Exhibit B
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of March 19, 2000 (the
"Agreement"), by and between Ocular Sciences, Inc., a Delaware corporation
---------
("Issuer"), and Xxxxxx Xxxxxx VisionCare, Inc., a Delaware corporation
------
("Grantee").
-------
WHEREAS, Issuer, Grantee and OSI Acquisition Corp., a Delaware
corporation ("Sub"), which is a direct wholly owned subsidiary of Grantee,
---
propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"; capitalized terms used but not defined herein
----------------
shall have the meanings set forth in the Merger Agreement), providing for, among
other things, a merger (the "Merger") of Sub with and into Issuer;
------
WHEREAS, as a condition and inducement to Grantee's
willingness to enter into the Merger Agreement and the WJ Stock Option
Agreement, Grantee has requested that Issuer agree, and Issuer has agreed, to
issue to Grantee the Option (as defined below); and
WHEREAS, as a condition and inducement to Issuer's willingness
to enter into the Merger Agreement and this Agreement, Issuer has requested that
Grantee agree, and Grantee has agreed, to issue to Issuer an option to purchase
shares of Grantee's common stock under the WJ Stock Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein and in the Merger Agreement, Issuer and Grantee agree as follows:
1. Grant of Options. Subject to the terms and conditions set
----------------
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 4,577,830 shares (the "Option Shares") of common
------
stock, par value $0.001 per share, of Issuer (the "Shares") (being 19.9% of the
number of Shares outstanding on March 19, 2000 before such issuance), at a
purchase price of $16.94 per Option Share (such price, as adjusted if
applicable, the "Purchase Price"). The number of Option Shares that may be
received upon the exercise of the Option and the Purchase Price are subject to
adjustment as set forth herein.
2. Exercise of Option. (a) Grantee may exercise the Option, in
------------------
whole or in part, at any time or from time to time following the occurrence of a
Purchase Event (as defined below); provided that, except as otherwise provided
herein, the Option shall terminate and be of no further force and effect upon
the earliest to occur of (i) the Effective Time, (ii) 6 months after the first
occurrence of a Purchase Event (or if, at the expiration of such 6-months after
the first occurrence of a Purchase Event, the Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, 10 business
days after such impediment to exercise shall have been removed, but in no event
under this clause (ii) later than the first anniversary of the Purchase Event),
(iii) termination of the Merger Agreement under circumstances which do not and
cannot result in Grantee's becoming entitled to receive termination fees from
Issuer pursuant to Section 7.2(c) of the Merger Agreement; and (iv) 12 months
after the termination of the Merger Agreement under circumstances which could
result in Grantee's becoming entitled to receive termination fees from Issuer
pursuant to Section 7.2(c)(A) of the Merger Agreement, unless during such
12-month period, a Purchase Event shall occur. The termination of the Option
shall not affect any rights hereunder which by their terms extend beyond the
date of such termination.
(b) As used herein, a "Purchase Event" means an event the
--------------
result of which is that the total fee or fees required to be paid by Issuer to
Grantee pursuant to Section 7.2(c) of the Merger Agreement equals $20 million.
(c) In the event Grantee wishes to exercise the Option, it
shall send to Issuer a written notice (the "Exercise Notice"; the date of which
---------------
being herein referred to as the "Notice Date") specifying (i) the total number
-----------
of Option Shares it intends to purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 10 business
days from such Notice Date for the closing of such purchase (a "Closing"; and
-------
the date of such Closing, a "Closing Date"); provided that such closing shall be
------------
held only if (A) such purchase would not otherwise violate or cause the
violation of applicable law (including the HSR Act), (B) no law, rule or
regulation shall have been adopted or promulgated, and no temporary restraining
order, preliminary or permanent injunction or other order, decree or ruling
issued by a court or other governmental authority of competent jurisdiction
shall be in effect, which prohibits delivery of such Option Shares (and the
parties hereto shall use their reasonable best efforts to have any such order,
injunction, decree or ruling vacated or reversed) and (C) any prior notification
to or approval of any other regulatory authority in the United States or
elsewhere required in connection with such purchase shall have been made or
obtained, other than those which if not made or obtained would not reasonably be
expected to result in a significant detriment to the Grantee and its
Subsidiaries taken as a whole or the Issuer and its Subsidiaries taken as a
whole. If the Closing cannot be consummated by reason of a restriction set forth
in clause (A), (B) or (C) above, notwithstanding the provisions of Section 2(a),
the Closing shall be held within 5 business days following the elimination of
such restriction.
