EXHIBIT 99.1
I. CSFB COMMITMENT LETTER DATED AUGUST 4, 2000
Pursuant to the understanding of Credit Suisse First Boston (Europe)
Limited ("CSFB") that JOMED N.V., a company organized under the laws of The
Netherlands ("JOMED"), was proposing to enter into an agreement and plan of
merger (the "Merger Agreement") pursuant to which a wholly-owned subsidiary
of JOMED would acquire by tender offer (the "Tender Offer") and subsequent
merger all of the outstanding shares of EndoSonics Corporation (collectively,
the "Acquisition") and to XXXXX's request that CSFB commit to manage an
offering of XXXXX's common stock to provide the funds necessary to acquire
shares of EndoSonics Corporation in the Acquisition, CSFB, in a commitment
letter dated August 4, 2000 (the "Commitment Letter"), committed to provide
U.S. $150 million to JOMED by managing an offering of XXXXX's common stock,
subject to the following material terms and conditions:
1. CSFB agreed to deliver to JOMED proceeds in the amount of U.S.
$150 million from an offering of such number of shares as CSFB may determine
but not to exceed the maximum number of shares approved at the extraordinary
meeting of shareholders referred to below, which offering is subject to, and
will be conducted pursuant to, a purchase agreement to be entered into by
JOMED and CSFB (the "Purchase Agreement"). Certain material terms of the
form of Purchase Agreement that was attached to the Commitment Letter are
summarized in SECTION II below. XXXXX appointed CSFB as sole global
coordinator of the offering on the terms contained in or incorporated by the
Commitment Letter.
2. CSFB agreed to work with XXXXX in the preparation of the offering
in a manner customary for the global coordinator of such an offering and
JOMED agreed that JOMED will take the actions customary for an issuer in
connection with such an offering, including ensuring that CSFB and counsel
have the opportunity to conduct customary due diligence on JOMED and
EndoSonics, preparation of appropriate offering documentation and preparation
of and conducting a roadshow.
CSFB's obligation to commence marketing the offering is conditioned on
all necessary shareholder and corporate approvals (including, without
limitation, an extraordinary meeting of shareholders' approval for capital
increase in an amount to be mutually agreed between JOMED and CSFB and waiver
of preemptive rights) for the offering as contemplated hereby and in the
Purchase Agreement being obtained to CSFB's satisfaction prior to
commencement of the roadshow. In addition, on the date of the roadshow
certain conditions to the Tender Offer, e.g., market-out, must be satisfied
in CSFB's judgement, after consultation with XXXXX.
3. As is customary in equity offerings of this nature, at the end of
the bookbuilding period CSFB and JOMED will execute the Purchase Agreement.
CSFB will, based on the investor interest in shares and orders received,
inform XXXXX of the number of shares to be delivered pursuant to the Purchase
Agreement in order to provide the proceeds referred to above. CSFB's
obligation to sign and close the Purchase Agreement is subject to the same
conditions to the Tender Offer as in the previous paragraph being satisfied
in CSFB's reasonable judgment, after consultation with XXXXX; at that time.
Without limiting the generality of the foregoing, as contemplated by
condition (f) in Annex I of the Merger Agreement, CSFB will have no
obligation to sign the Purchase Agreement if on the signing date of the
Purchase Agreement, the price of JOMED's shares on the SWX Swiss Exchange is
less than (i) 42 Swiss francs or (ii)
one-half of the closing price of XXXXX's shares on the SWX Swiss Exchange on
the first trading day following the announcement of the Tender Offer and the
Merger.
4. The closing of the equity offering will occur pursuant to, and
subject to the conditions contained in, the Purchase Agreement,
simultaneously with and conditioned on the closing of the Tender Offer
(without any conditions thereto having been waived without CSFB's consent).
5. CSFB's commitment under the Commitment Letter will terminate on
the drop dead date provided for in the Merger Agreement. XXXXX's obligations
to pay CSFB's expenses and indemnify CSFB will survive any such termination.
6. The Commitment Letter may not be amended or modified except in
writing by XXXXX and CSFB and is governed by and will be construed in
accordance with English law. Any dispute arising out of or in connection
with the Commitment Letter will be within the exclusive jurisdiction of the
English courts, and both JOMED and CSFB irrevocably submitted to such
jurisdiction.
