Exhibit 2.2
TENDER AND SUPPORT AGREEMENT
TENDER AND SUPPORT AGREEMENT (this "Agreement") dated as of April
28, 2007 among Greatbatch, Ltd., a New York corporation ("Purchaser"), Chestnut
Acquisition Corporation, a Minnesota corporation and a wholly-owned subsidiary
of Purchaser ("Merger Sub"), and each individual listed on Annex I (each, a
"Shareholder"), each an owner of shares of common stock or options to acquire
shares of common stock of Enpath Medical, Inc., a Minnesota corporation
("Enpath").
WHEREAS, as of the date hereof, each Shareholder is the record
holder or beneficial owner of the number of shares of Enpath Common Stock and
Company Stock Options set forth opposite such Shareholder's name on Annex I, and
no other capital stock or rights to purchase or receive any capital stock of
Enpath (all such directly owned shares of Enpath Common Stock which are
outstanding as of the date hereof and which may hereafter be issued pursuant to
any exercise of Options, acquisition by purchase, or stock dividend,
distribution, split-up, recapitalization, combination or similar transaction,
being referred to herein as the "Subject Shares");
WHEREAS, as a condition to their willingness to enter into the
Agreement and Plan of Merger (the "Merger Agreement") dated as of the date
hereof among Purchaser, Merger Sub and Enpath, Purchaser and Merger Sub have
requested that each Shareholder, and in order to induce Purchaser and Merger Sub
to enter into the Merger Agreement each Shareholder (only in such Shareholder's
capacity as a shareholder of Enpath) has agreed to, enter into this Agreement;
WHEREAS, capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Merger
Agreement and shall apply hereto as if such provisions were set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
below, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO TENDER
Section 1.01. Agreement to Tender.
(a) Each Shareholder shall duly tender, or cause to be
tendered, in the Offer, all of the shares of Enpath Common Stock set forth
opposite such Shareholder's name under the heading, Shares of Enpath Common
Stock on Annex I (collectively, the "Tender Shares") pursuant to and in
accordance with the terms of the Offer. Promptly, but in any event no later than
ten Business Days after the commencement of the Offer, each Shareholder shall
(i) deliver to the depositary designated in the Offer (the "Depositary") (A) a
letter of transmittal with respect to such Tender Shares complying with the
terms of the Offer, (B) a certificate or certificates representing such Tender
Shares or an "agent's message" (or such other evidence, if any, of transfer as
the Depositary may reasonably request) in the case of a book-entry transfer of
any uncertificated Tender Shares and (C) all other documents or instruments
required to be delivered pursuant to the terms of the Offer, and/or (ii)
instruct his or her broker or such other Person that is the holder of record of
any Tender Shares beneficially owned by such Shareholder to tender such Tender
Shares pursuant to and in accordance with the terms of the Offer.
(b) Each Shareholder agrees that once his or her Tender Shares
are tendered by him or her, such Shareholder will not withdraw, nor permit the
withdrawal of, any tender of such Tender Shares, unless and until (i) the Offer
shall have been terminated by Merger Sub in accordance with the terms of the
Merger Agreement, or (ii) this Agreement shall have been terminated in
accordance with Section 3.03.
ARTICLE 2
ADDITIONAL COVENANTS OF THE SHAREHOLDERS
Subject to Section 3.14, each Shareholder hereby covenants and
agrees, severally and not jointly, that:
Section 2.01. Voting of Subject Shares. At every meeting of the
shareholders of Enpath called for such purpose, and at every adjournment or
postponement thereof, such Shareholder shall, or shall cause the holder of
record on any applicable record date to, vote his or her Subject Shares (to the
extent that any of such Shareholder's Subject Shares are then outstanding and
not purchased in the Offer):
(i) in favor of the adoption of the Merger Agreement and the transactions
contemplated thereby,
(ii) against (A) any agreement or arrangement related to any Acquisition
Proposal, or (B) any liquidation, dissolution, recapitalization,
extraordinary dividend or other significant corporate reorganization
of Enpath, and
(iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered
at any such meeting of shareholders, and in connection therewith to
execute any documents which are necessary or appropriate in order to
effectuate the foregoing.
