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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 1)
MECON, Inc.
------------------
(Name of Issuer)
Common Stock
---------------------------
(Title of Class of Securities)
58400M-10-5
-----------
(CUSIP Number)
MECON, Inc.
200 Porter Drive, Suite 100
San Ramon, California 94593
(925) 838-1700
----------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 29, 1999
--------------------------------------------------
(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 statement because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box [ ].
(Continued on following pages)
Page 1 of 21 Pages
Exhibit Index is on Page 7
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SCHEDULE 13D
- -------------------------- ------------------------------
CUSIP No. 58400M-10-5 Page 2 of 21 Pages
- -------------------------- ------------------------------
- ------- -----------------------------------------------------------------------
1. Names of Reporting Persons
VASU R. DEVAN AND LATHA DEVAN
- ------- -----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [x]
(b) [ ]
- ------- -----------------------------------------------------------------------
3. SEC Use Only
- ------- -----------------------------------------------------------------------
4. Source of Funds
PF
- ------- -----------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)[ ]
- ------- -----------------------------------------------------------------------
6. Citizenship or Place of Organization
UNITED STATES OF AMERICA
- ----------------- ------ ------------------------------------------------------
7. Sole Voting Power
-0- SHARES OF COMMON STOCK
------ ------------------------------------------------------
Number of 8. Shared Voting Power
Shares
Beneficially 1,200,716 SHARES OF COMMON STOCK
Owned By ------ ------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting
Person -0- SHARES OF COMMON STOCK
With ------ ------------------------------------------------------
10. Shared Dispositive Power
1,200,716 SHARES OF COMMON STOCK
- ------- -----------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,200,716 SHARES OF COMMON STOCK
- ------- -----------------------------------------------------------------------
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
- ------- -----------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
16.4%
- ------- -----------------------------------------------------------------------
14. Type of Reporting Person
IN
- -------------------------------------------------------------------------------
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Item 1. SECURITY AND ISSUER.
This Amendment No. 1 to Schedule 13D is being filed on
behalf of the undersigned Reporting Persons to amend the Schedule 13D filed
with the Securities and Exchange Commission (the "Commission") on April 23,
1998 (as amended, the "Schedule 13D"), relating to shares of common stock,
par value $0.001 per share (the "Shares") of MECON, Inc., a Delaware
corporation (the "Company"). Unless otherwise indicated, all capitalized
terms used herein but not defined herein shall have the same meanings as set
forth in the Schedule 13D.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 to the Schedule 13D is hereby amended, in pertinent
part, as follows:
Since the date of the initial filing of the Schedule 13D,
Vasu Devan has acquired beneficial ownership of 53,336 Shares, which Shares
are issuable upon exercise of options within 60 days from the date hereof.
Item 4. PURPOSE OF TRANSACTION.
