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SHAREHOLDER OPTION AGREEMENT
This SHAREHOLDER OPTION AGREEMENT, dated as of October 11, 1999 (the
"Agreement"), among Merger Sub of Delaware, Inc., a Delaware corporation
("Buyer"), and the holders (the "Shareholders") of the shares of common stock,
$.01 par value together with attached rights issued pursuant to the Rights
Agreement (as defined in the Merger Agreement, hereafter defined) to purchase
shares (the "Shares") of The Centris Group, Inc. a Delaware corporation (the
"Company"), listed on Exhibit A hereof.
WHEREAS, HCC Insurance Holdings, Inc., a Delaware corporation and
parent of Buyer ("Parent"), Buyer and the Company have entered into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement")
which provides for, upon the terms and subject to the conditions set forth
thereunder, (i) the commencement of a tender offer (the "Offer") for all of the
outstanding Shares at a price of $12.50 per share in cash, and (ii) the
subsequent merger of the Buyer with and into the Company (the "Merger"); and
WHEREAS, Buyer and Shareholders wish to enter into this Shareholder
Option Agreement whereby Buyer will be granted stock options pursuant to the
terms hereof to acquire from the Shareholders their Shares of the Company.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and promises set forth herein and other good and valuable consideration the
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE 1
STOCK OPTION
Section 1.1 Grant of Stock Option. Each of the Shareholders hereby
grants to Buyer an irrevocable option (the "Option") to purchase pursuant to
the terms hereof all, but not in any part less than all, of the Shares set
forth opposite such Shareholder's name on Exhibit A hereto and any additional
Shares acquired by such Shareholder in any capacity (whether by exercise of
options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities or by means of a purchase, dividend, distribution or
otherwise) (such "Shareholder's Shares" and, collectively, the "Shareholder
Shares") at a purchase price of $12.50 per Shareholder Share (as may be
adjusted pursuant to Sections 1.2(c), (d) or (e), the "Purchase Price").
Section 1.2 Exercise of Option.
(a) Subject to the conditions set forth in Section 1.5
hereof, the Option may be exercised by Buyer, in whole, but not in part, at any
time after the date (i) an Acquisition Proposal or a Superior Acquisition
Proposal (as defined in the Merger Agreement) shall have received tenders of
and paid for in excess of 50% of the Fully Diluted Shares (as defined in the
Merger Agreement) (a "Successful Third-Party Offer") or (ii) a third party has
otherwise acquired in excess of 50% of the Fully Diluted Shares. Once Buyer has
received notice as set forth herein from any Shareholder that the Option is
exercisable, the Option must then be
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exercised, if at all, within five Business Days. In the event Buyer wishes to
exercise the Option for the Shareholder Shares, Buyer shall send a written
notice (the "Exercise Notice") to the Shareholder specifying the place, the
date (not less than one nor more than five Business Days from the date of the
Exercise Notice (if such date is reasonably practicable for Shareholder
performance) and the time for the closing of such purchase; provided that such
date and time may be earlier than one Business Day after the Exercise Notice if
reasonably practicable. The closing of a purchase of Shareholder Shares
pursuant to this Section 1.2(a) (the "Closing") shall take place at the place,
on the date and at the time designated by Buyer in its Exercise Notice,
provided that if, at the date of the Closing herein provided for, the
conditions set forth in Section 1.5 shall not have been satisfied (or waived),
Buyer may postpone the Closing until a date within five Business Days after
such conditions are satisfied and the term of the Option will be
correspondingly extended.
(b) Buyer shall not be under any obligation to deliver any
Exercise Notice and may allow the Option to terminate without purchasing any
Shareholder Shares hereunder; provided however that once Buyer has delivered to
the Shareholders an Exercise Notice, subject to the terms and conditions of
this Agreement, Buyer shall be bound to effect the purchase as described in
such Exercise Notice.
