STOCK OPTION AGREEMENT
THIS AGREEMENT is dated as of August 26, 1999, between Medtronic, Inc., a
Minnesota corporation ("Grantee"), and Xomed Surgical Products, Inc., a Delaware
corporation ("Issuer").
RECITALS
A. Grantee, Issuer, and MXS Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Grantee ("Merger Subsidiary"), have entered into an
Agreement and Plan of Merger (the "Merger Agreement") which provides, among
other things, that, upon the terms and subject to the conditions thereof, Merger
Subsidiary will be merged with and into Issuer (the "Merger").
B. As a condition to its willingness to enter into the Merger Agreement,
Grantee has required that Issuer enter into this Agreement, which provides,
among other things, that Issuer grant to Grantee an option to purchase shares of
Issuer's Common Stock, par value $.01 per share ("Issuer Common Stock"), upon
the terms and subject to the conditions provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained in this Agreement and the Merger Agreement, the parties
agree as follows:
1. Grant of Option. Subject to the terms and conditions of this Agreement,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase
2,442,453 shares of Issuer Common Stock (the "Option Shares"), in the manner set
forth below, at an exercise price of $60.00 per share of Issuer Common Stock,
subject to adjustment as provided below (the "Option Price"). Issuer represents
that the Option Shares represent at least 19.9% of the number of shares of
Issuer Common Stock outstanding on the date hereof. Capitalized terms used
herein but not defined herein shall have the meanings set forth in the Merger
Agreement.
2. Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, Grantee or
its designee (which shall be a wholly-owned subsidiary of Grantee) may,
prior to the Expiration Date (as defined in Section 11), exercise the
option, in whole or in part, at any time or from time to time on or after
the occurrence of an Exercise Event (as defined below). As used herein, an
"Exercise Event" shall mean (i) the occurrence of a termination specified
in Section 7.2(a)(i), Section 7.2(a)(ii) or Section 7.2(a)(v) of the Merger
Agreement or (ii) immediately prior to consummation of an Alternative
Control Transaction after the occurrence of all of the events and
circumstances specified in Section 7.2(a)(iii) or Section 7.2(a)(iv) of the
Merger Agreement.
(b) In the event Grantee wishes to exercise the Option at such time as
the Option is exercisable, Grantee shall deliver written notice (the
"Exercise Notice") to
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Issuer specifying its intention to exercise the Option, the total number of
Option Shares it wishes to purchase, and a date and time for the closing of
such purchase (a "Closing") not less than three nor more than ten business
days after the later of (i) the date such Exercise Notice is given and (ii)
the expiration or termination of any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). When this Option is exercisable, Grantee, in lieu of exercising the
Option, shall have the right at any time thereafter prior to the Expiration
Date to request in writing (the "Cash Cancellation Notice") that Issuer
pay, and promptly (but in any event not more than five business days) after
Grantee makes such request, Issuer shall, subject to Section 2(c) below,
pay to Grantee by certified check, official bank check or wire transfer
pursuant to Grantee's instructions, in cancellation of the Option, an
amount in cash (the "Cancellation Amount") equal to (i) the lesser of
(x) the excess, if any, over the Option Price of the greater of
(A) the last sale price of a share of Issuer Common Stock as reported
on the Nasdaq Stock Market (or other United States national exchange
upon which Issuer's Common Stock is traded) on the last trading day
prior to the date of the Cash Cancellation Notice (the "Last Sale
Price"), (B) the highest price per share of Issuer Common Stock
offered to be paid or paid in connection with the Alternative
Transaction giving rise to such Cash Cancellation Notice, and (C) if
the Alternative Transaction giving rise to such Cash Cancellation
Notice is structured as an asset acquisition, the highest aggregate
consideration offered to be paid or paid in such transaction or
proposed transaction, divided by the number of shares of Issuer Common
Stock then outstanding, and
(y) $30,100,000 divided by the initial number of Option Shares
covered by the Option,
multiplied by (ii) the number of Option Shares then covered by the Option;
provided, however, that the Cancellation Amount shall be reduced (but not
below zero) to the extent necessary so that the sum of the termination fee
described in Section 7.2(a) of the Merger Agreement (the "Termination Fee")
paid to Grantee, the Option Share Profit (as defined below) not remitted to
Issuer pursuant to Section 2(c) hereof, and the Cancellation Amount shall
not exceed $30,100,000. If all or a portion of the price per share of
Issuer Common Stock offered, paid, or payable or the aggregate
consideration offered, paid, or payable for the assets of Issuer, each as
contemplated by the preceding sentence, consists of noncash consideration,
the amount described in clause (x) of the preceding sentence shall equal
the excess, if any, over the Option Price of the Last Sale Price. In no
event shall (i) the Cancellation Amount exceed $30,100,000 or (ii) the sum
of the Termination Fee paid, the Option Share Profit not remitted to Issuer
pursuant to Section 2(c) hereof, and the Cancellation Amount paid exceed
$30,100,000.