Item 4 to the Schedule 13D is hereby amended, in pertinent
part, as follows:
As described in Item 6 below, as an inducement to General
Electric Company ("GE") to enter into the Agreement and Plan of Merger (the
"Merger Agreement") dated as of November 29, 1999, among GE, the Company and
Diamond Merger Corp., on November 29, 1999, the Reporting Persons entered
into a Stockholder Agreement (the "Stockholder Agreement") with GE and
certain other stockholders of the Company, which is filed as Exhibit A hereto
and incorporated herein by reference. Pursuant to the Stockholder Agreement,
the Reporting Persons agreed, among other things, to vote the Shares
beneficially owned by them in favor of the merger with GE, the adoption of
the Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement. In addition, the
Reporting Persons have granted to GE an option to purchase the Shares
beneficially owned by them for $11.25 per share in certain circumstances, as
further described in Item 6 below and in the Stockholder Agreement.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 to the Schedule 13D is hereby amended, in pertinent
part, as follows:
(a), (b). As of the close of business on November 29, 1999,
the Reporting Persons beneficially owned in the aggregate 1,200,716 Shares,
which represent approximately 16.4% of the 7,214,624 Shares outstanding as of
November 9, 1999, as reported in the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1999.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 to the Schedule 13D is hereby amended, in pertinent
part, as follows:
On November 29, 1999, the Reporting Persons entered into
the Stockholder Agreement as an inducement to GE to enter into the Merger
Agreement. Pursuant to the
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Stockholder Agreement, so long as the Stockholder Agreement is in effect, the
Reporting Persons have agreed to: (i) vote (or cause to be voted) the Shares
beneficially owned by them (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; (ii)
vote (or cause to be voted) the Subject Shares against (a) any merger
agreement or merger (other than the Merger Agreement and the merger with GE),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company
or (b) any amendment to the Company's Restated Certificate of Incorporation
or bylaws or other proposal or transaction involving the Company, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the merger with GE, 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;
and (iii) grant GE and Diamond Merger Corp. or their nominees, their
irrevocable proxy (x) to vote such Shares at any meeting of the shareholders
of the Company and to give their written consent with respect to such Shares
in favor of the merger with GE, the adoption of the Merger Agreement and the
approval of the terms thereof and each of the other transactions contemplated
thereby, (y) to demand that the Secretary of the Company call a special
meeting of the shareholders of the Company for the purpose of considering the
matters set forth in (x) above and (z) to approve any other motion or action
in furtherance of the foregoing. The Stockholder Agreement provides that with
certain exceptions, the Reporting Persons may not sell, transfer, pledge,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement with respect to the transfer of the Subject Shares or enter into
any voting arrangement in relation to the Subject Shares.
In addition, pursuant to the Stockholder Agreement, the
Reporting Persons granted to GE an option (the "Option") to purchase the
Subject Shares for $11.25 per share, subject to the terms and conditions of
the Stockholder Agreement. Subject to certain conditions, the Option may be
exercised by GE in whole or from time to time in part, at any time following
the occurrence of a Triggering Event (as defined below) and prior to the
termination of the Option. The Stockholder Agreement defines a "Triggering
Event" as one of the following events: (A) any person, corporation,
partnership, limited liability company or other entity or group (such person,
corporation, partnership, limited liability company or other entity or group,
other than GE or an affiliate of GE, being referred to hereinafter,
singularly or collectively, as a "PERSON"), acquires or becomes the
beneficial owner of 20% or more of the outstanding shares of the Company's
common stock; (B) any group is formed which beneficially owns 20% or more of
the outstanding shares of the Company's common stock; (C) any Person shall
have commenced a tender or exchange offer for 20% or more of the then
outstanding shares of the Company's common stock or publicly proposed any
bona fide merger, consolidation or acquisition of all or substantially all
the assets of the Company, or other similar business combination involving
the Company; (D) the Company enters into, or announces that it proposes to
enter into, an agreement, including, without limitation, an agreement in
principle, providing for a merger or other business combination involving the
Company or a "significant subsidiary" (as defined in Rule 1.02(w) of
Regulation S-X as promulgated by the Commission) of the Company or the
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acquisition of a substantial interest in, or a substantial portion of the
assets, business or operations of, the Company or a significant subsidiary
(other than the transactions contemplated by the Merger Agreement); (E) any
Person is granted any option or right, conditional or otherwise, to acquire
or otherwise become the beneficial owner of shares of the Company's common
stock which, together with all shares of the Company's common stock
beneficially owned by such Person, results or would result in such Person
being the beneficial owner of 20% or more of the outstanding shares of the
Company's common stock; or (F) there is a public announcement with respect to
a plan or intention by the Company, other than GE or its affiliates, to
effect any of the foregoing transactions.
The obligations of the Reporting Persons under the
Stockholder Agreement, including the Option, terminate upon the earlier to
occur of (i) 6 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 terminated by the Company pursuant to Section
7.1(b), (c) or (d) of the Merger Agreement (other than a termination pursuant
to Section 7.1(d)(i) following receipt of a Superior Proposal (as defined in
the Merger Agreement)) 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.
