EXHIBIT 99(C)(2)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of May 12, 1999 (the "Agreement"), between
Optek Technology, Inc., a Delaware corporation ("Issuer"), and The Dyson-
Xxxxxxx-Xxxxx Corporation, a Delaware corporation ("Grantee").
WHEREAS, Issuer and Grantee have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), providing for,
among other things, upon the terms and subject to the conditions thereof, the
merger of Purchaser with and into Issuer (the "Merger"); and
WHEREAS, as a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, Grantee has requested that Issuer agree, and Issuer
has agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
Capitalized terms used but not defined herein have the meanings set forth
in the Merger Agreement.
1. Grant of Option. (a) Upon the terms and subject to the conditions set
forth herein, Issuer hereby grants to Grantee an unconditional, irrevocable
option (the "Option") to purchase up to 1,520,912 shares (the "Option Shares")
of Issuer's common stock, par value $0.01 per share ("Issuer Common Stock"), at
a price of $25.50 per share (the "Purchase Price"), subject to adjustment as set
forth herein.
(b) In the event that any additional shares of Issuer Common Stock are
either (i) issued or otherwise become outstanding after the date of this
Agreement (other than pursuant to this Agreement) or (ii) redeemed, repurchased,
retired or otherwise cease to be outstanding after the date of the Agreement,
the number of Option Shares shall be increased or deceased, as appropriate, so
that, after such events, the number of Option Shares equals 19.9% of the number
of shares of Issuer Common Stock then issued and outstanding, without giving
effect to any shares subject to or issued pursuant to the Option. Nothing
contained in this Section 1(b) or elsewhere in this Agreement shall be deemed to
authorize Issuer or Grantee to breach any provision of the Merger Agreement.
2. Exercise of Option. (a) Grantee may exercise the Option, with respect
to any or all of the Option Shares at any time and from time to time, subject to
the provisions of Section 2(c), after the Merger Agreement becomes terminable
under circumstances which could entitle Grantee to receive the Termination Fee
under Section 8.1 of the Merger Agreement (a "Triggering Event") except that (i)
subject to the last sentence of this Section 2(a), the Option will terminate and
be of no further force and effect upon the earliest to occur of (A) the purchase
of shares of Issuer Common Stock pursuant to the Offer, (B) six months after the
date on which a Triggering Event occurs and (C) termination of the Merger
Agreement in accordance with its terms prior to the occurrence of a Triggering
Event, unless, in the case of clauses (B) and (C), the Grantee could be entitled
to receive the Termination Fee following such time or termination upon the
occurrence of certain events, in which case the Option will not terminate until
the later of (x) six months following the time such fees become payable and (y)
the expiration of the period in which the Grantee has such right to receive the
Termination Fee and (ii) any purchase of Option Shares upon exercise of the
Option will be subject to compliance with the HSR Act and the obtaining or
making of any consents, approvals, orders, notifications or authorizations, the
failure of which to have obtained or made would have the effect of making the
issuance of Option Shares illegal (the "Regulatory Approvals") and no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance shall be in
effect. Notwithstanding the termination of the Option, Grantee will be entitled
to purchase the Option Shares if it has exercised the Option in accordance with
the terms hereof prior to the termination of the Option, and the termination of
the Option will not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such termination.
(b) In the event that Grantee wishes to exercise the Option, it will send
to Issuer a written notice (an "Exercise Notice"; the date of which being herein
referred to as the "Notice Date") to that effect specifying (i) the number of
Option Shares, if any, Grantee wishes to purchase pursuant to this Section 2(b),
(ii) the number of Option Shares, if any, with respect to which Grantee wishes
to exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c),
(iii) the denominations of the certificate or certificates evidencing the Option
Shares which Grantee wishes to purchase pursuant to this Section 2(b) and (iv) a
date not earlier than three business days nor later than 60 business days from
the Notice Date for the closing (an "Option Closing") of such purchase (an
"Option Closing Date"). Any Option Closing will be at an agreed location and
time in New York, New York on the applicable Option Closing Date or at such
later date as may be necessary so as to comply with clause (ii) of Section 2(a).
