-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LSggkwO6TOsO0diZus8EZz8tqEl/xCUxi+r3oAQMKjCNrXZtZROJgR+PC8oJhLY7 5/UO84NAZUu5cZ2kBa4Zmg== 0000891836-09-000202.txt : 20090929 0000891836-09-000202.hdr.sgml : 20090929 20090929151417 ACCESSION NUMBER: 0000891836-09-000202 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090929 DATE AS OF CHANGE: 20090929 GROUP MEMBERS: FIRST BIOMED MANAGEMENT ASSOCIATES SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASPECT MEDICAL SYSTEMS INC CENTRAL INDEX KEY: 0000886235 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 042985553 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-59557 FILM NUMBER: 091092741 BUSINESS ADDRESS: STREET 1: ONE UPLAND ROAD CITY: NORWOOD STATE: MA ZIP: 02062-1546 BUSINESS PHONE: (617) 559-7000 MAIL ADDRESS: STREET 1: ONE UPLAND ROAD CITY: NORWOOD STATE: MA ZIP: 02062-1546 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST MANHATTAN CO CENTRAL INDEX KEY: 0000728083 IRS NUMBER: 131957714 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2127563300 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 sc0091.htm SCHEDULE 13D Schedule 13D

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 4)

Aspect Medical Systems, Inc
(Name of Issuer)

Common Stock, $0.01 Par Value Per Share
(Title of Class of Securities)

045235108
(CUSIP Number)

Neal K. Stearns, Esq.
First Manhattan Co.
437 Madison Avenue
New York, New York 10022
Telephone: 212-756-3300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

September 27, 2009
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Page 1

CUSIP No. 045235108 13D Page 2
1. Names Of Reporting Persons
     First Manhattan Co.
2. Check the Appropriate Box if a Member of a Group
(a)  x
(b)  o
3. SEC Use Only
4. Source of Funds
     OO
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Item 2(D) Or 2(E) o
6. Citizenship or Place of Organization:
     New York
Number of Shares
Beneficially Owned
by Each Reporting
Person With 		7. Sole Voting Power:
     None
8. Shared Voting Power:
     3,012,900
9. Sole Dispositive Power:
     None
10. Shared Dispositive Power:
     3,012,900
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
     3,012,900
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares      x
13. Percent of Class Represented by Amount in Row (11):
     17.3%
14. Type of Reporting Person:
     BD, IA, PN

CUSIP No. 045235108 13D Page 3
1. Names Of Reporting Persons
     First BioMed Management Associates, LLC
2. Check the Appropriate Box if a Member of a Group
(a)  x
(b)  o
3. SEC Use Only
4. Source of Funds
     AF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Item 2(D) Or 2(E) o
6. Citizenship or Place of Organization:
     New York
Number of Shares
Beneficially Owned
by Each Reporting
Person With 		7. Sole Voting Power:
     1,351,300
8. Shared Voting Power:
     None
9. Sole Dispositive Power:
     1,351,300
10. Shared Dispositive Power:
     None
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
     1,351,300
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares      x
13. Percent of Class Represented by Amount in Row (11):
     7.8%
14. Type of Reporting Person:
     IA

CUSIP No. 045235108 13D Page 4
1. Names Of Reporting Persons
     Vincent P. Scialli
2. Check the Appropriate Box if a Member of a Group
(a)  x
(b)  o
3. SEC Use Only
4. Source of Funds
     PF
5. Check if Disclosure of Legal Proceedings is Required
Pursuant to Item 2(D) Or 2(E) o
6. Citizenship or Place of Organization:
     U.S.
Number of Shares
Beneficially Owned
by Each Reporting
Person With 		7. Sole Voting Power:
     2,000
8. Shared Voting Power:
     None
9. Sole Dispositive Power:
     2,000
10. Shared Dispositive Power:
     None
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
     2,000
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares      x
13. Percent of Class Represented by Amount in Row (11):
     0.0%
14. Type of Reporting Person:
     IN

     This Amendment No. 4 to Schedule 13D is being filed to amend and supplement the statements on Schedule 13D previously filed by First Manhattan Co., First BioMed Management Associates, LLC and Vincent P. Scialli. Except as amended and supplemented hereby, such statements remain in full force and effect.

 

ITEM 4.

PURPOSE OF THE TRANSACTION.

