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EXHIBIT 3
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of January 26,
1997, by and between Endosonics Corporation, a Delaware corporation
("Acquiror"), and Cardiometrics, Inc., a Delaware corporation ("Target").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Target, Acquiror and River Acquisition Corporation, a Delaware
corporation ("Sub"), are entering into an Agreement and Plan of Reorganization,
dated as of the date hereof (the "Reorganization Agreement"), which provides
that, among other things, upon the terms and subject to the conditions thereof,
Merger Sub will be merged with and into Target (the "Merger"), with Target
continuing as the surviving corporation; and
WHEREAS, as a condition and inducement to Acquiror's willingness to
enter into the Reorganization Agreement, Acquiror has required that Target
agree, and Target has so agreed, to grant to Acquiror an option with respect to
certain shares of Target's common stock on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement,
the parties hereto agree as follows:
1. Grant of Option. Target hereby grants Acquiror an irrevocable
option (the "Target Option") to purchase up to 1,379,717 shares (the "Target
Shares") of common stock, par value $0.01 per share, of Target (the "Target
Common Stock") in the manner set forth below at a price (the "Exercise Price")
of $9.00 per Target Share, payable in cash, or at Acquiror's option, Target
shall loan Acquiror the Exercise Price (less the par value of the shares issued
upon exercise, such par value to be paid in cash), pursuant to an interest free
one-year term loan (the "Note"). Capitalized terms used herein but not defined
herein shall have the meanings set forth in the Reorganization Agreement.
2. Exercise of Option. The Target Option may be exercised by
Acquiror, in whole or in part at any time or from time to time after the
occurrence of any of the events described in Section 7.3(b) of the
Reorganization Agreement or if a Takeover Proposal or Trigger Event is
consummated. In the event Acquiror wishes to exercise the Target Option,
Acquiror shall deliver to Target a written notice (an "Exercise Notice")
specifying the total number of Target Shares it wishes to purchase. The closing
of the purchase of Target Shares (the "Closing") shall occur at a place, on a
date and at a time designated by Acquiror in an Exercise Notice delivered at
least two business days prior to the date of the Closing. The Target Option
shall terminate upon the earlier of: (i) the Effective Time; (ii) the
termination of the Reorganization Agreement pursuant to Section 7.1 thereof
(other than a termination in connection with which Acquiror is entitled to any
payments as specified in Sections 7.3(b)thereof); or (iii) 180 days following
any termination
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of the Reorganization Agreement in connection with which Acquiror is entitled to
a payment as specified in Section 7.3(b)thereof (or if, at the expiration of
such 180-day period, the Target Option cannot be exercised by reason of any
applicable judgment, decree, order, law or regulation, ten business days after
such impediment to exercise shall have been removed or shall have become final
and not subject to appeal), but in no event under this clause (iii) later than
March 31, 1997. Notwithstanding the foregoing, (i) the Target Option may not be
exercised if Acquiror is in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or in the
Reorganization Agreement; and (ii) in the event Acquiror receives more than the
Exercise Price multiplied by the number of Target Shares purchased by Acquiror
pursuant to the Target Option, in connection with sales or other dispositions of
the Target Shares, all proceeds in excess of such amount shall be remitted to
Target.
3. Conditions to Closing. The obligation of Target to issue the
Target Shares to Acquiror hereunder is subject to the conditions 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 Target Shares hereunder shall have
expired or have been terminated; (ii) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Target Shares hereunder shall have been obtained or
made, as the case may be; 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 the Closing, (a) Target will deliver to Acquiror a
single certificate in definitive form representing the number of Target Shares
designated by Acquiror in its Exercise Notice, such certificate to be registered
in the name of Acquiror and to bear the legend set forth in Section 13, and (b)
Acquiror will deliver to Target the aggregate price for the Target Shares so
designated and being purchased by wire transfer of immediately available funds
or certified check or bank check.
