SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
OEC Medical Systems, Inc.
(Name of Issuer)
Common Stock, $0.01 Par Value
(Title of Class of Securities)
670828102
(CUSIP Number)
Mara H. Rogers, Esq.
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, NY 10103-3198
(212) 318-3000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 7, 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 schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box |x|.
Note. Schedules filed in paper format shall include a signed original and
five copies of the Schedule, including all exhibits. See ss.240.13d-7(b) for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 22 Pages)
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* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP No. 670828102 13D Page 2 of 22 Pages
1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
Forstmann-Leff Associates, LLC
52-2169043
2 Check the Appropriate Box if a Member of a
Group* (a) [ ] (b) [ ]
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
NUMBER OF 234,510 shares
SHARES
BENEFICIALLY 8 Shared Voting Power
OWNED BY 2,911,390 shares
EACH
REPORTING 9 Sole Dispositive Power
PERSON 238,405 shares
WITH
10 Shared Dispositive Power
2,917,290 shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person
3,155,695 shares (includes shares beneficially owned by FLA Advisers
L.L.C., FLA Asset Management, LLC and Stamford Advisers Corp.)
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
[ ]
13 Percent of Class Represented by Amount in Row (11)
24.9%
14 Type of Reporting Person*
IA, 00
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CUSIP No. 670828102 13D Page 3 of 22 Pages
1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
FLA Advisers L.L.C.
13-3942422
2 Check the Appropriate Box if a Member of a Group*
(a) [ ] (b) [ ]
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6 Citizenship or Place of Organization
New York
7 Sole Voting Power
NUMBER OF None
SHARES
BENEFICIALLY 8 Shared Voting Power
OWNED BY 2,865,190 shares
EACH
REPORTING 9 Sole Dispositive Power
PERSON None
WITH
10 Shared Dispositive Power
2,865,190 shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person
2,865,190 shares (includes shares beneficially owned by Stamford
Advisers Corp.)
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
[ ]
13 Percent of Class Represented by Amount in Row (11)
22.6%
14 Type of Reporting Person*
IA, OO
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CUSIP No. 670828102 13D Page 4 of 22 Pages
1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
FLA Asset Management, LLC
52-2169045
2 Check the Appropriate Box if a Member of a Group*
(a) [ ] (b) [ ]
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
NUMBER OF None
SHARES
BENEFICIALLY 8 Shared Voting Power
OWNED BY 46,200 shares
EACH
REPORTING 9 Sole Dispositive Power
PERSON None
WITH
10 Shared Dispositive Power
52,100 shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person
52,100 shares
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
[ ]
13 Percent of Class Represented by Amount in Row (11)
0.4%
14 Type of Reporting Person*
IA, 00
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<PAGE>
CUSIP No. 670828102 13D Page 5 of 22 Pages
1 Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons (Entities Only)
Stamford Advisers Corp.
13-3421433
2 Check the Appropriate Box if a Member of a Group*
(a) [ ] (b) [ ]
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6 Citizenship or Place of Organization
New York
7 Sole Voting Power
NUMBER OF None
SHARES
BENEFICIALLY 8 Shared Voting Power
OWNED BY 19,500 shares
EACH
REPORTING 9 Sole Dispositive Power
PERSON None
WITH
10 Shared Dispositive Power
19,500 shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person
19,500 shares
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
[ ]
13 Percent of Class Represented by Amount in Row (11)
0.2%
14 Type of Reporting Person*
IA, CO
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Preliminary Note
This Amendment No. 2 ("Amendment No. 2") amends the Statement on
Schedule 13D (the "Schedule 13D") filed on April 1, 1999 by Forstmann-Leff
Associates Inc., FLA Advisers L.L.C. ("FLA Advisers"), FLA Asset Management Inc.
