Exhibit 99.2
CRA MANAGED CARE, INC. STOCK OPTION AGREEMENT
CRA MANAGED CARE, INC. STOCK OPTION AGREEMENT (this "Agreement"), dated as
of April 21, 1997 by and between OccuSystems, Inc., a Delaware corporation
("OSI"), and CRA Managed Care, Inc., a Massachusetts corporation ("CRA").
WHEREAS, concurrently with the execution and delivery of this Agreement,
OSI, CRA and Concentra Managed Care, Inc. a Delaware corporation ("Holding
Company"), are entering into an Agreement and Plan of Reorganization, dated as
of the date hereof (the "Merger Agreement"), which provides that, among other
things, upon the terms and subject to the conditions thereof, CRA will be merged
with a wholly owned subsidiary of Holding Company (the "Merger"), with CRA
continuing as the surviving corporation;
WHEREAS, as a condition to OSI's willingness to enter into the Merger
Agreement, OSI has requested that CRA agree, and CRA has so agreed, to grant to
OSI an option with respect to certain shares of CRA's common stock on the terms
and subject to the conditions set forth herein; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
CRA and OSI are entering into an OSI Stock Option Agreement (the "OSI Stock
Option Agreement") pursuant to which OSI has agreed to grant to CRA an option
with respect to certain shares of OSI's Common Stock on the terms and subject to
the conditions set forth therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option.
(a) CRA hereby grants OSI an irrevocable option (the "CRA Option") to
purchase up to the Option Number (as hereinafter defined) of shares (the "CRA
Shares") of common stock, par value $.01 per share, of CRA (the "CRA Common
Stock"), in the manner set forth below at a price (the "Exercise Price") of $37
7/8 per CRA Share, payable in cash in accordance with Section 4 hereof. As used
herein, the "Option Number" shall initially be the number of shares equal to 10%
of the total number of shares of CRA Common Stock issued and outstanding as of
March 31, 1997, and shall be adjusted hereafter to reflect changes in CRA's
capitalization occurring after the date hereof in accordance with Section 12.
Capitalized terms used herein but not defined herein shall have the meanings set
forth in the Merger Agreement.
(b) Notwithstanding any other provision of this Agreement, in no event
shall OSI's Total Profit (as hereinafter defined) exceed $15 million and, if it
otherwise would exceed such amount, OSI, at its sole election, shall either (a)
deliver to CRA for cancellation CRA Shares previously purchased by OSI, (b) pay
cash to CRA or (c) undertake any combination thereof, so that OSI's Total Profit
shall not exceed $15 million after taking into account the foregoing actions.
(c) Notwithstanding any other provision of this Agreement, the CRA Option
may not be exercised for a number of CRA Shares as would, as of the date of the
Exercise Notice (as hereinafter defined), result in a Notional Total Profit (as
hereinafter defined) of more than $15 million and, if exercise of the CRA Option
otherwise would exceed such amount, OSI, at its discretion, may increase the
Purchase Price for that number of CRA Shares set forth in the Exercise Notice so
that the Notional Total Profit shall not exceed $15 million.
(d) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount of cash received by OSI
pursuant to Section 9.5(b) of the Merger Agreement, (ii) (x) the amount received
by OSI pursuant to CRA's repurchase of CRA Shares or the CRA Option pursuant to
Section 7 hereof, less (y) OSI's purchase price for such CRA Shares, and (iii)
(x) the net cash amounts received by OSI pursuant to the sale of CRA Shares (or
any other securities into which such CRA Shares are converted or exchanged),
less (y) OSI's purchase price for such CRA Shares.
(e) As used herein, the term "Notional Total Profit" with respect to any
number of CRA Shares as to which OSI may propose to exercise the CRA Option
shall be the Total Profit determined as of the date of the Exercise Notice
assuming that the CRA Option was exercised on such date for such number of CRA
Shares and assuming that such CRA Shares, together with all other CRA Shares
held by OSI and its affiliates as of such date, were sold for cash at the
closing market price for the CRA Common Stock as of the close of business on the
preceding trading day (less customary brokerage commissions).
