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EXHIBIT 10(O)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 21, 2000 (the "STOCK OPTION
AGREEMENT"), between Texas Instruments Incorporated, a Delaware corporation
("PARENT"), and Xxxx-Xxxxx Corporation, a Delaware corporation (the "COMPANY").
WHEREAS, Parent, Burma Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("MERGER SUB"), and the Company are parties to
that certain Agreement and Plan of Merger, dated as of the date hereof (the
"MERGER AGREEMENT"), which provides, among other things, that Merger Sub, on the
terms and subject to the conditions thereof, will merge with and into the
Company with the Company surviving as a wholly owned subsidiary of Parent;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Company grant to Parent an option to
purchase up to 11,236,702 shares of common stock, par value $0.01 per share
("COMMON STOCK") of the Company, upon the terms and subject to the conditions
hereof; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, the
Company is willing to grant Parent the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. The Option; Exercise; Adjustments.
(a) Subject to the other terms and conditions set forth herein, the Company
hereby grants to Parent an irrevocable option (the "OPTION") to purchase up to
11,236,702 shares of Common Stock (the "SHARES"). The purchase price per Share
(the "PURCHASE PRICE") shall be $112.94. The Purchase Price and the number of
Shares shall be subject to adjustment as provided in Section 1(c) hereof.
(b) Parent may exercise the Option with respect to any or all of the Option
Shares at any one time or from time to time, subject to the provisions of
Section 1(c) hereof, upon the occurrence of an Exercise Event (as defined
below). Subject to the last sentence of this Section 1(b), the Option will
terminate and be of no further force and effect upon the earliest to occur of
(i) the Effective Time (as defined in the Merger Agreement), (ii) 90 days after
the first occurrence of an Exercise Event, and (iii) the termination of the
Merger Agreement in accordance with its terms so long as, in the case of this
clause (iii), no Exercise Event has occurred or could still occur under Section
8.5(b) of the Merger Agreement, in which case the Option will terminate on the
later of (x) 90 days following the time such termination fee becomes
unconditionally payable and (y) the expiration of the period in which an
Exercise Event could occur pursuant to Section 8.5(b) of the Merger Agreement.
"Exercise Event" means any event as a result of which Parent is unconditionally
entitled to receive a termination fee pursuant to Section 8.5(b) of the Merger
Agreement. Notwithstanding the termination of the Option, Parent shall be
entitled to purchase the Shares with respect to which it has exercised the
Option in accordance with the terms hereof prior to the termination of the
Option.
(c) (i) In the event Parent is entitled to and wishes to exercise the
Option, Parent shall send a written notice to the Company (the "STOCK EXERCISE
NOTICE") specifying a date (subject to the HSR Act (as defined below)) not later
than 20 business days and not earlier than three business days following the
date such notice is given for the closing of such purchase and specifying the
number of Shares Parent wishes to purchase.
(ii) In the event of any change in the number of issued and outstanding
shares of Common Stock by reason of any stock dividend, stock split, split-up,
recapitalization, merger (other than the Merger) or other change in the
corporate or capital structure of the Company, the number of Shares subject to
this Option and the purchase price per Share shall be appropriately adjusted to
restore the Parent to its rights
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hereunder, including its right to purchase Shares representing approximately
19.9% of the common stock of the Company that is issued and outstanding on the
date hereof (after giving effect to the foregoing adjustments) at an aggregate
purchase price equal to the Purchase Price multiplied by 11,236,702.