3. Payment and Delivery of Certificates. On each Closing Date,
------------------------------------
Grantee shall pay to Issuer in immediately available funds by wire transfer to a
bank account designated by Issuer an amount equal to the Purchase Price
multiplied by the Option Shares to be purchased on such Closing Date.
(b) At each Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer shall deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such closing, which Option Shares shall be free and clear of all
liens, charges or encumbrances ("Liens"), and Grantee shall deliver to Issuer a
-----
letter agreeing that Grantee shall not offer to sell or otherwise dispose of
such Option Shares in violation of applicable law or the provisions of this
Agreement.
-2-
(c) Certificates for the Option Shares delivered at each
Closing shall be endorsed with a restrictive legend which shall read
substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION
AGREEMENT DATED AS OF MARCH 19, 2000. A COPY OF SUCH
AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT
CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST
THEREFOR.
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have 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 and
(ii) the reference to restrictions pursuant to this Agreement in the above
legend shall be removed by delivery of substitute certificate(s) without such
reference if the Option Shares evidenced by certificate(s) containing such
reference have been sold or transferred in compliance with the provisions of
this Agreement under circumstances that do not require the retention of such
reference.
4. Authorized Stock. Issuer hereby represents and warrants to
----------------
Grantee that Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, at all times from the date
hereof until the obligation to deliver Shares upon the exercise of the Option
terminates, will have reserved for issuance, upon exercise of the Option, Shares
necessary for Grantee to exercise the Option, and Issuer will take all necessary
corporate action to authorize and reserve for issuance all additional Shares or
other securities which may be issued pursuant to Section 6 upon exercise of the
Option. The Shares to be issued upon due exercise of the Option, including all
additional Shares or other securities which may be issuable upon exercise of the
Option pursuant to Section 6, upon issuance pursuant hereto, shall be duly and
validly issued, fully paid and nonassessable, and shall be delivered free and
clear of all Liens, including any preemptive rights of any stockholder of
Issuer.
5. Purchase Not for Distribution. Grantee hereby represents
-----------------------------
and warrants to Issuer that any Option Shares or other securities acquired by
Grantee upon exercise of the Option will not be taken with a view to the public
distribution thereof and will not be transferred or otherwise disposed of except
in a transaction registered or exempt from registration under the Securities
Act.
6. Adjustment upon Changes in Capitalization, etc. (a) In the
----------------------------------------------
event of any change in Shares by reason of reclassification, recapitalization,
stock split, split-up, combination, exchange of shares, stock dividend,
dividend, dividend payable in any other securities, or any similar event, the
type and number of Shares or securities subject to the Option, and the Purchase
Price
-3-
therefor (including for purposes of repurchase thereof pursuant to Section 7),
shall be adjusted appropriately, and proper provisions shall be made in the
agreements governing such transaction, so that Grantee shall receive upon
exercise of the Option the number and class of shares or other securities or
property that Grantee would have received in respect of Shares if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable. If any additional Shares are issued after the date of this Agreement
(other than pursuant to an event described in the immediately preceding
sentence), the number of Shares subject to the Option shall be adjusted so that
immediately prior to such issuance, it equals 19.9% of the number of Shares then
issued and outstanding. In no event shall the number of Shares subject to the
Option exceed 19.9% of the number of Shares issued and outstanding at the time
of exercise (without giving effect to any shares subject or issued pursuant to
the Option).
(b) Without limiting the foregoing, whenever the number of
Option Shares purchasable upon exercise of the Option is adjusted as provided in
this Section 6, the Purchase Price per Option Share shall be adjusted by
multiplying the Purchase Price by a fraction, the numerator of which is equal to
the number of Option Shares purchasable prior to the adjustment and the
denominator of which is equal to the number of Option Shares purchasable after
the adjustment.
(c) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that 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 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 (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 conditions
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 Option
Shares had the Option been exercised immediately prior to such consolidation,
merger, sale or transfer or the record date therefor, as applicable. Issuer
shall take such steps in connection with such consolidation, merger, liquidation
or other such transaction as may be reasonably necessary to assure that the
provisions hereof shall thereafter apply as nearly as possible to any securities
or property thereafter deliverable upon exercise of the Option.