The above description of the Stockholder Agreement and the
related matters set forth herein are summaries and are qualified in their
entirety by reference to the complete text of the Stockholder Agreement,
which is filed as Exhibit A to this Amendment No. 1 to Schedule 13D and is
incorporated herein by reference.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A. Stockholder Agreement dated as of November 29, 1999, among
General Electric Company, the Reporting Persons and the stockholders of the
Company listed on Schedule A thereto.
Exhibit B. Joint Filing Agreement.
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SIGNATURE
After reasonable inquiry and to the best of each of the
undersigned's knowledge and belief, each of the undersigned certifies that
the information set forth in this statement is true, complete and correct.
Dated: December 2, 1999
/s/ Vasu Devan
-----------------------------------
Vasu Devan
/s/ Latha Devan
-----------------------------------
Latha Devan
<PAGE>
EXHIBIT INDEX
Exhibit A. Stockholder Agreement dated as of November 29, 1999, among
General Electric Company, the Reporting Persons and the stockholders of the
Company listed on Schedule A thereto.
Exhibit B. Joint Filing Agreement.
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Exhibit A
EXECUTION COPY
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of November 29, 1999 (this "AGREEMENT"),
by the undersigned stockholders (collectively, the "STOCKHOLDERS") of Mecon,
Inc., a Delaware corporation (the "COMPANY"), for the benefit of General
Electric Company, a New York corporation ("PARENT").
RECITALS
A. Parent, Diamond Merger Corp., a Delaware corporation and a direct
wholly owned subsidiary of Parent ("SUB"), and the Company are entering into
an Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), whereby, upon the terms and subject to the conditions set forth
in the Merger Agreement, each issued and outstanding share of Common Stock,
par value $0.001 per share, of the Company ("COMPANY COMMON STOCK"), not
owned 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");
B. As of the date hereof, each Stockholder owns that number of shares
of Company Common Stock appearing opposite his name on SCHEDULE A (such
shares of Company Common Stock together with any other shares of capital
stock of the Company acquired by such Stockholder including Vasu Devan or
Srinivasa ("Raju") Rajagopal, individually, after the date hereof during the
term of this Agreement, whether upon the exercise of options or by means of
purchase, dividend, distribution or otherwise, being collectively referred to
herein as the "SUBJECT SHARES"); and
C. As a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholders agree, and in order to
induce Parent to enter into the Merger Agreement the Stockholders have
agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. COVENANTS OF STOCKHOLDERS. Until the termination of this Agreement
in accordance with Section 3, the Stockholders agree as follows:
(a) The Stockholders shall attend the Stockholder Meeting, in person
or by proxy, and at the Stockholder 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 Stockholders 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 stockholders of the Company or at any
adjournment
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thereof or in any other circumstances upon which the Stockholders' vote,
consent or other approval is sought, the Stockholders 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 Takeover Proposal or (ii) any amendment of the Company's
Restated Certificate of Incorporation, or 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 Stockholders further agrees not to commit or agree to take any action
inconsistent with the foregoing.
(c) The Stockholders agree not to (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, "TRANSFER"), or
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 agree not to commit or agree to take any of the foregoing
actions; provided, however, that the Stockholder may (A) Transfer up to
2% of the Subject Shares by gift to charitable organizations and up to 2%
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 Stockholder; and (B)
pledge as collateral up to 2% of the Subject Shares in connection with
the exercise of Company Stock Options held by the Stockholder pursuant to
the Company Stock Option Plans; provided, that in each case any transferee
or pledgee of such Subject Shares agrees in writing to be bound by the
terms of this Agreement to the same degree as the Stockholders as
transferors.
(d) The Stockholders shall not, nor shall the Stockholders authorize
any investment banker, attorney or other advisor or representative of the
Stockholders to, directly or indirectly (i) solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) 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, except in their capacity as representatives or
agents of the Company, as permitted by the terms and conditions of the
Merger Agreement.