(c) In the event the Option is exercised and Buyer or any of
its affiliates sells, including by direct disposition, merger or otherwise, the
Shares so acquired within two years of the date of such exercise, Buyer shall
pay the Shareholders, in respect of each Share acquired thereby, an amount
equal to the proceeds received by Buyer or any of its affiliates in respect of
such disposition less the Purchase Price. The provisions of this Section 1.2(c)
shall be void and of no further force or effect if Buyer acquires 100% of the
Company Shares pursuant to the Merger Agreement or otherwise.
(d) In the event the Option is exercised and within two years
of the date of exercise of the Option, Buyer or any of its affiliates acquires
(directly or through a series of transactions) Shares which together with any
Shares then owned by Buyer or any of its affiliates is in excess of 50% of the
Fully Diluted Shares, Buyer shall pay each Shareholder an additional sum in
respect of each Share acquired by Buyer from the Shareholder equal to the
highest tender offer price per share actually paid in the Successful
Third-Party Offer less the initial Purchase Price paid to Shareholder at the
time the Option was exercised.
(e) In the event the Option has been exercised and the
consideration per Share to be paid by Buyer pursuant to the Offer is increased
(the "New Purchase Price"), Buyer shall promptly pay to each Shareholder the
product of the New Purchase Price multiplied by the number of such
Shareholder's Shares as to which the Option has been exercised less the initial
Purchase Price paid to Shareholder at the time the Option was exercised.
Section 1.3 Closing. At the Closing, (a) each Shareholder shall
deliver to Buyer (in accordance with Buyer's instructions) a certificate or
certificates (the "Certificates") representing all of such Shareholder's
Shares, duly endorsed or accompanied by stock powers duly executed
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in blank and (b) Buyer shall pay to such Shareholder, by wire transfer in
immediately available funds to the account such Shareholder specifies in
writing prior to the Closing, an amount equal to (i) the number of such
Shareholder's Shares being purchased at the Closing multiplied by (ii) the
Purchase Price (the "Purchase Amount").
Section 1.4 Agreement to Tender.
(a) Each of the Shareholders hereby agrees to validly tender
(or cause the record owner of such shares to validly tender) such Shareholder's
Shares pursuant to and in accordance with the Offer (as defined in the Merger
Agreement) within two days of the receipt of Buyer's offer to purchase relating
to the Offer. Upon receipt of written instructions from the Buyer, each
Shareholder shall promptly deliver to the depositary (the "Depositary")
designated in the Offer (i) a letter of transmittal with respect to such
Shareholder's Shares complying with the terms of the Offer together with
instructions directing the Depositary to make payment for such Shares directly
to the Shareholder (but if such Shares are not accepted for payment or are
withdrawn and are to be returned pursuant to the Offer, to return such Shares
to such Shareholder whereupon they shall continue to be held by such
Shareholder subject to the terms and conditions of this Agreement), (ii) the
Certificates representing such Shareholder's Shares and (iii) all other
documents or instruments required to be delivered pursuant to the terms of the
Offer (such documents in clauses (i) through (iii) collectively being
hereinafter referred to as the "Tender Documents"). Tender by a Shareholder
pursuant to this Section 1.4(a) shall suspend such Shareholder's further
obligations under this Agreement unless and until such tendered Shareholder's
Shares are not accepted for payment or are withdrawn and are to be returned to
such Shareholder pursuant to the Offer, in which event, the Shareholder's
further obligations under this Agreement shall be reinstated in full force and
effect. For all its Shares validly tendered in the Offer and not withdrawn,
each Shareholder will be entitled to receive the highest price paid by Buyer
pursuant to the Offer, as such Offer may be amended from time to time.
Notwithstanding the foregoing, tender of any Shares subject to pledge shall be
subject to Buyer's agreement to enter into an escrow or other arrangement
satisfactory to the pledgee-lender to facilitate the satisfaction of debt
obligations with respect to any such pledged Shares. Each Shareholder agrees to
execute any documentation to effectuate such escrow or other arrangement
provided that such documentation preserves the rights of such tendering
Shareholder hereunder.
