STOCK OPTION AGREEMENT
(HBO & COMPANY SHARES)
THIS STOCK OPTION AGREEMENT (this "AGREEMENT"), dated October 17, 1998,
between McKESSON CORPORATION, a Delaware corporation ("Grantee"), and HBO &
COMPANY, a Delaware corporation ("Issuer"),
W I T N E S S E T H:
WHEREAS, Grantee, Issuer, and McKesson Merger Sub, Inc., a wholly-owned
subsidiary of Grantee, have entered into an Agreement and Plan of Merger, dated
as of October 17, 1998 (the "Merger Agreement"), which provides, among other
things, for the merger of Merger Sub with and into Issuer, such that Issuer will
become a wholly-owned subsidiary of Grantee, and stockholders of Issuer will
become stockholders of Grantee (capitalized terms used herein without definition
shall have the respective meanings specified in the Merger Agreement); and
WHEREAS, as a condition to Grantee's entering into the Merger Agreement and
in consideration therefor, Issuer has agreed to grant Grantee the Option (as
hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Merger Agreement, the parties hereto
agree as follows:
1. Grant of Option. Issuer hereby grants to Grantee an unconditional,
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irrevocable option (the "Option") to purchase, subject to the terms hereof,
Eighty-Five Million Eight Hundred Sixty-Five Thousand Five Hundred Seventeen
(85,865,517) shares of fully paid and nonassessable common stock of the Issuer,
par value $.05 per share ("Common Stock"), equal to 19.9% of the shares of
Common Stock outstanding as of the date hereof, together with any associated
purchase rights (the "Rights") under the Rights Agreement, dated as of February
12, 1991, as amended from time to time, between Issuer and The Citizens and
Southern Trust Company (Georgia), N.A. (references to shares purchasable upon
exercise of the Option shall be deemed to include the associated Rights), at a
purchase price of $32.81 per share of Common Stock as adjusted in accordance
with the provisions of Section 5 of this Agreement (such price, as adjusted if
applicable, the "Option Price").
2. (a) Exercise of Option. Grantee may exercise the Option, in whole or
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part, and from time to time, if, but only if, a Triggering Event (as hereinafter
defined) shall have occurred prior to the occurrence of an Option Termination
Event (as hereinafter defined), provided that Grantee shall have sent the
written notice of such exercise (as provided in subsection (e) of this Section
2) on or prior to the last date of the 12-month period following such
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Triggering Event (the "Option Expiration Date").
(b) Option Termination Event. The term "Option Termination Event" shall
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mean any of the following events: (i) the Effective Time of the Merger; (ii)
termination of the Merger Agreement by either party pursuant to Section
7.1(b)(iv) of the Merger Agreement, whether or not such termination occurs prior
to the occurrence of a Triggering Event, provided that the matter giving rise to
the order, decree, ruling or other action providing the basis for termination
under Section 7.1(b)(iv) shall not have been initiated by Issuer; or (iii)
termination of the Merger Agreement by either party pursuant to any other
provision of the Merger Agreement if such termination occurs prior to the
occurrence of a Triggering Event; or (iv) 12 months after the first occurrence
of a Triggering Event.
(c) Triggering Event. The term "Triggering Event" shall mean any event
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that would entitle either party to terminate the Merger Agreement and permit
Grantee to receive any fee from Issuer pursuant to Section 7.2 of the Merger
Agreement.
(d) Notice of Triggering Event. Issuer shall notify Grantee promptly in
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writing of the occurrence of any Triggering Event, it being understood that the
giving of such notice by Issuer shall not be a condition to the right of Grantee
to exercise the Option or for a Triggering Event to have occurred.