7. Repurchase of Option. (a) Notwithstanding the provisions of
--------------------
Section 2(a), at any time commencing upon the first occurrence of a Purchase
Event and ending upon termination of this Option in accordance with Section 2,
Issuer (or any successor entity thereof) shall at the request of Grantee (any
such request, a "Cash Exercise Notice"), repurchase from Grantee the Option or a
--------------------
portion thereof (if and to the extent not previously exercised or terminated) at
a price which, subject to Section 10 below, is equal to the excess, if any, of
(x) the Applicable Price (as defined
-4-
below) as of the Section 7 Request Date (as defined below) for a Share over (y)
the Purchase Price (subject to adjustment pursuant to Section 6), multiplied by
all or such portion of the Option Shares subject to the Option as the Grantee
shall specify in the Cash Exercise Notice (the "Option Repurchase Price").
-----------------------
(b) Notwithstanding the provisions of Section 2(a), at any
time following the occurrence of a Purchase Event, Issuer (or any successor
entity thereof) may, at its election, repurchase the Option (if and to the
extent not previously exercised or terminated) at the Option Repurchase Price;
provided that the aggregate number of Option Shares as to which the Option may
be repurchased shall not exceed 3,051,887. For purposes of this Agreement, an
exercise of the Option shall be deemed to occur on the Closing Date and not on
the Notice Date relating thereto.
(c) In connection with any exercise of rights under this
Section 7, Issuer shall, within 5 business days after the Section 7 Request
Date, pay the Option Repurchase Price in immediately available funds, and
Grantee or such owner, as the case may be, shall surrender to Issuer the Option.
Upon receipt by the Grantee of the Option Repurchase price, the obligations of
the Issuer to deliver Option Shares pursuant to Section 3 of this Agreement
shall be terminated with respect to the number of Option Shares specified in the
Cash Exercise Notice or the number of Option Shares as to which the Option is
repurchased under Section 7(b).
(d) For purposes of this Agreement, the following terms have
the following meanings:
(i) "Applicable Price", as of any date, means the highest
----------------
of (A) the highest price per Share paid or proposed to be
paid by any third party for Shares or the consideration
per Share received or to be received by holders of
Shares, in each case pursuant to any Acquisition Proposal
for or with Issuer made on or prior to such date or (B)
the highest bid price per Share as quoted on the National
Association of Securities Dealers Automated Quotation
System ("Nasdaq") or, if the Shares are not quoted on
------
Nasdaq, on the principal trading market on which such
Shares are traded as reported by a recognized source
during the 10 trading days preceding such date. If the
consideration to be offered, paid or received pursuant to
the foregoing clause (A) shall be other than in cash, the
value of such consideration shall be determined in good
faith by an independent nationally recognized investment
banking firm selected by Grantee and reasonably
acceptable to Issuer.
(ii) "Section 7 Request Date" means the date on which
----------------------
Issuer or Grantee, as the case may be, exercises its
rights under this Section.
8. Registration Rights. Issuer shall, if requested by Grantee
-------------------
or any Subsidiary of the Grantee which is the owner of Option Shares
(collectively with Grantee, the "Owners") at any time and from time to time
within two years of the first exercise of the Option, as expeditiously as
-5-
possible prepare and file up to two registration statements under the Securities
Act if such registration is necessary in order to permit the sale or other
disposition of any or all shares of securities that have been acquired by or are
issuable to such Owners upon exercise of the Option in accordance with the
intended method of sale or other disposition stated by such Owners, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision, and Issuer shall use all reasonable efforts to qualify such
shares or other securities under any applicable state securities laws. Issuer
shall use all reasonable 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 at least 90 days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. The obligations of Issuer hereunder to file a registration
statement and to maintain its effectiveness may be suspended for a period of
time not exceeding 90 days in the aggregate if the Board of Directors of Issuer
shall have determined in good faith that the filing of such registration
statement or the maintenance of its effectiveness would require disclosure of
nonpublic information that would materially and adversely affect Issuer (but in
no event shall Issuer exercise such postponement right more than once in any
12-month period). Any registration statement prepared and filed under this
Section 8, and any sale covered thereby, shall be at Issuer's expense except for
underwriting discounts or commissions, brokers' fees and the reasonable fees and
disbursements of Owners' counsel related thereto. The Owners shall provide all
information reasonably requested by Issuer for inclusion in any registration
statement to be filed hereunder. If during the time period referred to in the
first sentence of this Section 8 Issuer effects a registration under the
Securities Act of Shares 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 shall
allow the Owners the right to participate in such registration, and such
participation shall not affect the obligation of Issuer to effect two
registration statements for the Owners under this Section 8; provided that, if
the managing underwriters of such offering advise Issuer in writing that in
their opinion the number of Shares requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the offering price, Issuer and the Owners shall each reduce on a pro
rata basis the Shares to be included therein on their respective behalf. In
connection with any registration pursuant to this Section 8, Issuer and the
Owners shall provide each other and any underwriter of the offering with
customary representations, warranties, covenants, indemnification and
contribution in connection with such registration.