(e) The Stockholders shall use the Stockholders' 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, except in their
capacity as representatives or agents of the Company, as permitted by the
terms and
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conditions of the Merger Agreement.
(f) The Stockholders agree to promptly notify Parent in writing of
the nature and amount of any acquisition by such Stockholder of any voting
securities of the Company acquired by such Stockholder hereinafter.
(g) The Stockholders shall not knowingly take or fail to take any
action which would cause any of the representations and warranties set
forth in the Stockholder Tax Certificate attached hereto as SCHEDULE B to
be untrue or incorrect.
(h) The Stockholder hereby revokes any and all prior proxies or
powers of attorney in respect of any of Subject Shares and constitutes and
appoints Sub and Parent, or any nominee of Sub and Parent, or any of them,
with full power of substitution and resubstitution, at any time during the
term hereof, as its true and lawful attorney and proxy (its "Proxy"), for
and in its name, place and stead (i) to demand that the Secretary of the
Company call a special meeting of the shareholders of the Company for the
purpose of considering any matter referred to in Section 1(a) and 1(b)
hereof, (ii) to vote each of such Subject Shares as provided in Sections
1(a) and 1(b) as its proxy at every annual, special, adjourned or
postponed meeting of the shareholders of the Company, including the right
to sign its name (as shareholder) to any consent, certificate or other
document relating to the Company that Delaware Law may permit or require
as provided in Sections 1(a) and 1(b) and (iii) to approve any other
motion or action in furtherance of the foregoing.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST THROUGHOUT THE TERM OF THIS AGREEMENT.
2. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and
warrants with respect to himself to Parent as follows:
(a) The Stockholder is the record and beneficial owner of, and has
good and marketable title to, the Subject Shares. The Stockholder does
not own, of record or beneficially, any shares of capital stock of the
Company other than the Subject Shares. The Stockholder 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.
(b) This Agreement has been duly executed and delivered by the
Stockholder. Assuming the due authorization, execution and delivery of
this Agreement by Parent, this Agreement constitutes the valid and binding
agreement of the Stockholder enforceable against the Stockholder in
accordance with its terms. The execution and delivery of this Agreement
by the Stockholder does not and will not conflict with any agreement,
order or other instrument binding upon the Stockholder, nor require any
regulatory filing or approval, other than pursuant to the HSR Act (as
defined below).
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(c) To the Knowledge of the Stockholder, the representations set
forth in the Stockholder Tax Certificate attached hereto as Schedule B, if
made on the date hereof (assuming the Merger were consummated as of the
date hereof), would be true and correct.
3. THE OPTION; EXERCISE; ADJUSTMENTS. Each Stockholder hereby grants
to Parent an irrevocable option (the "OPTION") to purchase from time to time
the Subject Shares, upon the terms and subject to the conditions set forth
herein (the "OPTIONED SHARES"). Subject to the conditions set forth in
Section 4, the Option may be exercised by Parent in whole or from time to
time in part, at any time following the occurrence of a Triggering Event (as
defined below) and prior to the termination of the Option in accordance with
Section 8. In the event Parent wishes to exercise the Option, Parent shall
send a written notice to the applicable Stockholder (the "STOCK EXERCISE
NOTICE") specifying the total number of Optioned Shares it wishes to purchase
and a date (not later than 20 business days and not earlier than two business
days from the date such notice is given) for the closing of such purchase
(the "CLOSING DATE"). Parent may revoke an exercise of the Option at any
time prior to the Closing Date by written notice to the applicable
Stockholder. In the event of any change in the number of issued and
outstanding shares of Subject Shares by reason of any stock dividend, stock
split, split-up, recapitalization, merger or other change in the corporate or
capital structure of the Company, the number of Optioned Shares subject to
the Option and the Exercise Price (as hereinafter defined) per Optioned Share
shall be appropriately adjusted.