(b) Buyer agrees that if an Acquisition Proposal or a
Superior Acquisition Proposal is made for the Shares, Buyer shall give each
Shareholder written notice at least two Business Days prior to the tender of
any Shares beneficially owned by Buyer or its affiliates in such Acquisition
Proposal or Superior Acquisition Proposal. Notwithstanding anything to the
contrary herein, if Buyer or any of its affiliates tender (or retender, if
previously withdrawn) Shares in such Acquisition Proposal or Superior
Acquisition Proposal, Buyer shall consent to the Shareholders tendering (or
retendering, if previously withdrawn) their Shares pursuant to such Acquisition
Proposal or Superior Acquisition Proposal and such Shares may be released from
the terms of this Option and sold in such Acquisition Proposal or Superior
Acquisition Proposal. If Buyer or its affiliates subsequently withdraw all
Shares tendered pursuant to such Acquisition Proposal or Superior Acquisition
Proposal and gives Shareholders sufficient notice to take
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action, Shareholders shall withdraw their tender of shares to such Acquisition
Proposal or Superior Acquisition Proposal. No tender, withdrawal or retender by
Buyer or Shareholder to an Acquisition Proposal permitted pursuant to this
Section 1.4(b) shall extend the period for exercise of the Option pursuant to
Section 1.2(a).
Section 1.5 Conditions. The obligation of each Shareholder to sell
such Shareholder's Shares at any Closing is subject to the following
conditions:
(a) The representations and warranties of Buyer contained in
Article 4 shall be true and correct in all material respects on the date
thereof as if made on such date;
(b) All waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such exercise of the Option shall have
expired or been terminated; and
(c) There shall be no preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or commission, nor any
statute, rule, regulation or order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining such exercise of the Option.
Section 1.6 Adjustment Upon Changes in Capitalization or Merger. In
the event of any change in the Company's capital stock by reason of stock
dividends, stock splits, mergers, consolidations, recapitalizations,
combinations, conversions, exchanges of shares, extraordinary or liquidating
dividends, or other changes in the corporate or capital structure of the
Company which would have the effect of diluting or changing the Buyer's rights
hereunder, each Shareholder shall take such steps in connection with such
consolidation, merger, liquidation or other such action within such
Shareholders' powers as shareholders of the Company as may be necessary to
assure that the provisions of this Agreement shall thereafter apply as nearly
as possible to any securities or property thereafter deliverable upon exercise
of the Option.
ARTICLE 2
GRANT OF PROXY
Section 2.1 Proxy. Each Shareholder hereby revokes any and all
previous proxies granted with respect to such Shareholder's Shares. Each
Shareholder, by this Agreement, with respect to such Shareholder's Shares, does
hereby constitute and appoint Buyer, or any nominee of Buyer, with full power
of substitution, as its true and lawful attorney and proxy, for and in its
name, place and stead, to vote each of such Shareholder's Shares as its proxy,
at every annual, special or adjourned meeting, or solicitation of consents, of
the Company (including the right to sign its name (as Shareholder) to any
consent, certificate or other document relating to the Company that the law of
the State of Delaware may permit or require) (i) in favor of the adoption of
the Merger Agreement and this Agreement and approval of the Merger and the
other transactions contemplated hereby and thereby, (ii) against any
Acquisition Proposal or Superior Acquisition Proposal (as defined in the Merger
Agreement) and any other action or agreement
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that would result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement not
being fulfilled, and (iii) in favor of any other matter relating to
consummation of the transactions contemplated by the Merger Agreement and this
Agreement. Each Shareholder further agrees to cause such Shareholder's Shares
that are outstanding and owned by it beneficially to be voted in accordance
with the foregoing. The proxy granted by each Shareholder pursuant to this
Article 2 is irrevocable and is granted in consideration of Buyer's entering
into this Agreement and the Merger Agreement; provided, however, that such
proxy shall be revoked upon termination of this Agreement in accordance with
its terms.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each of the Shareholders severally represents and warrants to the
Buyer that:
Section 3.1 Valid Title. Except as noted on Exhibit A, each such
Shareholder is the sole, true, lawful and beneficial owner of such
Shareholder's Shares with no restrictions on such Shareholder's voting rights
or rights of disposition pertaining thereto which will survive the Closing. At
any Closing, such Shareholder will convey good and valid title to such
Shareholder's Shares being purchased free and clear of any and all claims,
liens, charges, encumbrances and security interests. None of such Shareholder's
Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares.
