EXHIBIT(c)(3)
PUT OPTION AGREEMENT
THIS PUT OPTION AGREEMENT (the "Agreement"), is entered into as of November
22, 1995 by and between PSICOR, Inc., a Pennsylvania corporation ("PSICOR") and
Xxxxxxx Holdings, Inc., a Delaware corporation ("Purchaser").
RECITALS
WHEREAS, PSICOR is the owner, beneficially or of record, of all of the
outstanding shares of common stock, no par value, of Psicor Office Laboratories,
Inc., a New Jersey corporation (the "Company"); and
WHEREAS, in order to induce Xxxxxx Healthcare Corporation, a Delaware
corporation and Baxter CVG Services II, Inc., a Pennsylvania corporation
(together, "Baxter") to enter into that certain Agreement and Plan of Merger
(the "Merger Agreement") with PSICOR, pursuant to which Baxter will acquire
PSICOR on the terms and subject to the conditions set forth therein, Purchaser
is willing to grant to PSICOR a put option on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties contained herein, and intending to be
legally bound hereby, the parties agree as follows:
1. PUT. Purchaser hereby grants to PSICOR a put option (the "Put
Option") pursuant to which following the consummation of the tender offer
contemplated by the Merger Agreement Purchaser may be required to purchase from
PSICOR all of the common stock (the "Common Stock") of the Company, as provided
in the Purchase Agreement attached to this Agreement and marked as Exhibit A
(the "Purchase Agreement"), in the event that no Higher POL Offer (as defined in
Section 6.13 of the Merger Agreement) is accepted by PSICOR in accordance
with the Merger Agreement.
2. PUT NOTICE. PSICOR shall give written notice (the "Put Notice")
to Purchaser of its intention to exercise the Put Option, specifying the time
and date not earlier than one business day from the date such Put Notice is
given for the closing of such sale (the "Put Closing"). From and after the date
of any change in control at PSICOR, and through the Put Closing, PSICOR shall
cause the Company to conduct its business in the ordinary course.
3. CLOSING. The Put Closing shall be held on the date specified in
the Put Notice unless, on such date, there shall be any preliminary or permanent
injunction or other order by any court of competent jurisdiction or any other
legal restraint or prohibition preventing the consummation of such sale, in
which event such Put Closing shall be held as soon as practicable following the
lifting, termination or suspension of such injunction, order, restraint or
prohibition (each party agreeing to use its reasonable efforts to have such
injunction, order, restraint or prohibition lifted, terminated or suspended),
but in any event within five business days thereof. Notwithstanding the
foregoing, in no event shall the Put Closing occur on or prior to the closing or
termination of the tender offer contemplated by the Merger Agreement.
4. ACKNOWLEDGEMENT. Purchaser understands and acknowledges that
PSICOR has no obligation to sell to it the Common Stock and that this Agreement
is being entered into solely to facilitate the Merger Agreement and to allow
PSICOR to satisfy, in the event that no Higher POL Offer is accepted, the
closing condition set out in Section 7.3(b) of the Merger Agreement if Baxter
does not waive such closing condition.
5. FEES AND EXPENSES. Except as contemplated by this Agreement, all
costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby, including the legal fees
and expenses of Purchaser which shall be paid by PSICOR. Notwithstanding the
foregoing sentence, in the event that the Put Option is exercised, the excess of
Purchaser's legal fees and expenses over $20,000 which have been paid by PSICOR
shall be added to the Closing Intercompany Account Balance (as defined in the
Purchase Agreement) for purposes of Section 2.2 of the Purchase Agreement; and
PROVIDED, FURTHER, that the $25,000 retention fee payable to Xxxx Xxxxxxxx
Incorporated in connection with the transaction contemplated hereby shall also
be added to the Closing Intercompany Account Balance for purposes of such
Section 2.2.
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6. AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified and supplemented in any and all respects by
written agreement of the parties hereto.
7. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given upon personal delivery, facsimile
transmission (which is confirmed), telex or delivery by an overnight express
courier service (delivery, postage or freight charges prepaid), or on the fourth
day following deposit in the United States mail (if sent by registered or
certified mail, return receipt requested, delivery, postage or freight charges
prepaid), addressed to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to PSICOR, to:
PSICOR, Inc.
00000 Xxx xxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
with a copy to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.(000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
and a copy to:
Xxxxxx Healthcare Corporation
00000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
Vice President, Law
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(b) if to Purchaser, to:
Xxxxxxx Holdings, Inc.
00000 Xxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No. (619)
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxx & XxXxxxxx
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
9. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to the principles of conflicts of law thereof.
10. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto; provided, however that Purchaser may assign this Agreement to any
company of which Xxxxxxx X. Xxxxxxx owns, directly or indirectly, all of the
outstanding common stock. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by, the
parties and their respective successors and assigns.
12. TERM. This Agreement shall terminate, and shall no longer be
exercisable, from and after the earlier of (a) termination of the Merger
Agreement or (b) May 21, 1996.
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13. ATTORNEYS' FEES. In the event of litigation relating to this
Agreement, if a court of competent jurisdiction determines that this Agreement
has been breached by either party, then the breaching party will reimburse the
non-breaching party for its reasonable costs and expenses (including without
limitation legal fees and expenses) incurred in connection with all such
litigation.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first above written.
PSICOR, Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
President
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