5. Representations and Warranties of Target. Target represents and
warrants to Acquiror that (a) Target 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
Target and the consummation by Target of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Target and no other corporate proceedings on the part of Target are necessary to
authorize this Agreement or any of the transactions contemplated hereby, (c)
this Agreement has been duly executed and delivered by Target and constitutes a
valid and binding obligation of Target, and, assuming this Agreement constitutes
a valid and binding obligation of Acquiror, is enforceable against Target in
accordance with its terms, except as enforceability may be limited by bankruptcy
and other laws affecting the rights and remedies
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of creditors generally and general principles of equity, (d) Target has taken
all necessary corporate action to authorize and reserve for issuance and to
permit it to issue, upon exercise of the Target Option, and at all times from
the date hereof through the expiration of the Target Option will have reserved,
1,379,717 unissued Target Shares, all of which, upon their issuance and delivery
in accordance with the terms of this Agreement, will be validly issued, fully
paid and nonassessable, (e) upon delivery of the Target Shares to Acquiror upon
the exercise of the Target Option, Acquiror will acquire the Target Shares free
and clear of all claims, liens, charges, encumbrances and security interests of
any nature whatsoever, except as provided for in the Note, (f) except as
described in the Reorganization Agreement, and except as may be required under
the Securities Act of 1933, as amended (the "Securities Act"), the execution and
delivery of this Agreement by Target does not, and the performance of this
Agreement by Target will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or the
loss of a benefit under, or the creation of a lien, pledge, security interest or
other encumbrance on assets pursuant to (any such conflict, violation, default,
right of termination, cancellation or acceleration, loss or creation, a
"Violation") (A) any provision of the Certificate of Incorporation, as amended,
or By-laws, as amended, of Target or (B) any provisions of any material
mortgage, indenture, lease, contract or other agreement, instrument, permit,
concession, franchise, or license required to be filed with the Target SEC
Documents or (C) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Target or its properties or assets, which Violation, in
the case of each of clauses (B) and (C), would have a Material Adverse Effect on
Target and (g) except as described in the Reorganization Agreement, the
execution and delivery of this Agreement by Target does not, and the performance
of this Agreement by Target will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority.
6. Representations and Warranties of Acquiror. Acquiror represents
and warrants to Target that (a) Acquiror 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 Acquiror and the consummation by Acquiror of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Acquiror and no other corporate proceedings on the part of
Acquiror are necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and delivered by
Acquiror and constitutes a valid and binding obligation of Acquiror, and,
assuming this Agreement constitutes a valid and binding obligation of Target, is
enforceable against Acquiror in accordance with its terms, except as
enforceability may be limited by bankruptcy and other laws affecting the rights
and remedies of creditors generally and general principles of equity, (d) except
as described in Section 3.3 of the Reorganization Agreement, the execution and
delivery of this Agreement by Acquiror does not, and the performance of this
Agreement by Acquiror will not, result in any Violation pursuant to, (A) any
provision of the Certificate
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of Incorporation or By-laws of Acquiror, (B) any provisions of any material
mortgage, indenture, lease, contract or other agreement, instrument, permit,
concession, franchise, or license or (C) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Acquiror or its properties or
assets, which Violation, in the case of each of clauses (B) and (C), would have
a Material Adverse Effect on Acquiror, (e) except as described in Section 3.3 of
the Reorganization Agreement and Section 3(i) of this Agreement, and except as
may be required under the Securities Act, the execution and delivery of this
Agreement by Acquiror does not, and the performance of this Agreement by
Acquiror will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority and (f)
any Target Shares acquired upon exercise of the Target Option will not be, and
the Target Option is not being, acquired by Acquiror with a view to the public
distribution thereof.