(e) Notice of Exercise; Closing. In the event Grantee is entitled to and
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wishes to exercise the Option, it shall send to Issuer a written notice (the
date of which being herein referred to as the "Notice Date") specifying (i) the
total number of shares it will purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 60 business
days from the Notice Date for the closing of such purchase (the "Closing Date");
provided, that if the closing of the purchase and sale pursuant to the Option
(the "Closing") cannot be consummated, in the reasonable opinion of Grantee, by
reason of any applicable judgment, decree, order, law or regulation, the period
of time that otherwise would run pursuant to this sentence shall run instead
from the date on which such restriction on consummation has expired or been
terminated; and provided further, without limiting the foregoing, that if, in
the reasonable opinion of Grantee, prior notification to or approval of any
regulatory agency is required in connection with such purchase, Grantee shall
promptly file the required notice or application for approval and shall
expeditiously process the same and the period of time that otherwise would run
pursuant to this sentence shall run instead from the date on which any required
notification periods have expired or been terminated or such approvals have been
obtained and any requisite waiting period or periods shall have passed. Any
exercise of the Option shall be deemed to occur on the Closing Date relating
thereto. Notwithstanding this subsection (e), in no event shall any Closing
Date be more than 12 months after the related Notice Date, and if the Closing
Date shall not have occurred within 12 months after the related Notice Date due
to the failure to obtain any such required approval, the exercise of the Option
effected on the Notice Date shall be deemed to have been rescinded. In the
event (x) Grantee receives official notice that an approval of any regulatory
authority required for the purchase of Option Shares (as hereinafter defined)
will not be issued or granted, (y) a Closing Date shall not have occurred within
12 months after the related Notice Date due to the failure to obtain any such
required approval or (z) Grantee shall have the right pursuant to the last
sentence of subsection
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(d) of Section 7 or subsection (f) of Section 7 to exercise the Option, Grantee
shall nevertheless be entitled to exercise its right as set forth in Section 7.
(f) Purchase Price. At the Closing referred to in subsection (e) of this
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Section 2, Grantee shall pay to Issuer the aggregate purchase price for the
shares of Common Stock purchased pursuant to the exercise of the Option in
immediately available funds by wire transfer to a bank account designated by
Issuer, provided that failure or refusal of Issuer to designate such a bank
account shall not preclude Grantee from exercising the Option.
(g) Issuance of Common Stock. At such Closing, simultaneously with the
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delivery of immediately available funds as provided in subsection (f) of this
Section 2, Issuer shall deliver to Grantee a certificate or certificates
representing the number of shares of Common Stock purchased by the Grantee and,
if the Option should be exercised in part only, a new Option evidencing the
rights of Grantee thereof to purchase the balance of the shares purchasable
hereunder, and the Grantee shall deliver to Issuer this Agreement and a letter
agreeing that Grantee will not offer to sell or otherwise dispose of such shares
in violation of applicable law or the provisions of this Agreement.
(h) Legend. Certificates for Common Stock delivered at a Closing hereunder
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may be endorsed with a restrictive legend that shall read substantially as
follows:
"THE TRANSFER AND VOTING OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN PROVISIONS OF AN AGREEMENT BETWEEN THE REGISTERED HOLDER
HEREOF AND ISSUER AND TO RESALE RESTRICTIONS ARISING UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF ISSUER AND WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY ISSUER OF A WRITTEN REQUEST THEREFOR."
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act of 1933, as amended (the "Securities Act"), in the above
legend shall be removed by delivery of substitute certificate(s) without such
reference if Grantee shall have delivered to Issuer a copy of a letter from the
staff of the SEC, or an opinion of counsel, in form and substance reasonably
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) and both satisfied. In addition, such certificates shall
bear any other legend as may be required by law.
(i) Record Holder; Expenses. Upon the Closing, Grantee shall be deemed to
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be the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of Issuer shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to Grantee or the Issuer shall have failed or refused
to designate the bank account described in subsection (f) of this Section 2.
Issuer shall pay all expenses, and any and all United States federal, state and
local taxes and other charges that may be payable in connection with the
preparation, issuance and delivery of stock certificates under this Section 2 in
the name of Grantee or its assignee, transferee or designee.