 

Item 4 is hereby supplemented as follows:

 

On September 27, 2009, in connection with the execution of the Agreement and Plan of Merger, among United States Surgical Corporation (“Parent”), Transformer Delaware Corp. and the Issuer, dated September 27, 2009 (the “Merger Agreement”), First Health, L.P., First Health Limited, First Health Associates, L.P., First BioMed, L.P. and First BioMed Portfolio, L.P. (collectively, the “Stockholders”) entered into an agreement with Parent (the “Agreement”), which provides, among other things, that the Stockholders agree not to (i) transfer prior to the Termination Date (as defined in the Agreement) any Shares in a transaction in which either Dr. Colin or Mr. Scialli knows that the transferee has publicly made, or intends to make, an Acquisition Proposal (as defined in the Merger Agreement) and (ii) engage in the solicitation activities that are prohibited in Section 6.1 of the Merger Agreement. On September 27, 2009, Mr. Scialli, along with the other directors of the Issuer, entered into an agreement with Parent and Transformer Delaware Corp. (the “Tender and Voting Agreement”), which provides, among other things, that Mr. Scialli (i) agrees to tender the Shares owned by him in the tender offer contemplated by the Merger Agreement, (ii) appoints Parent as his proxy with respect to the Shares owned by him to vote in favor of the adoption of the Merger Agreement and (iii) grants to Parent an option to purchase the Shares owned by him if Shares are acquired pursuant to the tender offer contemplated by the Merger Agreement and Mr. Scialli has failed to tender the Shares owned by him in such tender offer. Copies of the Agreement and the Tender and Voting Agreement are attached hereto as Exhibits 99.1 and 99.2, respectively, and are incorporated herein by reference.

 

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

 

Item 6 is hereby supplemented as follows:

 

On September 27, 2009, in connection with the execution of the Merger Agreement, the Stockholders entered into the Agreement, which provides, among other things, that the Stockholders agree not to (i) transfer prior to the Termination Date (as defined in the Agreement) any Shares in a transaction in which either Dr. Colin or Mr. Scialli knows that the transferee has publicly made, or intends to make, an Acquisition Proposal (as defined in the Merger Agreement) and (ii) engage in the solicitation activities that are prohibited in Section 6.1 of the Merger Agreement. On September 27, 2009, Mr. Scialli, along with the other directors of the Issuer, entered into the Tender and Voting Agreement, which provides, among other things, that Mr. Scialli (i) agrees to tender the Shares owned by him in the tender offer contemplated by the Merger Agreement, (ii) appoints Parent as his proxy with respect to the Shares owned by him to vote in favor of the adoption of the Merger Agreement and (iii) grants to Parent an option to purchase the Shares owned by him if Shares are acquired pursuant to the tender offer contemplated by the Merger Agreement and Mr. Scialli has failed to tender the Shares owned by him in such tender offer. Copies of the Agreement and the Tender and Voting Agreement are attached hereto as Exhibits 99.1 and 99.2, respectively, and are incorporated herein by reference.

 

ITEM 7.     MATERIAL TO BE FILED AS EXHIBITS.

Exhibit 99.1:     Agreement.

Page 5

Exhibit 99.2:     Tender and Voting Agreement.

 

Page 6

SIGNATURES

          After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: September 29, 2009     

     

FIRST MANHATTAN CO.
By FIRST MANHATTAN LLC,
   General Partner

By: /s/ Neal K. Stearns       
Name:   Neal K. Stearns
Title:     Managing Member

FIRST BIOMED MANAGEMENT ASSOCIATES, LLC
By FIRST MANHATTAN CO.,
   Co-Managing Member
By FIRST MANHATTAN LLC,
   General Partner

By: /s/ Neal K. Stearns       
Name:   Neal K. Stearns
Title:     Managing Member

 

/s/ Vincent P. Scialli           
              Vincent P. Scialli

 

 

 

Page 7

 EX-99.1 2 ex_99-1.htm AGREEMENT

Exhibit 99.1

AGREEMENT

THIS AGREEMENT (this “Agreement”) dated September 27, 2009, is entered into between United States Surgical Corporation, a Delaware corporation (the “Parent”), and First Health, L.P., First Health Limited, First Health Associates, L.P., First BioMed, L.P. and First BioMed Portfolio, L.P. ( collectively, “Stockholders”), with respect to shares of common stock, $0.01 par value per share (the “Company Common Stock”), of Aspect Medical Systems, Inc., a Delaware corporation (the “Company”).

W I T N E S S E T H:

WHEREAS, the Parent, a wholly-owned subsidiary of Parent (the “Purchaser”) and the Company have entered into an Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”) pursuant to which the Purchaser has agreed to make a cash tender offer described therein and thereafter merge with and into the Company (the “Merger”) with the result that the Company becomes a wholly owned subsidiary of the Parent;

WHEREAS, as of the date hereof, Stockholders beneficially own and have the power to dispose of the Company Common Stock described in Amendment No. 3 to the Schedule 13D filed with the SEC on May 4, 2009 (the “13D”);

WHEREAS, the Parent desires to enter into this Agreement in connection with its efforts to consummate the acquisition of the Company;

WHEREAS, capitalized terms used in this Agreement and not defined have the meaning given to such terms in the Merger Agreement as written as of the date hereof.

NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual agreements, covenants, representations and warranties contained herein and intending to be legally bound hereby, the parties hereto agree as follows:

1.     Certain Covenants.

1.1     Sales.     Stockholders hereby covenant and agree that between the date hereof and the Termination Date, Stockholders will not directly or indirectly, sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of any manner any of the Company Common Stock, or agree to do any of the foregoing, in any transaction in which either Samuel F. Colin or Vincent Scialli knows that the transferee has publicly made an Acquisition Proposal or knows that the transferee intends to make an Acquisition Proposal.

1.2     No Solicitation.     Between the date hereof and the Termination Date, except as permitted by Section 6.1 of the Merger Agreement as written as of the date hereof, neither Stockholders nor any director, officer, employee or affiliate of Stockholders (collectively, “Representatives”) shall, directly or indirectly, take any action that the Company is prohibited from taking under Section 6.1 of the Merger Agreement. Stockholders will notify the Parent immediately if any party (other than the Parent and the Purchaser) contacts Samuel F. Colin or

Vincent Scialli following the date hereof concerning any Acquisition Proposal or any sale, transfer, pledge or other disposition of the Company Common Stock.

1.3     Schedule 13D.     Stockholders agree to have filed promptly an amendment to the 13D disclosing this Agreement.

1.4     Public Announcement.     Stockholders shall consult with the Parent before issuing any press releases or otherwise making any public statements with respect to the transactions contemplated herein and shall not issue any such press release or make any such public statement without the approval of the Parent, except as may be required by Law, including any filings with the SEC pursuant to the Exchange Act.

1.5     Disclosure.     Stockholders hereby authorize the Parent to publish and disclose in any announcement or disclosure required by the SEC, The Nasdaq Stock Market or the New York Stock Exchange or any other national securities exchange and in the Offer Documents and, if necessary, the Proxy Statement, (including all documents and schedules filed with the SEC in connection with either of the foregoing), its identity and ownership of the Company Common Stock and the substance of this Agreement. The Parent hereby authorize Stockholders to make such disclosure or filings as may be required by the SEC, The Nasdaq Stock Market or the New York Stock Exchange or any other national securities exchange.

2.     Representations and Warranties of Stockholder.     Stockholders hereby represent and warrant to the Parent, as of the date hereof, that the information in the 13D is true and correct in all material respects.

3.     Specific Performance.     Stockholders acknowledge that the 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 Stockholders which are contained in this Agreement. It is accordingly agreed that, in addition to any other remedies which may be available to the Parent upon the breach by Stockholders of such covenants and agreements, the Parent shall have the right to obtain injunctive relief to restrain any breach or threatened breach of such covenants or agreements or otherwise to obtain specific performance of any of such covenants or agreements.

4.     Miscellaneous.     

4.1     Term.     This Agreement and all obligations hereunder shall terminate upon the earlier of (i) the day after the Merger is consummated, (ii) the Outside Date, (iii) the date of any modification, waiver or amendment to the Merger Agreement in a manner that reduces the amount or changes the form of consideration payable thereunder to Stockholders or otherwise materially adversely affects Stockholders, and (iv) the termination of the Merger Agreement pursuant to Section 8.1 thereof (the earliest of (i), (ii), (iii) and (iv), the “Termination Date”).

4.2     Fiduciary Duties.     Notwithstanding anything in this Agreement to the contrary: (a) Stockholders makes no agreement or understanding herein in any capacity other than in Stockholders’ capacity as a record holder and beneficial owner of Company Common Stock, and (b) nothing herein will be construed to limit or affect any action or inaction by Stockholders or any Representative of Stockholders, as applicable, serving on the Company Board or on the board of directors of any Subsidiary of the Company or as an officer or fiduciary 

2

of the Company or any of Subsidiary of the Company, acting in such person’s capacity as a director, officer or fiduciary of the Company or any Subsidiary of the Company.

4.3     Expenses.     Each of the parties hereto shall pay its own expenses incurred in connection with this Agreement.

4.4     Binding Effect.     This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective representatives and permitted successors and assigns.

4.5     Entire Agreement.     This Agreement contains the entire understanding of the parties and supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended only by a written instrument duly executed by the parties hereto.

4.6     Headings.     The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

4.7     Assignment.     This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties. Any purported assignment requiring consent without such consent shall be void.

4.8     Counterparts.     This Agreement may be executed in one or more counterparts (including by facsimile or by an electronic scan delivered by electronic mail), each of which shall be an original, but each of which together shall constitute one and the same Agreement.