Section 3.2 Non-Contravention. The execution, delivery and performance
by such Shareholder of this Agreement and the consummation of the transactions
contemplated hereby (i) are within such Shareholder's powers, have been duly
authorized by all necessary action (including any consultation, approval or
other action by or with any other person), (ii) require no action by or in
respect of, or filing with, any governmental body, agency, official or
authority (except as may be required under the HSR Act or by any insurance
regulatory agency or body), and (iii) do not and will not contravene or
constitute a default under, or give rise to a right of termination,
cancellation or acceleration of any right or obligation of such Shareholder or
to a loss of any benefit of such Shareholder under, any provision of applicable
law or regulation or of any agreement, judgment, injunction, order, decree, or
other instrument binding on such Shareholder or result in the imposition of any
lien on any asset of such Shareholder.
Section 3.3 Binding Effect. This Agreement has been duly executed and
delivered by such Shareholder and is the valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally. If this Agreement
is being executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform such
Agreement.
Section 3.4 Total Shares. Such Shareholder is the record and/or
Beneficial Owner of the number of Shares, as such ownership is set forth next
to such Shareholder's name on
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Exhibit A hereto. Except as set forth on Exhibit A, such Shares, constitute all
of the Shares, owned of record or Beneficially Owned by such Shareholder.
Except as set forth on Exhibit A, neither such Shareholder nor any beneficial
owner or owners of such Shareholder's Shares own any options to purchase or
rights to subscribe for or otherwise acquire any securities of the Company.
Except as set forth on Exhibit A, each Shareholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Article 2 of this Agreement, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to
all of the Shares, beneficially owned by such Shareholder with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement. The terms "Beneficially Owned" or
"Beneficial Ownership" with respect to any securities shall mean having
"beneficial ownership" of such securities as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended.
Section 3.5 Finder's Fees. No investment banker, broker or finder,
other than Advest, Inc., is entitled to a commission or fee from Shareholder or
the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Shareholder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Shareholders:
Section 4.1 Corporate Power and Authority. Buyer is duly organized,
validly existing and in good standing under the laws of Delaware. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby have been duly authorized by the board of directors of
Buyer and no other corporate action on the part of Buyer is necessary to
authorize the execution, delivery or performance by Buyer of this Agreement and
the consummation by Buyer of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Buyer and is a valid and
binding agreement of Buyer, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
Section 4.2 Acquisition for Buyer's Account. Any Shareholder Shares to
be acquired upon exercise of the Option will be acquired by Buyer for its own
account and not with a view to the public distribution or resale thereof and
will not be transferred except in compliance with the Securities Act of 1933,
as amended.
ARTICLE 5
COVENANTS OF THE SHAREHOLDERS
Each of the Shareholders hereby covenants and agrees that:
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Section 5.1 No Proxies for or Encumbrances on Shareholder Shares.
Except pursuant to the terms of this Agreement, such Shareholder shall not,
without the prior written consent of Buyer, directly or indirectly, (i) grant
any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any Shares or (ii) acquire, sell, assign,
transfer, encumber or otherwise dispose of, or enter into any contract, option
or other arrangement or understanding with respect to the direct or indirect
acquisition or sale, assignment, transfer, encumbrance or other disposition of,
any Shares, any shares of preferred stock or any warrants during the term of
this Agreement other than the acquisition of Shares by means of existing
options, warrants or other convertible securities, provided that upon exercise
or acquisition the Shares become Shareholder Shares subject to this Agreement.