3. Reservation of Shares. Issuer agrees: (i) that it shall at all times
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maintain, free from preemptive rights, sufficient authorized but unissued or
treasury shares of Common Stock (and other securities issuable pursuant to
Section 5) so that the Option may be exercised without additional authorization
of Common Stock (or such other securities) after giving effect to all other
options, warrants, convertible securities and other rights to purchase Common
Stock (or such other securities); (ii) that it will not, by charter amendment or
through reorganization, consolidation, merger, dissolution or sale of assets, or
by any other voluntary act avoid or seek to avoid the observance or performance
of any of the covenants, stipulations or conditions to be observed or performed
hereunder by Issuer; (iii) promptly to take all action as may from time to time
be required (including without limitation complying with all premerger
notification, reporting and waiting periods in 15 U.S.C. Section 18a the rules
and regulations thereunder) in order to permit Grantee to exercise the Option
and the Issuer duly and effectively to issue shares of Common Stock pursuant
hereto; and (iv) promptly to take all action provided herein to protect the
rights of Grantee against dilution.
4. Lost Options. Upon receipt by Issuer of evidence reasonably
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satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date.
5. Adjustment upon Changes in Capitalization. The number of shares of
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Common Stock purchasable upon the exercise of the Option shall be subject to
adjustment from time to time as provided in this Section 5.
(a) In the event that any additional shares of Common Stock are issued
or otherwise become outstanding after the date hereof (other than by reason of
subsection (b) of this Section 5), the number of shares of Common Stock subject
to the Option shall be increased so that, after such issuance of additional
shares, such number of shares then remaining subject to the Option, together
with shares theretofore issued pursuant to the Option, equals 19.9% of the
number of such shares of Common Stock then issued and outstanding.
(b) In the event of any change in Common Stock by reason of stock
dividends, other dividends on the Common Stock payable in securities or other
property (other than regular cash dividends), stock splits, merger,
recapitalization, combinations, subdivisions, conversions, exchanges of shares
or other similar transactions, then the type and number of shares of Common
Stock purchasable upon exercise hereof shall be appropriately adjusted so
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that Grantee shall receive upon exercise of the Option and payment of the
aggregate Option Price hereunder the number and class of shares or other
securities or property that Grantee would have received in respect of Common
Stock if the Option had been exercised in full immediately prior to such event,
or the record date therefor, as applicable.
(c) Whenever the number of shares of outstanding Common Stock changes
after the date hereof, the Option Price shall be adjusted by multiplying the
Option Price by a fraction the numerator of which shall be equal to the
aggregate number of shares of Common Stock purchasable prior to the adjustment
and the denominator of which shall be equal to the aggregate number of shares of
Common Stock purchasable immediately after the adjustment.
6. Registration Rights.
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(a) In the event that the Grantee shall desire to sell any of the
shares of Common Stock issued upon total or partial exercise of this Option
("Option Shares") within two years after the purchase of such Option Shares
pursuant hereto, and such sale requires, in the opinion of counsel to the
Grantee, which opinion shall be reasonably satisfactory to Issuer and its
counsel, registration of such Option Shares under the Securities Act, Issuer
will cooperate with the Grantee and any underwriters in registering such Option
Shares for resale, including, without limitation, promptly filing a registration
statement which complies with the requirements of applicable federal and state
securities laws and entering into an underwriting agreement with such
underwriters upon such terms and conditions as are customarily contained in
underwriting agreements with respect to secondary distributions; provided that
Issuer shall not be required to have declared effective more than two
registration statements hereunder and shall be entitled to delay the filing or
effectiveness of any registration statement for up to 180 days if the offering
would, in the judgment of the Board of Directors of Issuer, require premature
disclosure of any material corporate development or otherwise interfere with or
adversely affect any pending or proposed offering of securities of the Issuer or
any other material transaction involving the Issuer.
