EXHIBIT 99(C)
ADVISER AGREEMENT
ADVISER AGREEMENT, dated as of August 7, 1999 (this "Agreement"), among
Xxxxxxx X. Xxxxxxxx and the WFH Foundation (collectively, "Xxxxxxxx"), FLA
Advisers L.L.C., a New York Limited Liability Company (the "Adviser") and
General Electric Company, a New York corporation ("Parent").
RECITALS
A. Parent, Ruby Merger Corp., a Delaware corporation and a direct
wholly owned subsidiary of Parent ("Sub"), and OEC Medical Systems, Inc., a
Delaware corporation are entering into an Agreement and Plan of Merger, dated as
of August 7, 1999 (the "Merger Agreement"), whereby, upon the terms and subject
to the conditions set forth in the Merger Agreement, each issued and outstanding
share of Common Stock, par value $0.01 per share, of the Company ("Company
Common Stock"), not owned directly or indirectly by Parent or the Company, will
be converted into shares of Common Stock, par value $.16 per share, of Parent
("Parent Common Stock") as described in Exhibit C hereto;
B. As of the date hereof, the Adviser is an investment adviser with
discretionary investment management authority, including, until revoked, the
sole power to vote, over client assets that include that number of shares of
Company Common Stock appearing on Schedule A (such shares of Company Common
Stock together with the shares of Company Common Stock set forth on Schedule A
owned by Xxxxxxxx and any other shares of capital stock of the Company acquired
by Xxxxxxxx (the "Xxxxxxxx Shares") or by clients of the Adviser listed on
Schedule A as to which the Adviser has discretionary investment management
authority including, until revoked, the sole power to vote, after the date
hereof during the term of this Agreement, whether upon the exercise of options
or by means of purchase, dividend, distribution or otherwise, being collectively
referred to herein as the "Subject Shares"); and
C. As a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Adviser and Xxxxxxxx agree, and in order
to induce Parent to enter into the Merger Agreement the Adviser and Xxxxxxxx
have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Adviser and Xxxxxxxx agree as
follows:
1. Covenants of Adviser and Xxxxxxxx. Until the termination of this
Agreement in accordance with Section 3, the Adviser and Xxxxxxxx severally agree
as follows:
(a) Except as set forth in Section 1(i) below, the Adviser and
Xxxxxxxx shall attend the Shareholder Meeting, in person or by proxy,
and at the Shareholder Meeting (or at any adjournment thereof) or in
any other circumstances upon which a vote, consent or other approval
with respect to the Merger and the Merger Agreement is sought, the
Adviser and Xxxxxxxx shall vote (or cause to be voted or to act by
consent) the Subject Shares in favor of the Merger, the adoption of the
Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement.
(b) Except as provided in Section 1(i) below, at any meeting
of shareholders of the Company or at any adjournment thereof or in any
other circumstances upon which the Adviser's and Xxxxxxxx'x vote,
consent or other approval is sought, the Adviser and Xxxxxxxx shall
vote (or cause to be voted or to act by consent) the Subject Shares
against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any Subsidiary or any
other Takeover Proposal or (ii) any amendment of the Company's
Certificate of Incorporation, as amended, or By-laws or other proposal
or transaction involving the Company or any of its Subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any
of the other transactions contemplated by the Merger Agreement or
change in any manner the voting rights of any class of capital stock of
the Company. The Adviser and Xxxxxxxx further agree not to commit or
agree to take any action inconsistent with the foregoing.