9. Additional Covenants of Issuer. (a) If Shares or any other
------------------------------
securities to be acquired upon exercise of the Option are then quoted on Nasdaq
or listed on any securities exchange or market, Issuer, upon the request of any
Owner, will promptly file an application to list the Shares or other securities
to be acquired upon exercise of the Options on Nasdaq or any securities exchange
or market or which such Shares are traded and will use its reasonable best
efforts to obtain approval of such listing as soon as practicable.
(b) Issuer will use its reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to permit
the exercise of the Option in accordance with the terms and conditions hereof,
-6-
as soon as practicable after the date hereof, including making any appropriate
filing pursuant to the HSR Act and any other applicable law, supplying as
promptly as practicable any additional information and documentary material that
may be requested pursuant to the HSR Act and any other applicable law, and
taking all other actions necessary to cause the expiration or termination of the
applicable waiting periods under the HSR Act as soon as practicable.
(c) Issuer agrees not to avoid or seek to avoid (whether by
charter amendment or through reorganization, consolidation, merger, issuance of
rights, dissolution or sale of assets, or by any other voluntary act) the
observance or performance of any of the covenants, agreements or conditions to
be observed or performed hereunder by it.
(d) Issuer shall take all such steps as may be required to
cause any acquisitions or dispositions by Grantee (or any affiliate who may
become subject to the reporting requirements of Section 16(a) of the Exchange
Act) of any Shares acquired in connection with this Agreement (through
conversion or exercise of the Option or otherwise) to be exempt under Rule 16b-3
promulgated under the Exchange Act.
10. Limitation of Grantee Profit. (a) Notwithstanding any
----------------------------
other provision in this Agreement, in no event shall Grantee's Total Profit (as
defined below) exceed $25.0 million (the "Maximum Profit") and, if it otherwise
--------------
would exceed such amount, Grantee, at its sole discretion, shall either (i)
reduce the number of Shares subject to the Option, (ii) deliver to Issuer for
cancellation Shares (or other securities into which such Option Shares are
converted or exchanged) previously purchased by Grantee, (iii) pay cash to
Issuer, or (iv) any combination of the foregoing, so that Grantee's actually
realized Total Profit shall not exceed the Maximum Profit after taking into
account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of Option Shares as would, as of any
Notice Date, result in a Notional Total Profit (as defined below) of more than
the Maximum Amount and, if exercise of the Option otherwise would result in the
Notional Total Profit exceeding such amount, Grantee, at its discretion, may (in
addition to any of the actions specified in Section 10(a) above) (i) reduce the
number of Shares subject to the Option or (ii) increase the Purchase Price for
that number of Option Shares set forth in the Exercise Notice so that the
Notional Total Profit shall not exceed the Maximum Profit; provided 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 hereof.
(c) For purposes of this Agreement, "Total Profit" shall mean:
------------
(i) the aggregate amount (before taxes) of (A) any excess of (x) the net cash
amounts or fair market value of any property received by Grantee pursuant to a
sale of Option Shares (or securities into which such shares are converted or
exchanged) over (y) the Grantee's aggregate purchase price for such Option
Shares (or other securities), plus (B) any amounts received by Grantee on the
repurchase of the Option by Issuer pursuant to Section 7, plus (C) any
termination fee paid by Issuer and received by Grantee pursuant to Section
7.2(b) of the Merger Agreement, minus (ii) the amounts of any cash
-7-
previously paid by Grantee to Issuer pursuant to this Section 10 plus the value
of the Option Shares (or other securities) previously delivered by Grantee to
Issuer for cancellation pursuant to this Section 10.
