STOCK OPTION AGREEMENT
QuickLinks -- Click here to rapidly navigate through this document
Exhibit 99(d)(3)
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into as of March 15, 2002, by and between Mechanical Dynamics, Inc., a Michigan corporation (the "Issuer") and XXX.Xxxxxxxx Corporation, a Delaware corporation (the "Grantee").
A. Grantee, Issuer and MSC Acquisition II. Corp., a wholly owned subsidiary of Grantee, have entered into an Agreement and Plan of Merger of even date herewith (the "Merger Agreement"), which agreement has been executed by the parties hereto immediately prior to this Agreement; and
B. As a condition to its willingness to enter into the Merger Agreement, Grantee has required that Issuer enter into this Agreement, which provides, among other things, that Issuer grant to Grantee an option to purchase shares of Issuer's Common Stock, no par value ("Issuer Common Stock"), upon the terms and subject to the conditions provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained in this Agreement and the Merger Agreement, the parties agree as follows:
1. Grant of Option. Subject to the terms and conditions of this Agreement, Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase 1,177,309 shares of Issuer Common Stock (the "Option Shares"), in the manner set forth below, at an exercise price of $18.85 per share of Issuer Common Stock, subject to adjustment as provided below (the "Option Price"). Issuer represents that the Option Shares represent at least 19.0% of the number of shares of Issuer Common Stock outstanding on the date hereof. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Merger Agreement.
2. Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, Grantee or its designee (which shall be a wholly owned subsidiary of Grantee) may, prior to the Expiration Date (as defined in Section 11), exercise the Option, in whole or in part, at any time or from time to time on or after the occurrence of an Exercise Event (as defined below). As used herein, an "Exercise Event" shall mean (i) the termination of the Merger Agreement pursuant to subclauses (d), (f) or (g) of Section 8.01 of the Merger Agreement, (ii) if, prior to the termination of the Merger Agreement in accordance with its terms, any person, other than Grantee or any of its affiliates, shall have commenced (as such term is defined in Rule 14d-2 under the Exchange Act), or shall have filed a registration statement under, the Securities Act of 1933, as amended (the "Securities Act"), with respect to a tender offer or exchange offer to purchase any shares of the Issuer Common Stock such that, upon consummation of such offer, such person would own or control 10% or more of the outstanding Issuer Common Stock, or (iii) prior to the termination of the Merger Agreement in accordance with its terms, there shall have been publicly announced a proposal by any person, other than Grantee or any of its affiliates, to complete a Business Combination of Issuer that constitutes a Superior Proposal.
(b) In the event Grantee wishes to exercise the Option at such time as the Option is exercisable, Grantee shall deliver written notice (the "Exercise Notice") to Issuer specifying its intention to exercise the Option, the total number of Option Shares it wishes to purchase, and a date and time for the closing of such purchase (a "Closing") not less than three nor more than 10 business days after the later of (i) the date such Exercise Notice is given and (ii) the expiration or termination of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1
1976, as amended (the "HSR Act") applicable to the exercise or grant of the Option, if any. If this Option is exercisable as a result of the events described in Section 2(a)(i) only, Grantee, in lieu of exercising the Option, shall have the right at any time thereafter prior to the Expiration Date to request in writing (the "Cash Cancellation Notice") that Issuer pay, and promptly (but in any event not more than five business days) after Grantee makes such request, Issuer shall, subject to Section 2(c) below, pay to Grantee by certified check, official bank check or wire transfer pursuant to Grantee's instructions, in cancellation of the Option, an amount in cash (the "Cancellation Amount") equal to (i) the lesser of
(x) the excess, if any, over the Option Price of the greater of (A) the last sale price of a share of Issuer Common Stock as reported on The Nasdaq Stock Market (or other United States national exchange upon which Issuer's Common Stock is traded) on the last trading day prior to the date of the Cash Cancellation Notice (the "Last Sale Price"), (B) the highest price per share of Issuer Common Stock offered to be paid or paid in connection with the Superior Proposal or Business Combination giving rise to such Cash Cancellation Notice, and (C) if the Superior Proposal or Business Combination giving rise to such Cash Cancellation Notice is structured as an asset acquisition, the highest aggregate consideration offered to be paid or paid in such transaction or proposed transaction, divided by the number of shares of Issuer Common Stock then outstanding, and
(y) $2,000,000 divided by the initial number of Option Shares covered by the Option,
multiplied by (ii) the number of Option Shares then covered by the Option. If all or a portion of the price per share of Issuer Common Stock offered, paid, or payable or the aggregate consideration offered, paid, or payable for the assets of Issuer, each as contemplated by the preceding sentence, consists of noncash consideration, such price or aggregate consideration shall be the cash consideration, if any, plus the fair market value of the noncash consideration as mutually determined by the investment bankers of Issuer and the investment bankers of Grantee.