Section 5.2 Other Offers. Each Shareholder in his or its capacity as a
shareholder of the Company agrees to be bound to his obligations and the
restrictions placed upon him as a director of the Company pursuant to Section
5.4 of the Merger Agreement.
Section 5.3 Conduct of Shareholders. Such Shareholder will not (i)
take, agree or commit to take any action that would make any representation and
warranty of such Shareholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
Section 5.4 Disclosure. Each Shareholder hereby permits Buyer to
publish and disclose in the offer documents and, if approval of the Company's
shareholders is required under applicable law, a proxy statement (including all
documents and schedules filed with the SEC) their identity and ownership of the
Shares and the nature of their commitments, arrangements and understandings
under this Agreement.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Termination of Agreement. This Agreement shall terminate
and unexercised Options, if any, shall expire on the earliest to occur of (a)
termination of the Merger Agreement pursuant to Section 9.1(a), (b), (c) or (d)
thereof; (b) upon consummation of the Offer by payment for Shares duly tendered
pursuant to the Offer; or (c) December 31, 2000. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to its termination. Upon termination of this Agreement,
all proxies granted pursuant to Article 2 shall lapse. Any obligation of Buyer
to pay the Option Purchase Amount for Shareholder Shares acquired through
exercise of the Option, as such Option Purchase Amount may be adjusted pursuant
to Sections 1.2, 1.3 or 1.4(a), shall survive termination of this Agreement.
Section 6.2 Indemnification of Shareholders. If the grant or exercise
of the Option or proxy made by any Shareholder pursuant to Sections 1.1 or 2.1,
respectively, hereof results in any violation or alleged violation of insurance
laws or regulations, Buyer will indemnify each such Shareholder against all
claims, actions, suits, proceedings or investigations, losses,
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damages, liabilities (or actions in respect thereof), costs and expenses
(including reasonable fees and expenses of counsel) if brought by an insurance
regulatory body or insurance agency having jurisdiction over the subject matter
hereof arising out of or based upon such violation or alleged violation and
unless Buyer shall have assumed the defense thereof, as provided below, (a)
Buyer shall pay as incurred the reasonable fees and expenses of counsel
selected by the Shareholder, which counsel shall be reasonably satisfactory to
Buyer, promptly as statements therefor are received, and (b) Buyer will
cooperate in the defense of any such matter; provided, however, that Buyer
shall not be liable for any settlement effected without its prior written
consent (which consent shall not be unreasonably withheld); and provided,
further, that Buyer shall not be obliged pursuant to this Section 6.2 to pay
the fees and disbursements of more than one counsel for all Shareholders in any
single action except to the extent that, in the opinion of counsel for the
Shareholders, two or more of such Shareholders have conflicting interests in
the outcome of such action. In the event any person asserts a claim against a
Shareholder for which such Shareholder intends to seek indemnification
hereunder, such Shareholder shall give prompt notice to Buyer, and shall permit
Buyer to assume the defense of any such claim or any litigation resulting
therefrom with counsel selected by Buyer, which counsel shall be Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C. (unless such firm shall have a conflict of interest) or
other counsel reasonably acceptable to such Shareholder; provided that such
Shareholder may participate in such defense at its own expense, and provided
further that the failure of any Shareholder to give notice as provided herein
shall not relieve Buyer of its obligations under this Section 6.2 except to the
extent Buyer is materially prejudiced thereby. Buyer shall not, in the defense
of any such claim or litigation, except with the consent of the Shareholder
being indemnified, consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Shareholder of a release from all
liability in respect of such claim or litigation. Each Shareholder shall
promptly furnish such information regarding itself or the claim in question as
Buyer may reasonably request and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
Section 6.3 Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 6.4 Further Assurances.