(iii) In the event that Company shall enter into an agreement to: (A)
consolidate with or merge into any person, other than Parent or one of its
subsidiaries, and Company shall not be the continuing or surviving corporation
of such consolidation or merger; (B) permit any person, other than Parent or one
of its subsidiaries, to merge into Company and Company shall be the continuing
or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Common Stock shall be changed into or exchanged for
stock or other securities of Company or any other person or cash or any other
property, or the outstanding shares of Common Stock immediately prior to such
merger shall after such merger represent less than 50% of the outstanding shares
and share equivalents of the merged company; or (C) sell or otherwise transfer
all or substantially all of its assets to any person, other than Parent or one
of its subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provisions so that upon the consummation of any
such transaction, and upon the terms and conditions set forth herein, Parent
shall receive for each Share of Common Stock with respect to which the Option
has not been exercised in an amount of consideration in the form of and equal to
the per share amount of consideration that would be received by the holder of
one share of Common Stock less the Purchase Price to the extent the Option is
then exercisable in accordance with the terms and conditions hereof (and, in the
event of an election or similar arrangement with respect to the type of
consideration to be received by the holders of Common Stock, subject to the
foregoing, proper provision shall be made so that the holder of the Option would
have the same election or similar rights as would the holder of the number of
shares of Common Stock for which the Option is then exercisable).
(d) At any time the Option is exercisable pursuant to the terms of Section
1(b) hereof, Parent may elect, in lieu of exercising the Option to purchase
Shares provided in Section 1(a) hereof, to send a written notice to the Company
(the "CASH EXERCISE NOTICE") specifying a date not later than 20 business days
and not earlier than 10 business days following the date such notice is given on
which date the Company shall pay to Parent an amount in cash equal to the Spread
(as hereinafter defined) multiplied by all or such portion of the Shares subject
to the Option as Parent shall specify in such Cash Exercise Notice. As used
herein "SPREAD" shall mean the excess, if any, over the Purchase Price of the
higher of (i) if applicable, the highest price per share of Common Stock paid or
proposed to be paid by any person pursuant to a definitive agreement executed by
the Company with respect to an Acquisition Proposal (the "ALTERNATIVE PURCHASE
PRICE") or (ii) the average closing price, for the five trading days ending on
the trading day immediately preceding the date of the Cash Exercise Notice, per
share of Common Stock as reported on the Nasdaq National Market (the "CLOSING
PRICE"). If the Alternative Purchase Price includes any property other than
cash, the Alternative Purchase Price shall be the sum of (i) the fixed cash
amount, if any, included in the Alternative Purchase Price plus (ii) the fair
market value of such other property. If such other property consists of
securities with an existing public trading market, the average of the closing
prices (or the average of the closing bid and asked prices if closing prices are
unavailable) for such securities in their principal public trading market on the
five trading days ending on the trading day immediately preceding the date of
the Cash Exercise Notice shall be deemed to equal the fair market value of such
property. If such other property consists of something other than cash or
securities with an existing public trading market and, as of the payment date
for the Spread, agreement on the value of such other property has not been
reached between the parties hereto, the Alternative Purchase Price shall be
deemed to equal the Closing Price. Upon exercise of its right to receive cash
pursuant to the exercise of the Option, the obligations of the Company to
deliver Shares pursuant to Section 3 shall be terminated with respect to such
number of Shares for which Parent shall have elected to be paid the Spread.
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2. Conditions to Delivery of Shares. The Company's obligation to deliver
Shares upon exercise of the Option is subject only to the fulfillment of the
following conditions:
(i) No preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States
prohibiting the delivery of the Shares shall be in effect; and
(ii) Any applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX XXX") shall have expired or
been terminated; and
(iii) All consents, approvals, orders, notifications, filings or
authorizations, the failure of which to make or obtain would have the
effect of making the issuance of Shares to Parent illegal ("OTHER REQUISITE
CONSENTS"), shall have been made or obtained.