(c) In the event that Grantee, at any time prior to the first anniversary of the occurrence of the first Exercise Event, sells, pledges, or otherwise disposes of (including, without limitation, by merger or exchange) any of the Option Shares (a "Sale"), Grantee shall remit to Issuer, within five business days after completion of any Sale, the amount, if any, by which the amount received (whether in cash, securities or otherwise) by Grantee in such Sale, less the exercise price of such Option Shares sold in the Sale (the "Option Share Profit"), when added to the Cancellation Amount previously paid and the Option Share Profit from prior Sales of Option Shares not remitted to Issuer pursuant to this Section 2(c), exceeds $2,000,000.
3. Payment of Option Price and Delivery of Certificate. Any Closing under Section 2 of this Agreement shall be held at the principal executive offices of Issuer, or at such other place as Issuer and Grantee may agree. At any Closing hereunder, (a) Grantee or its designee will make payment to Issuer of the aggregate price for the Option Shares being so purchased by wire transfer of immediately available funds pursuant to Issuer's instructions payable to Issuer in an amount equal to the product obtained by multiplying the Option Price by the number of Option Shares to be purchased, and (b) upon receipt of such payment Issuer will deliver to Grantee or its designee (which shall be a wholly owned subsidiary of Grantee) a certificate or certificates representing the number of validly issued, fully paid, and nonassessable Option Shares so purchased, in the denominations and registered in such names (which shall be Grantee or a wholly owned subsidiary of Grantee) designated in writing to Issuer by Grantee and bearing the legend set forth in Section 7 hereof.
4. Registration and Listing of Option Shares.
(a) Following the exercise of the Option, Issuer agrees to use its commercially reasonable efforts to (i) effect as promptly as possible upon the request of Grantee or other holder of Option
2
Shares to whom Grantee has assigned its registration rights under this Section 4 (Grantee or such transferee referred to herein as a "Holder") and (ii) cause to become and remain effective for a period not in excess of 90 days from the day such registration statement first becomes effective (or such shorter period as may be necessary to effect the distribution of such shares) the registration under the Securities Act, and any applicable state securities laws, of all or any part of the Option Shares as may be acquired by Holder and specified in such request; provided, however, that (i) the Issuer shall have the right to select the managing underwriter for any such offering after consultation with the Holders, which managing underwriter shall be reasonably acceptable to Holders of a majority of the Option Shares to be registered, (ii) the Holders shall not be entitled to more than two effective registration statements hereunder, (iii) a Holder shall not be entitled to request such a registration statement within a period of one year after the effective date of a registration statement in which the Holder was entitled to include all or a portion of the Option Shares, (iv) a Holder shall not be entitled to request any such registration if it has received a written opinion of counsel to Issuer, which opinion shall be reasonably satisfactory to Holder and its counsel, that the distribution of Option Shares specified in Holder's request does not require registration of such Option Shares under the Securities Act, (v) the Issuer shall not be required to file a registration statement pursuant to this Section 4(a) if Issuer gives notice to the Holders that it proposes to file a registration statement with respect to Issuer Common Stock as contemplated by Section 4(b) within 45 days, the Holders will be entitled to include in such registration statement all Option Shares requested to be included in the registration statement pursuant to Section 4(a) and the offering contemplated by Section 4(b) is consummated within 90 days, and (vi) the Issuer shall not be required to qualify to do business in, or consent to general service of process in, any jurisdiction by reason of this provision. The obligations of Issuer hereunder to file a registration statement and to maintain its effectiveness may be suspended for one or more periods of time, not exceeding 90 days in the aggregate in any twelve-month period, if and so long as the Board of Directors of Issuer determines in good faith that the filing of such registration or the maintenance of its effectiveness would require disclosure of nonpublic information that would materially and adversely affect Issuer. Upon receipt of notice of the happening of any event as a result of which any registration statement, prospectus, prospectus supplement, or any document incorporated by reference in any of the foregoing, contains any untrue statement of material fact or fails or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, Holder shall forthwith discontinue the disposition of any shares under such registration statement, prospectus or prospectus supplement until Holder receives from Issuer copies (which, subject to the limitations on suspension set forth above, shall promptly be made available by Issuer) of an amended or supplemented registration statement, prospectus or supplement so that, as thereafter delivered to purchasers of such shares, such registration statement, prospectus or prospectus supplement shall not contain any untrue statement of material fact or fail or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The 90-day period specified in (ii) above shall be extended by the number of days during which Holder is precluded from disposing of Option Shares pursuant to the preceding two sentences. Grantee may not assign its rights under this Agreement to more than four holders of Option Shares.