(a) In the event the Buyer exercises the Option, the Buyer
and the Shareholders will each execute and deliver or cause to be executed and
delivered all further documents and instruments and use commercially reasonable
efforts to secure such consents and take all such further action as may be
reasonably necessary in order to consummate the transactions contemplated
hereby or to enable the Buyer and any assignee to exercise and enjoy all
benefits and rights of the Shareholders with respect to the Option and the
Shareholder Shares.
(b) Buyer and each of the Shareholders acknowledge that it is
Buyer's obligation to obtain the consent or approval of any insurance
regulatory body or insurance agency that may be required for the grant or
exercise of the Option or the proxy granted pursuant
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to this Agreement. Each of the Shareholders agrees to cooperate fully with
Buyer in obtaining any such consent or approval. Notwithstanding the preceding
sentence, the period in which the Option is exercisable pursuant to the terms
of Section 1.2 hereof will not be extended by this Section 6.4(b).
Section 6.5 Additional Agreements. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use commercially
reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or
bound, to consummate and make effective the transactions contemplated by this
Agreement.
Section 6.6 Specific Performance. The parties hereto agree that the
Buyer may be irreparably damaged if for any reason any Shareholder failed to
sell such Shareholder's Shares (or other securities deliverable pursuant to
Section 1.3 upon exercise of the Option or to perform any of its other
obligations under this Agreement, and that the Buyer would not have an adequate
remedy at law for money damages in such event. Accordingly, the Buyer shall be
entitled to specific performance and injunctive and other equitable relief to
enforce the performance of this Agreement by each Shareholder. This provision
is without prejudice to any other rights that the Buyer may have against any
Shareholder for any failure to perform its obligations under this Agreement.
Section 6.7 Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to such party and shall be given:
(a) if to Buyer to:
Merger Sub of Delaware, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
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with copies (which shall not constitute notice) to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
(b) if to a Shareholder, at the address set forth below such
Shareholder's name on the signature pages hereto.
Section 6.8 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shareholder Shares.
Section 6.9 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
maximum extent possible.
Section 6.10 Amendments. 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.
Section 6.11 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns, provided that Buyer may assign its
rights and obligations to any affiliate of Buyer in which case Buyer shall
remain liable hereunder; and provided, further, that no Shareholder may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the Buyer.
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Section 6.12 Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
Section 6.13 Jurisdiction. Each of the parties hereto (a) consents to
submit itself to the non-exclusive personal jurisdiction of any court of the
United States located in the State of Delaware or of any Delaware state court
in the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, and (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court.
Section 6.14 Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Section 6.15 Definitions. Capitalized terms used herein but not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Merger Sub of Delaware, Inc.
By: /s/ XXXXXXX X. WAY
--------------------------------
Name: Xxxxxxx X. Way
------------------------------
Title: Chairman of the Board and
Chief Executive Officer
-----------------------------
/s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continued on next page]
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/s/ L. XXXXXX XXXXXXXX, M.D.
