Page 51 of 67 Pages
EXHIBIT 4
AGREEMENT
AGREEMENT made this 15th day of October, 1998, by and among Xxxxxxx Asset
Management Corp., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Sandell"),
Metropolitan Capital Advisors, Inc. and Metropolitan Capital III, Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (collectively "Metropolitan") and X.
Xxxxxxxxxx Asset Management LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
("PSAM"), with respect to the common stock of Circon Corporation, a Delaware
corporation (the "Company").
R E C I T A L S:
X. Xxxxxxx beneficially owns 575,996 shares of the Company's common stock.
B. Metropolitan beneficially owns 403,664 shares of the Company's common
stock.
X. XXXX beneficially owns 250,855 shares of the Company's common stock.
D. The parties hereto wish to form the Circon Shareholders Committee (the
"Committee") for the purpose of nominating two persons (the "Nominees") and
soliciting proxies for the election of such Nominees as directors at the
Company's Annual Meeting of Shareholders, currently scheduled for November 24,
1998 and any adjournments thereof (the "Annual Meeting"), and wish to set forth
certain agreements regarding the sharing of expenses of such solicitation and
certain other rights of members of the Committee.
Page 52 of 67 Pages
NOW, THEREFORE, the parties hereto agree as follows:
1. Expense Sharing. All expenses incurred by the Committee in furtherance
of the nomination, and solicitation of proxies in favor, of the Nominees shall
be borne pro rata to the highest number of shares of Circon common stock
beneficially owned by the parties hereto between the date hereof and the earlier
of (x) the date on which the meeting is held or (y) the date on which any member
withdraws following a Release Event. The parties agree to commit at least
$350,000 (the "Commitment Amount") in the aggregate to further the Committee's
goals. Each party shall deposit by October 16, 1998 its pro rata share (based on
current holdings) of $150,000 with the Committee's attorneys, Xxxxxxx Xxxxxx &
Xxxxx LLP, to be held in escrow. Each party represents and warrants to the other
parties that it beneficially owns the number of Circon shares attributed to it
in the Recitals.
2. Decisions. All decisions regarding the Committee shall be made by the
members of the Committee by majority vote, with each member having one vote,
provided however, if the Committee's expenses exceed the Commitment Amount, all
decisions thereafter requiring the expenditure of money shall be made
unanimously.
3. Sale of Stock. Each party agrees not to sell any shares beneficially
owned by it until the earlier of the date (a "Release Event") on which the
Company: (i) holds the Annual Meeting; or (ii) makes a public announcement that
it has entered into a definitive merger agreement or other agreement whereby all
of the Company's common stock is to be acquired by a third party.
Page 53 of 67 Pages
4. Voting. Each party agrees to vote all of the shares it beneficially owns
in favor of the Committee's Nominees. In furtherance thereof, each party hereby
agrees to give an irrevocable proxy with respect to the Circon shares they own
as of the record date for the Meeting to Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and
Xxxxx Xxxxxxxxxx, acting by any two of them, to vote such shares at the Annual
Meeting.
5. Schedule 13D. In the event a party takes any action which would require
the Committee to file or amend its Schedule 13D, such party shall promptly
notify the other members of the Committee, and shall cause an appropriate
Schedule 13D or amendment thereto to be filed within the time required by law.
6. Communications with Committee. The address for notices to, or
communications from, the Committee shall be:
c/o MacKenzie Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxx
Xxx Xxxxx
7. Withdrawal. At any time after a Release Event, any member may withdraw
(a "Withdrawing Member") from the Committee upon one business day's notice to
the other members. A Withdrawing Member shall continue to be responsible for
expenses of the Committee which are incurred after the date of withdrawal but
not in excess of its pro rata share of the Commitment Amount.
Page 54 of 67 Pages
8. Termination. The Committee shall disband, and this Agreement shall
terminate, at the conclusion of the Annual Meeting.
9. Amendment. This Agreement may not be amended except by a writing signed
by all of the parties hereto.
Page 55 of 67 Pages
IN WITNESS WHEREOF, the Undersigned have entered into this Agreement as of
the day and year first above written.
XXXXXXX ASSET MANAGEMENT CORP.
By:/s/ XXXXXX XXXXXXX
----------------------------------
METROPOLITAN CAPITAL ADVISORS, INC.
By:/s/ XXXXXXX XXXXXXX
----------------------------------
METROPOLITAN CAPITAL III, INC.
By:/s/ XXXXXXX XXXXXXX
----------------------------------
X. XXXXXXXXXX ASSET MANAGEMENT, INC.
By:/s/ XXXXXX XXXXXXXX
----------------------------------