In the event that any meeting of the shareholders of Enpath is
held, such Shareholder shall, or shall cause the holder of record on any
applicable record date to, appear at such meeting or otherwise cause his or her
Subject Shares (to the extent that any of such Shareholder's Subject Shares are
then outstanding and not purchased in the Offer) to be counted as present
thereat for purposes of establishing a quorum.
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Section 2.02. No Transfers; No Inconsistent Arrangements.
(a) Except as provided hereunder or under the Merger
Agreement, such Shareholder shall not, directly or indirectly,
(i) transfer (which term shall include any sale,
assignment, gift, pledge, hypothecation or other disposition), or
consent to or permit any such transfer of, any or all of his or her
Subject Shares or any interest therein, or create or permit to exist
any Lien, other than any restrictions imposed by any applicable Legal
Requirement or pursuant to this Agreement, on any such Subject Shares,
(ii) enter into any contract or agreement with
respect to any transfer of such Subject Shares or any interest therein,
(iii) grant or permit the grant of any proxy, power
of attorney or other authorization in or with respect to such Subject
Shares relating to the subject matter hereof,
(iv) deposit or permit the deposit of such Subject Shares into a voting
trust or enter into a voting agreement or arrangement with respect to
such Subject Shares, or
(v) take or permit any other action that would in any way restrict, limit
or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or otherwise make any representation
or warranty of each Shareholder herein untrue or incorrect;
provided that the actions described in clauses (i) and (ii) above shall be
permitted hereunder as a result of any donative transfer to any immediate family
member of any Shareholder, or a trust for the exclusive benefit of any
Shareholders and/or any immediate family members of such Shareholder; and
provided further that prior to such transfer, the transferee shall agree in
writing to be bound by the terms hereof (a copy of which written agreement shall
promptly be provided to Purchaser) and such transfer shall not relieve any
Shareholder of any of his or her obligations hereunder.
(b) Any attempted transfer of Subject Shares or any
interest therein in violation of this
Section 2.02 shall be null and void.
In furtherance of this Agreement, such Shareholder shall and
hereby does authorize Enpath and Merger Sub's counsel to notify Enpath's
transfer agent that there is a stop transfer restriction with respect to all of
his or her Subject Shares (and that this Agreement places limits on the voting
and transfer of his or her Subject Shares); provided that any such stop transfer
restriction shall terminate upon the termination of this Agreement in accordance
with its terms and, upon such event, Purchaser shall notify Enpath's transfer
agent of such termination.
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Section 2.03. Appraisal Rights. Such Shareholder agrees not to
exercise any appraisal or dissenter's rights in respect of his or her Subject
Shares which may arise with respect to the Merger or other transactions
contemplated by the Merger Agreement pursuant to the MBCA or any other Legal
Requirement.
Section 2.04. Documentation and Information. Such Shareholder (i)
consents to and authorizes the publication and disclosure by Purchaser of his or
her identity and holding of Subject Shares, and the nature of his or her
commitments, arrangements and understandings under this Agreement, and any other
information that Purchaser reasonably determines to be necessary or desirable in
any press release, the Offer Documents, or any other disclosure document in
connection with the Offer, the Merger and any transactions contemplated by the
Merger Agreement, and (ii) agrees as promptly as practicable to give to
Purchaser any information it may reasonably require for the preparation of any
such disclosure documents. Such Shareholder agrees as promptly as practicable to
notify Purchaser of any required corrections with respect to any written
information supplied by it specifically for use in any such disclosure document,
if and to the extent such Shareholder become aware that any shall have become
false or misleading in any material respect.
ARTICLE 3
MISCELLANEOUS
Section 3.01. Notices. All notices or other communications which
are required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent and received by facsimile transmission or overnight
express or by registered or certified mail, postage prepaid, addressed as
follows:
If to Purchaser or Merger Sub:
Greatbatch, Ltd.
9645 Wehrle Drive
Clarence, New York 14031
Attn: President
Telephone: 716-759-5600
Facsimile: 716-759-5654
With a required copy to:
Hodgson Russ LLP
One M&T Plaza, Suite 2000
Buffalo, New York 14203
Attn: Robert B. Fleming
Kristy L. Berner
Telephone: 716-856-4000
Facsimile: 716-849-0349
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If to a Shareholder:
Enpath Medical, Inc.
