, such Stockholder shall be present (in person or by
proxy) and shall vote (or cause to be voted) all Subject Shares then
beneficially owned by such Stockholder in favor of (a) the Share Issuance and
(b) any other matter necessary for the consummation of the transactions
contemplated by the Share Issuance, the Merger or the Merger Agreement. In
addition, each Stockholder agrees that it will, upon request by Parent, furnish
written confirmation, in form and substance reasonably satisfactory to Parent,
of such Stockholder's support for the Share Issuance. Each Stockholder
acknowledges receipt and review of a copy of the Merger Agreement.
Section 3.2 Agreement to Vote Against Acquisition Proposals. At any
Parent Stockholders' Meeting, however called, or at any adjournment thereof or
in connection with any written consent of the holders of Parent Common Stock or
in any other circumstances upon which a vote, consent or other approval is
sought, such Stockholder shall be present (in person or by proxy) and shall vote
(or cause to be voted) all Subject Shares then beneficially owned by such
Stockholder against any action or agreement that would impede, interfere with,
delay, postpone or attempt to discourage the Share Issuance, the Merger or the
other transactions contemplated by this Agreement and the Merger Agreement,
including, but not limited to the following: (a) any Acquisition Proposal or
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries (other
than the Merger); (b) a sale, lease, license or transfer of a material amount of
assets of the Company or any of its subsidiaries or a reorganization,
recapitalization, dissolution, winding up or liquidation of the Company or any
of its subsidiaries; (c) any change in the management or board of directors of
the Company, except as contemplated by the Merger Agreement or otherwise agreed
to in writing by Parent; (d) any material change in the present capitalization
or dividend policy of the Company; (e) any material change in the Company's
corporate structure,
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business, the Company Certificate or the Company By-laws; or (f) any action or
agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company under the Merger
Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled.
ARTICLE 4.
GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY
Section 4.1 Grant of Proxy. Each Stockholder hereby irrevocably
grants to and appoints Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx, in their respective
capacities as officers of Parent, and any individual who shall hereafter succeed
to their respective offices 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, (a) in favor of the Share Issuance and any other matter necessary for
the consummation of the transactions contemplated by the Merger Agreement and
(b) against any action or agreement that would impede, interfere with, delay,
postpone or attempt to discourage the Share Issuance, the Merger or the other
transactions contemplated by this Agreement and the Merger Agreement, including,
but not limited to: (i) any Acquisition Proposal or extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries (other than the Merger); (ii) a
sale, lease, license or transfer of a material amount of assets of the Company
or any of its subsidiaries or a reorganization, recapitalization, dissolution,
winding up or liquidation of the Company or any of its subsidiaries; (iii) any
change in the management or board of directors of the Company, except as
contemplated by the Merger Agreement or otherwise agreed to in writing by
Parent; (iv) any material change in the present capitalization or dividend
policy of the Company; (v) any material change in the Company's corporate
structure, business, the Company Certificate or the Company By-laws or (vi) any
action or agreement that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the Company under the
Merger Agreement or which could result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled.
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Section 4.2 Revocation of Prior Proxies. Such Stockholder represents
that any proxies heretofore given in respect of such Stockholder's Subject
Shares are revocable, and that all such proxies are hereby revoked.
Section 4.3 Irrevocable Proxy Coupled With an Interest. Such
Stockholder hereby affirms that the irrevocable proxy set forth in this Article
4 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 DGCL.
ARTICLE 5.
COVENANTS AND AGREEMENTS
Section 5.1 Restriction on Transfer. Each Stockholder agrees not (a)
to sell, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, "Transfer"), or enter into any contract, option or other
arrangement or understanding with respect to the Transfer by such Stockholder
of, any of the Subject Shares or offer any interest in any thereof to any Person
other than pursuant to the terms of the Merger or this Agreement, (b) to enter
into any voting arrangement or understanding, whether by proxy, power of
attorney, voting agreement, voting trust or otherwise with respect to the
Subject Shares in connection with, directly or indirectly, any Acquisition
Proposal or otherwise and agrees not to commit or agree to take any of the
foregoing actions or (c) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing its
obligations under this Agreement. Notwithstanding the foregoing, each
Stockholder shall have the right to Transfer Subject Shares to an Affiliate upon
the due execution and delivery to Parent by such transferee of a legal, valid
and binding counterpart to this Agreement so long as any such Transfer is not
intended to circumvent the provisions of this Agreement.
Section 5.2 No Solicitation of Alternative Transactions. No
Stockholder shall, directly or indirectly, take any action to, and each
Stockholder shall use its reasonable best efforts to cause its agents and
representatives (including investment bankers, attorneys or accountants) not to,
(a) encourage (including by way of furnishing non-public information), solicit,
initiate or facilitate any Acquisition Proposal, (b) enter into any agreement
with respect to
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any Acquisition Proposal or enter into any agreement, arrangement or
understanding requiring the Company to abandon, terminate or fail to consummate
the Merger or any other transaction contemplated by this Agreement or the Merger
Agreement or (c) participate in any way in discussions or negotiations with, or
furnish any information to, any person in connection with, or take any other
action to facilitate any inquiries or the making of any proposal that
constitutes, or could reasonably be expected to lead to, any Acquisition
Proposal. Upon the execution of this Agreement, each Stockholder shall cease
immediately and cause to be terminated any and all existing discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal and promptly request that all confidential information with
respect thereto furnished by such Stockholder be returned. Each Stockholder
shall, as promptly as practicable (and in no event later than 24 hours after
receipt thereof), advise Parent of any inquiry received by it relating to any
potential Acquisition Proposal and of the material terms of any proposal or
inquiry, including the identity of the person and its affiliates making the
same, that it may receive in respect of any such potential Acquisition Proposal,
or of any information requested from it or of any negotiations or discussions
being sought to be initiated with it, and shall furnish to Parent a copy of any
such proposal or inquiry, if it is in writing, or a written summary of any such
proposal or inquiry, if it is not in writing, and shall keep Parent fully
informed on a prompt basis with respect to any developments with respect to the
foregoing.