and Stamford Advisers Corp., as amended by Amendment No. 1 thereto ("Amendment
No. 1") filed on May 10, 1999, with respect to their beneficial ownership of
common stock, par value $0.01 per share (the "Common Stock") of OEC Medical
Systems, Inc. (the "Issuer"). This Amendment No. 2 is being filed to report
that, as indicated in Item 6, on August 7, 1999, William F. Harnisch and the WFH
Foundation (collectively, "Harnisch") and FLA Advisers entered into an agreement
(the "Adviser Agreement") with General Electric Company ("GE"), pursuant to
which FLA Advisers and Harnisch agreed, as an inducement to GE to enter into the
Agreement and Plan of Merger, dated as of August 7, 1999 (the "Merger
Agreement"), between GE, Ruby Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of GE ("Sub"), and the Issuer, to, among other things,
vote (or cause to be voted or to act by consent) the shares of the Issuer
covered by the Adviser Agreement 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, and granted GE, Sub and their
nominees an irrevocable proxy to vote such shares during the term of the Adviser
Agreement 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, subject in each case to the terms and conditions set forth
in the Adviser Agreement. The consideration to be received by the shareholders
of the Issuer pursuant to the Merger Agreement is set forth in Schedule C to the
Adviser Agreement, which is filed as Exhibit B to this Amendment No. 2 to the
Schedule 13D and incorporated herein by reference. There has been no change in
the information set forth in the Schedule 13D, as amended, in response to Item
1. Accordingly, that item is omitted from this Amendment No. 2. Capitalized
terms used herein and not defined herein have the meaning ascribed thereto in
the Schedule 13D, as amended.
Item 2. Identity and Background.
(a) For the name of each reporting person, see Item 1 of the cover pages
attached hereto.
Effective May 13, 1999, Forstmann-Leff Associates, LLC, a Delaware
limited liability corporation and a registered investment adviser under Section
203 of the Investment Advisers Act of 1940 (the "Act") became the
successor-in-interest to Forstmann-Leff Associates Inc. through a merger
transaction.
Effective May 13, 1999, FLA Asset Management, LLC, a Delaware limited
liability corporation and a registered investment adviser under Section 203 of
the Act, became the successor-in-interest to FLA Asset Management Inc. through a
merger transaction.
Except as set forth above, there has been no change in the information
set forth in the Schedule 13D, as amended, in response to Item 2.
Item 3. Source and Amount of Funds or Other Consideration.
Since the filing of Amendment No. 1, Forstmann-Leff Associates, LLC
used funds derived from clients' assets under management at an aggregate cost,
including brokerage commissions, of $8,865.00, to purchase 370 shares of Common
Stock of the Issuer.
Page 6
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Since the filing of Amendment No. 1, FLA Advisers used funds derived from
clients' assets under management at an aggregate cost, including brokerage
commissions, of $2,113,181.35, to purchase 90,000 shares of Common Stock of the
Issuer.
Since the filing of Amendment No. 1, FLA Asset Management, LLC used funds
derived from clients' assets under management at an aggregate cost, including
brokerage commissions, of $810,835.74, to purchase 32,700 shares of Common Stock
of the Issuer.
Except as set forth above, there has been no change in the information
contained in the Schedule 13D, as amended, in response to Item 3, including
information regarding shares beneficially owned by the executive officers,
directors and general partners of the reporting persons.
Item 4. Purpose of Transaction.
There has been no change in the information contained in the Schedule
13D, as amended, in response to Item 4, except that, as described in Item 6
below, as an inducement to GE to enter into the Merger Agreement, on August 7,
1999, FLA Advisers and Harnisch entered into an agreement with GE with respect
to, among other things, the voting of certain shares of Common Stock of the
Issuer beneficially owned by them 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 Agreement.
Item 5. Interest in the Securities of the Issuer
(a) See Items 11 and 13 of the cover pages attached hereto.
(b) See Items 7, 8, 9 and 10 of the cover pages attached hereto.
(c) Since May 3, 1999, the following transactions involving the Issuer's
Common Stock were effected by the reporting persons:
On May 20, 1999 FLA Advisers purchased in the open market 20,000 shares
of the Issuer's Common Stock at a price per share of $24.03.
On May 21, 1999, FLA Advisers purchased in the open market 19,000
shares of the Issuer's Common Stock at a price per share of $24.84.
On May 25, Forstmann-Leff Associates, LLC purchased in the open market
370 shares of the Issuer's Common Stock at a price per share of $23.96.