4. CONDITIONS TO EXERCISE OF OPTION AND DELIVERY OF OPTIONED SHARES.
(a) Parent's right to exercise the Option is subject to the following
conditions:
(i) Neither Parent nor Sub shall have breached any of its material
obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States
invalidating the grant or prohibiting the exercise of the Option or the
delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act (as defined
below) shall have expired or been terminated; and
(iv) One or more of the following events shall have occurred on or
after the date hereof: (A) any person, corporation, partnership, limited
liability company or other entity or group (such person, corporation,
partnership, limited liability company or other entity or group, other
than Parent or an affiliate of Parent, being referred to hereinafter,
singularly or collectively, as a "PERSON"), acquires or becomes the
beneficial owner of 20% or more of the outstanding shares of Company
Common Stock; (B) any group is formed which beneficially owns 20% or more
of the outstanding shares of Company
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Common Stock; (C) any Person shall have commenced a tender or exchange
offer for 20% or more of the then outstanding shares of Company Common
Stock or publicly proposed any bona fide merger, consolidation or
acquisition of all or substantially all the assets of the Company, or
other similar business combination involving the Company; (D) the Company
enters into, or announces that it proposes to enter into, an agreement,
including, without limitation, an agreement in principle, providing for a
merger or other business combination involving the Company or a
"significant subsidiary" (as defined in Rule 1.02(w) of Regulation S-X as
promulgated by the Securities and Exchange Commission (the "SEC")) of the
Company or the acquisition of a substantial interest in, or a substantial
portion of the assets, business or operations of, the Company or a
significant subsidiary (other than the transactions contemplated by the
Merger Agreement); (E) any Person is granted any option or right,
conditional or otherwise, to acquire or otherwise become the beneficial
owner of shares of Company Common Stock which, together with all shares of
Company Common Stock beneficially owned by such Person, results or would
result in such Person being the beneficial owner of 20% or more of the
outstanding shares of Company Common Stock; or (F) there is a public
announcement with respect to a plan or intention by the Company, other than
Parent or its affiliates, to effect any of the foregoing transactions.
For purposes of this subparagraph (iii), the terms "group" and "beneficial
owner" shall be defined by reference to Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and
regulations promulgated thereunder.
(b) Parent's obligation to purchase the Optioned Shares following
the exercise of the Option, and the Company's obligation to deliver the
Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States
prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate Rule
10b-13 promulgated under the Exchange Act; and
(iii) All applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), shall have
expired or been terminated.
5. EXERCISE PRICE FOR OPTIONED SHARES. At any Closing Date, the
applicable Stockholder will deliver to Parent a certificate or certificates
representing the Optioned Shares in the denominations designated by Parent in
its Stock Exercise Notice and Parent will purchase the Optioned Shares from
such Stockholder at a price per Optioned Share equal to $11.25 (the "EXERCISE
PRICE"), payable in cash. Payment made by Parent to such Stockholder
pursuant to this Agreement shall be made by wire transfer of federal funds to
a bank designated by such Stockholder or a check payable in immediately
available funds. After payment of the Exercise Price for the Optioned Shares
covered by the Stock Exercise Notice, the Option shall be deemed
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exercised to the extent of the Optioned Shares specified in the Stock
Exercise Notice as of the date such Stock Exercise Notice is given to such
Stockholder.
6. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to the Company that (a) the execution and delivery of this Agreement
by Parent and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and this Agreement has been duly executed and delivered by Parent and
constitutes a valid and binding agreement of Parent; and (b) Parent is
acquiring the Option and, if and when it exercises the Option, will be
acquiring the Optioned Shares issuable upon the exercise thereof, for its own
account and not with a view to distribution or resale in any manner which
would be in violation of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and will not sell or otherwise dispose of the Optioned
Shares except pursuant to an effective registration statement under the
Securities Act or a valid exemption from registration under the Securities
Act.
7. THE CLOSING. Any closing hereunder shall take place on the Closing
Date specified by Parent in its Stock Exercise Notice pursuant to Section 1
at 10:00 A.M., local time, or the first business day thereafter on which all
of the conditions in Section 2 are met, at the principal executive office of
the Company, or at such other time and place as the parties hereto may agree.