Section 5.3 Further Assurances. From time to time and without
additional consideration, each Stockholder shall use its reasonable best efforts
to assist and cooperate with Parent and to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary, proper
or advisable under any applicable Law or otherwise to consummate and make
effective, in the most expeditious manner practicable, the Share Issuance, the
transactions contemplated by this Agreement and the Merger Agreement. Without
limiting the generality of the foregoing, each Stockholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments and shall take
all such other action as Parent may reasonably request for the purpose of
effectively carrying out the Share Issuance, the transactions contemplated by
this Agreement and the Merger Agreement, including promptly making all
regulatory filings and applications, and to obtain all licenses, permits,
consents, approvals, authorizations, qualification and orders of governmental
authorities and parties to contracts as are necessary for the consummation of
the Share Issuance,
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the transactions contemplated by this Agreement and the Merger Agreement.
ARTICLE 6.
GENERAL PROVISIONS
Section 6.1 Termination. Except with respect to Section 6.3, which
shall survive termination, this Agreement, and all obligations, agreements and
waivers hereunder, will terminate and be of no further force and effect on the
earliest of (a) 5:00 p.m., Pacific Standard Time, on the second anniversary of
the date hereof, (b) the Effective Time and (c) 120 days after payment of any
termination fee set forth in Section 7.2.5 of the Merger Agreement; provided,
however, that nothing herein shall relieve any party from liability for any
breach hereof.
Section 6.2 Board of Directors Action. No action taken by the Board
of Directors of Parent (including, without limitation, the withdrawal,
modification or amendment of the recommendation of the Board of Directors of
Parent that the stockholders of the Parent vote in favor of the adoption of the
Share Issuance) shall modify, alter, change or otherwise affect the obligations
of any Stockholder hereunder.
Section 6.3 Stockholder Capacity. No person executing this Agreement
who is or becomes during the term hereof a director or officer of Parent makes
any agreement or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in its capacity as the record holder and
beneficial owner of such Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by any Stockholder in his or her capacity as
an officer or director of the Company to the extent specifically permitted by
the Merger Agreement. This Section 6.3 shall survive termination of this
Agreement.
Section 6.4 Parent Guarantee. Parent hereby guarantees the due
performance of any and all obligations and liabilities of Merger Sub under or
arising out of this Agreement and the transactions contemplated hereby.
Section 6.5 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 the remedy of
specific performance of such provisions and to an injunction or injunctions
and/or such other equitable relief as may be necessary to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of
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competent jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
Section 6.6 Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, each Stockholder shall, and hereby does authorize
Parent's counsel to, notify Parent's transfer agent that there is a stop
transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting and transfer of such shares).
Section 6.7 Adjustments to Prevent Dilution, Etc. In the event of a
stock dividend or distribution, or any change in Parent's capital stock by
reason of any stock dividend, split-up, reclassification, recapitalization,
combination or the exchange of shares, the term "Subject Shares" shall be deemed
to refer to and include the Subject Shares as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Subject Shares may be changed or exchanged. In such event, the amount to be paid
per share by Parent in the Merger shall be proportionately adjusted.
Section 6.8 Amendments. This Agreement may not be modified, altered,
supplemented or amended except by an instrument in writing signed by each of the
parties hereto.
Section 6.9 Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered in person or upon
confirmation or receipt when transmitted by facsimile transmission (but only if
followed by transmittal by national overnight courier or hand for delivery on
the next business day) or on receipt after dispatch by registered or certified
mail, postage prepaid, addressed, or on the next business day if transmitted by
national overnight courier to Parent or Merger Sub in accordance with Section
8.2 of the Merger Agreement and to the Stockholders at their respective
addresses set forth in Annex A hereto (or to such other address as any party may
have furnished to the other parties in writing).
Section 6.10 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.
Section 6.11 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
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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.
Section 6.12 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 in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 6.13 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including, without limitation, the documents and instruments referred
to herein) (a) 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 (b) is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
Section 6.14 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to laws that may be applicable under conflicts of laws principals.
Section 6.15 Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
Section 6.16 Multiple Stockholders. All representations, warranties,
covenants and agreements of the Stockholders in this Agreement are several and
not joint, and solely relate to matters involving the subject Stockholder and
not any of the other Stockholders.
(Signature Pages Follow)
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IN WITNESS WHEREOF, Parent, Merger Sub and each Stockholder have
caused this Agreement to be signed by their respective officer thereunto duly
authorized as of the date first written above.
INTUITIVE SURGICAL, INC.
By:
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Name:
Title:
IRON ACQUISITION CORPORATION
By:
-----------------------------
Name:
Title:
STOCKHOLDER
By:
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Name:
Title:
S-1
ANNEX A
NAME ADDRESS NUMBER OF SUBJECT SHARES
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A-1