On May 27, 1999, FLA Advisers purchased in the open market 20,000
shares of the Issuer's Common Stock at a price per share of $21.86.
On June 1, 1999 FLA Asset Management, LLC purchased in the open market
32,720 shares of the Issuer's Common Stock at a price per share of $24.80.
On June 14, 1999, FLA Advisers purchased in the open market 8,300
shares of the Issuer's Common Stock at a price per share of $23.40.
On June 15, 1999, FLA Advisers purchased in the open market 22,700
shares of the Issuer's Common Stock at a price per share of $23.32.
(d) Various clients of the reporting persons have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the Common Stock of the Issuer. No one client's interest in the Common Stock of
the Issuer is more than five percent of the total outstanding Common Stock,
other than for FLA International Fund, Ltd., a Bermuda investment company, which
holds a 6.4% interest in the Common Stock of the Issuer.
(e) Not applicable.
The number of shares beneficially owned by each of the reporting
persons and the percentage of outstanding shares represented thereby, have been
computed in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended. The ownership of the reporting persons is based on 12,664,877
outstanding shares of the Issuer's Common Stock as of April 30, 1999, as
reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, as filed with the Securities and Exchange Commission on May 12,
1999.
Page 7
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Item 6. Contracts, Arrangements, understandings or Relationships with Respect to
Securities of the Issuer.
On August 7, 1999, William F. Harnisch and the WFH Foundation
(collectively, "Harnisch") and FLA Advisers entered into an agreement (the
"Adviser Agreement") with General Electric Company ("GE"), as an inducement to
GE to enter into the Agreement and Plan of Merger, dated as of August 7, 1999
(the "Merger Agreement"), among GE, Ruby Merger Corp., a Delaware corporation
and a wholly-owned subsidiary of GE ("Sub"), and the Issuer.
Pursuant to the Adviser Agreement, FLA Advisers and Harnisch agreed, so
long as the Adviser Agreement is in effect, and so long as the Board of
Directors of the Issuer does not withdraw or modify its recommendation of the
Merger Agreement, to (i) vote (or cause to be voted or to act by consent) the
shares covered by the Adviser Agreement 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 or to act by consent) such shares against any agreement or action that
would in any manner impede, frustrate, prevent or nullify the merger, the Merger
Agreement or any of the transactions contemplated thereby, and (iii) grant GE
and Sub or their nominees, its irrevocable (subject to certain limited
exceptions) proxy to vote such shares at any meeting of the shareholders of the
Issuer and to give their written consent with respect to such shares in favor of
the merger, adoption of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated thereby. The Adviser
Agreement provides that with certain exceptions FLA Advisers and Harnisch
may not sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or enter into any contract, option
or other arrangement with respect to the Transfer of any of the shares of
Common Stock covered by the Adviser Agreement.
The shares covered by the Adviser Agreement initially include 2,892,970
shares of Common Stock of the Issuer owned by Harnisch or as to which FLA
Advisers has discretionary investment management authority and any other shares
of capital stock of the Issuer acquired by Harnisch or by specified clients of
FLA Adviser as to which FLA Adviser has discretionary management authority after
August 7, 1999 and during the term of the Adviser Agreement.
The obligations of FLA Adviser and Harnisch under the Adviser Agreement
terminate upon the earliest to occur of (i) May 7, 2000, (ii) termination of the
Merger Agreement pursuant to Section 7.1 thereof, (iii) the Effective Time (as
defined in the Merger Agreement), and (iv) as to the shares of Common Stock of
the Issuer held by a person as to which FLA Advisers and any of its affiliates
no longer have a discretionary investment management relationship, the date of
the termination of the last of such relationships.
The above description of the Adviser Agreement and the related matters
set forth in this Item are summaries and are qualified in their entirety by
reference to the complete text of the Adviser Agreement, which is filed as
Exhibit B to this Amendment No. 2 to Schedule 13D and incorporated herein by
reference.
Item 7. Materials to be Filed as Exhibits
Exhibit A. Agreement of Joint Filing.
Exhibit B. Adviser Agreement, dated as of August 7, 1999, among William
F. Harnisch and the WFH Foundation, FLA Advisers L.L.C. and
General Electric Company.