(c) In the event that Grantee sells, pledges, or otherwise disposes of
(including, without limitation, by merger or exchange) any Option Shares
within six months after Grantee's acquisition of such Option Shares (such
sale or disposition of Option Shares within six months after acquisition
referred to as a "Sale"), or in the event that any Cancellation Amount is
paid to Grantee or any Option Share Profit is received
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by Grantee (and not required to be remitted to Issuer pursuant to this
Section 2(c)), then any Termination Fee due and payable by Issuer shall be
reduced to the extent necessary so that the sum of
(w) the Termination Fee;
(x) any Cancellation Amount paid to Grantee;
(y) the amount received (whether in cash, loan proceeds,
securities, or otherwise) by Grantee in such Sale less the exercise
price of such Option Shares sold in the Sale (the "Option Share
Profit") and not remitted to Issuer pursuant to this Section 2(c); and
(z) Option Share Profit received in connection with any prior
Sales of Option Shares and not remitted to Issuer pursuant to this
Section 2(c),
shall not exceed $30,100,000. Grantee shall remit to Issuer, within five
business days after completion of any Sale, the amount, if any, by which
the Option Share Profit from such Sale, when added to the Termination Fee
previously paid, the Cancellation Amount previously paid, and the Option
Share Profit from prior Sales of Option Shares not remitted to Issuer
pursuant to this Section 2(c), exceeds $30,100,000.
3. Payment of Option Price and Delivery of Certificate. Any Closings under
Section 2 of this Agreement shall be held at the principal executive offices of
Issuer, or at such other place as Issuer and Grantee may agree. At any Closing
hereunder, (a) Grantee or its designee will make payment to Issuer of the
aggregate price for the Option Shares being so purchased by delivery of a
certified check, official bank check, or wire transfer of funds pursuant to
Issuer's instructions payable to Issuer in an amount equal to the product
obtained by multiplying the Option Price by the number of Option Shares to be
purchased, and (b) upon receipt of such payment Issuer will deliver to Grantee
or its designee (which shall be a wholly-owned subsidiary of Grantee) a
certificate or certificates representing the number of validly issued, fully
paid, and nonassessable Option Shares so purchased, in the denominations and
registered in such names (which shall be Grantee or a wholly-owned subsidiary of
Grantee) designated in writing to Issuer by Grantee.
4. Registration and Listing of Option Shares.
(a) Issuer agrees to use its reasonable best efforts to (i) effect as
promptly as possible upon the request of Grantee or other holder of Option
Shares to whom Grantee has assigned its registration rights under this
Section 4 (Grantee or such transferee referred to herein as a "Holder") and
(ii) cause to become and remain effective for a period not in excess of 120
days from the day such registration statement first becomes effective (or
such shorter period as may be necessary to effect the distribution of such
shares) the registration under the 1933 Act, and any applicable state
securities laws, of all or any part of the Option Shares as may be
specified in such request; provided, however, that (i) Holder shall have
the right to select the managing underwriter for any such offering after
consultation with Issuer, which managing underwriter shall be reasonably
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acceptable to Issuer, (ii) Holder shall not be entitled to more than two
effective registration statements hereunder, (iii) Holder shall not be
entitled to request such a registration statement within a period of one
year after the effective date of a registration statement in which Grantee
was entitled to include all or a portion of the Option Shares, and (iv)
Holder shall not be entitled to request any such registration unless it has
provided to Issuer a written opinion of counsel to Holder, which opinion
shall be reasonably satisfactory to Issuer and its counsel, that the
distribution of Option Shares specified in Holder's request requires
registration of such Option Shares under the 1933 Act. The obligations of
Issuer hereunder to file a registration statement and to maintain its
effectiveness may be suspended for one or more periods of time not
exceeding 90 days in the aggregate in any twelve-month period if and so
long as the Board of Directors of Issuer determines in good faith that the
filing of such registration or the maintenance of its effectiveness would
require disclosure of nonpublic information that would materially and
adversely affect Issuer. Upon receipt of notice of the happening of any
event as a result of which any registration statement, prospectus,
prospectus supplement, or any document incorporated by reference in any of
the foregoing, contains any untrue statements of material fact or fails or
omits to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they are made, not misleading, Holder shall forthwith discontinue the
disposition of any shares under such registration statement, prospectus or
prospectus supplement until Holder receives from Issuer copies (which,
subject to the limitations on suspension set forth above, shall promptly be
made available by Issuer) of an amended or supplemented registration
statement, prospectus or supplement so that, as thereafter delivered to
purchasers of such shares, such registration statement, prospectus or
prospectus supplement shall not contain any untrue statement of material
fact or fail or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading. The 120-day period
specified in (ii) above shall be extended by the number of days during
which Holder is precluded from disposing of Option Shares pursuant to the
preceding two sentences.