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(c) Notwithstanding anything to the contrary contained herein, any exercise
of the Option and purchase of Option Shares shall be subject to compliance with
applicable laws and regulations, which may prohibit the purchase of all the
Option Shares specified in the Exercise Notice without first obtaining or making
certain Regulatory Approvals. In such event, if the Option is otherwise
exercisable and Grantee wishes to exercise the Option, the Option may be
exercised in accordance with Section 2(b) and Grantee shall acquire the maximum
number of Option Shares specified in the Exercise Notice that Grantee is then
permitted to acquire under the applicable laws and regulations, and if Grantee
thereafter obtains the Regulatory Approvals to acquire the remaining balance of
the Option Shares specified in the Exercise Notice, then Grantee shall be
entitled to acquire such remaining balance. Issuer agrees to use its reasonable
best efforts to assist Grantee in seeking the Regulatory Approvals.
In the event (i) Grantee receives official notice that a Regulatory
Approval required for the purchase of any Option Shares will not be issued or
granted or (ii) such Regulatory Approval has not been issued or granted within
six months of the date of the Exercise Notice, Grantee shall have the right to
exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c) with
respect to the Option Shares for which such Regulatory Approval will not be
issued or granted or has not been issued or granted.
(d) If Grantee receives in aggregate (i) the Termination Fee and Expenses
pursuant to Section 8.1 of the Merger Agreement, (ii) amounts from the sale or
other disposition of the Option Shares, and (iii) amounts paid pursuant to
Section 7(c) hereof, and the aggregate of such amounts is in excess of the sum
of (A) $8,500,000 plus (B) the amounts paid by Grantee to purchase any Option
Shares, then Grantee, at its sole election, shall either (1) reduce the number
of Option Shares, (2) deliver to the Issuer for cancellation Option Shares
previously purchased by Grantee (valued, for the purposes of this Section 2(d)
at the average closing sale price per share of Issuer 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 as reported on the Nasdaq National Market (or, if
not listed on the Nasdaq National Market, as reported on any other national
securities exchange or national securities quotation system on which the Issuer
Common Stock is listed or quoted, as reported in The Wall Street Journal
(Northeast edition), or, if not reported thereby, any other authoritative
source) for the twenty consecutive trading days preceding the day on which the
amount received by Grantee pursuant to clauses (d)(i), (ii) and (iii) above
exceeds the sum of the amounts in clauses (A) and (B) above), (3) pay cash to
the Issuer or (4) any combination thereof, so that the amount received by
Grantee pursuant to clauses (d)(i), (ii) and (iii) above shall not exceed the
sum of the amounts in clauses (A) and (B) above after taking into account
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the foregoing actions. 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 8.1 of the Merger
Agreement.
3. Payment and Delivery of Certificates. (a) At any Option Closing,
Grantee will pay to Issuer in same day funds by wire transfer to a bank account
designated in writing by Issuer an amount equal to the Purchase Price multiplied
by the number of Option Shares to be purchased at such Option Closing.
(b) At any Option Closing, simultaneously with the delivery of same day
funds as provided in Section 3(a), Issuer will deliver to Grantee a certificate
or certificates representing the Option Shares to be purchased at such Option
Closing, which Option Shares will be free and clear of all liens, claims,
charges and encumbrances of any kind whatsoever. If at the time of issuance of
Option Shares pursuant to an exercise of the Option hereunder, Issuer shall have
issued any securities similar to rights under a shareholder rights plan, then
each Option Share issued pursuant to such exercise will also represent such a
corresponding right with terms substantially the same as and at least as
favorable to Grantee as are provided under any Issuer shareholder rights
agreement or any similar agreement then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing will
have typed or printed thereon a restrictive legend which will read substantially
as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE."
It is understood and agreed that the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have been
sold in compliance with the registration and prospectus delivery requirements of
the Securities Act, such Option Shares have been sold in reliance on and in
accordance with Rule 144 under the Securities Act or Grantee has 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 and its counsel, to the
effect that such legend is not required for purposes of the Securities Act.
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4. Incorporation of Representations and Warranties of Issuer and Grantee.
The representations and warranties of Issuer and Grantee contained in Articles
III and IV of the Merger Agreement are hereby incorporated by reference herein
with the same force and effect as though made pursuant to this Agreement.