Page 8
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
August 11, 1999
FORSTMANN-LEFF ASSOCIATES, LLC
By: /s/ Peter A. Lusk
Peter A. Lusk
Executive Vice President
FLA ADVISERS L.L.C.
By: /s/ Peter A. Lusk
Peter A. Lusk
Managing Member
FLA ASSET MANAGEMENT, LLC
By: /s/ Peter A. Lusk
Peter A. Lusk
Executive Vice President
STAMFORD ADVISERS CORP.
By: /s/ Peter A. Lusk
Peter A. Lusk
President
Page 9
<PAGE>
Exhibit A
AGREEMENT OF JOINT FILING
The undersigned, Forstmann-Leff Associates, LLC, FLA Advisers L.L.C.,
FLA Asset Management, LLC and Stamford Advisers Corp., hereby agree to the joint
filing with all other reporting persons (as such term is defined in Schedule
13D) of a statement on Schedule 13D or any amendments thereto, with respect to
the Common Stock of OEC Medical Systems, Inc. and that this Agreement be
included as an Exhibit to such filing made on their behalf.
This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement on
the 11th day of August, 1999.
FORSTMANN-LEFF ASSOCIATES, LLC
By: /s/ Peter A. Lusk
Peter A. Lusk
Executive Vice President
FLA ADVISERS L.L.C.
By: /s/ Peter A. Lusk
Peter A. Lusk
Managing Member
FLA ASSET MANAGEMENT, LLC
By: /s/ Peter A. Lusk
Peter A. Lusk
Executive Vice President
STAMFORD ADVISERS CORP.
By: /s/ Peter A. Lusk
Peter A. Lusk
President
Page 10
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EXHIBIT B
ADVISER AGREEMENT
ADVISER AGREEMENT, dated as of August 7, 1999 (this "Agreement"), among William
F. Harnisch and the WFH Foundation (collectively, "Harnisch"), FLA Advisers
L.L.C., a New York Limited Liability Company (the "Adviser") and General
Electric Company, a New York corporation ("Parent").
RECITALS
A. Parent, Ruby Merger Corp., a Delaware corporation and a direct wholly owned
subsidiary of Parent ("Sub"), and OEC Medical Systems, Inc., a Delaware
corporation are entering into an Agreement and Plan of Merger, dated as of
August 7, 1999 (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 $0.01 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") as described in Exhibit C hereto;
B. As of the date hereof, the Adviser is an investment adviser with
discretionary investment management authority, including, until revoked, the
sole power to vote, over client assets that include that number of shares of
Company Common Stock appearing on Schedule A (such shares of Company Common
Stock together with the shares of Company Common Stock set forth on Schedule A
owned by Harnisch and any other shares of capital stock of the Company acquired
by Harnisch (the "Harnisch Shares") or by clients of the Adviser listed on
Schedule A as to which the Adviser has discretionary investment management
authority including, until revoked, the sole power to vote, 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 Adviser and Harnisch agree, and in order to induce Parent
to enter into the Merger Agreement the Adviser and Harnisch have agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth herein, the Adviser and Harnisch agree as follows:
1. Covenants of Adviser and Harnisch. Until the termination of this Agreement in
accordance with Section 3, the Adviser and Harnisch severally agree as follows:
(a) Except as set forth in Section 1(i) below, the Adviser and Harnisch
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 Adviser and
Harnisch shall vote (or cause to be voted or to act by consent) 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) Except as provided in Section 1(i) below, at any meeting of
shareholders of the Company or at any adjournment thereof or in any
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other circumstances upon which the Adviser's and Harnisch's vote,
consent or other approval is sought, the Adviser and Harnisch shall
vote (or cause to be voted or to act by consent) 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
Certificate of Incorporation, as amended, 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 Adviser and Harnisch further agree not to commit or
agree to take any action inconsistent with the foregoing.
