EXHIBIT 10.1
OPTION AGREEMENT
This Option Agreement (this "Agreement") is made as of May 13, 1997, by
and among Cemax-Icon, Inc., a Delaware Corporation (the "Company"), and Imation
Corp., a Delaware corporation ("Imation").
RECITALS
WHEREAS, concurrently with the execution and delivery of this
Agreement, Company, Imation and CI Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Imation ("Merger Subsidiary"), have agreed that
Merger Subsidiary shall be merged (the "Merger") with and into the Company, in
accordance with that certain Agreement and Plan of Merger among the Company,
Imation and Merger Subsidiary dated as of the date hereof (the "Merger
Agreement"), pursuant to which the Company will be the surviving corporation and
a wholly owned subsidiary of Imation (the "Surviving Corporation"); and
WHEREAS, Imation and the Company have conditioned the execution of the
Merger Agreement on the execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the respective
undertakings of the parties set forth below, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms not expressly defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement.
2. GRANT OF OPTION. As an inducement to Imation to execute and deliver
the Merger Agreement, and to proceed with the Merger under the terms and
conditions set forth in the Merger Agreement, the Company hereby irrevocably
grants to Imation an option (the "Option") to purchase up to 1,075,917 shares of
the Company's common stock, par value $0.01 per share ("Common Stock"), at a
price equal to $11.96 per share of Common Stock.
3. EXERCISE OF OPTION. The Option may be exercised by Imation, in whole
or in part, at any time and from time to time, on or before December 31, 1997.
In the event that Imation desires to exercise the Option, Imation shall give a
written notice to the Company specifying the number of shares of Common Stock it
will purchase and a place and date (which date shall not be later than 10
business days after the date such notice is mailed, provided, however, that if
any domestic law or regulation will not permit such purchase to be consummated
during such 10-day period, the date of the closing of such purchase shall be
within five days following the cessation of such restriction) for the closing of
the purchase.
4. PAYMENT AND DELIVERY OF CERTIFICATES. At any closing hereunder, (a)
Imation will pay the aggregate purchase price for the shares of Common Stock to
be purchased by wire transfer of immediately available funds to an account
designated by the Company, and (b) the Company will deliver to Imation a
certificate or certificates representing the shares purchased.
5. REPRESENTATIONS AND WARRANTIES OF IMATION. Imation hereby represents
and warrants to the Company as follows:
(a) The execution, delivery and performance of this Agreement
by Imation has been duly authorized by all necessary corporate action on the
part of Imation; and this Agreement has been duly executed and delivered by
Imation and constitutes a valid and binding obligation of Imation enforceable in
accordance with its terms; and
(b) The purchase of any shares of Common Stock from the
Company pursuant to this Agreement will be for the account of Imation for
investment and not with a view to the sale and distribution thereof within the
meaning of the Securities Act; and any sale, transfer or other disposition of
the shares of Common Stock purchased hereunder will be made in compliance with
all applicable provisions of the Securities Act and the rules and regulations
thereunder.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Imation as follows:
(a) The Company has the requisite corporate power and
authority to enter into this Agreement and carry out its obligations hereunder;
the execution, delivery and performance of this Agreement by the Company has
been duly authorized by the Board of Directors of the Company and no other
corporate proceedings on the part of the Company are necessary to authorize the
execution, delivery and performance of this Agreement; this Agreement has been
duly executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms;
(b) Upon purchase by Imation hereunder, the shares of Common
Stock subject to this Option will be duly authorized, validly issued, fully paid
and nonassessable;
(c) Upon delivery of any shares of Common Stock purchased by
Imation hereunder, Imation will receive good title to such shares, free and
clear of any pledge, lien, security interest, charge, claim or encumbrance of
any kind;
(d) The execution, delivery and performance of this Agreement
by the Company do not and will not conflict with or result in any breach of any
of the provisions of, constitute a default under, result in a violation of,
result in the creation of a right of termination or acceleration or any lien,
security interest, charge or encumbrance upon any assets of the Company, or
require any authorization, consent, approval, exemption or other action by or
notice to any court or other governmental body, under the provisions of the
Certificate of Incorporation or Bylaws of the Company or any indenture,
mortgage, lease, loan agreement or other agreement or instrument by which the
Company is bound or affected, or any law, statute, rule or regulation or order,
judgment or decree to which the Company is subject; and
(e) The Company is not required to submit any notice, report
or other filing with any governmental authority in connection with the execution
or delivery by it of this Agreement or the consummation of the transactions
contemplated hereby except for filings required pursuant to applicable state
securities laws (which filings shall be made by the Company promptly in the
event Imation exercises its option hereunder). No consent, approval or
authorization of any governmental or regulatory authority or any other party or
person is required to be obtained by the Company in connection with its
execution, delivery and performance of this Agreement or the transactions
contemplated hereby.
(f) The Company currently has 5,379,587 shares of Common Stock
issued and outstanding.
7. EFFECT OF TERMINATION OF THE MERGER AGREEMENT. The termination of
the Merger Agreement and the payment of any termination fees by the Company
under the Merger Agreement shall in no way affect the validity of or
enforceability of this Agreement; provided, that, the Option may not be
exercised and this Agreement shall terminate and be of no further force or
effect in the event the Company terminates the Merger Agreement pursuant to
Section 8.01(b) thereof.
8. REGISTRATION RIGHTS. Imation shall be entitled to the registration
rights set forth on the attached Exhibit A with respect to any shares of Common
Stock purchased hereunder.
9. MISCELLANEOUS.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, affiliates and assigns.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the party against whom enforcement
of such change is sought.
(c) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Imation will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreement of the Company set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Imation upon any such
violation, Imation shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Imation at law or in equity, in any event without the necessity of posting bond
or proving actual damages.
(d) Notices. All notices, demands and other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when personally
delivered or three days after being mailed, if mailed by first class mail,
return receipt requested, or when receipt is acknowledged, if sent by facsimile,
telecopy or other electronic transmission device. Notices, demands and
communications to Imation and the Company will, unless another address is
specified in writing, be sent to the address indicated below:
Notices to Imation: with a copy to:
Imation Corp. Xxxxxx & Xxxxxxx LLP
Legal Affairs 000 Xxxxx Xxxxx Xxxxxx
Imation Corp. Xxxxxxxxxxx, XX 00000
One Imation Place Attention: Xxxx X. Xxxxxxxx
Xxxxxxx, XX 00000-0000 Telecopy: (000) 000-0000
Attn:
Imation Corp.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn:
Notices to the Company: with a copy to:
Cemax-Icon, Inc. Wilson, Sonsini, Xxxxxxxx &
00000 Xxxxxxx Xxxxx Xxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxxxxx 00000 000 Xxxx Xxxx Xxxx
Attn: Xxxxx Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X'Xxxxxxx
(e) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
(f) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
(g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(h) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(i) Effective Time. This Agreement and the Proxy delivered in
connection herewith shall become effective only upon execution of the Merger
Agreement by each of the Company, Imation and Merger Subsidiary.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
IMATION CORP.
By /s/ C.T. Pinder
-----------------------------
Its Vice President
------------------------
CEMAX-ICON, INC.
By /s/ Xxxxx Xxxx
-----------------------------
Its President and C.E.O.
------------------------