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
Authorized Stock. Issuer has taken all necessary corporate and
other action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit it
to issue, and, at all times from the date hereof until the obligation to
deliver Option Shares upon the exercise of the Option terminates, shall
have reserved for issuance, upon exercise of the Option, shares of Issuer
Common Stock necessary for Grantee to exercise the Option, and Issuer will
take all necessary corporate action to authorize and reserve (and shall at
all times maintain, free from pre-emptive rights, sufficient authorized and
reserved shares) for issuance all additional shares of Issuer Common Stock
or other securities which may be issued pursuant to Section 7 upon exercise
of the Option. The shares of Issuer Common Stock to be issued upon due
exercise of the Option, including all additional shares of Issuer Common
Stock or other securities which may be issuable upon exercise of the Option
or any other securities which may be issued pursuant to Section 7, upon
issuance pursuant hereto, will be duly and validly issued, fully paid and
nonassessable, and will be delivered free and clear of all liens, claims,
charges and encumbrances of any kind or nature whatsoever, including
without limitation any preemptive rights of any stockholder of Issuer.
6. Representations and Warranties of Grantee. Grantee hereby represents
and warrants to Issuer that:
Purchase Not For Distribution. Any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be, and
the Option is not being, acquired by Grantee with a view to the public
distribution thereof. Neither the Option nor any of the Option Shares will
be offered, sold, pledged or otherwise transferred except in compliance
with, or pursuant to an exemption from, the registration requirements of
the Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the event of
any changes in Issuer Common Stock by reason of a stock dividend, stock split,
reverse
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stock split, merger, recapitalization, combination, exchange of shares, or
similar transaction, the type and number of shares or securities subject to the
Option, and the Purchase Price therefor, will be adjusted appropriately, and
proper provision will be made in the agreements governing such transaction, so
that Grantee will receive upon exercise of the Option the number and class of
shares or other securities or property that Grantee would have received with
respect to Issuer Common Stock if the Option had been exercised immediately
prior to such event or the record date therefor, as applicable.
(b) Without limiting the parties' relative rights and obligations under the
Merger Agreement, in the event that the Issuer enters into an agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and Issuer will not be the continuing or surviving corporation in
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer will be the continuing
or surviving corporation, but in connection with such merger, the shares of
Issuer Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other person or cash or any other property, or the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
will, after such merger represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and condition set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior to such
consolidation, merger, sale, or transfer, or the record date therefor, as
applicable and make any other necessary adjustments.
(c) If, at any time during the period commencing on the occurrence of a
Triggering Event and ending on the termination of the Option in accordance with
Section 2, Grantee sends to Issuer an Exercise Notice indicating Grantee's
election to exercise its right (the "Cash-Out-Right") pursuant to this Section
7(c), then Issuer shall pay to Grantee, on the Option Closing Date, in exchange
for the cancellation of the Option with respect to such number of Option Shares
as Grantee specifies in the Exercise Notice, an amount in cash (the "Cash-Out
Price") equal to the amount by which (A) the highest of (i) the price per share
of Issuer Common Stock at which a tender offer or exchange offer therefor has
been made, (ii) the highest price per share of Issuer
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Common Stock to be paid by any third-party pursuant to an agreement with the
Issuer, (iii) the highest closing price within the six month period immediately
preceding the Notice Date per share of Issuer Common Stock as reported on the
Nasdaq National Market (or, if not listed on the Nasdaq National Market, as
reported on any other national securities exchange or national securities
quotation system on which the Issuer Common Stock is listed or quoted, as
reported in The Wall Street Journal (Northeast edition), or, if not reported
thereby, any other authoritative source) and (iv) in the event of a sale of all
or a substantial portion of Issuer's assets, the sum of the price paid in such
sale for such assets and the current market value of the remaining assets of
Issuer as determined by a nationally recognized investment banking firm selected
by the Grantee, and reasonably acceptable to the Issuer, divided by the number
of shares of Issuer Common Stock outstanding at the time of such sale exceeds
(B) the Purchase Price, multiplied by the number of shares for which this Option
is then exercised. In determining the Cash-Out Price, the value of consideration
other than cash shall be determined by a nationally recognized investment
banking firm selected by the Grantee and reasonably acceptable to the Issuer.
Grantee will cooperate with the valuation work of any investment banking firm
selected pursuant to this Section 7(c). Notwithstanding the termination of the
Option, Grantee will be entitled to exercise its rights under this Section 7(c)
if it has exercised such rights in accordance with the terms hereof prior to the
termination of the Option.