4.9     Notices.     All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by facsimile, in each case to the intended recipient as set forth below:

(a)     if to the Parent, to:

  c/o Covidien
15 Hampshire Street
Mansfield, MA 02048
Attn: Vice President—Chief Mergers & Acquisitions Counsel
Telephone: (508) 261-8044
Facsimile: (508) 261-8544
   
with a copy to:
  


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  Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Attn: Keith F. Higgins, Esq.
Telephone: (617) 951-7000
Facsimile: (617) 951-7050
     
(b)     If to Stockholders, to:


  Neal K. Stearns, Esq.
First Manhattan Co.
437 Madison Avenue
New York, New York 10022
Telephone: (212) 756-3260
Facsimile: (212) 751-0497
   
with a copy to:
  
Janet T. Geldzahler
Sullivan & Cromwell LLP
1701 Pennsylvania Ave.
Washington, D.C. 20006
Telephone: (202) 956-7515
Facsimile: (202)-293-6330

Any party may by notice given in accordance with this Section 4.9 to the other parties to designate updated information for notices hereunder.

4.10     Governing Law.     This Agreement shall be governed by and construed and enforced in accordance with the Laws of the State of Delaware, without regard to its principles of conflicts of Laws.

4.11     Enforceability.     The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible and, absent agreement among the parties, a court is authorized to so modify this Agreement.

4.12     Remedies Not Exclusive.     All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity will be cumulative and not alternative, and the exercise of any thereof by either party will not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

4

 

4.13     Waiver of Jury Trial.     EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

[The rest of this page has intentionally been left blank]

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IN WITNESS WHEREOF, the Parent and Stockholders have caused this Agreement to be duly executed as of the day and year first above written.

 

UNITED STATES SURGICAL CORPORATION

By: /s/ Matthew Nicoletta                   

 Name:  Matthew Nicoletta

 Title:  Vice President

 

 

 

 

[Signature Page to First Manhattan Agreement]

 

 

FIRST HEALTH, L.P.

By FIRST MANHATTAN CO., INC.,
      General Partner


By: /s/ Neal K. Stearns        
        Name:  Neal K. Stearns
       Title:  Vice President

FIRST HEALTH LIMITED


By: /s/ Neal K. Stearns        
       Name:  Neal K. Stearns
      Title:  Vice President


FIRST HEALTH ASSOCIATES, L.P.

By FIRST MANHATTAN CO., INC.,
      General Partner


By: /s/ Neal K. Stearns        
       Name:  Neal K. Stearns
      Title:  Vice President

FIRST BIOMED, L.P.

By FIRST BIOMED MANAGEMENT ASSOCIATES LLC,
      General Partner

By FIRST MANHATTAN CO.,
Co-Managing Member

By FIRST MANHATTAN LLC,
      General Partner

By: /s/ Neal K. Stearns        
        Name:  Neal K. Stearns
       Title:  Managing Member


FIRST BIOMED PORTFOLIO, L.P.

By FIRST BIOMED MANAGEMENT ASSOCIATES, LLC,
      General Partner

By FIRST MANHATTAN CO.,
Co-Managing Member

By FIRST MANHATTAN LLC,
      General Partner

By: /s/ Neal K. Stearns        
        Name:  Neal K. Stearns
       Title:  Managing Member


 

[Signature Page to First Manhattan Agreement]

EX-99.2 3 ex_99-2.htm TENDER AGREEMENT

Exhibit 99.2 

TENDER AND VOTING AGREEMENT

        THIS TENDER AND VOTING AGREEMENT (this “Agreement”) dated September 27, 2009, is entered into between United States Surgical Corporation, a Delaware corporation (the “Parent”), Transformer Delaware Corp., a Delaware corporation and direct or indirect wholly owned subsidiary of the Parent (the “Purchaser”), and Vincent P. Scialli, (“Stockholder”), with respect to (i) shares of common stock, $0.01 par value per share (the “Company Common Stock”), of Aspect Medical Systems, Inc., a Delaware corporation (the “Company”), (ii) all securities exchangeable, exercisable or convertible into Company Common Stock, and (iii) any securities issued or exchanged with respect to such Company Common Stock, and upon any recapitalization, reclassification, merger, consolidation, spin-off, partial or complete liquidation, stock dividend, split-up or combination of the securities of the Company or upon any other change in the Company’s capital structure, in each case whether now owned or hereafter acquired by the Stockholder (collectively, the “Securities”).

W I T N E S S E T H:

        WHEREAS, the Parent, the Purchaser and the Company have entered into an Agreement and Plan of Merger dated as of the date hereof (as the same may be amended or supplemented, other than to lower the price to be paid in the Offer or Merger, in accordance with the terms thereof, the “Merger Agreement”) pursuant to which the Purchaser has agreed to make a cash tender offer described therein and thereafter merge with and into the Company (the “Merger”) with the result that the Company becomes a wholly owned subsidiary of the Parent;

        WHEREAS, as of the date hereof, Stockholder beneficially owns and has the power to dispose of the Securities set forth on Schedule I hereto and has the power to vote the Company Common Stock set forth thereon;

        WHEREAS, the Parent and the Purchaser desire to enter into this Agreement in connection with their efforts to consummate the acquisition of the Company;

        WHEREAS, capitalized terms used in this Agreement and not defined have the meaning given to such terms in the Merger Agreement.

        NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual agreements, covenants, representations and warranties contained herein and intending to be legally bound hereby, the parties hereto agree as follows:

       1.     Certain Covenants.

1.1    Lock-Up.  Subject to Section 1.5, except as contemplated by the Merger Agreement, Stockholder hereby covenants and agrees that between the date hereof and the Termination Date (as hereinafter defined), Stockholder will not (a) directly or indirectly, sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of or limit its right to vote in any manner any of the Securities, or agree to do any of the foregoing, or (b) take any action which would have the effect of preventing or disabling Stockholder from performing its obligations under this Agreement. Notwithstanding the foregoing, in connection with any transfer not involving or relating to any Acquisition Proposal, Stockholder may transfer any or

 

all of the Securities as follows: (i) in the case of a Stockholder that is an entity, to any subsidiary, partner or member of Stockholder, and (ii) in the case of an individual Stockholder, to Stockholder’s spouse, ancestors, descendants or any trust for any of their benefits or to a charitable trust; provided, however, that in any such case, prior to and as a condition to the effectiveness of such transfer, each person to which any of such Securities or any interest in any of such Securities is or may be transferred shall have executed and delivered to the Parent and the Purchaser a counterpart to this Agreement pursuant to which such person shall be bound by all of the terms and provisions of this Agreement.

1.2     No Solicitation.  Between the date hereof and the Termination Date, except as permitted by Section 6.1 of the Merger Agreement, neither Stockholder nor any director, officer, agent, representative, employee, affiliate, advisor, attorney, accountant or associate of Stockholder or those of its subsidiaries (collectively, “Representatives”) shall, directly or indirectly, take any action that the Company is prohibited from taking under Section 6.1 of the Merger Agreement.

1.3     Certain Events.  This Agreement and the obligations hereunder will attach to the Securities and will be binding upon any person to which legal or beneficial ownership of any or all of the Securities passes, whether by operation of Law or otherwise, including without limitation, Stockholder’s successors or assigns. This Agreement and the obligations hereunder will also attach to any additional shares of Company Common Stock or other Securities of the Company issued to or acquired by Stockholder prior to the Termination Date.

1.4     Grant of Proxy; Voting Agreement. 

                        (a)        Stockholder has revoked or terminated any proxies, voting agreements or similar arrangements previously given or entered into with respect to the Securities and hereby irrevocably appoints the Parent as proxy for Stockholder to vote the Company Common Stock owned by Stockholder, including the shares of Company Common Stock beneficially owned as of the date hereof and set forth on Schedule I hereto, for Stockholder and in Stockholder’s name, place and stead, at any annual or special meeting, or at any adjournment thereof or pursuant to any consent of the stockholders of the Company, in lieu of a meeting or otherwise, whether before or after the Acceptance Time, solely for the adoption of the Merger Agreement. The Parent hereby acknowledges that the proxy granted hereby shall not be effective for any other purpose. The parties acknowledge and agree that neither the Parent, nor the Parent’s successors, assigns, subsidiaries, divisions, employees, officers, directors, stockholders, agents and affiliates shall owe any duty to, whether in law or otherwise, or incur any liability of any kind whatsoever, including without limitation, with respect to any and all claims, losses, demands, causes of action, costs, expenses (including reasonable attorney’s fees) and compensation of any kind or nature whatsoever to Stockholder in connection with or as a result of any voting by the Parent of the Company Common Stock owned by Stockholder or any execution of any consent. The parties acknowledge that, pursuant to the authority hereby granted under the irrevocable proxy, the Parent may vote the Securities in furtherance of its own interests, and the Parent is not acting as a fiduciary for Stockholder prior to the Termination Date.

 

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                        (b)        Notwithstanding the foregoing grant to the Parent of the irrevocable proxy, if the Parent elects not to exercise its rights to vote the Company Common Stock owned by Stockholder pursuant to the irrevocable proxy, Stockholder agrees to vote the Company Common Stock owned by Stockholder during the term of this Agreement in favor of or give its consent to, as applicable, a proposal to adopt the Merger Agreement as described in Section 1.4(a) at any annual or special meeting or action of the stockholders of the Company in lieu of a meeting or otherwise.