8. TERMINATION. The obligations of the Stockholders hereunder shall
terminate upon the earlier to occur of (i) 6 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 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. No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of this Agreement prior to
termination.
9. FURTHER ASSURANCES. The Stockholders will, from time to 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 successor, assignee
or transferee (including a successor, assignee or transferee as a result of
the death of the Stockholder, such as an executor or heir) shall be bound by
the terms hereof, and the Stockholders 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; STOCKHOLDER TAX CERTIFICATE. The Stockholders
agree 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 Stockholder Tax
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Certificate attached hereto as SCHEDULE B.
12. REMEDIES. The Stockholders acknowledge that money 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 Stockholders agree 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 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 of a
written instrument executed and delivered by both the Stockholders and Parent.
15. JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the U.S. District Court for the Southern District
of New York 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. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
17. EXPENSES. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise provided in Section 8 or
as specified in the Merger Agreement.
18. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were 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, this being in addition
to any other remedy to which they are entitled at law or in equity.
19. NOTICE. All notices, requests, demands and other 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:
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GE Medical Systems
P.O. Box 414, W-410
Milwaukee, WI 53201
Attention: General Counsel
Facsimile No.: 414-544-3575
with copies to:
GE Medical Systems
3000 North Grandview Boulevard
Waukesha, Wisconsin 53188
Attention: General Counsel
and:
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431-0001
Attention: Vice President and Senior Counsel - Transactions
Facsimile No.: 203-373-3008
and:
Gibson Dunn & Crutcher, LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Steven Shoemate
Facsimile No.: 212-351-4035
(b) if to the Stockholder to:
Mecon, Inc.
200 Porter Drive
San Ramon, CA 94583
Attention: President
Facsimile No.: (925) 838-2031
with a copy to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Attention: Michael Hall
Facsimile No.: 650-463-2600
20. CAPITALIZED TERMS. Capitalized terms used in this Agreement that
are not defined
8
<PAGE>
herein shall have such meanings as set forth in the Merger Agreement.
21. COUNTERPARTS. For the convenience of the parties, this 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.
22. NO LIMITATION ON ACTIONS OF THE STOCKHOLDERS AS DIRECTOR.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Stockholders to
take or in any way limit any action that the Stockholders may take to
discharge the Stockholders' 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.
23. WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger.
24. STOP TRANSFER. The Stockholders shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Subject Shares, unless such
transfer is made in compliance with this Agreement.
9
<PAGE>
IN WITNESS WHEREOF, the Stockholders and Parent have caused this
Agreement to be duly executed and delivered on the day first above written.
STOCKHOLDERS
VASU DEVAN AND LATHA DEVAN
FBO THE DEVAN FAMILY TRUST:
/s/ Vasu Devan
------------------------------
Vasu Devan, as trustee
/s/ Latha Devan
------------------------------
Latha Devan, as trustee
SRINIVASA RAJAGOPAL AND GEETHA RAJAGOPAL
FBO RAJAGOPAL 1995 TRUST:
/s/ Raju Rajagopal
------------------------------
Raju Rajagopal, as trustee
/s/ Geetha Rajagopal
------------------------------
Geetha Rajagopal, as trustee
/s/ Vasu Devan
------------------------------
Vasu Devan, individually
/s/ Raju Rajagopal
------------------------------
Raju Rajagopal, individually
GENERAL ELECTRIC COMPANY,
a New York corporation
By: /s/ J. Keith Morgan
----------------------------------
Name: J. Keith Morgan
Title: Vice President and General Counsel
GE Medical Systems
10
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SCHEDULE A
NAME OF STOCKHOLDER NUMBER OF SHARES
Vasu Devan and Latha Devan FBO The Devan 1,107,380
Family Trust
Srinivasa Rajagopal and Geetha Rajagopal 378,908
FBO Rajagopal 1995 Trust
Vasu Devan, individually All shares subject to options
Raju Rajagopal, individually All shares subject to options
11
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SCHEDULE B
STOCKHOLDER TAX CERTIFICATE
NOVEMBER 29, 1999
Gibson, Dunn & Crutcher LLP Latham & Watkins
333 South Grand Avenue 505 Montgomery Street
Los Angeles, CA 90071 Suite 1900
San Francisco, CA 94111
Ladies and Gentlemen:
You have been requested to render opinions regarding certain federal
income tax consequence of the merger (the "Merger") of Diamond Merger Corp.