(c) Except as provided in Section 1(i) below, the Adviser and Harnisch
agree (i) not to 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 except as follows: (A) in Transfers on the New York Stock
Exchange provided that during the term of this Agreement such transfers
do not exceed an aggregate of 300,000 shares of Company Common Stock;
(B) in Transfers not on the New York Stock Exchange to any "person" who
at the closing of such transaction would not be either the "beneficial
owner" or a member of a "group" which is the "beneficial owner" of 5%
or more of the outstanding shares of Company Common Stock or an
"affiliate" of one of the "persons" listed on Schedule A; and (C) in
Transfers in which the transferee of the Subject Shares agrees to be
bound by, and to acquire the Subject Shares subject to, the terms of
this Agreement, including, without limitation, the Proxy granted in
Section 1(h) below; provided, however, that no Harnisch Shares may be
sold pursuant to the exceptions provided in Sections 1(c)(i)(A),
1(c)(i)(B) or 1(c)(i)(C) above and (ii) except as set forth herein, not
to 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. For
purposes of this Agreement, the terms "group" and "beneficial owner"
shall be defined as they are defined for purposes of Section 13(d) of
the Securities Exchange Act of 1934, the term "affiliate" shall be
defined as it is defined in Rule 144 thereunder and the term "person"
shall mean any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof. To the extent a Transfer of shares of Company
Common Stock is made in compliance with Sections 1(c)(i)(A) or
1(c)(i)(B) above, upon such Transfer, the provisions of Sections 1(a)
and 1(b) hereof and the Proxy granted in Section 1(h) hereof shall
terminate.
(d) Except as provided in Section 1(i) below, the Adviser and Harnisch
shall not, nor shall either of them authorize any investment banker,
attorney or other advisor or representative of the Adviser and Harnisch
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.
(e) Except as provided in Section 1(i) below, the Adviser and Harnisch
shall use the Adviser's and Harnisch's commercially 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
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practicable, the Merger and the other transactions contemplated by the
Merger Agreement.
(f) Except as provided in Section 1(i) below, the Adviser and Harnisch
agree to promptly notify Parent in writing of the nature and amount of
any acquisition by such Adviser and Harnisch of any voting securities
of the Company acquired by such Adviser and Harnisch hereinafter.
(g) Except as provided in Section 1(i) below, the Adviser and Harnisch
shall not knowingly take or fail to take any action which would cause
any of the representations and warranties set forth in the Tax
Certificate attached hereto as Schedule B to be untrue or incorrect.
(h) The Adviser and Harnisch hereby revoke any and all prior proxies or
powers of attorney in respect of any of Subject Shares and constitute
and appoint 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, for any and all
purposes, including without limitation, 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 and to vote each of such Subject Shares 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).
EXCEPT AS PROVIDED IN SECTION 1(i) THE FOREGOING PROXY
AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST
THROUGHOUT THE TERM OF THIS AGREEMENT.
(i) Notwithstanding anything to the contrary contained herein, if the
Board of Directors of the Company reasonably determines that a Takeover
Proposal (as defined below) constitutes a Superior Proposal (as defined
below), and, to the extent required by the fiduciary obligations of the
Board of Directors of the Company, as determined in good faith by a
majority thereof after consultation with independent counsel (who may
be the Company's regularly engaged independent counsel), the Company
withdraws or modifies its recommendation of the Merger Agreement,
Adviser shall have the right to terminate its obligations under
Sections 1(a) through 1(f) hereof and to revoke the Proxy to the extent
required by its fiduciary obligations as determined in good faith. For
purposes of this Agreement, "Takeover Proposal" means any proposal for
a merger, tender offer or other business combination involving the
Company or any of its Subsidiaries or any proposal or offer to acquire
in any manner, directly or indirectly, an equity interest in, any
voting securities of, or a substantial portion of the assets of the
Company or any of its Subsidiaries, other than the transactions
contemplated by the Merger Agreement and this Agreement, and "Superior
Proposal" means a bona fide proposal made by a third party to acquire
the Company pursuant to a tender or exchange offer, a merger, a sale of
all or substantially all its assets or otherwise on terms which a
majority of the disinterested members of the Board of Directors of the
Company determines, at a duly constituted meeting of the Board of
Directors or by unanimous written consent, in its reasonable good faith
judgment to be more favorable to the Company's shareholders than the
Merger (based on the advice of the Company's independent financial
advisor that the value of the consideration provided for in such
proposal exceeds the value of the consideration provided for in the
Merger) and for which financing, to the extent required, is then
committed or which, in the reasonable good faith judgment of a majority
of such disinterested members, as expressed in a
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resolution adopted at a duly constituted meeting of such members (based
on the advice of the Company's independent financial advisor), is
reasonably capable of being obtained by such third party.