2300 Berkshire Lane North
Minneapolis, Minnesota, 55441
Attn: Chief Executive Officer
Telephone: (763) 951-8181
Facsimile: (763) 559-0148
With a required copy to:
Lindquist & Vennum, P.L.L.P.
4200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Attn: Thomas G. Lovett IV
Barbara Lano Rummel
Telephone: (612) 371-3211
Facsimile: (612) 371-3207
or to such other address or facsimile number as such party may hereafter specify
for the purpose by notice to each other party hereto. All such notices and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a Business Day in the place of
receipt.
Otherwise, any such notice, request or communication shall be
deemed to have been received on the next succeeding Business Day in the place of
receipt.
Section 3.02. Further Assurances. Each Shareholder will, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Purchaser or Merger Sub may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement and to
vest the power to vote his or her Subject Shares as contemplated by Section
2.01.
Section 3.03. Termination. This Agreement shall terminate upon the
earlier of (i) the termination of the Merger Agreement in accordance with its
terms, or (ii) the Effective Time.
Section 3.04. Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time.
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Section 3.05. Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived
if such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by any applicable law.
Section 3.06. Expenses. Except as otherwise provided herein, all
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section 3.07. Binding Effect; Benefit; Assignment.
(a) The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. No provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations or liabilities hereunder upon any Person other
than the parties hereto and their respective successors and assigns.
(b) No party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent of each other
party hereto, except that each of Purchaser and Merger Sub may transfer or
assign its rights and obligations under this Agreement, in whole or from time to
time in part, to one or more of its Affiliates at any time; provided that such
transfer or assignment shall not relieve Purchaser or Merger Sub of any of its
obligations hereunder.
Section 3.08. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to the
conflicts of law rules of any jurisdiction.
(b) Each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of any court of the United States in the State of
Minnesota in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (iii) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than any court of the United States located in the
State of Minnesota, and (iv) consents to service being made through the notice
procedures set forth in Section 3.10. Each of Purchaser, Merger Sub and
Shareholder hereby agrees that service of any process, summons, notice or
document by U.S. registered mail to the respective addresses set forth in
Section 3.10 shall be effective service of process for any claim, action, suit
or proceeding in connection with this Agreement or the transactions contemplated
hereby.
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Section 3.09. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 3.10. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by all of the other parties hereto.
Until and unless each party has received a counterpart hereof signed by each
other party hereto, this Agreement shall have no effect and no party shall have
any right or obligation hereunder (whether by virtue of any other oral or
written agreement or other communication).
Section 3.11. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to its subject matter.
Section 3.12. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other Governmental Entity to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall 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 in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section 3.13. Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement was not performed in accordance with its specified terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of competent
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
Section 3.14. Shareholder Capacity. Notwithstanding any provision
of this Agreement to the contrary, nothing in this Agreement shall (or shall
require any Shareholder to attempt to) limit or restrict any Shareholder who is
a director or officer of Enpath from acting in such capacity (it being
understood that this Agreement shall apply to each Shareholder solely in each
Shareholder's capacity as a shareholder of Enpath).
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Section 3.15. Shareholder Obligations Several and Not Joint. The
obligations of each Shareholder hereunder shall be several and not joint and no
Shareholder shall be liable for any breach of the terms of this Agreement by any
other Shareholder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PURCHASER: GREATBATCH, LTD.
By:_______________________________
Name:
Title
MERGER SUB: CHESTNUT ACQUISITION CORPORATION
By:_______________________________
Name:
Title
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SHAREHOLDER:
-------------------------------
Name:
ANNEX I
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Shareholder Shares of Enpath Common Stock Number of Shares Subject to Company
Stock Options
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John C. Hertig -0- 120,000
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James D. Hartman 139,430 (1) 72,500
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Thomas L. Auth 73,500 26,500
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Michael D. Dale -0- 32,000
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Albert Emola -0- 22,000
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Richard F. Sauter 6,400 52,000
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Richard T. Schwarz 9,380 6,000
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(1) Includes 5,000 shares that Mr. Hartman owns jointly with his
daughter, for which he shares voting and investment control, and
500 shares owned by Mr. Hartman's spouse, over which she
exercises sole voting and investment control.