2. Exercise of Option. The CRA Option may be exercised by OSI, in whole or
in part, at any time or from time to time after the occurrence of a "Trigger
Event". For purposes hereof, a "Trigger Event" shall mean an event that causes
CRA to pay the fee to OSI provided in Section 9.5(b) of the Merger Agreement. In
the event OSI wishes to exercise the CRA Option, OSI shall deliver to CRA a
written notice (an "Exercise Notice") specifying the total number of CRA Shares
it wishes to purchase. Each closing of a purchase of CRA Shares (a "Closing")
shall occur at a place, on a date and at a time designated by OSI in an Exercise
Notice delivered at least two business days prior to the date of the Closing.
The CRA Option shall terminate (the "Termination Date") upon the earlier of: (i)
the Effective Time; (ii) the termination of the Merger Agreement other than
under circumstances which also constitute a Trigger Event; or (iii) the 180th
day following a Trigger Event (or if, at the expiration of such period the CRA
Option cannot be exercised by reason of any applicable judgment, decree, order,
law or regulation, 10 business days after such impediment to exercise
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shall have been removed or shall have become final and not subject to appeal but
in no event under this clause (iii) later than the 548th day following such
Triggering Event). Notwithstanding the foregoing, the CRA Option may not be
exercised if OSI is in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or in the Merger
Agreement.
3. Conditions to Closing. The obligation of CRA to issue the CRA Shares to
OSI hereunder is subject to the conditions, which (other than the conditions
described in clauses (i) and (iii) below) may be waived by CRA in its sole
discretion, that (i) all waiting periods, if any, under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder ("HSR Act"), applicable to the issuance of the CRA Shares
hereunder shall have expired or have been terminated, and all consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any federal administrative agency or commission or other federal
governmental authority or instrumentality, if any, required in connection with
the issuance of the CRA Shares hereunder shall have been obtained or made, as
the case may be; (ii) the CRA Shares shall have been approved for quotation on
the Nasdaq Stock Market upon official notice of issuance; and (iii) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance shall be in
effect.
4. Closing. At any Closing, (a) CRA will deliver to OSI a single
certificate in definitive form representing the number of CRA Shares designated
by OSI in its Exercise Notice, such certificate to be registered in the name of
OSI and to bear the legend set forth in Section 13, and (b) OSI will deliver to
CRA the aggregate price for the CRA Shares so designated and being purchased by
wire transfer of immediately available funds to a bank designated by CRA at the
Closing.
5. Representations and Warranties of CRA. CRA represents and warrants to
OSI that (a) CRA is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this Agreement by CRA
and the consummation by CRA of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of CRA and no
other corporate proceedings on the part of CRA are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (d) this Agreement has
been duly executed and delivered by CRA and constitutes a valid and binding
obligation of CRA, and, assuming this Agreement constitutes a valid and binding
obligation of OSI, is enforceable against CRA in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) CRA has
taken all necessary corporate action to authorize and reserve for issuance and
to permit it to issue, upon exercise of the CRA Option, and at all times from
the date hereof through the expiration of the CRA Option will have reserved, a
number of authorized and unissued CRA Shares not less than the Option Number,
all of which, upon their issuance and
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delivery in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable, (e) upon delivery of CRA Shares to OSI upon the
exercise of the CRA Option, OSI will acquire CRA Shares, free and clear of all
claims, liens, charges, encumbrances and security interests of any nature
whatsoever, (f) the execution and delivery of this Agreement by CRA does not,
and the performance of this Agreement by CRA will not (i) violate the Articles
of Organization or By-Laws of CRA, (ii) conflict with or violate any statute,
rule, regulation, order, judgment or decree applicable to CRA or by which it or
any of its property is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give rise to any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of CRA pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, or other
instrument or obligation to which CRA is a party or by which CRA or any of its
property is bound or affected, except, in the case of clauses (ii) and (iii)
above, for violations, breaches, defaults, rights, liens or encumbrances which
would not, individually or in the aggregate, have a CRA Material Adverse Effect,
and (g) the execution and delivery of this Agreement by CRA does not, and the
performance of this Agreement by CRA will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority except the pre-merger notification requirements of the
HSR Act.