8. Registration Rights.
(a) At any time and from time to time within three years of the date
hereof, Grantee may by written notice (a "Registration Notice") to Issuer
request Issuer to register under the Securities Act all or part of any Issuer
Common Stock beneficially owned by Grantee (collectively, the "Registrable
Securities") in order to permit the sale or other disposition of such securities
pursuant to, at the option of Grantee, (i) a shelf registration or (ii) a bona
fide, firm commitment underwritten public offering in which Grantee shall have
the right, including with respect to any takedown off the shelf, to select the
managing underwriter, which shall be reasonably acceptable to the Issuer, and
shall effect as wide a distribution of such Registrable Securities as is
reasonably practicable and shall use reasonable efforts to prevent any person or
group from purchasing through such offering shares representing more than 3% of
the shares of Issuer Common Stock then outstanding on a fully-diluted basis;
provided, however, that any such Registration Notice must relate to a number of
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shares equal to at least 40% of the Option Shares.
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(b) Issuer shall use reasonable best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice and to keep
such registration statement current; provided, however, that (i) Grantee shall
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not be entitled to more than an aggregate of three effective registration
statements hereunder and (ii) Issuer will not be required to file any such
registration statement during any period of time (not to exceed 40 days after a
Registration Notice in the case of clause (A) below or 90 days after a
Registration Notice in the case of clauses (B) and (C) below) when (A) Issuer is
in possession of material non-public information which it reasonably believes
would be detrimental to be disclosed at such time and, based upon the advice of
outside securities counsel to Issuer, such information would have to be
disclosed if a registration statement were filed at that time; (B) Issuer would
be required under the Securities Act to include audited financial statements for
any period in such registration statement and such financial statements are not
yet available for inclusion in such registration statement; or (C) Issuer
determines, in its reasonable judgment, that such registration would interfere
with any financing, acquisition or other material transaction involving Issuer;
provided that the filing of such registration statement may not be delayed more
than an aggregate of 90 days after the Registration Notice. If the consummation
of the sale of any Registrable Securities pursuant to a registration hereunder
does not occur within 90 days after the filing with the SEC of the initial
registration statement therefor, the provisions of this Section shall again be
applicable to any proposed registration, it being understood that Grantee shall
not be entitled to more than an aggregate of three effective registration
statements hereunder. Issuer will use reasonable best efforts to cause each
such registration statement to become effective, to obtain all consents or
waivers of other parties which are required therefor, and to keep such
registration statement effective for such period not in excess of 180 calendar
days from the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. Issuer shall use
reasonable best efforts to cause any Registrable Securities registered pursuant
to this Section to be qualified for sale under the securities or blue sky laws
of such jurisdictions as Grantee may reasonably request and shall continue such
registration or qualification in effect in such jurisdictions; provided,
--------
however, that Issuer shall not be required to qualify to do business in, or
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consent to general service of process in, any jurisdiction.
(c) If Issuer effects a registration under the Securities Act of
Issuer Common Stock for its own account or for any other stockholders of Issuer
(other than on Form S-4 or Form S-8, or any successor form), it will allow
Grantee the right to participate in such registration, and such participation
will not affect the obligation of Issuer to effect demand registration
statements for Grantee under this Section 8, except
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that, if the managing underwriters of such offering advise Issuer in writing
that in their opinion the number of shares of Issuer Common Stock requested to
be included in such registration exceeds the number which can be sold in such
offering, Issuer will include that portion of the shares requested to be
included therein equal to the product obtained by multiplying (i) the number of
shares which the underwriter has informed the Issuer can be included in the
offering and (ii) the percentage obtained by dividing (x) the total number of
shares of Issuer Common Stock held by Grantee and (y) the total number of shares
of Issuer outstanding.
(d) The registration rights set forth in this Section are subject to
the condition that Grantee shall provide Issuer with such information with
respect to Grantee Registrable Securities, the plan for distribution thereof,
and such other information with respect to Grantee as, in the reasonable
judgment of counsel for Issuer, is necessary to enable Issuer to include in a
registration statement all material facts required to be disclosed with respect
to a registration hereunder.