(b) In addition to such demand registrations, if Issuer proposes to
effect a registration of Issuer Common Stock for its own account or for the
account of any other stockholder of Issuer (other than in connection with
(i) employee stock option plans or similar arrangements or (ii) corporate
acquisitions), Issuer will give prompt written notice to Holder of its
intention to do so and shall use its reasonable best efforts to include
therein all Option Shares requested by Holder to be so included; provided,
however, that, (i) Issuer shall not be required to include any Option
Shares in such registration unless Holder has provided to Issuer a written
opinion of counsel to Holder, which opinion shall be reasonably
satisfactory to Issuer and its counsel, that the distribution of the Option
Shares requested by Holder to be so included in such registration requires
registration under the 1933 Act and (ii) if the managing underwriter of the
offering covered by such registration advises Issuer that in its opinion
the number of Option Shares requested to be included in such registration
exceeds the number that can be sold in such offering, Issuer shall, after
fully including therein all securities to be sold by Issuer, include the
shares requested to be included therein by Holder pro rata (based on the
number of shares intended to be included therein) with the shares intended
to be included therein by
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persons other than Issuer. In connection with any underwritten offering,
sale and delivery of Option Shares pursuant to a registration statement
effected pursuant to Section 4(a) or this Section 4(b), Holder, Issuer, and
each underwriter of the offering shall provide each other with customary
representations, warranties, covenants and indemnities. No registration
effected under this Section 4(b) shall relieve Issuer of its obligations to
effect demand registrations under Section 4(a) hereof.
(c) Registrations effected under this Section 4 shall be effected at
Issuer's expense, but excluding underwriting discounts and commissions to
brokers or dealers and the fees and expenses of counsel to Holder. In
connection with each registration under this Section 4, Issuer shall
indemnify and hold each Holder participating in such offering, its
underwriters, and each of their respective affiliates harmless against any
and all losses, claims, damage, liabilities, and expenses (including,
without limitation, investigation expenses and fees and disbursements of
counsel and accountants), joint or several, to which such Holder, its
underwriters, and each of their respective affiliates may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any registration statement (including any
prospectus therein), or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, other than such losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) that arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in written information furnished by a Holder to
Issuer expressly for use in such registration statement.
(d) In connection with any registration statement pursuant to this
Section 4, each Holder participating in such offering agrees to furnish
Issuer with such information concerning itself and the proposed sale or
distribution as shall reasonably be required in order to ensure compliance
with the requirements of the 1933 Act. In addition, such Holder shall
indemnify and hold Issuer, its underwriters and each of their respective
affiliates harmless against any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, investigation
expenses and fees and disbursements of counsel and accountants), joint or
several, to which Issuer, its underwriters, and each of their respective
affiliates may become subject under the 1933 Act or otherwise, insofar as
such losses, claims, damages, liabilities, or expenses (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in written
information furnished by such Holder to Issuer expressly for use in such
registration statement.
(e) Upon the issuance of Option Shares hereunder, Issuer will use its
reasonable best efforts promptly to list such Option Shares with the Nasdaq
Stock Market or on such national or other exchange on which the shares of
Issuer Common Stock are at the time listed.
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
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(a) Issuer is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware and has requisite
corporate power and authority to enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Issuer and the
consummation by Issuer 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 contemplated
hereby. The Board of Directors of Issuer has duly approved the issuance and
sale of the Option Shares, upon the terms and subject to the conditions
contained in this Agreement, and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Issuer and, assuming this Agreement has been duly and validly
authorized, executed, and delivered by Grantee, constitutes a valid and
binding obligation of Issuer enforceable against Issuer in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium,
or other similar laws affecting or relating to creditors' rights generally;
the availability of injunctive relief and other equitable remedies; and
limitations imposed by law on indemnification for liability under federal
securities laws.
(c) Issuer has taken all necessary action to authorize and reserve for
issuance and to permit it to issue, and at all times from the date of this
Agreement through the date of expiration of the Option will have reserved
for issuance upon exercise of the Option, such number of authorized shares
of Issuer Common Stock as is equal to the number of Option Shares (or such
other amount as may be required pursuant to Section 10 hereof), each of
which, upon issuance pursuant to this Agreement and when paid for as
provided herein, will be validly issued, fully paid, and nonassessable, and
shall be delivered free and clear of all claims, liens, charges,
encumbrances, and security interests and not subject to any preemptive
rights.