-----------------------------------
L. Xxxxxx Xxxxxxxx, M.D.
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X & X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx
Co-Trustee of the Greedy Hand Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXX X. XXXXXXXX
-----------------------------------
Xxxx X. Xxxxxxxx,
Co-Trustee of the Greedy Hand Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxx Descendants Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
(Signature Page to Shareholder Option Agreement)
13
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxx Family Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
LSM Daughter Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxx X. Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
LSM Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
L. Xxxxxx Xx. Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-2
(Signature Page to Shareholder Option Agreement)
14
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
LSM Children Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
LSM Son Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
L. Xxxxxx Xx. Descendants Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, Trustee of the
L. Xxxxxx Xx. Family Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx
Co-Trustee of the Popcorn Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-2
(Signature Page to Shareholder Option Agreement)
15
/s/ XXXXX XXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxx
Co-Trustee of the Popcorn Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXX
-----------------------------------
Xxxxxx X. Xxxxx,
Co-Trustee of the Hit & Run Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ LASZLO XXXXXX XXXXXXXX
-----------------------------------
Laszlo Xxxxxx Xxxxxxxx,
Co-Trustee of the Hit & Run Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXX X. XXXXXXXX
-----------------------------------
Xxxx X. Xxxxxxxx,
000 Xxxx Xxxxxxx Xxxxxx
Xxx. 00X&X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-2
(Signature Page to Shareholder Option Agreement)
16
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx, general partner of
UBI Partnership
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx, Trustee of the
Xxxxxx and Xxxxx Xxxxxx Descendants Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx XXX, Bear Xxxxxxx
Security Corp. Custodian (individual
retirement account f/b/o Xxxxxx X. Xxxxxx)
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
/s/ L. XXXXXX XXXXXXXX
-----------------------------------
L. Xxxxxx Xxxxxxxx, Trustee of the
Singer Family Trust
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-2
(Signature Page to Shareholder Option Agreement)
17
EXHIBIT A
SHAREHOLDER(1) SHARES OPTIONS(2)
Xxxxx X. Xxxxxxx 44,000(3) 485,000
L. Xxxxxx Xxxxxxxx, M.D. 150,932 32,000
Xxxxxx Xxxxxx, Trustee of the L. Xxxxxx Xxxxxxxx Family Trust(4),(5) 67,060 0
Xxxxxx X. Xxxxx and Xxxx X. Xxxxxxxx, Co-Trustees of the Greedy Hand Trust(4) 100,000 0
Xxxxxx X. Xxxxx and Xxxxx Xxxxxxxx, Co-Trustees of the Popcorn Trust(4) 68,834 0
Xxxx X. Xxxxxxxx and Laszlo Xxxxxx Xxxxxxxx, Xx., Co-Trustees of the Hit & Run Trust(4) 85,834 0
Xxxx X. Xxxxxxxx 16,120 0
Xxxxxx X. Xxxxxx 270,005 84,200
UBI Partnership, Xxxxxx X. Xxxxxx, general partner 14,000 0
Xxxxx X. Xxxxxx, Trustee of the Xxxxxx and Xxxxx Xxxxxx Descendants Trust(4) 16,828 0
Xxxxxx X. Xxxxxx XXX, Bear Xxxxxxx Security Corp. Custodian (individual retirement 5,600 0
account f/b/o/ Xxxxxx X. Xxxxxx)
L. Xxxxxx Xxxxxxxx, Trustee of the Singer Family Trust(4) 172,622 0
--------
(1) Certain of the Shares set forth above have been pledged to secure certain
obligations of the Shareholders. In addition, certain of the shares set
forth above may deemed "beneficially owned" for federal securities law
purposes by more than one Shareholder. Such additional beneficial ownership
is not reflected in the above table in order to avoid duplicative reporting
of Shares.
(2) Any options held by a Shareholder to purchase additional Shares ("Company
Options") are not subject to the Option granted to Buyer pursuant to this
Agreement. Pursuant to Section 1.1 of this Agreement, to the extent any
Company Option held by a Shareholder is exercised prior to the exercise of
the Option granted pursuant to this Agreement, the Shares issuable by the
Company to the Shareholder under such Company Option will become subject to
this Agreement. As of the date hereof, the Company Options held by the
Shareholders are noted on this Exhibit A for information only.
(3) Xx. Xxxxxxx may be deemed a "beneficial owner" of 3,000 Shares owned by his
daughter, Xxxxxx Xxxxxxx, who resides with him. Those 3,000 Shares are not
included in Xx. Xxxxxxx'x Shareholder Shares and are not subject to this
Agreement.
(4) With respect to each of the above-mentioned Shareholders that are trusts,
the trustees thereof hold legal title and sole power to vote and dispose of
the Shares held by the subject trust.
(5) The L. Xxxxxx Xxxxxxxx Family Trust is actually ten individual trusts, each
holding 6,706 Shares.