(b) In addition to such demand registrations, if Issuer proposes to effect a registration of Issuer Common Stock for its own account or for the account of any other shareholder of Issuer (other than in connection with (i) employee stock option plans or similar arrangements or (ii) corporate acquisitions), Issuer will give prompt written notice to all Holders of its intention to do so and shall use its commercially reasonable efforts to include therein all Option Shares requested by Holders to be so included; provided, however, that, (i) Issuer shall not be required to include any Option Shares of a Holder in such registration if the Issuer has provided to Holder a
3
written opinion of counsel to Issuer, which opinion shall be reasonably satisfactory to Holder and its counsel, that the distribution of the Option Shares requested by Holder to be so included in such registration does not require registration under the Securities Act and (ii) if the managing underwriter of the offering covered by such registration advises Issuer that in its opinion the number of Option Shares requested to be included in such registration exceeds the number that can be sold in such offering without delaying or jeopardizing the success of that offering, Issuer shall, after fully including in such offering all securities to be sold by Issuer, include the shares requested to be included therein by Holders pro rata (based on the number of shares intended to be included therein) with the shares intended to be included therein by persons other than Issuer. In connection with any underwritten offering, sale and delivery of Option Shares pursuant to a registration statement effected pursuant to Section 4(a) or this Section 4(b), Holders participating in such offering and Issuer shall enter into an underwriting agreement reasonably acceptable to each such party, in form and substance customary for transactions of this type with the underwriters participating in such offering. No registration effected under this Section 4(b) shall relieve Issuer of its obligations to effect demand registrations under Section 4(a) hereof.
(c) Registrations effected under this Section 4 shall be effected at Issuer's expense, except that the fees and expenses of counsel to the Holders of Option Shares and the underwriting discounts and commissions to brokers or dealers shall be the sole responsibility of Holder. In connection with each registration under this Section 4, Issuer shall indemnify and hold each Holder participating in such offering and each of their respective affiliates harmless against any and all losses, claims, damage, liabilities, and expenses (including, without limitation, investigation expenses and fees and disbursements of counsel and accountants), joint or several, to which such Holder and its affiliates may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement (including any prospectus therein), or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, other than such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) that arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in written information furnished by a Holder or the underwriters to Issuer expressly for use in such registration statement.
(d) In connection with any registration statement pursuant to this Section 4, each Holder participating in such offering agrees to furnish Issuer with such information concerning itself and the proposed sale or distribution as shall reasonably be required in order to ensure compliance with the requirements of the Securities Act. In addition, such Holder shall indemnify and hold Issuer, its underwriters and each of their respective affiliates harmless against any and all losses, claims, damages, liabilities, and expenses (including, without limitation, investigation expenses and fees and disbursements of counsel and accountants), joint or several, to which Issuer, its underwriters, and each of their respective affiliates may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in written information furnished by such Holder to Issuer expressly for use in such registration statement.
(e) Upon entering into this Agreement, Issuer will use its commercially reasonable efforts promptly to list such Option Shares with The Nasdaq Stock Market.
(f) Any rights of the Holders to require registration under this Section 4 shall terminate with respect to any Option Shares that may be sold pursuant to Rule 144(k) under the Securities Act or
4
at such time as all of the Option Shares may be sold in any three-month period pursuant to Rule 144 under the Securities Act.
(g) The Holders agree, if requested by the managing underwriter of any public offering of Issuer Common Stock, to enter into a lock-up agreement prohibiting the transfer of any shares of Issuer Common Stock by the Holder during a period not to exceed 90 days following the completion of such offering.
5. Representations and Warranties of Issuer. Issuer hereby represents and warrants to Grantee as follows:
(a) Issuer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Michigan and has requisite corporate power and authority to enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Issuer and the consummation by Issuer of the transactions contemplated hereby, including the issuance and sale of the Option Shares, have been duly and validly authorized by the Board of Directors of Issuer, and no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Issuer and, assuming this Agreement has been duly and validly authorized, executed, and delivered by Grantee, constitutes a valid and binding obligation of Issuer enforceable against Issuer in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to creditors' rights generally, the availability of injunctive relief and other equitable remedies, and limitations imposed by law on indemnification for liability under federal securities laws.
