This Voting
Agreement (this “ Agreement ”), is made
and entered into as of [
], 2009, by and between ev3 Inc., a Delaware corporation (“
Parent ”), and the undersigned shareholder
(“ Shareholder ”) of Chestnut Medical
Technologies, Inc., a California corporation (the “
Company ”).
A. Concurrently
with the execution of this Agreement, Parent, Starsky Merger Sub,
Inc., a California corporation and a direct wholly owned subsidiary
of Parent (“ Merger Sub ”), Starsky
Acquisition Sub, Inc., a California corporation and a direct wholly
owned subsidiary of Parent (“ Acquisition Sub
”) and the Company are entering into an Agreement and Plan of
Merger (as may be amended from time to time, the “
Merger Agreement ”), pursuant to which the
Merger Sub will be merged with and into Company, immediately
followed by the Company merging with and into Acquisition Sub (the
“ Merger ”). Capitalized terms used but
not defined herein shall have the meanings given to them in the
Merger Agreement.
B. Shareholder
is the record and beneficial owner of such number of outstanding
shares of Company Capital Stock and/or Company Options as is
indicated on the signature pages to this Agreement.
C. As a
material inducement to enter into the Merger Agreement, Parent
desires Shareholder to agree, and Shareholder is willing to agree,
to vote the Shares (as defined in Section 1.1 below), and such
other shares of capital stock of the Company over which Shareholder
has voting power, so as to facilitate consummation of the
Merger.
In consideration
of the foregoing and the representations, warranties, covenants and
agreements set forth in this Agreement, the parties agree as
follows:
1.1 Shares
. The term “ Shares ” shall mean all
issued and outstanding shares of Company Capital Stock owned of
record and beneficially owned by Shareholder or over which
Shareholder exercises voting power, in each case, as of the date of
this Agreement. Shareholder agrees that any shares of capital stock
of the Company that Shareholder purchases or with respect to which
Shareholder otherwise acquires beneficial ownership or over which
Shareholder exercises sole voting power after the date of this
Agreement and prior to the termination of this Agreement pursuant
to Section 4 below shall be subject to the terms and
conditions of this Agreement to the same extent as if they
constituted Shares as of the date hereof.
1.2 Agreement
to Vote Shares . Shareholder hereby covenants and agrees that
during the period commencing on the date hereof and continuing
until this Agreement terminates pursuant to Section 4 hereof,
at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the shareholders of the Company,
however called, and in any action by written consent of the
shareholders of the Company, Shareholder shall appear at the
meeting or otherwise cause any and all Shares to be counted as
present thereat for purposes of establishing a quorum and vote (or
cause to be voted), or give his, her or its consent with
respect to, any
and all Shares: (i) in favor of the Company Shareholder
Proposal (which includes approval of the Merger and the Merger
Agreement); and (ii) against any of the following (or any
agreement to enter into, effect, facilitate or support any of the
following): (A) any Acquisition Proposal (other than the
Merger); (B) 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
(C) any amendment of the Company’s Articles of
Incorporation or Bylaws or any other proposal or transaction
involving the Company, the purpose of which amendment or other
proposal or transaction is to delay, prevent or nullify the Merger
or the transaction contemplated by the Merger Agreement or change
in any manner the voting rights of any capital stock of the Company
(collectively, “ Frustrating Transactions
”). Shareholder further agrees not to enter into any
agreement or understanding with any person or entity the effect of
which would be inconsistent with or violative of any provision
contained in this Section 1.2. Any vote or consent (or
withholding of consent) by the Shareholder that is not in
accordance with this Section 1.2 shall be considered null and
void, and the provisions of Section 1.3 shall be deemed to
take immediate effect. Notwithstanding anything to the contrary
contained herein, nothing in this Agreement shall be construed to
limit or restrict Shareholder from acting in his or her capacity as
a director of the Company or voting in Shareholder’s sole
discretion on any matter other than those matters referred to in
the first sentence of this Section 1.2.
1.3 Irrevocable
Proxy . The Shareholder hereby irrevocably grants to, and
appoints, Parent and any designee of Parent, and each of them
individually, as the Shareholder’s proxy and attorney-in-fact
(with full power of substitution and resubstitution), for and in
the name, place and stead of the Shareholder, to vote the Shares of
the Shareholder, or grant a consent or approval in respect of the
Shares of the Shareholder in a manner consistent with
Section 1.2. The Shareholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the
Shareholder’s execution and delivery of this Agreement. The
Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 1.3 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Shareholder under this
Agreement. The Shareholder agrees that this proxy shall be
irrevocable during the term of this Agreement and is coupled with
an interest sufficient at law to support an irrevocable proxy and
given to Parent as an inducement to enter into the Merger Agreement
and, to the extent permitted under applicable law, shall be valid
and binding on any person to whom Shareholder may transfer any of
his, her or its Shares in breach of this Agreement. The
Shareholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. All
authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the Shareholder and any obligation of
the Shareholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of the
Shareholder. Notwithstanding anything to the contrary herein, the
irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement pursuant to Section 4
hereof.
1.4 Adjustments
Upon Changes in Capitalization . In the event of any change in
the number of issued and outstanding shares of Company Capital
Stock by reason of any stock split, reverse split, stock dividend
(including any dividend or distribution of securities convertible
into Company Capital Stock), combination, reorganization,
recapitalization or other like change,
conversion or
exchange of shares, or any other change in the corporate or capital
structure of the Company, the term “ Shares
” shall be deemed to refer to and include the Shares as well
as all such stock dividends and distributions and any shares into
which or for which any or all of the Shares may be changed or
exchanged.
2.1 Transfers
and Other Restrictions . Shareholder represents, covenants and
agrees that, except as contemplated by this Agreement:
(i) Shareholder shall not, directly or indirectly, during the
period commencing on the date hereof and continuing until this
Agreement terminates pursuant to Section 4 hereof,
(A) offer for sale or agree to sell, transfer, tender, assign,
pledge, hypothecate or otherwise dispose of or enter into any
contract, option or other arrangement or understanding with respect
to, or consent to, the offer for sale, sale, transfer, tender,
pledge, hypothecation, encumbrance, assignment or other disposition
of, or create any Lien of any nature whatsoever with respect to,
any or all of the Shares or any interest therein or (B) take
any action that could make any of its representations or warranties
contained herein untrue or incorrect or could have the effect of
preventing or disabling the Shareholder from performing any of its
obligations hereunder; (ii) Shareholder shall not grant any
proxy or power of attorney, or deposit any Shares into a voting
trust or enter into a voting agreement or other arrangement, with
respect to the voting of Shares (each a “ Voting
Proxy ”) except as provided by this Agreement; and
(iii) Shareholder has not granted, entered into or otherwise
created any Voting Proxy which is currently (or
|