(c) Except as provided in Section 1(i) below, the Adviser and
Xxxxxxxx agree (i) not to sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, "Transfer"), or enter
into any contract, option or other arrangement (including any
profit-sharing arrangement) with respect to the Transfer of the Subject
Shares to any person except as follows: (A) in Transfers on the New
York Stock Exchange provided that during the term of this Agreement
such transfers do not exceed an aggregate of 300,000 shares of Company
Common Stock; (B) in Transfers not on the New York Stock Exchange to
any "person" who at the closing of such transaction would not be either
the "beneficial owner" or a member of a "group" which is the
"beneficial owner" of 5% or more of the outstanding shares of Company
Common Stock or an "affiliate" of one of the "persons" listed on
Schedule A; and (C) in Transfers in which the transferee of the Subject
Shares agrees to be bound by, and to acquire the Subject Shares subject
to, the terms of this Agreement, including, without limitation, the
Proxy granted in Section 1(h) below; provided, however, that no
Xxxxxxxx Shares may be sold pursuant to the exceptions provided in
Sections 1(c)(i)(A), 1(c)(i)(B) or 1(c)(i)(C) above and (ii) except as
set forth herein, not to enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, in relation to the Subject
Shares, and agrees not to commit or agree to take any of the foregoing
actions. For purposes of this Agreement, the terms "group" and
"beneficial owner" shall be defined as they are defined for purposes of
Section 13(d) of the Securities Exchange Act of 1934, the term
"affiliate" shall be defined as it is defined in Rule 144 thereunder
and the term "person" shall mean any individual, corporation, limited
liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency
or political subdivision thereof. To the extent a Transfer of shares of
Company Common Stock is made in compliance with Sections 1(c)(i)(A) or
1(c)(i)(B) above, upon such Transfer, the provisions of Sections 1(a)
and 1(b) hereof and the Proxy granted in Section 1(h) hereof shall
terminate.
(d) Except as provided in Section 1(i) below, the Adviser and
Xxxxxxxx shall not, nor shall either of them authorize any investment
banker, attorney or other advisor or representative of the Adviser and
Xxxxxxxx to, directly or indirectly (i) solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to the Company or any Subsidiary in connection
with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes or may reasonably be expected
to lead to, any Takeover Proposal.
(e) Except as provided in Section 1(i) below, the Adviser and
Xxxxxxxx shall use the Adviser's and Xxxxxxxx'x commercially reasonable
best efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with Parent in doing, all
things necessary, proper or advisable to support and to consummate and
make effective, in the most expeditious manner practicable, the Merger
and the other transactions contemplated by the Merger Agreement.
(f) Except as provided in Section 1(i) below, the Adviser and
Xxxxxxxx agree to promptly notify Parent in writing of the nature and
amount of any acquisition by such Adviser and Xxxxxxxx of any voting
securities of the Company acquired by such Adviser and Xxxxxxxx
hereinafter.
(g) Except as provided in Section 1(i) below, the Adviser and
Xxxxxxxx shall not knowingly take or fail to take any action which
would cause any of the representations and warranties set forth in the
Tax Certificate attached hereto as Schedule B to be untrue or
incorrect.
(h) The Adviser and Xxxxxxxx hereby revoke any and all prior
proxies or powers of attorney in respect of any of Subject Shares and
constitute and appoint Sub and Parent, or any nominee of Sub and
Parent, or any of them, with full power of substitution and
resubstitution, at any time during the term hereof, as its true and
lawful attorney and proxy (its "Proxy"), for and in its name, place and
stead, for any and all purposes, including without limitation, to
demand that the Secretary of the Company call a special meeting of the
shareholders of the Company for the purpose of considering any matter
referred to in Section 1(a) and 1(b) hereof and to vote each of such
Subject Shares as its proxy at every annual, special, adjourned or
postponed meeting of the shareholders of the Company, including the
right to sign its name (as shareholder) to any consent, certificate or
other document relating to the Company that Delaware Law may permit or
require as provided in Sections 1(a) and 1(b).
EXCEPT AS PROVIDED IN SECTION 1(i) THE FOREGOING
PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM OF THIS AGREEMENT.