2. Representations and Warranties. Each of the Adviser and Harnisch
severally represents and warrants to Parent as follows:
(a) The Adviser is an investment adviser with discretionary investment
management authority over the Subject Shares, including, until revoked,
the sole power to vote the Subject Shares. The Adviser does not have
discretionary investment authority over more than 575,000 shares of
capital stock of the Company other than the Subject Shares. The Adviser
and Harnisch collectively have 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 that the Adviser's clients retain the right to
direct the disposition of the Subject Shares and to withdraw the
Adviser's discretionary investment management authority over, and right
to vote, the Subject Shares.
(b) This Agreement has been duly executed and delivered by the Adviser
and Harnisch. Assuming the due authorization, execution and delivery of
this Agreement by Parent, this Agreement constitutes the valid and
binding agreement of the Adviser and Harnisch enforceable against the
Adviser and Harnisch in accordance with its terms. The execution and
delivery of this Agreement by the Adviser and Harnisch does not and
will not conflict with any agreement, order or other instrument binding
upon the Adviser or Harnisch, as the case may be, nor require any
regulatory filing (other than filings on Schedule 13D) or approval.
(c) To the Knowledge of the Adviser and Harnisch, the representations
set forth in the 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. Termination. The obligations of the Adviser and Harnisch hereunder shall
terminate upon the earlier to occur of (i) May 7, 2000, (ii) termination of the
Merger Agreement pursuant to Section 7.1 thereof (iii) the Effective Time and
(iv) as to shares of Company Common Stock held by a person as to which Adviser
and any of its affiliates no longer have a discretionary investment management
relationship, the date of the termination of the last of such relationships (a
"Complete Termination"); provided, however, that to the extent a Complete
Termination does not take place, but rather only a portion of the investments of
a client of the Adviser's are withdrawn from the discretionary investment
management relationship, the obligations of the Adviser hereunder shall
terminate only as to those shares of Company Common Stock withdrawn or sold to
permit such withdrawal and only if the portion of such client's shares of
Company Common Stock that is sold or withdrawn is an amount which is
proportionate to the portion of the client's total investments with Adviser that
are being sold or withdrawn (i.e. if 10% of a client's funds under discretionary
investment management are withdrawn from Adviser's management, only 10% of such
Client's shares of Company Common Stock may be sold and have the Adviser's
obligations hereunder terminate with respect thereto). No such termination of
this Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
4. Further Assurances. The Adviser and Harnisch 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
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<PAGE>
by this Agreement. The Adviser shall by the third business day of each month
provide confidential notice to Parent of any sales of Subject Shares during the
immediately preceding month during the term of this Agreement.
5. Successors, Assigns and Transferees Bound. Any successor, assignee or
transferee (including a successor, assignee or transferee as a result of the
death of the Adviser or Harnisch, such as an executor or heir) shall be bound by
the terms hereof, and the Adviser and Harnisch 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.
6. Affiliate Letter; Tax Certificate. The Adviser and Harnisch 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 hereto and (ii) the Tax
Certificate attached hereto as Schedule B.
7. Remedies. The Adviser and Harnisch 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 Adviser and Harnisch 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.
8. 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.
9. Amendment. This Agreement may be amended only by means of a written
instrument executed and delivered by the Adviser and Harnisch and Parent.
10. Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for either the District of
Connecticut or the District of Delaware 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.
11. Governing Law. Except to the extent that the laws of the State of Delaware
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.