7. Certain Repurchases.
(a) Put and Call. At any time during which the Target Option is
exercisable pursuant to Section 2 hereof (the "Repurchase Period"), upon demand
by Acquiror, Acquiror shall have the right to sell to Target (or any successor
entity thereof) and Target (or such successor entity) shall be obligated to
repurchase from Acquiror (the "Put"), and upon demand by Target, subject to
Section 7(c) hereof, Target (or any successor entity thereof) shall have the
right to repurchase from Acquiror and Acquiror shall be obligated to sell to
Target (or such successor entity) (the "Call"), all or any portion of the Target
Option, at the price set forth in subparagraph (i) below, or, at any time prior
to March 31, 1997 all or any portion of the Target Shares purchased by Acquiror
pursuant thereto, at a price set forth in subparagraph (ii) below:
(i) the difference between the "Market/Tender Offer Price"
for shares of Target Common Stock as of the date (the "Notice Date") notice of
exercise of the Put or Call, as the case may be, is given to the other party
(defined as the higher of (A) the price per share offered as of the Notice Date
pursuant to any tender or exchange offer or other Takeover Proposal (as defined
in the Reorganization Agreement) which was made prior to the Notice Date and not
terminated or withdrawn as of the Notice Date (the "Tender Price") or (B) the
average of the closing prices of shares of Target Common Stock on the Nasdaq
National Market for the ten trading days immediately preceding the Notice Date,
(the "Market Price")), and the Exercise Price, multiplied by the number of
Target Shares purchasable pursuant to the Target Option (or portion thereof with
respect to which Acquiror or Target is exercising its rights under this Section
7), but only if the Market/Tender Offer Price is greater than the Exercise
Price;
(ii) the Exercise Price paid by Acquiror for the Target Shares
acquired pursuant to the Target Option plus the difference between the
Market/Tender Offer Price and the Exercise Price, but only if the Market/Tender
Offer Price is greater than the Exercise Price, multiplied by the number of
Target Shares so purchased;
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(iii) provided further that in no event shall the Acquiror
receive any proceeds pursuant to Section 7(a)(i) and provided further that in no
event shall the proceeds payable to Acquiror pursuant to Section 7(a) above
exceed the Exercise Price multiplied by the number of Target Shares purchased.
For purposes of clauses (i) and (ii) of this Section 7(a), the Tender Price
shall be the highest price per share offered pursuant to a tender or exchange
offer or other Takeover Proposal during the Repurchase Period.
(b) Payment and Redelivery of Target Option or Shares. In the event
Acquiror or Target exercises its rights under this Section 7, Target shall,
within ten business days of the Notice Date, pay the required amount to Acquiror
in immediately available funds and Acquiror shall surrender to Target the Target
Option or the certificates evidencing the Target Shares purchased by Acquiror
pursuant thereto, and Acquiror shall warrant that it owns such shares and that
such shares are then free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever.
(c) Limitation on Call. The Call shall not be exercisable by Target
(or any successor entity thereof) unless substantially concurrently therewith
Target has consummated the transaction contemplated by a Takeover Proposal or
the stockholders of Target have transferred their shares of Target Common Stock
pursuant to a tender or exchange offer or other Takeover Proposal.
8. Voting of Shares. Following the date hereof and prior to the
Expiration Date (as defined in Section 9(b)hereof), Acquiror shall vote any
shares of Target Common Stock acquired pursuant to this Agreement ("Restricted
Shares") on each matter submitted to a vote of stockholders of Target for and
against such matter in the same proportion as the vote of all other stockholders
of Target are voted (whether by proxy or otherwise) for and against such matter.
9. Restrictions on Certain Actions.
(a) Restrictions. Other than pursuant to the Reorganization
Agreement, following the date hereof and prior to the Expiration Date, without
the prior written consent of Target, Acquiror shall not, nor shall Acquiror
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, Target (other
than pursuant to this Agreement or the Reorganization Agreement), (ii) except at
the specific written request of Target, propose to enter into any merger or
business combination involving Target or to purchase a material portion of the
assets of Target, (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 Target, (iv) form, join or in any way
participate in a Group with respect to any voting securities of Target, (v) seek
to control or influence the management, Board of Directors or policies of
Target, (vi) disclose any
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intention, plan or arrangement inconsistent with the foregoing, (vii) advise,
assist or encourage any other Person in connection with the foregoing or (viii)
request Target (or its directors, officers, employees or agents) to amend or
waive any provisions of this Section 9, or take any action which may require
Target to make a public announcement regarding the possibility of a business
combination or merger with such party. Target shall not adopt any Rights
Agreement in any manner which would cause Acquiror, if Acquiror has complied
with its obligations under this Agreement, to become an "Acquiring Person" under
such Rights Agreement solely by reason of the beneficial ownership of the shares
purchasable hereunder.