(b) If the Common Stock is registered pursuant to the provisions of
this Section 6, the Issuer agrees (i) to furnish copies of the registration
statement and the prospectus relating to the Option Shares covered thereby in
such numbers as the Grantee may from time to time reasonably request and (ii) if
any event shall occur as a result of which it becomes necessary to amend or
supplement any registration statement or prospectus, to prepare and file under
the applicable securities laws such amendments and supplements as may be
necessary to keep effective for at least 90 days a prospectus covering the
Option Shares meeting the requirements of such securities laws, and to furnish
the Grantee such numbers of copies of the registration statement and prospectus
as amended or supplemented as may reasonably be requested. Issuer shall bear
the cost of the registration, including, but not limited to, all registration
and filing fees, printing expenses, and fees and disbursements of counsel and
accountants for the Issuer, except that the Grantee shall pay the fees and
disbursements of its counsel, the underwriting fees and selling commissions
applicable to the Option Shares sold by the Grantee. Issuer shall indemnify and
hold harmless Grantee, its affiliates and its officers, directors and
controlling persons from and against any and all losses, claims, damages,
liabilities and expenses arising out of or based upon any alleged untrue
statement contained or incorporated by reference in, and alleged
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omission to state a material fact required to be contained in, each registration
statement filed pursuant to this paragraph; provided, however, that this
provision does not apply to any loss, liability, claim, damage or expense to the
extent it arises out of any such untrue statement or omission made in reliance
upon and in conformity with written information furnished to Issuer by the
Grantee, its affiliates and its officers expressly for use in any registration
statement (or any amendment thereto) or any preliminary prospectus filed
pursuant to this paragraph. Issuer shall also indemnify and hold harmless each
underwriter and each person who controls any underwriter within the meaning of
either the Securities Act or the Securities Exchange Act of 1934, as amended,
against any and all losses, claims, damages, liabilities and expenses arising
out of or based upon any such statements contained or incorporated by reference
in, and alleged omissions from, each registration statement filed pursuant to
this paragraph; provided, however, that this provision does not apply to any
loss, liability, claim, damage or expense to the extent it arises out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to Issuer by the underwriters expressly for use in
any registration statement (or any amendment thereto) or any preliminary
prospectus filed pursuant to this paragraph.
7. Repurchase of Option and Option Shares. (a) Within ten business days
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following the occurrence of a Repurchase Event (as defined below), Issuer shall
(i) deliver an offer (a "Repurchase Offer") to repurchase the Option from
Grantee at a price (the "Option Repurchase Price") equal to the amount by which
(A) the Alternative Transaction Price (as defined below) exceeds (B) the Option
Price, multiplied by the number of shares for which the Option may then be
exercised, and (ii) deliver an offer (also, a "Repurchase Offer") to repurchase
the Option Shares from Grantee at a price (the "Option Share Repurchase Price")
equal to the Alternative Transaction Price multiplied by the number of Option
Shares then held by Grantee. The term "Alternative Transaction Price" shall
mean, as of any date for the determination thereof, the price per share of
Common Stock paid pursuant to the Alternative Transaction or, in the event of
sale of assets of Issuer, the last per share sale price of Common Stock on the
fourth trading day following the announcement of such sale. If the
consideration paid or received in the Alternative Transaction shall be other
than in cash, the value of such consideration shall be determined by a
nationally recognized investment banking firm selected by Grantee, which
determination shall be conclusive for all purposes of this Agreement.
(b) Upon the occurrence of a Repurchase Event and whether or not
Issuer shall have made a Repurchase Offer under Section 7(a) at the request (the
date of such request being the "Option Repurchase Request Date") of Grantee
delivered prior to the Option Expiration Date, Issuer shall repurchase the
Option from Grantee at the Option Repurchase Price and (ii) at the request (the
date of such request being the "Option Share Repurchase Request Date") of
Grantee delivered prior to the Option Expiration Date, Issuer shall repurchase
such number of the Option Shares from Grantee as Grantee shall designate at the
Option Share Repurchase Price.
(c) Grantee may accept Issuer's Repurchase Offer under Section 7(a) or
may exercise its right to require Issuer to repurchase the Option and/or any
Option Shares pursuant to
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Section 7(b) by a written notice or notices stating that Grantee elects to
accept such offer or to require Issuer to repurchase the Option and/or the
Option Shares in accordance with the provisions of this Section 7. As promptly
as practicable, and in any event within five business days, after the last to
occur of (i) the surrender to it of this Agreement and/or Certificates for
Option Shares, as applicable, (ii) receipt of a notice of election under this
Section 7(c) or (iii) the occurrence of a Repurchase Event, Issuer shall deliver
or cause to be delivered to Grantee the Option Repurchase Price and/or the
Option Share Repurchase Price and/or the portion thereof that Issuer is not then
prohibited from so delivering under applicable Law.