3. The Closing.
(a) Any closing hereunder shall take place on the date specified by Parent
in its Stock Exercise Notice or Cash Exercise Notice, as the case may be, at
such reasonable time and place as may be indicated in the Stock Exercise Notice
or the Cash Exercise Notice, as applicable, or at the election of the Company at
10:00 A.M., local time, at the offices of Weil, Gotshal & Xxxxxx LLP, 000
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, or, if the conditions set forth in
Section 2(i), 2(ii) or 2(iii) have not then been satisfied, on the second
business day following the satisfaction of such conditions, or at such other
time and place as the parties hereto may agree (the "CLOSING DATE"). On the
Closing Date, (i) in the event of a closing pursuant to Section 1(c) hereof, the
Company will deliver to Parent a certificate or certificates, duly endorsed (or
accompanied by duly executed stock powers), representing the Shares in the
denominations designated by Parent in its Stock Exercise Notice and Parent will
purchase such Shares from the Company at a cash price per Share equal to the
Purchase Price or (ii) in the event of a closing pursuant to Section 1(d)
hereof, the Company will deliver to Parent cash in an amount determined pursuant
to Section 1(d) hereof. Any payment of cash made by Parent to the Company, or by
the Company to Parent, pursuant to this Stock Option Agreement shall be made by
wire transfer of immediately available funds to a bank designated by the party
receiving such funds.
(b) The certificates representing the Shares may bear an appropriate legend
relating to the fact that such Shares have not been registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
4. Representations and Warranties of the Company. The Company represents
and warrants to Parent that, except as contemplated by the Merger Agreement, (a)
the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the requisite corporate
power and authority to enter into and perform this Stock Option Agreement; (b)
the execution and delivery of this Stock Option Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Company and this Stock Option
Agreement has been duly and validly executed and delivered by a duly authorized
officer of the Company and will constitute a valid and binding obligation of the
Company subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; (c) the Company has taken
all necessary corporate action to authorize and reserve the Shares issuable upon
exercise of the Option and the Shares, when issued and delivered by the Company
upon exercise of the Option, will be duly authorized, validly issued, fully paid
and non-assessable and free of preemptive rights; (d) except as otherwise
required by the HSR Act or for the Other Requisite Consents, the execution and
delivery of this Stock Option Agreement by the Company and the consummation by
it of the transactions contemplated hereby do not require the consent, waiver,
approval or authorization of or any filing with any person or public authority
and will not violate, result in a breach of or the acceleration of any
obligation under, or constitute a default under, any provision of any charter or
bylaw, indenture, mortgage, lien, lease, agreement, contract, instrument, order,
law, rule, regulation, judgment, ordinance, or decree, or restriction by which
the Company or any of its subsidiaries or any of their respective properties or
assets is bound,
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except where the failure to obtain such consent, waiver, approval or
authorization or make such filing, or where such breach, acceleration or
default, is not reasonably expected to have a Material Adverse Effect (as
defined in the Merger Agreement) on the Company and its subsidiaries taken as a
whole or on the ability of the Company to consummate the transactions
contemplated hereby; and (e) the board of directors of the Company has taken all
action required so that the restrictions contained in Section 203 of the DGCL
applicable to a "business combination" (as defined in DGCL sec.203) will not
apply to the execution, delivery, or performance of this Agreement or the
consummation of the transactions contemplated by hereby.
5. Representations and Warranties of the Parent. Parent represents and
warrants to the Company that (a) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power and authority to enter into and perform this Stock
Option Agreement; (b) the execution and delivery of this Stock Option Agreement
by Parent and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and this Stock Option Agreement has been duly and validly executed and
delivered by a duly authorized officer of Parent and will constitute a valid and
binding obligation of Parent enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and (c) Parent is acquiring the Option and, if
and when it exercises the Option, will be acquiring the Shares issuable upon the
exercise thereof for its own account and not with a view to distribution or
resale in any manner which would be in violation of the Securities Act.
6. Listing of Shares; HSR Act Filings; Governmental Consents. Subject to
applicable law and the rules and regulations of the Nasdaq National Market (or
any other national securities exchange or quotation system on which the Common
Stock is then listed) (as applicable, the "STOCK EXCHANGE"), when the Option
becomes exercisable hereunder, the Company will promptly file an application to
list the Shares on the Stock Exchange and will use all reasonable efforts to
effect all necessary filings by the Company under the HSR Act. Each of the
parties hereto will use all reasonable efforts to obtain consents of all third
parties and governmental authorities (including any Other Requisite Consents),
if any, necessary to the consummation of the transactions contemplated hereby.