(b) Certain Definitions. 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 third anniversary of the date hereof or (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 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 20% or more, or
commences a tender or exchange offer following the successful consummation of
which the offeror and its affiliates would beneficially own securities
representing 20% 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; provided, however, that a Change in Control shall not be deemed to
include the acquisition by any party of securities representing 20% or more of
Target if such party has acquired such securities not with the purpose nor with
the effect of changing or influencing the control of Target, nor in connection
with or as a participant in any transaction having such purpose or effect,
including without limitation not in connection with such party (i) making any
public announcement with respect to the voting of such shares at any meeting to
consider any merger, consolidation, sale of substantial assets or other business
combination or extraordinary transaction involving Target, (ii) making, or in
any way participating in, any
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"solicitation" of "proxies" (as such terms are defined or used in Regulation 14A
under the Exchange Act) to vote any voting securities of Target (including,
without limitation, any such solicitation subject to Rule 14a-11 under the
Exchange Act) or seeking to advise or influence any party with respect to the
voting of any voting securities of Target, directly or indirectly, relating to a
merger or other business combination involving Target or the sale or transfer of
any material assets (excluding the sale or disposition of assets in the ordinary
course of business) of Target, (iii) forming, joining or in any way
participating in any "group" within the meaning of Section 13(d)(3) of the
Exchange Act with respect to any voting securities of Target, directly or
indirectly, relating to a merger or other business combination involving Target
or the sale or transfer of any material assets (excluding the sale or
disposition of assets in the ordinary course of business) of Target, or (iv)
otherwise acting, alone or in concert with others, to seek control of Target or
to seek to control or influence the management or policies of Target, 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,
Acquiror 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 Acquiror, other than (i) pursuant to Section 7, or (ii) in
accordance with Section 10(b).
(b) Permitted Sales. Following the termination of the
Reorganization Agreement, Acquiror 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 Target, by a majority
of the members of the Board of Directors of Target (which majority shall include
a majority of directors who were directors prior to the announcement of such
tender or exchange offer).
11. Adjustment Upon Changes in Capitalization. In the event of any
change in Target 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 Target
Option, and the purchase price per share provided in Section 1, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction so that Acquiror shall receive, upon
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exercise of the Target Option, the number and class of shares or other
securities or property that Acquiror would have received in respect of the
Target Common Stock if the Target Option had been exercised immediately prior to
such event or the record date therefor, as applicable.
12. Restrictive Legends. Each certificate representing shares of Target
Common Stock issued to Acquiror 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 JANUARY 26, 1997, A COPY OF WHICH MAY
BE OBTAINED FROM THE ISSUER.
13. 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 or transferable, 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.
14. 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
this Agreement, neither party will allege, and each party hereby waives the
defense, that there is adequate remedy at law.
15. Entire Agreement. This Agreement and the Reorganization Agreement
(including the Target Disclosure Schedule and the Acquiror Disclosure Schedule
relating thereto) 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.
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16. Further Assurance. 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.
17. 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 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.
18. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered mail, postage prepaid, and shall
be deemed to be given, dated and received when so delivered personally,
telegraphed or telecopied or, if mailed, five business days after the date of
mailing to the following address or telecopy number, or to such other address or
addresses as such person may subsequently designate by notice given hereunder.
(a) if to Acquiror or Merger Sub, to:
Endosonics Corporation
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: President
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
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with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxx Xxxx
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) if to Target, to:
Cardiometrics, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: President
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State without regard to any
applicable conflicts of law rules.
20. 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.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
22. Expenses. Except as otherwise expressly provided herein or in
the Reorganization Agreement, all costs and expenses incurred in connection with
the
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transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
23. 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.
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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.
ACQUIROR
By:____________________________
Name:__________________________
Title:_________________________
TARGET
By:____________________________
Name:__________________________
Title:_________________________
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