                        (c)        This irrevocable proxy shall not be terminated by any act of Stockholder or by operation of law, whether by the death or incapacity of Stockholder or by the occurrence of any other event or events (including, without limiting the foregoing, the termination of any trust or estate for which Stockholder is acting as a fiduciary or fiduciaries or the dissolution or liquidation of any corporation or partnership). If between the execution hereof and the Termination Date, Stockholder should die or become incapacitated, or if any trust or estate holding the Securities should be terminated, or if any corporation or partnership holding the Securities should be dissolved or liquidated, or if any other such similar event or events shall occur before the Termination Date, certificates representing the Securities shall be delivered by or on behalf of Stockholder in accordance with the terms and conditions of the Merger Agreement and this Agreement, and actions taken by the Parent hereunder shall be as valid as if such death, incapacity, termination, dissolution, liquidation or other similar event or events had not occurred, regardless of whether or not the Parent has received notice of such death, incapacity, termination, dissolution, liquidation or other event.

1.5     Tender of Common Stock.  Stockholder agrees, in exchange for the consideration described in the Merger Agreement, to tender the shares of Company Common Stock beneficially owned as of the date hereof and set forth on Schedule I hereto to the Purchaser in the Offer promptly following the commencement of the Offer, and in any event not later than five (5) Business Days following the commencement of the Offer. Stockholder further agrees, in exchange for the consideration described in the Merger Agreement, to tender the shares of Company Common Stock acquired by Stockholder after the date hereof promptly following such acquisition. Stockholder shall not withdraw any such shares of Company Common Stock so tendered unless the Offer is terminated or this Agreement shall have been terminated in accordance with its terms. Notwithstanding the foregoing, Stockholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Stock Options held by such Stockholder or tender any shares of Company Common Stock granted to such Stockholder under an employee benefit plan of the Company which are unvested and subject to any risk of forfeiture (“Non-Tender Securities”).

1.6     Option. 

                        (a)        On the terms and subject to the conditions set forth herein, Stockholder hereby grants to the Parent an irrevocable option (the “Option”) to purchase all of the right, title and interest of Stockholder in and to Stockholder’s shares of Company Common Stock, other than Stockholder’s Non-Tender Securities, at a price per share equal to the Offer Price. The Parent may exercise the Option in whole, but not in part, if, but only if, (i) the Purchaser has acquired shares of Company Common Stock pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any shares of Company Common Stock other than

 

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Stockholder's Non-Tender Securities or shall have withdrawn the tender of any shares of Company Common Stock other than Stockholder's Non-Tender Securities into the Offer.  The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.

                        (b)        In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of the Option or there shall be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (10th) day following the last date on which all required approvals shall have been obtained, all required waiting periods shall have expired or been terminated and any such prohibition shall have been vacated, terminated or waived.

                        (c)        At the closing of the purchase of Stockholder’s shares of Company Common Stock other than Stockholder’s Non-Tender Securities pursuant to exercise of the Option, simultaneously with the payment by the Parent of the purchase price for Stockholder’s shares of Company Common Stock, such Stockholder shall deliver, or cause to be delivered, to the Purchaser certificates representing such shares of Company Common Stock duly endorsed to the Parent or accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all liabilities, claims, liens, options, proxies, charges, participations and encumbrances of any kind or character whatsoever (collectively, “Liens”).

                        (d)        The Parent, the Purchaser or the Company, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Section 1.6 to a holder of Securities such amounts as are required to be withheld under the Code, or any applicable provision of state, local or non-U.S. Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Securities in respect of which such deduction and withholding was made.

1.7     Public Announcement.  Stockholder shall consult with the Parent before issuing any press releases or otherwise making any public statements with respect to the transactions contemplated herein and shall not issue any such press release or make any such public statement without the approval of the Parent, except as may be required by Law, including any filings with the SEC pursuant to the Exchange Act. This Section 1.7 shall terminate and be null and void upon the earlier of (i) the Termination Date and (ii) consummation of the Merger.

1.8     Disclosure.  Stockholder hereby authorizes the Parent and the Purchaser to publish and disclose in any announcement or disclosure required by the SEC, The Nasdaq Stock Market or the New York Stock Exchange or any other national securities exchange and in the Offer Documents and, if necessary, the Proxy Statement, (including all documents and schedules filed with the SEC in connection with either of the foregoing), its identity and ownership of the Securities and the nature of its commitments, arrangements and understandings under this

 

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Agreement. The Parent and the Purchaser hereby authorize Stockholder to make such disclosure or filings as may be required by the SEC, The Nasdaq Stock Market or the New York Stock Exchange or any other national securities exchange.

    2.        Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to the Parent and the Purchaser, as of the date hereof and as of the date the Purchaser purchases shares of Company Common Stock pursuant to the Offer, that:

2.1     Ownership.  Stockholder has good and marketable title to, and is the sole legal and beneficial owner of the Securities set forth on Schedule I hereto, in each case free and clear of all Liens. At the time the Purchaser purchases the Company Common Stock pursuant to the Offer, Stockholder will transfer and convey to the Parent or its designee good and marketable title to the shares of Company Common Stock included in the Securities, free and clear of all Liens created by or arising through Stockholder.