(d) For purposes of this Agreement, "Notional Total Profit"
---------------------
with respect to any number of Option Shares as to which Grantee may propose to
exercise the Option shall mean the Total Profit determined as of the Notice Date
assuming that the Stock Option was exercised on such date for such number of
Option Shares and assuming that such Option Shares, together with all other
Option Shares previously acquired upon exercise of the Option and held by
Grantee as of such date, were sold for cash at the closing price per Share on
Nasdaq as of the close of business on the preceding trading day (less customary
brokerage commissions).
(e) 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, any termination fee provided for in Section
7.2(b) of the Merger Agreement provided that if and to the extent the Total
Profit received by the Grantee would exceed the Maximum Profit following the
receipt of such payment, Grantee shall be obligated to promptly comply with the
terms of Section 10(a).
(f) For purposes of Section 10(a) and clause (ii) of Section
10(c), the value of any Option Shares delivered by Grantee to Issuer shall be
the Applicable Price of such Option Shares.
11. Loss, Theft, Etc. of Agreement. This Agreement (and the
------------------------------
Option granted hereby) is exchangeable, without expense, at the option of
Grantee, upon presentation and surrender of this Agreement at the principal
office of Issuer for other Agreements providing for Options of different
denominations entitling the holder thereof to purchase in the aggregate the same
number of Shares purchasable hereunder. The terms "Agreement" and "Option" as
--------- ------
used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft, destruction
or mutilation of this Agreement, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and cancellation
of this Agreement, if mutilated, Issuer will execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
12. Miscellaneous.
-------------
(a) Expenses. Except as otherwise provided in Section 9 hereof
--------
or in the Merger Agreement, each of the parties hereto shall bear and pay all
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.
-8-
(b) Waiver and Amendment. Any provision of this Agreement may
--------------------
be waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary;
---------------------------------------------
Severability. Except as otherwise set forth in the Merger Agreement, this
------------
Agreement, together with the Merger Agreement and the WJ Stock Option Agreement
(a) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court or
regulatory agency determines that the Option does not permit Grantee to acquire,
or does not require Issuer to repurchase, the full number of Shares as provided
in Sections 2 and 7, as adjusted pursuant to Section 6, it is the express
intention of Issuer to allow Grantee to acquire or to require Issuer to
repurchase such lesser number of Shares as may be permissible without any
amendment or modification hereof.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
--------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES).
(e) Descriptive Headings. The descriptive headings
---------------------
contained herein are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed given as set forth in Section 8.2 of the
Merger Agreement.
(g) Counterparts. This Agreement and any amendments hereto may
------------
be executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart.
(h) Assignment. Grantee may not, without the prior written
----------
consent of Issuer (which shall not be unreasonably withheld), assign this
Agreement or the Option to any other person. This Agreement shall not be
assignable by Issuer except by operation of law. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
-9-
(i) Representations and Warranties. The representations and
------------------------------
warranties contained in Sections 3.1(a)(i) and 3.2(a)(i) of the Merger
Agreement, and, to the extent they relate to this Agreement, in Sections 3.2(b),
(c), (f) and (g) and Section 3.1(c) of the Merger Agreement, are incorporated
herein by reference.
(j) Further Assurances. In the event of any exercise of the
------------------
Option by Grantee, Issuer and Grantee shall 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.
(k) 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. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity. Both parties further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such equitable
relief and that this provision is without prejudice to any other rights that the
parties hereto may have for any failure to perform this Agreement.
(l) Captions. The Article, Section and paragraph captions
--------
herein are for convenience only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
(m) Confidentiality Agreement. Issuer hereby waives the
-------------------------
restrictions on Grantee's acquisition of Shares contained in the Confidentiality
Agreement to the extent necessary to permit Grantee to exercise the Option and
purchase the Option Shares as herein provided.
-10-
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock
Option Agreement to be signed by their respective officers thereunto duly
authorized, all as of March 19, 2000.
OCULAR SCIENCES, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
Chairman
XXXXXX XXXXXX VISIONCARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