6. Representations and Warranties of OSI. OSI represents and warrants to
CRA that (a) OSI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (b) the execution and delivery of this Agreement by OSI and the
consummation by OSI of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of OSI and no other
corporate proceedings on the part of OSI are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this Agreement has
been duly executed and delivered by OSI and constitutes a valid and binding
obligation of OSI, and, assuming this Agreement constitutes a valid and binding
obligation of CRA, is enforceable against OSI in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) the
execution and delivery of this Agreement by OSI does not, and the performance of
this Agreement by OSI will not (i) violate the Certificate of Incorporation or
By-Laws of OSI, (ii) conflict with or violate any statute, rule, regulation,
order, judgment or decree applicable to OSI or by which it or any of its
property is bound or affected or (iii) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of OSI pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, or other instrument or
obligation to which OSI is a party or by which OSI or any of its property is
bound or affected, except, in the case of clauses (ii) and (iii) above, for
violations, breaches, defaults, rights, liens or encumbrances which would not,
individually or in the aggregate, have an OSI
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Material Adverse Effect, (e) the execution and delivery of this Agreement by OSI
does not, and the performance of this Agreement by OSI will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, except the pre-merger notification
requirements of the HSR Act and (f) any CRA Shares acquired upon exercise of the
CRA Option will not be, and the CRA Option is not being, acquired by OSI with a
view to the public distribution thereof.
7. Certain Repurchases.
(a) OSI Put. At the request of OSI at any time during which the CRA Option
would be exercisable pursuant to Section 2 (the "Repurchase Period"), CRA (or
any successor entity thereof) shall, subject to the limitations set forth in
Xxxxxxx 0, xxxxxxxxxx from OSI (1) the CRA Option, including any portion
thereof, at the price set forth in subparagraph (i) below, or (2) CRA Shares
purchased by OSI pursuant thereto, at a price set forth in subparagraph (ii)
below:
(i) the difference between the average of the closing sale prices of
shares of CRA Common Stock on the Nasdaq Stock Market for the ten trading
days immediately preceding the date OSI gives notice of its intent to
exercise its rights under this Section 7 (the "Market Price") and the
Exercise Price, multiplied by the number of the CRA Shares purchasable
pursuant to the CRA Option (or portion thereof with respect to which OSI
is exercising its rights under this Section 7), but only if the Market
Price is greater than the Exercise Price; or
(ii) the Exercise Price paid by OSI for the CRA Shares acquired
pursuant to the CRA Option plus the difference between the Market Price
and the Exercise Price, but only if the Market Price is greater than the
Exercise Price, multiplied by the number of CRA Shares so purchased.
(b) Payment and Redelivery of the CRA Option or Shares. In the event OSI
exercises its rights under this Section 7, CRA shall, within 10 business days
thereafter, pay the required amount to OSI by wire transfer of immediately
available funds and OSI shall surrender to CRA the CRA Option or the
certificates evidencing CRA Shares purchased by OSI pursuant thereto, and OSI
shall warrant that it owns such shares and that such shares are then free and
clear of all liens, claims, damages, charges and encumbrances of any kind or
nature whatsoever.
8. Voting of Shares. Following the date hereof and prior to the Expiration
Date (as defined in Section 9(b)), each party shall vote any shares of capital
stock of the other party acquired by such party pursuant to this Agreement or
otherwise beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) by such
party (the shares so owned by a party collectively the "Restricted Shares") on
each matter submitted to a vote of stockholders of such other party for
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and against such matter in the same proportion as the vote of all other
stockholders of such other party are voted (whether by proxy or otherwise) for
and against such matter.
