AGREEMENT TO FACILITATE MERGER
DATE: ____________, 1998
PARTIES:
Medtronic, Inc., (hereinafter "Parent")
a Minnesota corporation
and
----------------------------,
an individual officer and/or director
of Arterial Vascular Engineering, Inc.
(hereinafter "Stockholder")
RECITALS:
A. Stockholder is the legal or beneficial owner of shares of Common
Stock of Arterial Vascular Engineering, Inc., a Delaware corporation (the
"Company"), and the holder of options, warrants, or other rights to acquire
shares of Company Common Stock.
B. Parent, the Company, and a wholly-owned subsidiary of Parent are
entering, or have entered, into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which it is proposed that Parent's subsidiary will merge
with and into the Company (the "Merger") and as a result of which the
outstanding shares of Company Common Stock shall be converted into Parent Common
Stock.
C. Stockholder deems it to be in Stockholder's best interest and in the
best interests of the Company and all other stockholders of the Company that the
Merger Agreement be approved, ratified, and confirmed by the stockholders of the
Company, and it is a condition to Parent's execution of the Merger Agreement
that Stockholder enter into this Agreement.
D. It is understood and acknowledged by Stockholder that Parent's
execution of the Merger Agreement is being done in reliance, in part, upon the
contemporaneous or prompt subsequent execution and delivery of this Agreement,
that Parent will incur substantial expenses proceeding toward consummation of
the Merger as contemplated by the Merger Agreement, and that such expenses will
be undertaken, in part, in reliance upon and as a result of the agreements and
undertakings of Stockholder set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and in order to
induce Parent to execute the Merger Agreement and to proceed as contemplated by
the Merger Agreement toward the consummation of the Merger, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS:
1. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating upon the earlier of the effective time of the Merger or
the termination of the Merger Agreement in accordance with its terms,
Stockholder, solely in his or her capacity as a stockholder of the Company
agrees to vote (or caused to be voted) all outstanding shares of Company Common
Stock beneficially owned by Stockholder as of the record date of any meeting of
the stockholders of the Company, and as of the record date of any action by
written consent of the stockholders of the Company in favor of the approval,
consent, and ratification of the Merger Agreement and the Merger. To the extent
inconsistent with the foregoing provisions of this Section 1, Stockholder hereby
revokes any and all previous proxies with respect to any shares of Company
Common Stock that Stockholder owns or has the right to vote. Nothing in this
Agreement shall be deemed to restrict or limit Stockholder's right to act in his
capacity as an officer or director of the Company consistent with his fiduciary
obligations in such capacity.
2. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Parent that Stockholder has the legal capacity to
enter into and perform all of Stockholder's obligations under this Agreement.
The execution, delivery, and performance of this Agreement by Stockholder will
not violate any other agreement to which Stockholder is a party, including,
without limitation, any voting agreement, stockholders agreement, or voting
trust. This Agreement has been duly executed and delivered by Stockholder and
constitutes a legal, valid, and binding agreement of Stockholder, enforceable in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and
similar laws, now or hereafter in effect.
3. Successors and Assigns. This Agreement shall be binding upon any
permitted purchasers, donees, pledgees, and other transferees of Company Common
Stock legally or beneficially owned by Stockholder. During the period commencing
on the date hereof and terminating upon the earlier of the effective time of the
Merger or the termination of the Merger Agreement in accordance with its terms,
Stockholder agrees not to make any sales, gifts, transfers, pledges, or other
dispositions of Company Common Stock without first making any such transferee or
pledgee fully aware of the obligations under this Agreement and obtaining such
transferee's or pledgee's written agreement to comply with the terms hereof.
4. Injunctive Relief. Stockholder agrees that in the event of
Stockholder's breach of any provision of this Agreement, Parent may be without
an adequate remedy at law. Stockholder therefore agrees that in the event of
Stockholder's breach of any provision of this Agreement, Parent may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision, as well as to obtain damages for breach of this Agreement. By seeking
or obtaining any such relief, Parent will not be precluded from seeking or
obtaining any other relief to which it may be entitled.
5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
6. Further Assurances. Stockholder shall (at Parent's expense) execute
and deliver such additional documents and take such further action as may be
reasonably requested by Parent to enforce Parent's rights under this Agreement.
7. Third-Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties hereto any
legal or equitable right, remedy, or claim under or by reason of this Agreement
or any provision contained herein.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable Delaware principles of conflicts of
laws).
9. Effectiveness. If this Agreement is executed by Stockholder prior to
the approval of the Merger Agreement by the Company's Board of Directors, then
this Agreement shall be subject to, and shall become effective only upon, the
approval of the Merger Agreement by the Company's Board of Directors and the
execution and delivery of the Merger Agreement by the Company, Parent and
Parent's subsidiary. This Agreement shall terminate upon the earlier of (i)
termination of the Merger Agreement in accordance with its terms, or (ii)
effectiveness of the Merger.
IN WITNESS WHEREOF, Parent has caused this Agreement to Facilitate
Merger to be executed by its duly authorized officer, and Stockholder has
executed this Agreement, as of the date and year first above written.
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[Signature]
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[Print Name]
MEDTRONIC, INC.
By:________________________________
Xxxxxxx X. Xxxxxxx, Vice President and
Chief Development Officer
