Exhibit 2.2
HEARTSTREAM VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of December
29, 1997, between Hewlett-Packard Company, a California corporation ("PARENT"),
and the undersigned stockholder ("STOCKHOLDER") of Heartstream, Inc., a
Delaware corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company
and Whistler Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT") which provides for the merger (the
"MERGER") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into Common Stock of
Parent on the basis described in the Merger Agreement.
B. The Stockholder is the record holder of such number of outstanding
shares of Common Stock of the Company as is indicated on the final page of this
Agreement. In addition, the Stockholder holds options to purchase such number
of shares of Common Stock of the Company as is indicated on the final page of
this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires the Stockholder to agree, and the Stockholder is willing to agree, to
vote the Shares (as defined below) and other such shares of capital stock of the
Company over which Stockholder has voting power so as to facilitate consummation
of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO VOTE SHARES; ADDITIONAL PURCHASES; RETENTION OF SHARES.
1.1 AGREEMENT TO VOTE SHARES. At every meeting of the stockholders
of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall cause the Shares and any New Shares (as defined below) to be voted:
(i) for the approval of the Merger Agreement, and the transactions
contemplated thereby, and for the approval of any action required in furtherance
hereof and thereof.
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in the
Merger Agreement; and
(iii) against the following actions (other than those actions that
relate to the transactions contemplated by the Merger Agreement): (A) any
merger, consolidation or other business combination involving the Company or any
subsidiary of the Company with any party other than Parent or its affiliates;
(B) any sale, lease or transfer of any significant portion of the assets of the
Company or any subsidiary of the Company to any party other than Parent or its
affiliates (except in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary of
the Company; (D) any change in a majority of the board of directors of the
Company; (E) any amendment to the Company's Certificate of Incorporation, (F)
any material change in the capitalization of the Company or the Company's
corporate structure; or (G) any other action which is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Merger or any of the other transactions contemplated by
the Merger Agreement or this Voting Agreement.
Prior to the Expiration Date, each Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with clause "(i)," "(ii)" or "(iii)" of the preceding
sentence.
1.2 DEFINITION. For purposes of this Agreement, "SHARES" shall
mean all issued and outstanding shares of Common Stock of the Company owned of
record or beneficially (over which beneficially-owned shares the Stockholder
exercises voting power) by the Stockholder as of the record date for persons
entitled (a) to receive notice of, and to vote at the meeting of the
stockholders of the Company called for the purpose of voting on the matters
referred to in Section 1.1, or (b) to take action by written consent of the
stockholders of the Company with respect to the matters referred to in
Section 1.1
1.3 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership (over which
beneficially-owned shares the Stockholder exercises voting power) after the
execution of this Agreement and prior to the date of termination of this
Agreement ("NEW SHARES") shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
1.4 AGREEMENT TO RETAIN SHARES. Stockholder shall not transfer,
sell, pledge or otherwise dispose of or encumber the Shares or any New Shares.
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2. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "PROXY"), which shall be irrevocable, with respect to the Shares
and the New Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. Stockholder (i) is
the owner of the shares of Common Stock of the Company, and the options to
purchase shares of Common Stock of the Company, indicated on the final page of
this Agreement, which at the date hereof are free and clear of any liens,
claims, options, charges or other encumbrances; (ii) does not beneficially own
any securities of the Company other than the shares of Common Stock of the
Company, and options to purchase shares of Common Stock of the Company,
indicated on the final page of this Agreement; and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement.
4. ADDITIONAL DOCUMENTS. Stockholder and Parent hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Parent or Stockholder, as the case may be, to carry
out the intent of this Agreement.
5. CONSENT AND WAIVER. Stockholder (not in his capacity as a director or
officer of the Company) hereby gives any consents or waivers that are reasonably
required for the consummation of the Merger under the terms of any agreements to
which Stockholder is a party or pursuant to any rights Stockholder may have.
6. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement or (ii) such date and time as the Merger Agreement shall have
been terminated pursuant to Article VII thereof.
7. MISCELLANEOUS.
7.1 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise
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specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without prior written consent of the other. Notwithstanding the
foregoing, Parent may assign this Agreement to any successor corporation in
connection with a change in its jurisdiction of incorporation.
7.3 AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
7.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
7.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
If to the Stockholder: To the address for notice set forth on the
last page hereof.
With a copy to: Venture Law Group
A Professional Corporation
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
7.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
HEWLETT-PACKARD COMPANY
By:
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Name:
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Title:
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STOCKHOLDER
By:
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Name:
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Title:
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Stockholder's Address for Notice:
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__________ Outstanding Shares of Common Stock
of the Company
__________ Outstanding Shares of Common Stock
of the Company subject to outstanding stock
options
***VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of Heartstream, Inc., a Delaware corporation
(the "COMPANY"), hereby irrevocably appoints D. Xxxxx Xxxxxxxx and Xxx X
Xxxxxxx, the Secretary and Assistant Secretary, respectively, of Hewlett-Packard
Company, a California corporation ("PARENT"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to the voting of the Shares and the New Shares (as such terms are
defined in the Voting Agreement of even date herewith between Parent and the
Stockholder (the "VOTING AGREEMENT")) on the matters described below (and on no
other matter), until such time as that certain Agreement and Plan of
Reorganization dated as of December 29, 1997 (the "MERGER AGREEMENT"), among
Parent, Whistler Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), and the Company, shall be terminated in
accordance with its terms or the Merger (as defined in the Merger Agreement)
becomes effective. Upon the execution hereof, all prior proxies given by the
undersigned with respect to the Shares, the New Shares and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement and
is granted in consideration of Parent entering into the Merger Agreement. The
attorneys and proxies named above will be empowered at any time prior to the
earlier of termination of the Merger Agreement and the date on which the Merger
becomes effective to exercise all voting rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares and
the New Shares) of the undersigned at every annual, special or adjourned meeting
of the Company's stockholders, and in every written consent in lieu of such a
meeting, or otherwise, to vote the Shares and the New Shares:
(i) in favor of the approval of the Merger Agreement, and the
transactions contemplated thereby, and for the approval of any action required
in furtherance hereof and thereof.
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in the
Merger Agreement; and
(iii) against the following actions (other than those actions that
relate to the transactions contemplated by the Merger Agreement): (A) any
merger,
consolidation or other business combination involving the Company or any
subsidiary of the Company with any party other than Parent or its affiliates;
(B) any sale, lease or transfer of any significant portion of the assets of the
Company or any subsidiary of the Company to any party other than Parent or its
affiliates (except in the ordinary course of business); (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary of
the Company; (D) any change in a majority of the board of directors of the
Company; (E) any amendment to the Company's Certificate of Incorporation, (F)
any material change in the capitalization of the Company or the Company's
corporate structure; or (G) any other action which is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Merger or any of the other transactions contemplated by
the Merger Agreement or this Voting Agreement.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares and New Shares subject hereto at any time prior to the earlier of
termination of the Merger Agreement and the date on which the Merger becomes
effective, at every annual, special or adjourned meeting of the Stockholders of
the Company and in every written consent in lieu of such meeting, with respect
to the matters set forth above. The undersigned Stockholder may vote the Shares
and the New Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: ________, 1997
Signature of Stockholder:
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Print Name of Stockholder:
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***PROXY***
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