12. 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 or Sub, to:
General Electric Company
c/o GE Medical Systems
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P.O. Box 414, W-410
Milwaukee, WI 53201
Attention: General Counsel
Facsimile No.: 414-544-3575
for overnight courier deliveries, to:
General Electric Company
c/o GE Medical Systems
3000 North Grandview Boulevard
Waukesha, WI 53188
Attention: General Counsel
with copies to:
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431-00001
Attention: Vice President and Senior Counsel -
Transactions
Facsimile No.: 203-373-3008
and
Gibson, Dunn & Crutcher, LLP
1801 California Street, Suite 4100
Denver, CO 80202
Attention: Richard M. Russo, Esq.
Facsimile No.: 303-296-5310
(b) if to the Adviser, Harnisch or WFH Foundation to:
FLA Advisers L.L.C.
90 Madison Avenue
New York, New York 10022
Attn: William F. Harnisch
Facsimile No.: (212) 407-9636
with a copy to:
Fulbright & Jaworski LLP
666 Fifth Avenue
New York, New York 10103
Attention: William Bush, Esq.
Facsimile No.: (212) 752-5958
13. Capitalized Terms. Capitalized terms used in this Agreement
that are not defined herein shall have such meanings as set forth in the Merger
Agreement.
14. 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.
15. Stop Transfer. Neither the Adviser, Harnisch nor WFH Foundation shall
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.
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<PAGE>
IN WITNESS WHEREOF, the Adviser and Parent have caused this Agreement
to be duly executed and delivered on the day first above written.
FLA ADVISERS L.L.C.
/s/ William F. Harnish
William F. Harnisch
WFH FOUNDATION
/s/ William F. Harnisch
By: William F. Harnisch
President
William F. Harnisch
/s/ William F. Harnisch
William F. Harnisch
GENERAL ELECTRIC COMPANY
/s/ Keith Morgan
Keith Morgan
Vice President and General
Counsel of GE Medical Systems
<PAGE>
Schedule A to
Adviser Agreement
Holder Shares
Grenadier Fund 311,460
Jared Trading Ltd. 220,100
Triumph Fund LP 246,750
HH Managed Acct 626,400
Barnsville Ltd. 253,400
FLA Int'l Fund Ltd 803,700
Tablo Corporation 29,050
Triumph Fund II LP 129,210
"Harnisch Shares"
William Harnisch 232,900
WFH Foundation 40,000
Total 2,892,970
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<PAGE>
Schedule B to
Adviser Agreement
TAX CERTIFICATE
_________________, 1999
Gibson Dunn & Crutcher, LLP
1801 California Street
Suite 4100
Denver, CO 80202
Holland & Hart, LLP
215 South State Street
Suite 500
Salt Lake City, UT 84111-2317
Ladies and Gentlemen:
You have been requested to render opinions regarding certain federal income tax
consequence of the merger (the "Merger") of Ruby Merger Corp. ("Sub"), a
Delaware corporation and a wholly owned subsidiary of General Electric Company,
a New York corporation ("Parent"), with and into OEC Medical Systems,, Inc., a
Delaware corporation (the "Company"), upon the terms and conditions set forth in
the Agreement and Plan of Merger dated as of August 7, 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, FLA Advisers, LLC, an
investment adviser with discretionary investment management authority,
including, until revoked, the sole power to vote, William F. Harnisch and the
WFH Foundation 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 present 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 Treas. Reg. ss.
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
Temp. Treas. Reg. ss. 1.368-1T(e)(2)(ii)) any shares of Company Common
Stock, as part of any overall plan that includes the Merger.
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The undersigned hereby undertakes to inform you, Parent and Company immediately
______ any of the foregoing statements or representations become untrue,
incorrect or incomplete in any respect on or prior to the Effective Time.
Very truly yours,
FLA ADVISERS L.L.C.
William F. Harnisch
WFH FOUNDATION
By: William F. Harnisch
President
William F. Harnisch
William F. Harnisch
Date:
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<PAGE>
Schedule C to
Adviser Agreement
As of the effective time of the Merger (the "Effective Time"),
the shares of common stock of the Company shall be converted into the
right to receive the number of shares of common stock, par value $0.16
per share, of Parent ("Parent Common Stock") determined by dividing
$36.00 by the Average Parent Share Price (as defined below) and
rounding the result to the nearest one thousandth of a share (the
"Merger Consideration"); provided, however, that if between the first
day of the Valuation Period (as defined below) and the Effective Time,
the outstanding shares of Parent Common Stock shall have been changed
into a different number of shares or a different class, by reason of
any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, the Merger Consideration
shall be correspondingly adjusted to the extent appropriate to reflect
such stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares. The "Average Parent Share
Price" means the average of the daily volume-weighted sales prices per
share of Parent Common Stock on the New York Stock Exchange, Inc.