(d) Issuer hereby undertakes to use its best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish any repurchase contemplated by
this Section 7. Nonetheless, to the extent that Issuer is prohibited under
applicable law, from repurchasing the Option and/or any Option Shares in full,
Issuer shall immediately so notify Grantee and thereafter deliver or cause to be
delivered, from time to time, to Grantee, the portion of the Option Repurchase
Price and the Option Share Repurchase Price, respectively, that it is no longer
prohibited from delivering, within five business days after the date on which
Issuer is no longer so prohibited; provided, however, that if Issuer at any time
after receipt of a notice of election to repurchase pursuant to Section 7(c) is
prohibited under applicable Law, from delivering to Grantee, the Option
Repurchase Price or the Option Share Repurchase Price, respectively, in full,
Grantee, may revoke its notice of election for repurchase of the Option or the
Option Shares either in whole or in part whereupon, in the case of a revocation
in part, Issuer shall promptly (i) deliver to Grantee, that portion of the
Option Repurchase Price or the Option Share Repurchase Price that Issuer is not
prohibited from delivering after taking into account any such revocation and
(ii) deliver to Grantee, as appropriate, either (a) a new agreement evidencing
the right of Grantee to purchase that number of shares of Common Stock equal to
the number of shares of Common Stock purchasable immediately prior to the
delivery of the notice of repurchase less the number of shares of Common Stock
covered by the portion of the Option repurchased or (b) a certificate for the
number of Option Shares covered by the revocation. If an Option Termination
Event shall have occurred prior to the date a notice described in the first
sentence of this subsection (d) is filed by Issuer, or shall be scheduled to
occur at any time before the expiration of a period ending on the thirtieth day
after such date, Grantee shall nonetheless have the right to exercise the Option
until the expiration of such 30-day period.
(e) The term "Repurchase Event" shall mean a Triggering Event followed
by the consummation of any transaction included in the definition of Alternative
Transaction (as so defined in Section 7.2(b) of the Merger Agreement).
(f) Notwithstanding anything to the contrary in Sections 2(a) and
2(e), if the Grantee delivers a notice under Section 7(b) specifying that (i)
such notice relates to an anticipated Repurchase Event under Section 7(e), and
is based on the Issuer's public announcement of the execution of an agreement
providing for an Alternative Transaction, such notice shall be deemed to
constitute an election to exercise the Option, as to the number of Option Shares
not theretofore purchased pursuant to one or more prior exercises of the Option,
on the fifth business day following the public announcement of the consummation
of the transaction contemplated by such agreement, in which event a Closing
shall occur with respect to
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such unpurchased Option Shares in accordance with Section 2(e) on such fifth
business day (or such later date as determined pursuant to the proviso in the
first sentence of Section 2(e)).
8. Representations and Warranties of the Issuer. Issuer hereby
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represents and warrants to Grantee as follows:
(a) Issuer has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Issuer and no other corporate proceedings on the part of
Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by Issuer. This Agreement is the valid and legally binding
obligation of Issuer, enforceable against Issuer in accordance with its terms.
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise of the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of all claims, liens,
encumbrance and security interests and not subject to any preemptive rights.
(c) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation pursuant to any provisions of the charter or by-laws of
Issuer or any Issuer subsidiary or subject to obtaining any approvals or
consents contemplated hereby, result in any violation of any loan or credit
agreement, note, mortgage, indenture, lease, plan or other agreement,
obligation, instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Issuer or any
Issuer subsidiary or their respective properties or assets which violation would
have, individually or in the aggregate, a material adverse effect (as defined in
the Merger Agreement).
(d) The Issuer has taken, and will in the future take, all steps
necessary to irrevocably exempt the transactions contemplated by this Agreement
from any applicable state takeover law and from any applicable charter or
contractual provision containing change of control or anti-takeover provisions.
9. Assignment of Option by Grantee. Neither of the parties hereto may
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assign any of its rights or obligations under this Option Agreement or the
Option created hereunder to any other person, without the express written
consent of the other party.