9. Restriction on Certain Actions.
(a) Restrictions. Other than pursuant to the Merger Agreement, following
the date hereof and prior to the Expiration Date, without the prior written
consent of the other party, neither party shall, nor shall permit its affiliates
to, directly or indirectly, alone or in concert or conjunction with any other
Person or Group (as defined in Section 9(b)), (i) in any manner acquire, agree
to acquire or make any proposal to acquire, any securities of, equity interest
in, or any material property of, such other party or any of its subsidiaries
(other than pursuant to this Agreement, the OSI Stock Option Agreement or the
Merger Agreement), (ii) except at the specific written request of such other
party, propose to enter into any merger or business combination involving such
other party or any of its subsidiaries or to purchase a material portion of the
assets of such other party or any of its subsidiaries, (iii) make or in any way
participate in any "solicitation" of "proxies" (as such terms are used in
Regulation 14A promulgated under the Exchange Act) to vote, or seek to advise or
influence any Person with respect to the voting of, any voting securities of
such other party or any of its subsidiaries, (iv) form, join or in any way
participate in a Group with respect to any voting securities of such other party
or any of its subsidiaries, (v) seek to control or influence the management,
Board of Directors or policies of such other party, (vi) disclose any intention,
plan or arrangement inconsistent with the foregoing, (vii) advise, assist or
encourage any other Person in connection with the foregoing or (viii) request
such other party (or its directors, officers, employees or agents), to amend or
waive any provision of this Section 9, or take any action which may require such
other party to make a public announcement regarding the possibility of a
business combination or merger with such party.
(b) Expiration Date. For purposes of this Agreement, (i) the term "Person"
shall mean any corporation, partnership, individual, trust, unincorporated
association or other entity or Group (within the meaning of Section 13(d)(3) of
the Exchange Act), (ii) the term "Expiration Date" with respect to any
obligation or restriction imposed on one party shall mean the earlier to occur
of (A) the first anniversary of the date hereof and (B) such time as the other
party shall have suffered a Change of Control and (iii) a "Change of Control"
with respect to one party shall be deemed to have occurred whenever (A) there
shall be consummated (1) any consolidation or merger of such party in which such
party is not the continuing or surviving corporation, or pursuant to which
shares of such party's common stock would be converted in whole or in part into
cash, other securities or other property, other than a merger of such person in
which the holders of such party's common stock immediately prior to the merger
have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (2) any sale, lease,
exchange or transfer (in one transaction or a series of related transactions) of
all or substantially all the assets of such party, or (B) the stockholders of
such party shall approve any plan or proposal for the liquidation or dissolution
of such party, or (C) any party, other
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than such party or a subsidiary thereof or any employee benefit plan sponsored
by such party or a subsidiary thereof or a corporation owned, directly or
indirectly, by the stockholders of such party in substantially the same
proportions as their ownership of stock of such party, shall become the
beneficial owner of securities of such party representing 25% or more of the
combined voting power of then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or (D) at any time
during the period commencing on the date of this Agreement and ending on the
Expiration Date, individuals who at the date hereof constituted the Board of
Directors of such party shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by such
party's stockholders of each new director during the period commencing on the
date of this Agreement and ending on the Expiration Date was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the date hereof, or (E) any other event shall occur with respect to such
party that would be required to be reported in response to Item 6(e) (or any
successor provision) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act.
10. Restrictions on Transfer.
(a) Restrictions on Transfer. Prior to the Expiration Date, OSI shall not,
directly or indirectly, by operation of law or otherwise, sell, assign, pledge
or otherwise dispose of or transfer any Restricted Shares beneficially owned by
it, other than (i) pursuant to Section 7, or (ii) in accordance with Section
10(b) or 11. Subsequent to the Expiration Date, OSI shall not, directly or
indirectly, by operation of law or otherwise, sell, assign, pledge or otherwise
dispose of or transfer any Restricted Shares beneficially owned by it to any
purchaser, assignee, pledgee or other transferee who would, immediately after
such sale, assignment, pledge, disposition or transfer, beneficially own more
than 4.9% of the then outstanding voting power of the issuer of the Restricted
Shares, except in accordance with Section 10(b) or Section 11.