Composite Tape for each of the 10 consecutive trading days ending on
the trading day which is five days prior to the Effective Time (the
"Valuation Period"). .
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<PAGE>
Schedule D to
Adviser Agreement
FORM OF AFFILIATE LETTER FOR AFFILIATES OF THE COMPANY
PARENT
[RUBY ADDRESS]
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed to
be an "affiliate" of OEC Medical Systems, Inc., a Delaware corporation (the
"Company"), as the term "affiliate" is defined for purposes of paragraphs (c)
and (d) of Rule 145 of the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). Pursuant to the terms of the
Agreement and Plan of Merger dated as of August 7, 1999 (the "Merger Agreement")
among Parent, a New York corporation ("Parent"), Ruby Merger Corp., a Delaware
corporation ("Sub"), and the Company, Sub will be merged with and into the
Company (the "Merger"). Capitalized terms used in this letter without definition
shall have the meanings assigned to them in the Merger Agreement.
As a result of the Merger, I may receive shares of Common Stock, par
value $.16 per share, of Parent (the "Parent Shares") in exchange for Common
Shares, par value $.01 per share, of the Company (the "Company Shares") owned by
me or purchasable upon exercise of stock options.
1. I represent, warrant and covenant to Parent that in the event I
receive any Parent Shares as a result of the Merger:
A. I shall not make any sale, transfer or other disposition of
the Parent Shares in violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Merger Agreement
and discussed the requirements of such documents and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of the Parent
Shares, to the extent I felt necessary, with my counsel or counsel for the
Company.
C. I have been advised that the issuance of the Parent Shares
to me pursuant to the Merger has been registered with the Commission under the
Act on a Registration Statement on Form S-4. However, I have also been advised
that, because at the time the Merger is submitted for a vote of the shareholders
of the Company, (a) I may be deemed to be an affiliate of the Company and (b)
the distribution by me of the Parent Shares has not been registered under the
Act, I may not sell, transfer or otherwise dispose of the Parent Shares issued
to me in the Merger unless (i) in the opinion of counsel reasonably satisfactory
to Parent, such sale, transfer or other disposition is made in conformity with
the volume and other limitations of Rule 145 promulgated by the Commission under
the Act, (ii) such sale, transfer or other disposition has been registered under
the Act or (iii) in the opinion of counsel reasonably acceptable to Parent, such
sale, transfer or other disposition is otherwise exempt from registration under
the Act.
D. I understand that Parent is under no obligation to register
the sale, transfer or other disposition of the Parent Shares by me or on my
behalf under the Act or, except as provided in paragraph 2(A) below, to take any
other action necessary in order to make compliance with an exemption from such
registration available.
F. Execution of this letter should not be considered an
admission on my part that I am an "affiliate" of the Company as described in the
first paragraph of this letter, nor as a waiver of any rights I may have to
object to any claim that I am such an affiliate on or after the date of this
letter.
2. By Parent's acceptance of this letter, Parent hereby agrees with me as
follows: For so long as and to the extent necessary to permit me to sell the
Parent Shares pursuant to Rule 145 and, to the extent applicable, Rule 144 under
the Act, Parent shall use its reasonable best efforts to (i) file, on a
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<PAGE>
timely basis, all reports and data required to be filed with the Commission by
it pursuant to Section 13 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and (ii) furnish to me upon request a written statement as to
whether Parent has complied with such reporting requirements during the 12
months preceding any proposed sale of the Parent Shares by me under Rule 145.
Parent has filed all reports required to be filed with the Commission under
Section 13 of the 1934 Act during the preceding 12 months.
Very truly yours,
Name
Agreed and accepted this ____ day
of [ ], 1999, by
Parent
By
Name:
Title:
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