(c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of this Agreement through the date of termination of the Option will have reserved for issuance upon exercise of the Option, such number of authorized shares of Issuer Common Stock as is equal to the number of Option Shares and will take all necessary action to authorize and reserve for issuance all shares of Issuer Common Stock or other securities which may be issuable pursuant to Section 10 upon exercise of the Option, each of which, upon issuance pursuant to this Agreement and when paid for as provided herein, will be validly issued, fully paid, and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances, and security interests and not subject to any preemptive rights.
(d) The execution, delivery, and performance of this Agreement by Issuer and the consummation by it of the transactions contemplated hereby, except as required by the HSR Act (if applicable), and, with respect to Section 4, compliance with the provisions of the Securities Act and any applicable state securities laws, do not require the consent, waiver, approval, license, or authorization of or result in the acceleration of any obligation under, or constitute a default under, any term, condition, or provision of any charter or bylaw, or any indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation, or decree or any restriction to which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such consents, waivers, approvals, licenses, or authorizations or where such acceleration or defaults would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
6. Representations and Warranties of Grantee. Grantee hereby represents and warrants to Issuer that:
(a) Grantee is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has requisite corporate power and authority to enter into and perform this Agreement.
5
(b) The execution and delivery of this Agreement by Grantee and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Grantee, and no other corporate proceedings on the part of Grantee are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Grantee and, assuming this Agreement has been duly executed and delivered by Issuer, constitutes a valid and binding obligation of Grantee enforceable against Grantee in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to creditors' rights generally, the availability of injunctive relief and other equitable remedies, and limitations imposed by law on indemnification for liability under federal securities laws, including, without limitation, the Securities Act.
(c) Grantee is acquiring the Option and it or any Holder will acquire the Option Shares issuable upon the exercise thereof for its own account and not with a view to the distribution or resale thereof in any manner not in accordance with applicable law.
(d) Grantee acknowledges that, as of the date of this Agreement, the Option Shares have not been registered under federal or state law and may not be resold without registration under federal and state securities laws or applicable exemptions from such registration requirements. Grantee also acknowledges that the Issuer is relying on these representations and warranties and the covenants of Grantee set forth in Section 7 of this Agreement for purposes of determining whether Grantee is eligible to receive this Option or purchase any Option Shares without registration under applicable state and federal securities laws.
(e) Grantee or any Holder will be able to bear the economic risk of any investment in the Option Shares for an indefinite period. At the time Grantee or any Holder exercises this Option, it or its financial advisor will have such knowledge and experience in financial matters that it will be capable of evaluating the merits and risks of the prospective investment in the Option Shares, will be familiar with the business, operations, properties, financial condition, results of operation, prospects and risk of the Issuer by virtue of its review of all of the information regarding the Issuer which has been provided to it or made available to it, and will have discussed with officers of Issuer any questions it may have with respect to the Issuer or its securities.
7. Covenants of Grantee. Grantee agrees not to transfer, encumber, pledge, hypothecate or otherwise dispose of the Option or any of the Option Shares, or any interest therein, except in compliance with the Securities Act and any applicable state securities law. Grantee further agrees to the placement of the following legend on the certificates representing the Option Shares (in addition to any legend required under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER EITHER (1) THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (2) ANY APPLICABLE STATE LAW GOVERNING THE OFFER AND SALE OF SECURITIES. NO TRANSFER OR OTHER DISPOSITION OF THESE SHARES, OR OF ANY INTEREST THEREIN, MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH OTHER STATE LAWS OR PURSUANT TO EXEMPTIONS FROM REGISTRATION UNDER THE ACT, SUCH OTHER STATE LAWS, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER."
8. Commercially Reasonable Efforts. Grantee and Issuer shall take, or cause to be taken, all reasonable action to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to obtain any necessary consents of third parties and governmental agencies and the filing by Grantee and Issuer promptly after the date hereof of any required HSR Act notification forms and the documents required to comply with the HSR Act.
6
9. Certain Conditions. The obligation of Issuer to issue Option Shares under this Agreement upon exercise of the Option shall be subject to the satisfaction or waiver by Issuer of the following conditions:
(a) any waiting periods applicable to the acquisition of the Option Shares by Grantee pursuant to this Agreement under the HSR Act shall have expired or been terminated;
(b) the representations and warranties of Grantee made in Section 6 of this Agreement shall be true and correct in all material respects as of the date of the Closing for the issuance of such Option Shares; and
(c) no order, decree, or injunction entered by any court of competent jurisdiction or governmental, regulatory, or administrative agency or commission in the United States shall be in effect that prohibits the exercise of the Option or acquisition of Option Shares pursuant to this Agreement.