10. Limitation of Grantee Profit. (a) Notwithstanding any other
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provision of this Agreement, in no event shall the Grantee's Total Profit (as
hereinafter defined) exceed $220,000,000.00 and, if it otherwise would exceed
such amount, the Grantee, at its sole election,
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shall either (i) reduce the number of shares of Common Stock subject to this
Option, (ii) deliver to the Issuer for cancellation Option Shares previously
purchased by Grantee (valued, for the purposes of this Section 10(a) at the
average closing sales price per share of Common Stock (or if there is no sale on
such date then the average between the closing bid and ask prices on any such
day) as reported by The Nasdaq National Market for the twenty consecutive
trading days preceding the day on which the Grantee's Total Profit exceeds
$220,000,000.00), (iii) pay cash to the Issuer, or (iv) any combination thereof,
so that Grantee's actually realized Total Profit shall not exceed
$220,000,000.00 after taking into account the foregoing actions.
(b) As used herein, the term "Total Profit" shall mean the amount
(before taxes) of the following: (a) the aggregate amount of (i) (x) the net
cash amounts received by Grantee pursuant to the sale of Option Shares (or any
other securities into which such Option Shares are converted or exchanged) to
any unaffiliated party or to Issuer pursuant to this Agreement, less (y) the
Grantee's purchase price of such Option Shares, (ii) any amounts received by
Grantee on the transfer of the Option (or any portion thereof) to any
unaffiliated party, if permitted hereunder or to Issuer pursuant to this
Agreement, and (iii) the amount received by Grantee pursuant to Section 7.2 of
the Merger Agreement; minus (b) the amount of cash theretofore paid to the
Issuer pursuant to this Section 10 plus the value of the Option Shares
theretofore delivered to the Issuer for cancellation pursuant to this Section
10.
(c) Notwithstanding any other provision of this Agreement, nothing in
this Agreement shall affect the ability of Grantee to receive nor relieve
Issuer's obligation to pay a fee pursuant to Section 7.2 of the Merger
Agreement; provided that if Total Profit received by Grantee would exceed
$220,000,000.00 following the receipt of such fee, Grantee shall be obligated to
comply with the terms of Section 10(a) within 5 days of the later of (i) the
date of receipt of such fee and (ii) the date of receipt of the net cash by
Grantee pursuant to the sale of Option Shares (or, any other securities into
which such Option Shares are converted or exchanged) to any unaffiliated party
or to Issuer pursuant to this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Option
may not be exercised for a number of Option Shares that would, as of the Notice
Date, result in a Notional Total Profit (as defined below) of more than
$220,000,000.00. "Notional Total Profit" shall mean, with respect to any number
of Option Shares as to which the Grantee may propose to exercise the Option, the
Total Profit determined as of the Notice Date assuming that the Option was
exercised on such date for such number of Option Shares and assuming such Option
Shares, together with all other Option Shares held by the Grantee and its
affiliates as of such date, were sold for cash at the closing sales price for
Common Stock as of the close of business on the preceding trading day.
11. First Refusal. At any time after the first occurrence of a
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Triggering Event and prior to the later of (a) the expiration of 18 months
immediately following the first purchase of shares of Common Stock pursuant to
the Option and (b) the Option Termination Date, if Grantee shall desire to sell,
assign, transfer or otherwise dispose of all or any of the Option or the shares
of Common Stock or other securities acquired by it pursuant to the Option, it
shall give
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Issuer written notice of the proposed transaction (an "Offeror's Notice"),
identifying the proposed transferee, accompanied by a copy of a binding offer to
purchase the Option or such shares or other securities signed by such transferee
and setting forth the terms of the proposed transaction. An Offeror's Notice
shall be deemed an offer by Grantee to Issuer, which may be accepted within 20
business days of the receipt by Issuer of such Offeror's Notice, on the same
terms and conditions and at the same price at which Grantee is proposing to
transfer the Option or such shares or other securities to such transferee. The
purchase of the Option or any such shares or other securities by Issuer shall be
settled within 10 business days of the date of the acceptance of the offer and
the purchase price shall be paid to Grantee in immediately available funds;
provided that, if prior notification to or approval of any regulatory authority
is required in connection with such purchase, Issuer shall promptly file the
required notice or application for approval and shall expeditiously process the
same (and Grantee shall cooperate with Issuer in the filing of any such notice
or application and the obtaining of any such approval) and the period of time
that otherwise would run pursuant to this sentence shall run instead from the