(b) Permitted Sales. Following the termination of the Merger Agreement,
OSI shall be permitted to sell any Restricted Shares beneficially owned by it if
such sale is made pursuant to a tender or exchange offer that has been approved
or recommended, or otherwise determined to be fair and in the best interests of
the stockholders of CRA, by a majority of the members of the Board of Directors
of CRA (which majority shall include a majority of directors who were directors
prior to the announcement of such tender or exchange offer).
11. Registration Rights. Following the termination of the Merger
Agreement, OSI (a "Designated Holder") may by written notice (the "Registration
Notice") to CRA (the "Registrant") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares beneficially owned by
such Designated Holder (the "Registrable Securities") pursuant to a bonafide
firm commitment underwritten public offering in which the Designated Holder and
the underwriters shall effect as wide a distribution of such Registrable
Securities as
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is reasonably practicable and shall use their best efforts to prevent any Person
(including any Group) and its affiliates from purchasing through such offering
Restricted Shares representing more than 1% of the outstanding shares of Common
Stock of the Registrant on a fully diluted basis (a "Permitted Offering"). The
Registration Notice shall include a certificate executed by the Designated
Holder and its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing and reasonably
satisfactory to the Registrant (the "Manager"), stating that (i) they have a
good faith intention to commence promptly a Permitted Offering and (ii) the
Manager in good faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at a per share
price equal to at least 80% of the Fair Market Value of such shares. For
purposes hereof, the "Fair Market Value" of such shares shall mean the average
of the closing sales prices of such shares on the Nasdaq Stock Market (or such
other stock exchange or market system as shall then be the primary trading
market for such security) for the ten trading days immediately preceding the
Registration Notice. The Registrant (and/or any Person designated by the
Registrant) shall thereupon have the option exercisable by written notice
delivered to the Designated Holder within 10 business days after the receipt of
the Registration Notice, irrevocably to agree to purchase all or any part of the
Registrable Securities for cash at a price (the "Option Price") equal to the
product of (i) the number of Registrable Securities to be purchased and (ii) the
Fair Market Value of such shares. Any such purchase of Registrable Securities by
the Registrant hereunder shall take place at a closing to be held at the
principal executive offices of the Registrant or its counsel at any reasonable
date and time designated by the Registrant and/or such designee in such notice
within 20 business days after delivery of such notice. Any payment for the
shares to be purchased shall be made by delivery at the time of such closing of
the Option Price in immediately available funds.
If the Registrant does not elect to exercise its option pursuant to this
Section 11 with respect to all Registrable Securities, it shall use its
reasonable best efforts to effect, as promptly as practicable, the registration
under the Securities Act of the unpurchased Registrable Securities; provided,
however, that (i) neither party shall be entitled to more than an aggregate of
two effective registration statements hereunder and (ii) the Registrant will not
be required to file any such registration statement during any period of time
(not to exceed 40 days after such request in the case of clause (A) below or 90
days in the case of clauses (B) and (C) below) when (A) the Registrant is in
possession of material non-public information which it reasonably believes would
be detrimental to be disclosed at such time and, in the opinion of counsel to
such Registrant, such information would have to be disclosed if a registration
statement were filed at that time; (B) such Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) such Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant or
any of its affiliates. If consummation of the sale of any Registrable Securities
pursuant to a registration hereunder does not occur within 90 days after the
filing with the Securities and Exchange Commission of the initial registration
statement, the provisions of this
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Section 11 shall again be applicable to any proposed registration; provided,
however, that neither party shall be entitled to request more than two
registrations pursuant to this Section 11. The Registrant shall use its
reasonable best efforts to cause any Registrable Securities registered pursuant
to this Section 11 to be qualified for sale under the securities or Blue-Sky
laws of such jurisdictions as the Designated Holder may reasonably request and
shall continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Registrant shall not be required to
qualify to do business in, consent to general service of process in, or subject
itself to taxation in any jurisdiction by reason of this provision.