(d) The execution, delivery, and performance of this Agreement by
Issuer and the consummation by it of the transactions contemplated hereby
except as required by the HSR Act (if applicable), and, with respect to
Section 4, compliance with the provisions of the 1933 Act and any
applicable state securities laws, do not require the consent, waiver,
approval, license, or authorization of or result in the acceleration of any
obligation under, or constitute a default under, any term, condition, or
provision of any charter or bylaw, or any indenture, mortgage, lien, lease,
agreement, contract, instrument, order, judgment, ordinance, regulation, or
decree or any restriction to which Issuer or any property of Issuer or its
subsidiaries is bound, except where the failure to obtain such consents,
waivers, approvals, licenses, or authorizations or where such acceleration
or defaults would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
6. Representations and Warranties of Grantee. Grantee hereby represents and
warrants to Issuer that:
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(a) Grantee is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Minnesota and has requisite
corporate power and authority to enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Grantee and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Grantee, and no other
corporate proceedings on the part of Grantee are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Grantee and,
assuming this Agreement has been duly executed and delivered by Issuer,
constitutes a valid and binding obligation of Grantee enforceable against
Grantee in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting or relating to
creditors' rights generally; the availability of injunctive relief and
other equitable remedies; and limitations imposed by law on indemnification
for liability under federal securities laws, including, without limitation,
the 1933 Act.
(c) Grantee or its designee is acquiring the Option and it will
acquire the Option Shares issuable upon the exercise thereof for its own
account and not with a view to the distribution or resale thereof in any
manner not in accordance with applicable law.
7. Covenants of Grantee. Grantee agrees not to transfer or otherwise
dispose of the Option Shares, or any interest therein, except in compliance with
the 1933 Act and any applicable state securities law. Grantee further agrees to
the placement of the following legend on the certificates representing the
Option Shares (in addition to any legend required under applicable state
securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER EITHER (1) THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR (2) ANY APPLICABLE STATE LAW GOVERNING THE OFFER AND SALE OF
SECURITIES. NO TRANSFER OR OTHER DISPOSITION OF THESE SHARES, OR OF
ANY INTEREST THEREIN, MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND SUCH OTHER STATE LAWS OR
PURSUANT TO EXEMPTIONS FROM REGISTRATION UNDER THE ACT, SUCH OTHER
STATE LAWS, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER."
8. Reasonable Best Efforts. Grantee and Issuer shall take, or cause to be
taken, all reasonable action to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, reasonable best
efforts to obtain any necessary consents of third parties and governmental
agencies and the filing by Grantee and Issuer promptly after the date hereof of
any required HSR Act notification forms and the documents required to comply
with the HSR Act.
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9. Certain Conditions. The obligation of Issuer to issue Option Shares
under this Agreement upon exercise of the Option shall be subject to the
satisfaction or waiver of the following conditions:
(a) any waiting periods applicable to the acquisition of the Option
Shares by Grantee pursuant to this Agreement under the HSR Act shall have
expired or been terminated;
(b) the representations and warranties of Grantee made in Section 6 of
this Agreement shall be true and correct in all material respects as of the
date of the Closing for the issuance of such Option Shares; and
(c) no order, decree, or injunction entered by any court of competent
jurisdiction or governmental, regulatory, or administrative agency or
commission in the United States shall be in effect that prohibits the
exercise of the option or acquisition of Option Shares pursuant to this
Agreement.
10. Adjustments Upon Changes in Capitalization. In the event of any change
in the number of issued and outstanding shares of Issuer Common Stock by reason
of any stock dividend, stock split, recapitalization, merger, rights offering,
share exchange, or other change in the corporate or capital structure of Issuer,
Grantee shall receive, upon exercise of the Option, the stock or other
securities, cash, or property to which Grantee would have been entitled if
Grantee had exercised the Option and had been a holder of record of shares of
Issuer Common Stock on the record date fixed for determination of holders of
shares of Issuer Common Stock entitled to receive such stock or other
securities, cash, or property at the same aggregate price as the aggregate
Option Price of the Option Shares.