7. Registration Rights.
(a) In the event that Parent shall desire to sell any of the Shares within
two years after the purchase of such Shares pursuant hereto, and such sale
requires, in the reasonable opinion of counsel to Parent, registration of such
Shares under the Securities Act, the Company will cooperate with Parent and any
underwriters in registering such Shares for resale, including, without
limitation, promptly filing a registration statement which complies with the
requirements of applicable federal and state securities laws, 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 the Company 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 120
days if the offering would, in the good faith judgment of the Board of Directors
of the Company, require premature disclosure of any material corporate
development or otherwise interfere with or adversely affect any pending or
proposed offering of securities of the Company or any other material transaction
involving the Company. Parent shall use its reasonable efforts to cause, and to
cause any underwriters of any sale or disposition to cause, any sale or
disposition pursuant to such registration statement to be effected on a widely
disseminated basis so that upon consummation thereof no purchaser or transferee
will own beneficially more than 2.0% of the then outstanding voting power of the
Company.
(b) If the Common Stock is registered pursuant to the provisions of this
Section 7, the Company agrees (i) to furnish copies of the registration
statement and the prospectus relating to the Shares covered thereby in such
numbers as Parent 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
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prospectus, to prepare and file under the applicable securities laws such
amendments and supplements as may be necessary to keep available for at least 90
days a prospectus covering the Common Stock meeting the requirements of such
securities laws, and to furnish Parent such numbers of copies of the
registration statement and prospectus as amended or supplemented as may
reasonably be requested. Parent will provide information reasonably requested by
the Company for inclusion in any registration statement to be filed pursuant to
this Section 7. The Company shall bear all costs 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 Company, except that
Parent shall pay the fees and disbursements of its counsel, and the underwriting
fees and selling commissions applicable to the Shares sold by Parent. In
connection with any registration pursuant to this Section 7, Parent and the
Company shall provide each other and each underwriter of the offering with
customary representations, warranties and covenants, including indemnification
and contribution. If a requested registration pursuant to this Section 7
involves an underwritten offering, the underwriter or underwriters thereof shall
be a nationally recognized firm or firms selected by the Company, which firm or
firms shall be reasonably satisfactory to Parent.
8. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Stock Option Agreement.
9. Specific Performance. The Company acknowledges that if the Company fails
to perform any of its obligations under this Stock Option Agreement immediate
and irreparable harm or injury would be caused to Parent for which money damages
would not be an adequate remedy. In such event, the Company agrees that Parent
shall have the right, in addition to any other rights it may have, to specific
performance of this Stock Option Agreement. Accordingly, if Parent should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, the Company hereby waives the claim or defense that Parent has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. The Company
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
10. Profit Limitation.
(a) Notwithstanding any other provision of this Stock Option Agreement, in
no event shall Parent's Total Profit (as hereinafter defined) exceed
$255,090,070 and, if it otherwise would exceed such amount, Parent, at its sole
election, shall either (a) deliver to the Company for cancellation Shares
previously purchased by Parent, (b) pay cash to the Company or (c) undertake any
combination thereof, so that Parent's Total Profit shall not exceed $255,090,070
after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Stock Option Agreement,
this Option may not be exercised for a number of Shares as would, as of the date
of the Stock Exercise Notice, result in a Notional Total Profit (as defined
below) of more than $255,090,070 and, if exercise of the Option otherwise would
exceed such amount, Parent, at its discretion, may increase the Purchase Price
for that number of Shares set forth in the Stock Exercise Notice so that the
Notional Total Profit shall not exceed $255,090,070; provided, however, that
nothing in this sentence shall restrict any exercise of the Option permitted
hereby on any subsequent date at the Purchase Price set forth in Section 1(a)
hereof.