The registration rights set forth in this Section 11 are subject to the
condition that the Designated Holder shall provide the Registrant with such
information with respect to such holder's Registrable Securities, the plans for
the distribution thereof, and such other information with respect to such holder
as, in the reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all material
facts required to be disclosed with respect to a registration thereunder.
A registration effected under this Section 11 shall be effected at the
Registrant's expense, except for underwriting discounts and commissions and the
fees and expenses of counsel to the Holder, and the Registrant shall provide to
the underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings as such underwriters may reasonably require. In
connection with any such registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting agreement in form and substance customary to transactions of this
type with the Manager and the other underwriters participating in such offering.
12. Adjustment upon Changes in Capitalization. In the event of any change
in CRA Common Stock by reason of stock dividends, splitups, mergers (other than
the Merger), recapitalizations, combinations, exchange of shares or the like,
the type and number of shares or securities subject to the CRA Option, and the
purchase price per share provided in Section 1, shall be adjusted appropriately.
13. Restrictive Legends. Each certificate representing shares of CRA
Common Stock issued to OSI hereunder, shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY
IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH
IN THE STOCK OPTION AGREEMENT, DATED AS OF APRIL 21, 1997, A COPY OF WHICH MAY
BE OBTAINED FROM CRA MANAGED CARE, INC.
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14. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement,
neither this Agreement nor the rights or the obligations of either party hereto
are assignable, except by operation of law, or with the written consent of the
other party. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective permitted assigns any rights or remedies of any nature whatsoever by
reason of this Agreement. Any Restricted Shares sold by a party in compliance
with the provisions of Section 10 or 11 shall, upon consummation of such sale,
be free of the restrictions imposed with respect to such shares by this
Agreement, unless and until such party shall repurchase or otherwise become the
beneficial owner of such shares, and any transferee of such shares shall not be
entitled to the rights of such party. Certificates representing shares sold in a
registered public offering pursuant to Section 11 shall not be required to bear
the legend set forth in Section 13.
15. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that, in addition to other remedies, the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of the Agreement,
neither party will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
16. Entire Agreement. This Agreement, the Confidentiality Agreement dated
March 19, 1997 between CRA and OSI (other than the "standstill" provisions
thereof, which are superseded pursuant to Section 10.4 of the Merger Agreement),
the Merger Agreement (including the exhibits and schedules thereto) and the OSI
Stock Option Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof.
17. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
18. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or
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other competent authority hold any provision of this Agreement or part hereof to
be null, void or unenforceable, or order any party to take any action
inconsistent herewith, or not take any action required herein, the other party
shall not be entitled to specific performance of such provision or part hereof
or to any other remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof as the result
of such holding or order.
19. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by next day delivery by a nationally recognized overnight delivery
service or by certified or registered mail, postage prepaid, and shall be deemed
to be given, dated and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answer back or confirmation when so
delivered by telegraph or telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice hereunder)
or (iii) one business day after sending by overnight delivery, and five business
days after the date of mailing by certified or registered mail, to the following
address or to such other address or addresses as such person may subsequently
designate by notice given hereunder, if so delivered by mail:
If to CRA:
CRA Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman
Telecopier No.: (000) 000-0000
With copies to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to OSI:
OccuSystems, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
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Telecopier No.: (000) 000-0000
With copies to:
Xxxxxx & Xxxxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely within such State.
21. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original, but both of which, taken together,
shall constitute one and the same instrument.
23. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
24. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
OCCUSYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Title: Chairman & Chief Executive Officer
CRA MANAGED CARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: President & Chief Executive Officer
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