(i) Notwithstanding anything to the contrary contained herein,
if the Board of Directors of the Company reasonably determines that a
Takeover Proposal (as defined below) constitutes a Superior Proposal
(as defined below), and, to the extent required by the fiduciary
obligations of the Board of Directors of the Company, as determined in
good faith by a majority thereof after consultation with independent
counsel (who may be the Company's regularly engaged independent
counsel), the Company withdraws or modifies its recommendation of the
Merger Agreement, Adviser shall have the right to terminate its
obligations under Sections 1(a) through 1(f) hereof and to revoke the
Proxy to the extent required by its fiduciary obligations as determined
in good faith. For purposes of this Agreement, "Takeover Proposal"
means any proposal for a merger, tender offer or other business
combination involving the Company or any of its Subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an
equity interest in, any voting securities of, or a substantial portion
of the assets of the Company or any of its Subsidiaries, other than the
transactions contemplated by the Merger Agreement and this Agreement,
and "Superior Proposal" means a bona fide proposal made by a third
party to acquire the Company pursuant to a tender or exchange offer, a
merger, a sale of all or substantially all its assets or otherwise on
terms which a majority of the disinterested members of the Board of
Directors of the Company determines, at a duly constituted meeting of
the Board of Directors or by unanimous written consent, in its
reasonable good faith judgment to be more favorable to the Company's
shareholders than the Merger (based on the advice of the Company's
independent financial advisor that the value of the consideration
provided for in such proposal exceeds the value of the consideration
provided for in the Merger) and for which financing, to the extent
required, is then committed or which, in the reasonable good faith
judgment of a majority of such disinterested members, as expressed in a
resolution adopted at a duly constituted meeting of such members (based
on the advice of the Company's independent financial advisor), is
reasonably capable of being obtained by such third party.
2. Representations and Warranties. Each of the Adviser and Xxxxxxxx
severally represents and warrants to Parent as follows:
(a) The Adviser is an investment adviser with discretionary
investment management authority over the Subject Shares, including,
until revoked, the sole power to vote the Subject Shares. The Adviser
does not have discretionary investment authority over more than 575,000
shares of capital stock of the Company other than the Subject Shares.
The Adviser and Xxxxxxxx collectively have the sole right to vote, and
the sole power of disposition with respect to, the Subject Shares, and
none of the Subject Shares is subject to any voting trust, proxy or
other agreement, arrangement or restriction with respect to the voting
or disposition of such Subject Shares, except as contemplated by this
Agreement and except that the Adviser's clients retain the right to
direct the disposition of the Subject Shares and to withdraw the
Adviser's discretionary investment management authority over, and right
to vote, the Subject Shares.
(b) This Agreement has been duly executed and delivered by the
Adviser and Xxxxxxxx. Assuming the due authorization, execution and
delivery of this Agreement by Parent, this Agreement constitutes the
valid and binding agreement of the Adviser and Xxxxxxxx enforceable
against the Adviser and Xxxxxxxx in accordance with its terms. The
execution and delivery of this Agreement by the Adviser and Xxxxxxxx
does not and will not conflict with any agreement, order or other
instrument binding upon the Adviser or Xxxxxxxx, as the case may be,
nor require any regulatory filing (other than filings on Schedule 13D)
or approval.
(c) To the Knowledge of the Adviser and Xxxxxxxx, the
representations set forth in the Tax Certificate attached hereto as
Schedule B, if made on the date hereof (assuming the Merger were
consummated as of the date hereof), would be true and correct.
