AGREEMENT TO FACILITATE MERGER
DATE: ___________, 1998
PARTIES:
Medtronic, Inc., (hereinafter "Parent")
a Minnesota corporation
and
-------------------------,
an individual officer and/or
director of Physio-Control
International Corporation (hereinafter "Shareholder")
RECITALS:
A. Shareholder is the legal or beneficial owner of __________ shares of
Common Stock of Physio-Control International Corporation, a Washington
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. Shareholder deems it to be in Shareholder's best interest and in the
best interests of the Company and all other shareholders of the Company that the
Merger Agreement be approved, ratified, and confirmed by the shareholders of the
Company, and it is a condition to Parent's obligations under the Merger
Agreement that Individual enter into this Agreement.
D. It is understood and acknowledged by the Shareholder that Parent's
execution of the Merger Agreement is being done in reliance 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 reliance upon and as a result of the agreements and
undertakings of Shareholder 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. Shareholder, in his or her capacity as a
shareholder of the Company or as a representative with the authority to vote
shares of Company Common Stock, agrees to vote (or caused to be voted) all
shares of Company Common Stock with respect to which Shareholder presently owns
or controls voting power, and all shares of Company Common Stock with respect to
which Shareholder in the future acquires ownership or voting power, at any
meeting of the shareholders of the Company, and in any action by written consent
of the shareholders of the Company, (i) in favor of the approval, consent, and
ratification of the Merger Agreement and the Merger, and (ii) against any action
that would impede, interfere, or discourage the Merger, would facilitate an
acquisition of the Company, in any manner, by a party (other than Parent), or
would result in any breach of representation, warranty, covenant, or agreement
of the Company under the Merger Agreement. To the extent inconsistent with the
foregoing provisions of this Section 1, Shareholder hereby revokes any and all
previous proxies with respect to any shares of Company Common Stock that
Shareholder owns or has the right to vote. Nothing in this Agreement shall be
deemed to restrict or limit Shareholder'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 Shareholder. Shareholder
represents and warrants to Parent that Shareholder has the legal capacity to
enter into and perform all of Shareholder's obligations under this Agreement.
The execution, delivery, and performance of this Agreement by Shareholder will
not violate any other agreement to which Shareholder is a party, including,
without limitation, any voting agreement, shareholders agreement, or voting
trust. This Agreement has been duly executed and delivered by Shareholder and
constitutes a legal, valid, and binding agreement of Shareholder, 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 Shareholder. Shareholder 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. Shareholder agrees that in the event of
Shareholder's breach of any provision of this Agreement, Parent may be without
an adequate remedy at law. Shareholder therefore agrees that in the event of
Shareholder'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. Shareholder shall execute and deliver such
additional documents and take such further action as may be necessary or
desirable to consummate the transactions contemplated by 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 Minnesota (regardless of the laws that
might otherwise govern under applicable Minnesota principles of conflicts of
laws).
9. Effectiveness. If this Agreement is executed by Shareholder 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. This
Agreement shall terminate upon termination of the Merger Agreement by Parent.
IN WITNESS WHEREOF, Parent has caused this Agreement to Facilitate
Merger to be executed by its duly authorized officer, and Shareholder has
executed this Agreement, as of the date and year first above written.
MEDTRONIC, INC.
By:_________________________________
Its:_____________________________
SHAREHOLDER:
____________________________________
[signature]
____________________________________
[print name]