II. FORM OF PURCHASE AGREEMENT
A. CONDITIONS TO CSFB'S OBLIGATIONS. CSFB's obligation under the
Purchase Agreement to complete the offering and deliver the proceeds
therefrom to JOMED will be subject to the following conditions:
1. On the trading day immediately preceding the closing
date under the Purchase Agreement (the "Closing Date"), the closing
price of JOMED's shares (the "Shares") on the SWX Swiss Exchange shall
be no less than (i) 42 Swiss francs or (ii) one-half of the closing
price of the Shares on the SWX Swiss Exchange on the first trading day
following the announcement of the Offer and the Merger.
2. JOMED shall have performed all of its obligations
under the Purchase Agreement to be performed on or by the Closing Date.
3. CSFB shall have received certified copies of the
resolutions of JOMED's Management Board and the Supervisory Board
authorizing the issuance and sale of the shares to be purchased and sold
by CSFB in the offering.
4. CSFB shall have received a copy of the SWX Swiss
Exchange Listing Agreement to be signed by XXXXX on the date the
offering price of the Shares is determined (the "Pricing Date") and to
be delivered to the SWX Swiss Exchange no later than 8:00 a.m., Zurich
time, on the date after the Pricing Date.
5. All of the conditions for the closing of the Tender
Offer shall have been satisfied in CSFB's reasonable judgment.
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6. CSFB shall have received a certificate dated the
Closing Date and signed on behalf of JOMED by XXXXX's chief executive
officer and the chief financial officer, to the effect set forth in
SECTION II(A)(4) above and to the effect that XXXXX's representations
and warranties contained in the Purchase Agreement are true and correct
as of such date and that XXXXX has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied on or before the date of the Purchase Agreement. Each officer
signing and delivering such certificate may rely upon the best of his
knowledge as to proceedings threatened.
7. CSFB shall have received a final offering circular
signed by XXXXX.
8. CSFB shall have received on or by the Closing Date,
each dated the Closing Date:
i. An opinion of XXXXX's Dutch counsel, covering
certain specified matters;
ii. An opinion of XXXXX's U.S. counsel, covering
certain specified matters;
iii. An opinion of XXXXX's Swedish counsel,
covering certain specified matters;
iv. An opinion of XXXXX's German patent counsel,
covering certain specified matters;
v. An opinion of CSFB's U.S. counsel, covering
certain specified matters;
vi. An opinion of XXXXX's U.S. patent counsel,
covering certain specified matters; and
vii. Letters from XXXXX's independent public
accountants, covering certain specified matters.
9. None of the events specified in SECTION II(B) below
shall have occurred.
10. The SWX Swiss Exchange shall have approved the
Shares for listing on the SWX New Market of the SWX. Prior to the date
of the Purchase Agreement, no order suspending the public offering of
the Shares shall have been issued and no proceedings for any such
purpose shall have been instituted or, to the knowledge of JOMED or
CSFB, shall be contemplated by the SWX Swiss Exchange or any other
governmental or self-regulatory agency or body.
11. Customary "lock-up" agreements between CSFB and
certain of JOMED's shareholders shall have been delivered to CSFB on or
before the date of the Purchase Agreement and shall be in full force and
effect on the Closing Date.
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12. CSFB may waive any of the conditions set forth in
this SECTION II(A) in its discretion. If any of the foregoing
conditions has not occurred on the Closing Date and CSFB has not waived
such condition pursuant to the preceding sentence, CSFB may terminate
the Purchase Agreement and will have no obligations under the Purchase
Agreement.
B. TERMINATION. The Purchase Agreement is subject to termination by
notice given by CSFB to JOMED, if (a)(i) on the trading day immediately
preceding the Closing Date the price of the Shares falls below the amount set
forth in SECTION II(A)(1) above, or (ii) trading generally shall have been
suspended or materially limited on or by, as the case may be, the SWX Swiss
Exchange (whether on the SWX New Market segment or otherwise), (iii) a
general moratorium on commercial banking activities shall have been declared
by authorities in either Switzerland or the Netherlands, (iv) there shall
have occurred a general crisis in international exchange markets or (v) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis, whether or not foreseeable,
that, in CSFB's judgment, is material and adverse and (b) in the case of any
of the events specified in clause (a)(i) above, such event, singly or
together with any other such event, makes it, in CSFB's judgment after
consultation with XXXXX, impracticable to market the Shares on the terms and
in the manner contemplated in the offering circular.
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