2.2     Authorization.  If Stockholder is not a natural Person, Stockholder has all requisite corporate, limited liability or similar power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. Stockholder has sole voting power and sole power of disposition with respect to the Securities with no restrictions on its voting rights or rights of disposition pertaining thereto, except as set forth in the Securities or pursuant to applicable community property laws. Stockholder has duly executed and delivered this Agreement and this Agreement is a legal, valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity. If Stockholder is married and the Securities constitute community property, this Agreement has been duly authorized, executed and delivered by Stockholder’s spouse, and this Agreement is a legal, valid and binding agreement of Stockholder’s spouse, enforceable against Stockholder’s spouse in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity.

2.3     No Violation.  Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (a) require Stockholder to file or register with, or obtain any permit, authorization, consent or approval of, any Governmental Entity other than filings with the SEC pursuant to the Exchange Act, or (b) violate, or cause a breach of or default under, or conflict with any contract, agreement or understanding, any Law binding upon Stockholder, except for such violations, breaches, defaults or conflicts which are not, individually or in the aggregate, reasonably likely to have a material adverse effect on Stockholder’s ability to satisfy its obligations under this Agreement. As of the date hereof, no proceedings are pending which, if adversely determined, will have an adverse effect on Stockholder’s ability to vote or dispose of any of the Securities. Stockholder has not previously assigned or sold any of the Securities to any third party.

 

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2.4     Stockholder Has Adequate Information.  Stockholder is a sophisticated seller with respect to the Securities and has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the sale of the Securities and has independently and without reliance upon either the Purchaser or the Parent and based on such information as Stockholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Stockholder acknowledges that neither the Purchaser nor the Parent has made and neither makes any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Stockholder acknowledges that the agreements contained herein with respect to the Securities by Stockholder are irrevocable (prior to the Termination Date), and that Stockholder shall have no recourse to the Securities, the Parent or the Purchaser, except with respect to breaches of representations, warranties, covenants and agreements expressly set forth in this Agreement.

2.5     No Setoff.  Stockholder has no liability or obligation related to or in connection with the Securities other than the obligations to the Parent and the Purchaser as set forth in this Agreement.

2.6     No Amounts Payable to Stockholder.  Except as disclosed in the Merger Agreement, there are no amounts due or payable by the Company or any Subsidiary of the Company to Stockholder in connection with the transactions contemplated by the Merger Agreement or this Agreement (other than any payments required under the Merger Agreement solely in exchange for equity securities of the Company).

    3.        Representations and Warranties of Parent and Purchaser.  The Parent and the Purchaser hereby represent and warrant to Stockholder, as of the date hereof that:

3.1     Authorization.  The Parent and the Purchaser have all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The Parent and the Purchaser have duly executed and delivered this Agreement and this Agreement is a legal, valid and binding agreement of each of the Parent and the Purchaser, enforceable against each of the Parent and the Purchaser in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity.

3.2     No Violation.  Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate, or cause a breach of or default under, any contract or agreement, any statute or law, or any judgment, decree, order, regulation or rule of any Governmental Entity, except for such violations, breaches or defaults which are not reasonably likely to prevent, or materially delay, the ability of either the Parent or the Purchaser to satisfy its obligations under this Agreement.

    4.        Representations and Warranties.  None of the representations and warranties in this Agreement shall survive the Termination Date. The respective representations and warranties of Stockholder, the Parent and the Purchaser contained herein shall not be deemed waived or otherwise affected by any investigation made by the other party hereto.

 

6

    5.        Specific Performance.  Stockholder acknowledges that the Purchaser and the 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 which are contained in this Agreement. It is accordingly agreed that, in addition to any other remedies which may be available to the Purchaser and the Parent upon the breach by Stockholder of such covenants and agreements, the Purchaser and the Parent shall have the right to obtain injunctive relief to restrain any breach or threatened breach of such covenants or agreements or otherwise to obtain specific performance of any of such covenants or agreements.

    6.        Miscellaneous.

6.1     Term.  This Agreement and all obligations hereunder shall terminate upon the earlier of (i) the day after the Merger is consummated, (ii) the Outside Date, (iii) the date of any modification, waiver or amendment to the Merger Agreement in a manner that reduces the amount or changes the form of consideration payable thereunder to Stockholder, and (iv) the termination of the Merger Agreement pursuant to Section 8.1 thereof (the earliest of (i), (ii), (iii) and (iv), the “Termination Date”). Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that (i) nothing set forth in this Section 6.1 shall relieve any party from liability for any willful breach of this Agreement prior to termination hereof, and (ii) the provisions of this Article 6 shall survive any termination of this Agreement.

