EXHIBIT 3
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of September 20, 1998 (this
"Agreement"), by the undersigned shareholder (the "Shareholder") of Marquette
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Medical Systems, Inc., a Wisconsin corporation (the "Company"), for the benefit
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of General Electric Company, a New York corporation ("Parent").
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RECITALS
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WHEREAS, Parent, Emerald Merger Corp., a Wisconsin corporation and a
direct wholly owned subsidiary of Parent ("Sub"), and the Company are entering
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into an Agreement and Plan of Merger, dated as of September 20, 1998 (the
"Merger Agreement"), whereby, upon the terms and subject to the conditions set
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forth in the Merger Agreement, each issued and outstanding Common Shares, par
value $.10 per share, of the Company ("Company Common Stock"), not owned
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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");
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WHEREAS, the Shareholder owns that number of shares of Company Common
Stock appearing on the signature page hereof (such shares of Company Common
Stock, together with any other shares of capital stock of the Company acquired
by such Shareholder after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares"); and
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WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Shareholder agree, and in order to
induce Parent to enter into the Merger Agreement the Shareholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Shareholder agrees as follows:
6. Covenants of Shareholder. Until the termination of
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this Agreement in accordance with Section 3, the Shareholder
agrees as follows:
(a) The Shareholder 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
Shareholder shall vote (or cause to be voted) 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) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Shareholder's vote, consent or other approval is sought, the Shareholder
shall vote (or cause to be voted) 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 Amended and Restated Articles of Incorporation,
as amended, or Amended and Restated 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 Shareholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
(c) The Shareholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, "Transfer"), or
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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 or (ii) 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;
provided, however, that the Shareholder may (A) Transfer up to 5,000 of the
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Subject Shares by gift to charitable organizations and up to 12,000 of the
Subject Shares by gift to members of the "immediate family" (as defined in
Rule 16a-1(e) of the Exchange Act) of the Shareholder; (B) Transfer up to
200,000 of the Subject Shares in connection with the exercise of
Shareholder Stock Options (as defined below); and (C) pledge as collateral
up to 250,000 of the Subject Shares in connection with the exercise of
Company Stock Options held by the Shareholder pursuant to the Company Stock
Option Plans; provided, that any pledgee of such Subject Shares agrees in
writing to be bound by the terms of this Agreement in the event such
pledgee exercises its right to foreclose or otherwise acquires such Subject
Shares.
(d) The Shareholder shall not, nor shall the Shareholder authorize
any investment banker, attorney or other advisor or representative of the
Shareholder to, (i) directly or indirectly solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) directly or indirectly
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) The Shareholder shall use the Shareholder's 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) The Shareholder agrees to promptly notify Parent in writing of
the nature and amount of any acquisition by such Shareholder of any voting
securities of the Company acquired by such Shareholder hereinafter.
(g) The Shareholder shall not knowingly take or fail to take any
action which would cause any of the representations and warranties set
forth in the Shareholder Tax Certificate attached hereto as Attachment A to
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be untrue or incorrect.
7. Representations and Warranties. The Shareholder
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represents and warrants to Parent as follows:
(a) The Shareholder is the record and beneficial owner of, and has
good and marketable title to, the Subject Shares. The Shareholder does not
own, of record or beneficially, any shares of capital stock of the Company
other than the Subject Shares. The Shareholder has granted to the employees
of the Company listed on Attachment B hereto the option to purchase from
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the Shareholder the number of Subject Shares set forth opposite the name of
each such employee on Attachment B pursuant to the form of option agreement
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delivered by the Shareholder to the Company (collectively, the "Shareholder
Stock Options"). The Shareholder has 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
for Subject Shares that are subject to the Shareholder Stock Options.
(b) This Agreement has been duly executed and delivered by the
Shareholder. Assuming the due authorization, execution and delivery of this
Agreement by Parent, this Agreement constitutes the valid and binding
agreement of the Shareholder enforceable against the Shareholder in
accordance with its terms. The execution and delivery of this Agreement by
the Shareholder does not and will not conflict with any agreement, order or
other instrument binding upon the Shareholder, nor require any regulatory
filing or approval.