10. Adjustments Upon Changes in Capitalization. In the event of any change in the number of issued and outstanding shares of Issuer Common Stock by reason of any stock dividend, stock split, recapitalization, merger, rights offering, share exchange, or other change in the corporate or capital structure of Issuer, Grantee shall receive, upon exercise of the Option, the number and class of stock or other securities, cash, or property to which Grantee would have been entitled if Grantee had exercised the Option and had been a holder of record of shares of Issuer Common Stock on the record date fixed for determination of holders of shares of Issuer Common Stock entitled to receive such stock or other securities, cash, or property at the same aggregate price as the aggregate Option Price of the Option Shares.
11. Termination. The Option shall expire and terminate at the earlier of (a) the Effective Time of the Merger, (b) the termination of the Merger Agreement pursuant to Section 8.01(a) or by the Issuer pursuant to Sections 8.01(b)(ii) or (iii) or Section 8.01(e) thereof, or (c) one year after the termination of the Merger Agreement in accordance with the terms thereof, unless Section 8.03(a)(ii) or Section 8.03(a)(iii) of the Merger Agreement applies, in which event the Option will expire one year after the Issuer enters into an agreement with respect to a Business Combination or a Business Combination occurs (such expiration date is referred to as the "Expiration Date").
12. General Provisions.
(a) Survival. All of the representations, warranties, and covenants contained herein shall survive each Closing and shall be deemed to have been made as of the date hereof and as of the date of each Closing.
(b) Further Assurances. If Grantee exercises the Option, or any portion thereof, in accordance with the terms of this Agreement, Issuer and Grantee will execute and deliver all such further documents and instruments and use their commercially reasonable efforts to take all such further action as may be necessary in order to consummate the transactions contemplated thereby.
(c) Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this Agreement would be held in any jurisdiction to be invalid, prohibited, or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not be invalid, prohibited, or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
7
(d) Assignment. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that Issuer shall not be entitled to assign or otherwise transfer any of its rights or obligations hereunder, and Grantee shall not be entitled to assign or otherwise transfer any of its rights or obligations hereunder, other than Grantee's rights under Section 4 which may be assigned to transferees of Option Shares.
(e) Specific Performance. The parties agree and acknowledge that in the event of a breach of any provision of this Agreement, the aggrieved party would be without an adequate remedy at law. The parties therefore agree that in the event of a breach of any provision of this Agreement, the aggrieved party may elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance or to enjoin the continuing breach of such provision, as well as to obtain damages for breach of this Agreement. By seeking or obtaining any such relief, the aggrieved party will not be precluded from seeking or obtaining any other relief to which it may be entitled.
(f) Amendments. This Agreement may not be modified, amended, altered, or supplemented except upon the execution and delivery of a written agreement executed by Grantee and Issuer.
(g) Notices. All notices, requests, claims, demands, and other communications hereunder shall be in writing and shall be deemed to be sufficient if contained in a written instrument and shall be deemed given if delivered personally, telecopied, sent by nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the other party at the following addresses (or such other address for a party as shall be specified by like notice):
If to Grantee:
XXX.Xxxxxxxx
Corporation
0 XxxXxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Xxx Xxxxx, CFO
Facsimile: (000) 000-0000
with a copy to:
O'Melveny &
Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
8
If to Issuer:
Mechanical
Dynamics, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx, Chairman & CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx
Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(h) Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.
(j) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
(k) Entire Agreement. This Agreement, the Merger Agreement and any documents and instruments referred to herein and therein constitute the entire agreement between the parties hereto and thereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the successors and permitted assigns of the parties hereto. Nothing in this Agreement shall be construed to give any person other than the parties to this Agreement or their respective successors or permitted assigns any legal or equitable right, remedy, or claim under or in respect of this Agreement or any provision contained herein.
(l) Expenses. Except as otherwise provided in this Agreement or the Merger Agreement, each party shall pay its own expenses incurred in connection with this Agreement.
[Remainder of page intentionally left blank]
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.
| XXX.XXXXXXXX CORPORATION, a Delaware corporation | ||||
By: |
/s/ XXXXX XXXXX, XX. |
|||
| Name: | Xxxxx Xxxxx, Xx. |
|||
| Title: | Chairman & CEO |
|||
MECHANICAL DYNAMICS, INC., a Michigan corporation |
||||
By: |
/s/ XXXXXXX X. XXXXXXXXXX |
|||
| Name: | Xxxxxxx X. Xxxxxxxxxx |
|||
| Title: | Chairman & CEO |
|||
10
STOCK OPTION AGREEMENT
RECITALS