6.2     Fiduciary Duties.  Notwithstanding anything in this Agreement to the contrary: (a) Stockholder makes no agreement or understanding herein in any capacity other than in Stockholder’s capacity as a record holder and beneficial owner of Securities, and not in such Stockholder’s capacity as a director, officer or employee of the Company or any of the Company’s Subsidiaries or in such Stockholder’s capacity as a trustee or fiduciary of any Employee Benefit Plan, and (b) nothing herein will be construed to limit or affect any action or inaction by Stockholder or any Representative of Stockholder, as applicable, serving on the Company Board or on the board of directors of any Subsidiary of the Company or as an officer or fiduciary of the Company or any of Subsidiary of the Company, acting in such person’s capacity as a director, officer, employee or fiduciary of the Company or any Subsidiary of the Company.

6.3     Expenses.  Each of the parties hereto shall pay its own expenses incurred in connection with this Agreement. Each of the parties hereto warrants and covenants to the others that it will bear all claims for brokerage fees attributable to action taken by it.

6.4     Binding Effect.  This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective representatives and permitted successors and assigns.

6.5     Entire Agreement.  This Agreement contains the entire understanding of the parties and supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended only by a written instrument duly executed by the parties hereto.

 

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6.6     Headings.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

6.7     Assignment.  Without limitation to Section 1.1, this Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties; provided, however, that each of the Parent and the Purchaser may freely assign its rights to another direct or indirect wholly owned subsidiary of the Parent or the Purchaser without such prior written approval but no such assignment shall relieve the Parent or the Purchaser of any of its obligations hereunder. Any purported assignment requiring consent without such consent shall be void.

6.8     Counterparts.  This Agreement may be executed in one or more counterparts (including by facsimile or by an electronic scan delivered by electronic mail), each of which shall be an original, but each of which together shall constitute one and the same Agreement.

6.9     Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by facsimile, in each case to the intended recipient as set forth below:

                        (a)        if to the Parent or the Purchaser, to:

                        c/o Covidien
                        15 Hampshire Street
                        Mansfield, MA 02048 
                        Attn: Vice President-Chief Mergers and Acquisition Counsel
                        Telecopy: (508) 261-8544

        with a copy to:

                        Ropes & Gray LLP
                        One International Place
                        Boston, MA 02110
                        Attn: Keith F. Higgins, Esq
                        Telecopy: (617) 951-7000

                        (b)        If to Stockholder, to the addresses indicated on Schedule I hereto.

Any party may by notice given in accordance with this Section 6.9 to the other parties to designate updated information for notices hereunder.

 

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6.10     Governing Law.  This Agreement shall be governed by and construed and enforced in accordance with the Laws of the State of Delaware, without regard to its principles of conflicts of Laws.

6.11     Enforceability.  The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible and, absent agreement among the parties, a court is authorized to so modify this Agreement.

6.12     Further Assurances.  From time to time, at the Parent’s request and without further consideration, Stockholder shall execute and deliver to the Parent such documents and take such action as the Parent may reasonably request in order to consummate more effectively the transactions contemplated hereby and to vest in the Parent good, valid and marketable title to the Securities, including, but not limited to, using its best efforts to cause the appropriate transfer agent or registrar to transfer of record the Securities.

6.13     Remedies Not Exclusive. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity will be cumulative and not alternative, and the exercise of any thereof by either party will not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

6.14     Waiver of Jury Trial.  EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

6.15     No Agreement Until Executed.  Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Company Board has approved, for purposes of any applicable anti-takeover laws and regulations, and any applicable provision of the Company’s certificate of incorporation, the possible acquisition of the shares of Company Common Stock by the Parent and the Purchaser pursuant to the Merger Agreement, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is executed by all parties hereto.

[The rest of this page has intentionally been left blank]

 

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        IN WITNESS WHEREOF, the Parent, the Purchaser and Stockholder have caused this Agreement to be duly executed as of the day and year first above written.

UNITED STATES SURGICAL CORPORATION

By: /s/ John W. Kapples              
 Name:  John W. Kapples
Title:  Vice President and Secretary

TRANSFORMER DELAWARE CORP.

By: /s/ John W. Kapples              
 Name:  John W. Kapples
Title:  Vice President and Secretary

STOCKHOLDER:

/s/ Vincent P. Scialli                 
Name:  Vincent P. Scialli

 

 

[Signature Page to Tender and Voting Agreement]



SCHEDULE I TO

THE TENDER AND VOTING AGREEMENT

1.     Securities held by Stockholder:

Stockholder

Company Common Stock

Company Stock Options

Restricted Shares
Vincent P. Scialli

2,000

10,000

5,000

 

2.     Address to which notices or other communications are to be sent in accordance with Section 6.9 of this Agreement:


Stockholder:

______________________________
______________________________
______________________________
Facsimile:_______________________
Email:__________________________
with a copy to:

______________________________
______________________________
______________________________
Facsimile:_______________________
Email:__________________________
and with a copy to:


 

 
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