Exhibit 2.2
TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT
(this “ Agreement ”), is dated as of
February 11, 2008 by and among MEDRAD, INC, a Delaware
corporation (“ Parent ”), PHOENIX ACQUISITION
CORP., a Minnesota corporation and a wholly owned subsidiary of
Parent (“ Purchaser ”), and ____________, in his
capacity as a shareholder of the Company (the “
Shareholder ”). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in
the Merger Agreement (defined below).
WHEREAS, as of the date hereof, the
Shareholder is the beneficial owner of the number of shares of
Common Stock set forth opposite the name of the Shareholder on
Annex A hereto (excluding shares of Common Stock deemed to
be beneficially owned as a result of holding options) (such shares
on Annex A, together with any shares of Common Stock acquired by
the Shareholder after the date hereof, whether as a result of the
exercise of options or otherwise, “ Owned Shares
”); and
WHEREAS, Parent, Purchaser, and
Possis Medical, Inc. (the “ Company ”) are
simultaneously with the execution of this Agreement entering into
an Agreement and Plan of Merger, dated as of the date of this
Agreement (as it may be amended from time to time in accordance
with its terms, the “ Merger Agreement ”),
providing for, among other things, Purchaser to commence a cash
tender offer (the “ Offer “) to acquire all of
the outstanding Shares of the Company, followed by the subsequent
merger of Purchaser with and into the Company with the Company
surviving the merger as a wholly owned subsidiary of Parent, in
each case, on the terms and subject to the conditions set forth in
the Merger Agreement; and
WHEREAS, as a condition to
Parent’s and Purchaser’s willingness to enter into and
perform its obligations under the Merger Agreement, Parent and
Purchaser have required that the Shareholder agree, and the
Shareholder has agreed, (i) to tender in the Offer (and not
withdraw) all of the Shareholders’ Owned Shares, and
(ii) that in the event that a vote of the Company’s
Shareholders is required in furtherance of the Merger Agreement or
the transactions contemplated thereby, including the Merger, the
Shareholder will vote all of the Owned Shares (to the extent any
Owned Shares are not purchased in the Offer) in favor of the
approval of the Merger and the adoption of the Merger Agreement,
and (iii) to take the other actions described in this
Agreement; and
WHEREAS, the Shareholder desires to
express its support for the Merger Agreement and the transactions
contemplated thereby, including the Offer and the Merger.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration given to
each party hereto, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. Agreement to Tender and
Vote; Irrevocable Proxy .
1.1
Agreement to Tender . (a) The Shareholder agrees that
as promptly as practicable after the commencement of the Offer, and
in any event no later than the 10th Business Day following the
commencement of the Offer, the Shareholder shall irrevocably tender
into the Offer all of the Owned Shares owned by the Shareholder
free and clear of all Liens. If the Shareholder acquires any Owned
Shares after the 10 th Business Day
following the commencement of the Offer (including during any
subsequent offering period, if any), the Shareholder shall
irrevocably tender into the Offer such Owned Shares on the date
that the Shareholder shall acquire such Owned Shares.
(b) The
Shareholder agrees that once the Owned Shares are tendered into the
Offer, the Shareholder shall not withdraw the tender of such Owned
Shares unless the Offer shall have been terminated or shall have
expired, in each case, in accordance with the terms of the Merger
Agreement, or the Merger Agreement has been terminated.
1.2
Agreement to Vote . The Shareholder hereby agrees that,
during the term of this Agreement, at any meeting of the
shareholders of the Company, however called, or any adjournment or
postponement of such meeting, the Shareholder shall be present (in
person or by proxy) and vote (or cause to be voted) all of the
Owned Shares (to the extent the Owned Shares are not purchased in
the Offer) (a) in favor of adoption of (1) the Merger
Agreement and all the transactions contemplated by the Merger
Agreement, including the Merger and the Plan of Merger, and
(2) any other matter that is required to facilitate the
consummation of the transactions contemplated by the Merger
Agreement and in connection with the Merger Agreement to execute
any documents which are necessary or appropriate in order to
effectuate the foregoing; and (b) against (1) any
Acquisition Proposal, any agreement or arrangement related to such
Acquisition Proposal, and (2) any action or agreement that
would impair the ability of Parent and the Purchaser to complete
the Offer or the Merger, the ability of the Company to consummate
the Merger, or that would otherwise be inconsistent with, prevent,
impede or delay the consummation of the transactions contemplated
by the Merger Agreement.
1.3
Irrevocable Proxy . The Shareholder hereby irrevocably
grants to, and appoints, Parent and any designee of Parent and each
of Parent’s officers, as Shareholder’s attorney, agent
and proxy with full power of substitution and resubstitution, to
the full extent of the Shareholders’ voting rights with
respect to the Owned Shares, to vote all the Owned Shares or grant
a consent or approval, at any meeting of the shareholders of the
Company and in any action by written consent of the shareholders of
the Company, until the earlier of the acceptance of Shares pursuant
to the Offer or the date of termination of the Merger Agreement, on
the matters described in Section 1.2, and in accordance
therewith. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN
IRREVOCABLE PROXY AND, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM SHAREHOLDER
MAY TRANSFER ANY SHARES. The Shareholder revokes all other proxies
and power of attorneys, with respect to all of the Owned Shares
that may have heretofore been appointed or granted with respect to
any matters covered by Section 1.2, and no subsequent proxy
(whether revocable or irrevocable) or power of attorney shall be
given by the Shareholder, except as required by any letter of
transmittal in connection with the Offer. The
Shareholder agrees to execute any further agreement or form
reasonably necessary or appropriate to confirm and effectuate the
grant of the proxy contained herein. Such proxy shall automatically
terminate upon the valid termination of this Agreement in
accordance with Section 5.1.
2. Representations and
Warranties . The Shareholder hereby represents and warrants to
Parent and Purchaser as follows:
2.1
Power; Due Authorization; Binding Agreement . The
Shareholder has full legal capacity, power and authority to execute
and deliver this Agreement, to perform his obligations under this
Agreement, and to consummate the transactions contemplated by this
Agreement. This Agreement has been duly and validly executed and
delivered by the Shareholder and constitutes a valid and binding
agreement of the Shareholder, enforceable against the Shareholder
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally or by
general principles of equity (regardless of whether considered at
law or in equity).
2.2
Ownership of Shares . On the date of this Agreement, the
Owned Shares set forth opposite the Shareholder’s name on
Annex A are owned beneficially by the Shareholder and
include all of the Owned Shares owned beneficially by the
Shareholder, free and clear of any Liens. As of the date of this
Agreement, the Shareholder has, and, except as contemplated by this
Agreement, as of immediately prior to the expiration of the Offer,
the Shareholder will have sole voting and dispositive power with
respect to the Owned Shares and will be entitled to dispose of the
Owned Shares.
2.3
No Conflicts . The execution and delivery of this Agreement
by the Shareholder does not, and the performance of the terms of
this Agreement by the Shareholder will not, (a) other than any
filing required under Section 13(d) or Section 16 of the
Exchange Act, require the Shareholder to obtain the consent or
approval of, or make any filing with or notification to, any
Governmental Entity, (b) require the consent or approval of
any other Person pursuant to any agreement, obligation or
instrument binding on Shareho
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