3. Termination. The obligations of the Adviser and Xxxxxxxx
hereunder shall terminate upon the earlier to occur of (i) May 7, 2000, (ii)
termination of the Merger Agreement pursuant to Section 7.1 thereof (iii) the
Effective Time and (iv) as to shares of Company Common Stock held by a person as
to which Adviser and any of its affiliates no longer have a discretionary
investment management relationship, the date of the termination of the last of
such relationships (a "Complete Termination"); provided, however, that to the
extent a Complete Termination does not take place, but rather only a portion of
the investments of a client of the Adviser's are withdrawn from the
discretionary investment management relationship, the obligations of the Adviser
hereunder shall terminate only as to those shares of Company Common Stock
withdrawn or sold to permit such withdrawal and only if the portion of such
client's shares of Company Common Stock that is sold or withdrawn is an amount
which is proportionate to the portion of the client's total investments with
Adviser that are being sold or withdrawn (i.e. if 10% of a client's funds under
discretionary investment management are withdrawn from Adviser's management,
only 10% of such Client's shares of Company Common Stock may be sold and have
the Adviser's obligations hereunder terminate with respect thereto). No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
4. Further Assurances. The Adviser and Xxxxxxxx will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement. The Adviser shall by the third business day of
each month provide confidential notice to Parent of any sales of Subject Shares
during the immediately preceding month during the term of this Agreement.
5. Successors, Assigns and Transferees Bound. Any successor, assignee
or transferee (including a successor, assignee or transferee as a result of the
death of the Adviser or Xxxxxxxx, such as an executor or heir) shall be bound by
the terms hereof, and the Adviser and Xxxxxxxx shall take any and all actions
necessary to obtain the written confirmation from such successor, assignee or
transferee that it is bound by the terms hereof.
6. Affiliate Letter; Tax Certificate. The Adviser and Xxxxxxxx agree to
execute and deliver on a timely basis, when and if requested by Parent, (i) a
written agreement in substantially the form of Exhibit D hereto and (ii) the Tax
Certificate attached hereto as Schedule B.
7. Remedies. The Adviser and Xxxxxxxx acknowledge that money damages
would be both incalculable and an insufficient remedy for any breach of this
Agreement by it, and that any such breach would cause Parent irreparable harm.
Accordingly, the Adviser and Xxxxxxxx agree that in the event of any breach or
threatened breach of this Agreement, Parent, in addition to any other remedies
at law or in equity it may have, shall be entitled, without the requirement of
posting a bond or other security, to equitable relief, including injunctive
relief and specific performance.
8. Severability. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
9. Amendment. This Agreement may be amended only by means of a written
instrument executed and delivered by the Adviser and Xxxxxxxx and Parent.
10. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for either the
District of Connecticut or the District of Delaware in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such courts (and waives any
objection based on FORUM NON CONVENIENS or any other objection to venue
therein). Each party hereto waives any right to a trial by jury in connection
with any such action, suit or proceeding.
11. Governing Law. Except to the extent that the laws of the State of
Delaware are mandatorily applicable to the Merger, this Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
12. Notice. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or telecopier (and also confirmed in writing) to the person at the address
set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
(a) if to Parent or Sub, to:
General Electric Company
c/o GE Medical Systems
X.X. Xxx 000, X-000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
for overnight courier deliveries, to:
General Electric Company
c/o GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
with copies to:
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-00000
Attention: Vice President and Senior Counsel - Transactions
Facsimile No.: 000-000-0000
and
Xxxxxx, Xxxx & Xxxxxxxx, LLP
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
(b) if to the Adviser, Xxxxxxxx or WFH Foundation to:
FLA Advisers L.L.C.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
13. Capitalized Terms. Capitalized terms used in this Agreement that
are not defined herein shall have such meanings as set forth in the Merger
Agreement.
14. Counterparts. For the convenience of the parties, this Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
15. Stop Transfer. Neither the Adviser, Xxxxxxxx nor WFH Foundation
shall request that the Company register the transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any of the Subject
Shares, unless such transfer is made in compliance with this Agreement.
IN WITNESS WHEREOF, the Adviser and Parent have caused this Agreement
to be duly executed and delivered on the day first above written.
FLA ADVISERS L.L.C.
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
WFH FOUNDATION
/s/ Xxxxxxx X. Xxxxxxxx
By: Xxxxxxx X. Xxxxxxxx
President
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
GENERAL ELECTRIC COMPANY
/s/ J. Xxxxx Xxxxxx
Xxxxx Xxxxxx
Vice President and General Counsel of GE Medical Systems