11. Limitation on Exercise. Notwithstanding any other provision of this
Agreement, the Option may not be exercised for a number of Option Shares as
would, as of the date of the Exercise Notice, result in a Notional Total Profit
(as defined below) of more than $30,100,000 and, if exercise of the Option
otherwise would exceed such amount, Grantee, at its discretion, may increase the
Option Price for that number of Option Shares set forth in the Exercise Notice
so that the Notional Total Profit shall not exceed $30,100,000; provided, that
nothing in this sentence shall restrict any exercise of the Option permitted
hereby on any subsequent date at the Option Price set forth in Section 1.
As used herein, "Notional Total Profit" with respect to any number of
Option Shares as to which Grantee may propose to exercise the Option means the
Total Profit determined as of the date of the Exercise Notice assuming, for
purposes of clause (iii) of the definition of Total Profit, that (x) the Option
were exercised on such date for such number of Option Shares and (y) such Option
Shares, together with all other Option Shares held by Grantee and its affiliates
as of such date, were sold for cash at the closing market price for Issuer
Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
As used herein, "Total Profit" means the aggregate amount (before taxes) of
the following: (i) the Termination Fee paid to Grantee; (ii) any Cancellation
Amount paid to
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Grantee; and (iii) all Option Share Profits received in connection with Sales of
Option Shares and not remitted to Issuer pursuant to Section 2(c).
12. Expiration. The Option shall expire at the earlier of (a) the Effective
Time (as defined in the Merger Agreement), (b) six months after the termination
of the Merger Agreement in accordance with the terms thereof in the event
Section 7.2(a)(i), Section 7.2(a)(ii) or Section 7.2(a)(v) of the Merger
Agreement applies, or six months after the date of consummation of the
Alternative Control Transaction in the event Section 7.2(a)(iii) or Section
7.2(a)(iv) of the Merger Agreement applies, or (c) termination of the Merger
Agreement in accordance with the terms thereof in circumstances under which the
fee specified in Section 7.2 thereof cannot in any circumstances become payable
(such expiration date is referred to as the "Expiration Date").
13. General Provisions.
(a) Survival. All of the representations, warranties, and covenants
contained herein shall survive each Closing and shall be deemed to have
been made as of the date hereof and as of the date of each Closing.
(b) Further Assurances. If Grantee exercises the Option, or any
portion thereof, in accordance with the terms of this Agreement, Issuer and
Grantee will execute and deliver all such further documents and instruments
and use their reasonable best efforts to take all such further action as
may be necessary in order to consummate the transactions contemplated
thereby.
(c) Severability. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited, or
unenforceable for any reason, such provision, as to such jurisdiction,
shall be ineffective, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction. Notwithstanding the foregoing, if such provision
could be more narrowly drawn so as not be invalid, prohibited, or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be
so narrowly drawn, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.
(d) Assignment. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that Issuer shall not be entitled to assign or otherwise
transfer any of its rights or obligations hereunder, and Grantee shall not
be entitled to assign or otherwise transfer any of its rights or
obligations hereunder, other than Grantee's rights under Section 4 which
may be assigned to a transferee of Option Shares.
(e) Specific Performance. The parties agree and acknowledge that in
the event of a breach of any provision of this Agreement, the aggrieved
party would be without an adequate remedy at law. The parties therefore
agree that in the event of a
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breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction
to enforce specific performance or to enjoin the continuing breach of such
provision, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining any such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be
entitled.
(f) Amendments. This Agreement may not be modified, amended, altered,
or supplemented except upon the execution and delivery of a written
agreement executed by Grantee and Issuer.
(g) Notices. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be deemed given
if delivered personally, telecopied, sent by nationally-recognized
overnight courier or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the other party at the following addresses
(or such other address for a party as shall be specified by like notice):
If to Grantee:
Medtronic, Inc.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
with separate copies thereof addressed to
Attention: General Counsel
FAX: (000) 000-0000
and
Attention: Vice President and Chief Development Officer
FAX: (000) 000-0000
If to Issuer:
Xomed Surgical Products, Inc.
0000 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FAX: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(h) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law).
(k) Entire Agreement. This Agreement, the Confidentiality Agreement,
and the Merger Agreement and any documents and instruments referred to
herein and therein constitute the entire agreement between the parties
hereto and thereto with respect to the subject matter hereof and thereof
and supersede all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof and
thereof. This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the successors and permitted assigns of the parties
hereto. Nothing in this Agreement shall be construed to give any person
other than the parties to this Agreement or their respective successors or
permitted assigns any legal or equitable right, remedy, or claim under or
in respect of this Agreement or any provision contained herein.
(l) Expenses. Except as otherwise provided in this Agreement or the
Merger Agreement, each party shall pay its own expenses incurred in
connection with this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Stock Option Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
MEDTRONIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
and Chief Development Officer
XOMED SURGICAL PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Chairman, President and
Chief Executive Officer
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