EXHIBIT A
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TERMINATION AGREEMENT, dated as of May 30, 2000 (this "Agreement"), among
Xxxxxx Xxxxxx VisionCare, Inc., a Delaware corporation ("WJ"), OSI Acquisition
Corp., a Delaware corporation and a direct wholly owned subsidiary of WJ
("Merger Sub"), and Ocular Sciences, Inc., a Delaware corporation ("OSI"). Each
of WJ, Merger Sub and OSI is a "Party" and, together, are the "Par ties."
W I T N E S S E T H:
WHEREAS, WJ, Merger Sub and OSI entered into that certain Agreement and
Plan of Merger (the "Ocular Merger Agreement"), dated as of March 19, 2000,
among WJ, Merger Sub and OSI;
WHEREAS, the WJ Board of Directors has determined that an acquisition
proposal is a Superior Proposal (as defined in the Ocular Merger Agreement) and
has determined that termination of the Ocular Merger Agreement is necessary for
the WJ Board of Directors to comply with its fiduciary duties to WJ's
stockholders under applicable law;
WHEREAS, WJ, Merger Sub and OSI desire to terminate the Ocular Merger
Agreement, the WJ Stock Option Agreement and the OSI Stock Option Agreement
(each as defined in the Ocular Merger Agreement and collectively, the "Stock
Option Agreements") and any other agreements related to the transactions
contemplated by the Ocular Merger Agreement other than the Confidentiality
Letter (as defined in the Ocular Merger Agreement) (such agreements,
collectively, the "Ocular Transaction Agreements");
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, WJ is paying to OSI a fee of $25,000,000 (the "Ocular Fee") in
connection with the termination of the Ocular Merger Agreement, the WJ Stock
Option Agreement and the other Ocular Transaction Agreements;
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the Parties hereto agree as follows:
1. Termination. The Parties hereby terminate each of the Ocular Transaction
Agreements, including the Ocular Merger Agreement and the WJ Stock Option
Agreement, pursuant to Section 7.1(h) of the Ocular Merger Agreement, and
WJ hereby elects to repurchase the option granted to OSI pursuant to the WJ
Stock Option Agreement, pursuant to Section 7(b) of the WJ Stock Option
Agreement.
2. Payment. Simultaneously herewith, WJ shall, pursuant to Section 7.2(b)(i)
of the Merger Agreement, pay $20,000,000 to OSI by wire transfer of
immediately available funds to an account designated by OSI. In addition,
simultaneously herewith, WJ shall, pursuant to Section 7 of the WJ Stock
Option Agreement, pay $5,000,000 to OSI by wire transfer of immediately
available funds to an account designated by OSI.
3. Representations and Warranties of the Parties. Each Party hereby represents
and warrants to each other Party, as to itself, as follows:
a. Corporate Authorization. The Party has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by the Party of this Agreement and the consummation by the
Party of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Party.
This Agreement has been duly executed and delivered by the Party and
constitutes a valid and binding agreement of the Party, enforceable
against it in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors generally or
by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
b. Non-Contravention. The execution, delivery and performance by the
Party of this Agreement and the consummation by the Party of the
transactions contemplated hereby do not and will not contravene or
conflict with the certificate of incorporation or bylaws of the Party.
4. Fees and Expenses. All fees and expenses incurred in connection with the
Ocular Transaction Agreements and the termination thereof shall be paid by
the Party incurring such expenses.
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5. Public Announcements. Neither WJ nor OSI shall issue any press release or
otherwise make any public statement or disclosure concerning the existence
of this Agreement or the termination of the Ocular Transaction Agreements
until May 30, 2000.
6. Waivers. Each of the Parties hereby waives any notice or similar
provisions related to the termination of Ocular Transaction Agreements.
7. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall
become effective when one 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.
8. Entire Agreement; No Third Party Beneficiaries.
a. This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the
Parties with respect to the subject matter hereof.
b. This Agreement shall be binding upon and inure solely to the benefit
of each Party hereto, and nothing in this Agreement, express or im
plied, is intended to or shall confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
9. Governing Law. This Agreement shall be governed and construed in accor
dance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
10. Further Assurances. The Parties hereby agree to 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
in this Agreement.
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IN WITNESS WHEREOF, WJ, Merger Sub and OSI have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
XXXXXX XXXXXX VISIONCARE, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President, Chief Executive Officer and Chairman
OSI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
OCULAR SCIENCES, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chairman
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