date on which, as the case may be, (a) the required notification period has
expired or been terminated or (b) such approval has been obtained and, in either
event, any requisite waiting period shall have passed. In the event of the
failure or refusal of Issuer to purchase all of the Option or all of the shares
or other securities covered by an Offeror's Notice or if any regulatory
authority disapproves Issuer's proposed purchase of any portion of the Option or
such shares or other securities, Grantee may, within 60 days from the date of
the Offeror's Notice (subject to any necessary extension for regulatory
notification, approval or waiting periods), sell all, but not less than all, of
such portion of the Option or such shares or other securities to, the proposed
transferee at no less than the price specified and on terms no more favorable
than those set forth in the Offeror's Notice. The requirements of this Section
11 shall not apply to (w) any disposition as a result of which the proposed
transferee would own beneficially not more than 2% of the outstanding voting
power of Issuer, (x) any disposition of Common Stock or other securities by a
person to whom Grantee has assigned its rights under the Option with the consent
of Issuer, (y) any sale by means of a public offering registered under the
Securities Act in which steps are taken to reasonably assure that no purchaser
will acquire securities representing more than 2% of the outstanding voting
power of Issuer or (z) any transfer to a wholly owned subsidiary of Grantee
which agrees in writing to be bound by the terms hereof.
12. Voting. For a period of 18 months from the date of exercise of
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the Option, so long as Grantee beneficially owns any Option Shares, Grantee
agrees to (a) be present, in person or represented by proxy, at all stockholder
meetings of Issuer, so that all Option Shares beneficially owned by Grantee may
be counted for the purpose of determining the presence of a quorum at such
meetings, and (b) vote or cause to be voted all Option Shares beneficially owned
by it, with respect to all matters submitted to shareholders for a vote, in the
same proportion as shares of Common Stock are voted by shareholders unaffiliated
with Grantee.
13. Application for Regulatory Approval. Each of Grantee and Issuer
-----------------------------------
will use its best efforts to make all filings with, and to obtain consents of,
all third parties and governmental authorities necessary to the consummation of
the transactions contemplated by this Agreement, including without limitation
making application to list the shares of Common Stock issuable hereunder on The
Nasdaq National Market upon official notice of issuance.
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14. Specific Performance. The parties hereto acknowledge that
--------------------
damages would be an inadequate remedy for a breach of this Agreement by either
party hereto and that the obligations of the parties hereto shall be enforceable
by either party hereto through injunctive or other equitable relief.
15. Separability of Provisions. If any term, provision, covenant or
--------------------------
restriction contained in this Agreement is held by a court or a federal or state
regulatory agency of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and covenants and
restrictions contained in this Agreement shall remain in full force and effect,
and shall in no way be affected, impaired or invalidated.
16. Notices. All notices, claims, demands and other communications
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hereunder shall be deemed to have been duly given or made when delivered in
person, by overnight courier or by facsimile at the respective addresses of the
parties set forth in the Merger Agreement.
17. 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.
18. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed to be an original, but all of which
shall constitute one and the same agreement.
19. Expenses. Except as otherwise expressly provided herein or in
--------
the Merger Agreement, each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial
consultants, investment bankers, accountants and counsel.
20. Entire Agreement. Except as otherwise expressly provided herein
----------------
or in the Merger Agreement, this Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors except as assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein. Any provision of this Agreement may be waived only
in writing at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
21. Further Assurances. In the event of any exercise of the Option
------------------
by Grantee, Issuer and Grantee shall execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in order
to consummate the transactions provided for by such exercise. Nothing contained
in this Agreement shall be deemed to authorize Issuer or Grantee to breach any
provision of the Merger Agreement.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
date first written above.
MCKESSON CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President and Chief Executive Officer
HBO & COMPANY
By: /s/ Xxx X. Xxxxxxxxxx
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Xxx X. Xxxxxxxxxx,
President, Co-Chief Operating Officer
and Chief Financial Officer
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