(e) A registration effected under this Section shall be effected at
Issuer's expense, except for underwriting discounts and commissions and the fees
and expenses of Grantee's counsel, and Issuer shall provide to the underwriters
such documentation (including certificates, opinions of counsel and "comfort"
letters from auditors) as are customary in connection with underwritten public
offerings and as such underwriters may reasonably require. In connection with
any registration, Grantee and Issuer agree to enter into an underwriting
agreement reasonably acceptable to each such party, in form and substance
customary for transactions of this type.
(f) In connection with a registration effected under this Section 8,
Issuer shall indemnify and hold harmless Grantee, its affiliates and controlling
persons and their respective officers, directors, agents and representatives
from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, all out-of-pocket expenses, investigation
expenses, expenses incurred with respect to any judgement and fees and
disbursements of counsel and accountants) arising out of or based upon any
statements contained in, or omissions or alleged omissions from, each
registration statement (and related prospectus) filed pursuant to this Section
8; provided, however, that Issuer shall not be liable in any such case to any
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such persons to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement contained in, or omission or alleged omission from,
such registration statement or prospectus in reliance upon, and in conformity
with, written information furnished to Issuer specifically for use in the
preparation thereof by Grantee.
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(g) In connection with a registration effected under this Section 8,
Grantee shall indemnify and hold harmless Issuer, its affiliates and controlling
persons and their respective officers, directors, agents and representatives
from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, all out-of-pocket expenses, investigation
expenses, expenses incurred with respect to any judgement and fees and
disbursements of counsel and accountants) arising out of or based upon any
statements contained in, or omissions or alleged omissions from, each
registration statement (and related prospectus) filed pursuant to this Section 8
that arises out of or is based upon an untrue statement contained in, or
omission or alleged omission from, such registration statement or prospectus in
reliance upon, and in conformity with, written information furnished to Issuer
specifically for use in the preparation thereof by Grantee.
9. Listing. If Issuer Common Stock or any other securities to be acquired
upon exercise of the Option are then listed on the Nasdaq (or any other national
securities exchange or national securities quotation system), Issuer, upon the
request of Grantee, will promptly file an application to list the shares of
Issuer Common Stock or other securities to be acquired upon exercise of the
Option on the Nasdaq (and any such other national securities exchange or
national securities quotation system) and will use reasonable efforts to obtain
approval of such listing as promptly as practicable.
10. Miscellaneous. (a) Expenses. Except as otherwise provided in the
Merger Agreement, each of the parties hereto will 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.
(b) Amendment. This Agreement may not be amended, except by an instrument
in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for performance, will be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise will not constitute a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement and the
Merger Agreement (i) constitute the entire agreement, and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject
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matter of this Agreement, and (ii) are not intended to confer upon any person
other than the parties any rights or remedies in respect of this Agreement.
(e) Counterparts. This Agreement may be executed in two or more counter
parts, all 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 parties.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware without giving effect to the
principles of conflicts or choice of law thereof or of any other jurisdiction.
(g) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt, and shall be given to the
parties at the following addresses or telecopy numbers (or at such other
address or telecopy number for a party as shall be specified by like notice):
If to Grantee, to:
The Xxxxx-Xxxxxxx-Xxxxx Corporation
000 Xxxxx Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxxxXxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Issuer, to:
Optek Technology, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
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Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxx & Xxxxxx, P.C.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxx
Telecopy: 000-000-0000
(h) Assignment. Except as set forth herein, neither this Agreement, the
Option nor any of the rights, interests, or obligations under this Agreement may
be assigned, transferred or delegated, in whole or in part, by operation of law
or otherwise, by Issuer without the prior written consent of Grantee. Any
assignment, transfer or delegation in violation of the preceding sentence will
be void. Subject to the first and second sentences of this Section 11(h), this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
(i) Further Assurances. In the event of any exercise of the Option by
Grantee, Issuer and Grantee will 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.
(j) Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
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addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the Transactions, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this
Agreement or any of the Transactions in any court other than a Federal or state
court sitting in the State of Delaware.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first written above.
OPTEK TECHNOLOGY, INC.
/s/ XXXXXX X. XXXXXX
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
THE XXXXX-XXXXXXX-XXXXX
CORPORATION
/s/ XXXXXX X. XXXXX
By:____________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
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