(c) As used herein, the term "TOTAL PROFIT" shall mean the aggregate amount
(before taxes) of the following: (i) the amount of cash received by Parent
pursuant to Section 1(d), (ii) (x) the cash amounts or the fair market value of
any property received by Parent pursuant to the sale of Shares (or any other
securities into which such Shares are converted or exchanged), less (y) Parent's
Purchase Price for such Shares, and (iii) any fees received pursuant to Section
8.5(b) of the Merger Agreement.
(d) As used herein, the term "NOTIONAL TOTAL PROFIT" with respect to any
number of Shares as to which Parent may propose to exercise this Option shall be
the Total Profit determined as of the date of the Stock Exercise Notice assuming
that this Option were exercised on such date for such number of Shares and
assuming that such Shares, together with all other Shares held by Parent and its
affiliates as of such date, were sold for cash at the closing market price for
the Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
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11. Transfers. The Shares may not be sold, assigned, transferred, or
otherwise disposed of except (i) in an underwritten public offering as provided
in Section 7 hereof or (ii) to any purchaser or transferee who, to Parent's
knowledge, would immediately following such sale, assignment, transfer or
disposal, beneficially own more than 2.0% of the then outstanding voting power
of the Company; provided, however, that Parent shall be permitted to sell any
Shares if such sale is made pursuant to a tender or exchange offer.
12. Notice. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been fully given if
(i) delivered personally; (ii) sent by certified or registered mail, return
receipt requested; (iii) sent by overnight courier for delivery on the next
business day; or (iv) sent by confirmed facsimile, provided that a hard copy of
all such materials is thereafter sent within 24 hours in the manner described in
clauses (i), (ii) or (iii), to the parties at the following addresses or at such
other addresses as shall be specified by the parties by like notice:
If to Parent:
Texas Instruments Incorporated
0000 Xxxxxxxxx Xxx, X/X 0000
Xxxxxx, Xxxxx 00000
- or -
X.X. Xxx 000000, X/X 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With copies to:
Texas Instruments Incorporated
00000 XX Xxxxxxxxx, X/X 0000
Xxxxxx, Xxxxx 00000
- or -
X.X. Xxx 000000, X/X 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
If to the Company:
Xxxx-Xxxxx Corporation
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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With a copy to:
Xxxxx & Xxxxxx, L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Notices provided in accordance with this Section 12 shall be deemed
delivered (i) on the date of personal delivery, (ii) four business days after
deposit in the mail, (ii) one business day after delivery to an overnight
courier, or (iv) on the date of confirmation of the facsimile transmission, as
the case may be.
13. Parties in Interest. This Stock Option Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors and permitted assigns; provided, however, that such successor in
interest or permitted assigns shall agree to be bound by the provisions of this
Stock Option Agreement. Nothing in this Stock Option Agreement, express or
implied, is intended to confer upon any person other than the Company or Parent,
or their successors or assigns, any rights or remedies under or by reason of
this Stock Option Agreement.
14. Entire Agreement; Amendments. This Stock Option Agreement, together
with the Merger Agreement and the other documents referred to therein, contains
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This Stock
Option Agreement may not be changed, amended or modified orally, but may be
changed only by an agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge may be sought.
15. Assignment. No party to this Stock Option Agreement may assign any of
its rights or obligations under this Stock Option Agreement without the prior
written consent of the other party hereto.
16. Headings. The section headings herein are for convenience only and
shall not affect the construction of this Stock Option Agreement.
17. Counterparts. This Stock Option Agreement may be executed in any number
of counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
18. Governing Law. This Stock Option Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the choice of law principles thereof.
19. Severability. If any term, provision, covenant or restriction of this
Stock Option Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Stock Option Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the Parent and the Company have caused this Stock
Option Agreement to be duly executed and delivered on the day and year first
above written.
TEXAS INSTRUMENTS INCORPORATED
By: /s/ X. XXXXXX SELF
----------------------------------
Name: X. Xxxxxx Self
Title: Senior Vice President
and Controller
XXXX-XXXXX CORPORATION
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, President and
CEO
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