("Sub"), a Delaware corporation and a wholly owned subsidiary of General
Electric Company, a New York corporation ("Parent"), with and into Mecon,
Inc., a Delaware corporation (the "Company"), upon the terms and conditions
set forth in the Agreement and Plan of Merger dated as of November 29, 1999
(the "Merger Agreement") among Parent, Sub and the Company. Capitalized
terms not defined herein have the meanings specified in the Merger Agreement.
In connection with the Merger, and recognizing that you will rely upon
this certificate in rendering such opinions, the undersigned, hereby
severally certify and represent to you that the facts and representations
stated herein are true, correct and complete in all respects at the date
hereof and will be true, correct and complete in all respects as of the
Effective Time (as if made as of the Effective Time):
1. The undersigned have no plan or intention to sell or otherwise
transfer any shares of Parent Common Stock to be received pursuant to
the Merger to Parent (or any person that is or may become related to
Parent within the meaning of Treasury Regulation Section
1.368-1(e)(3)).
2. The undersigned has not sold or otherwise transferred to the Company
(or any person related to the Company within the meaning of Temporary
Treasury Regulation Section 1.368-1T(e)(2)(ii)) any shares of Company
Common Stock, as part of any overall plan that includes the Merger.
The undersigned hereby undertakes to inform you, Parent and Company
immediately if any of the foregoing statements or representations become
untrue, incorrect or incomplete in any respect on or prior to the Effective
Time.
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EXECUTION COPY
Very truly yours,
VASU DEVAN AND LATHA DEVAN FBO
THE DEVAN FAMILY TRUST:
Date: /s/ Vasu Devan
-------------------- ------------------------------
Vasu Devan, as trustee
Date: /s/ Latha Devan
-------------------- ------------------------------
Latha Devan, as trustee
SRINIVASA RAJAGOPAL AND GEETHA
RAJAGOPAL FBO RAJAGOPAL 1995 TRUST:
Date: /s/ Raju Rajagopal
-------------------- ------------------------------
Raju Rajagopal, as trustee
Date: /s/ Geetha Rajagopal
-------------------- ------------------------------
Geetha Rajagopal, as trustee
Date: /s/ Vasu Devan
-------------------- ------------------------------
Vasu Devan, individually
Date: /s/ Raju Rajagopal
-------------------- ------------------------------
Raju Rajagopal, individually
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Exhibit B
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) of the Securities Exchange Act of
1934, as amended, the undersigned agree to the joint filing on behalf of each
of them of a Statement on Schedule 13D (including any and all amendments
thereto) with respect to the common stock, par value $0.001 per share, of
MECON, Inc., a Delaware corporation, and further agree that this Agreement
shall be included as an Exhibit to such joint filings.
The undersigned further agree that each party hereto is responsible for
timely filing of such Statement on Schedule 13D and any amendments thereto,
and for the completeness and accuracy of the information concerning such
party contained therein; provided that no party is responsible for the
completeness or accuracy of the information concerning the other party,
unless such party knows or has reason to believe that such information is
inaccurate.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original instrument, but all of such
counterparts together shall constitute but one agreement.
In evidence thereof the undersigned, being duly authorized, hereby
execute this Agreement this 1st day of December 1999.
By: /s/ Vasu Devan
---------------------
Vasu Devan
By: /s/ Latha Devan
---------------------
Latha Devan