(c) To the Knowledge of the Shareholder, the representations set
forth in the Shareholder Tax Certificate attached hereto as Attachment A,
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if made on the date hereof (assuming the Merger were consummated as of the
date hereof), would be true and correct.
8. Termination. The obligations of the Shareholder
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hereunder shall terminate upon the earlier to occur of (i)
six months after the termination of the Merger Agreement
pursuant to Section 7.1 thereof and (ii) the Effective Time;
provided, however, that if the Merger Agreement is
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terminated by the Company pursuant to Section 7.1(b), (c) or
(d) thereof (other than a termination pursuant to Section
7.1(d)(i) following receipt of a Superior Proposal) or if
the Merger Agreement is terminated pursuant to Section
7.1(a) thereof, then such obligations shall terminate upon
the termination of the Merger Agreement.
9. Further Assurances. The Shareholder will, from time to
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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.
10. Successors, Assigns and Transferees Bound. Any
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successor, assignee or transferee (including a successor,
assignee or transferee as a result of the death of the
Shareholder, such as an executor or heir) shall be bound by
the terms hereof, and the Shareholder 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.
11. Affiliate Letter; Shareholder Tax Certificate. The
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Shareholder agrees 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 to the Merger Agreement
and (ii) the Shareholder Tax Certificate attached hereto as
Attachment A.
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12. Remedies. The Shareholder acknowledges that money
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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 Shareholder agrees 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.
13. Severability. The invalidity or unenforceability of
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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 .
14. Amendment. This Agreement may be amended only by means
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of a written instrument executed and delivered by both the
Shareholder and Parent.
15. Jurisdiction. Each party hereby irrevocably submits to
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the exclusive jurisdiction of the United States District
Court for either the District of Connecticut or the Eastern
District of Wisconsin 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.
16. Governing Law. Except to the extent that the laws of
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the State of Wisconsin 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.
17. Notice. All notices, requests, demands and other
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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, to:
General Electric Company
c/o GE Medical Systems
P. O. Box 414, W-410
Milwaukee, Wisconsin 53201
Attention: General Counsel
Facsimile No.: 414-544-3573
for overnight courier deliveries, to:
General Electric Company
c/o GE Medical Systems
3000 North Grandview Boulevard
Waukesha, Wisconsin 53188
Attention: General Counsel
with copies to:
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431-0001
Attention: Vice President and Senior
Counsel - Transactions
Facsimile No.: 203-373-3008
and
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Thomas A. Cole, Esq.
Dennis V. Osimitz, Esq.
Facsimile No.: 312-853-7036
(b) if to the Shareholder to:
Michael J. Cudahy
1748 Lakefield Road
Cedarburg, Wisconsin 53012
Facsimile No.: 414-376-1418
with a copy to:
Schoenberg, Fisher, Newman & Rosenberg, Ltd.
222 South Riverside Plaza, Suite 2100
Chicago, Illinois 60606
Attention: Melvin S. Newman, Esq.
Facsimile No.: 312-648-1212
18. Capitalized Terms. Capitalized terms used in this
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Agreement that are not defined herein shall have such
meanings as set forth in the Merger Agreement.
19. Counterparts. For the convenience of the parties, this
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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.
20. No Limitation on Actions of the Shareholder as
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Director. Notwithstanding anything to the contrary in this
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Agreement, nothing in this Agreement is intended or shall be
construed to require the Shareholder to take or in any way
limit any action that the Shareholder may take to discharge
the Shareholder's fiduciary duties as a director of the
Company, including but not limited to the right to vote for
or support a Superior Proposal in accordance with the terms
of the Merger Agreement.
/s/ Michael J. Cudahy
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Michael J. Cudahy
Number of shares of Company Common Stock
owned on the date hereof: 3,157,842
Accepted and Agreed to
as of the date set forth above:
GENERAL ELECTRIC COMPANY
By: /s/ Jeffrey R. Immelt
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Name: Jeffrey R. Immelt
Title: Senior Vice President
Attachment B
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Name of Employee Number of Options
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Leo Panzieri 8,000
Philippe Mabile 8,000
Ulrich Oltersdorf 8,000
Thomas Kleine 8,000
Andreas Dahm 8,000
Alastair Trivett 8,000
Manuel Barja 8,000
Marleen Jespers 8,000
Jurgen Nieveler 8,000
Jonas Kopcke 8,000