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EXHIBIT 99.2
COMPANY STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this "STOCK OPTION AGREEMENT"), dated as of
January 17, 2000, is by and between JDS Uniphase Corporation, a Delaware
corporation ("GRANTEE"), and E-TEK Dynamics, Inc., a Delaware corporation
("ISSUER").
RECITALS
A. Grantee and Issuer propose to enter into an Agreement and Plan of
Reorganization and Merger, dated as of the date hereof (the "MERGER AGREEMENT"),
which has been executed in connection with this Agreement (each capitalized term
used herein without definition shall have the meaning specified in the Merger
Agreement).
B. As a condition to Grantee's entering into the Merger Agreement and in
consideration therefor, Issuer has agreed to grant Grantee the Option (as
hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. GRANT OF OPTION. Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "OPTION") to purchase, subject to the terms hereof, up
to 19.9% as of the date hereof, as adjusted in accordance with the provisions of
Section 5 of this Agreement, of the outstanding shares of common stock of the
Issuer, par value $0.001 per share (the "COMMON STOCK"), fully paid and
nonassessable, at a purchase price of $211.41 per share, (such price, as
adjusted if applicable, the "OPTION PRICE").
2. EXERCISE OF OPTION.
(a) Exercise. Grantee may exercise the Option, in whole or part, and
from time to time, if, but only if, a Triggering Event (as hereinafter defined)
shall have occurred prior to the occurrence of an Option Termination Event (as
hereinafter defined).
(b) Option Termination Events. The term "OPTION TERMINATION EVENT" shall
mean any of the following events: (i) immediately prior to the Effective Time of
the Merger; (ii) termination of the Merger Agreement pursuant to Section 7.01 of
the Merger Agreement (other than where a Triggering Event has occurred); or
(iii) one year following any termination of the Merger Agreement where a
Triggering Event has occurred (or if, at the expiration of such one year period
the Option cannot be exercised by reason of any applicable judgment, decree,
order, law or regulation, 10 business days after such impediment to exercise
shall have been removed or shall have become final and not subject to appeal).
Notwithstanding the foregoing, the Option may not be exercised if there has not
been a Triggering Event, or Grantee is in material breach of its representation
or warranties, or in material breach of any of its covenants or agreements
contained in this Agreement or the Merger Agreement.
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(c) Triggering Events. The term "TRIGGERING EVENT" shall mean any event
which would result in the Fee Payable By Company being unconditionally payable
to Grantee pursuant to Section 7.03(b) of the Merger Agreement.
(d) Notice of Exercise; Closing. In the event Grantee is entitled to and
wishes to exercise the Option, it shall send to Issuer a written notice (the
date of which being herein referred to as the "NOTICE DATE") specifying (i) the
total number of shares it will purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 10 business
days from the Notice Date for the closing of such purchase (the "CLOSING DATE");
provided, that if the closing of the purchase and sale pursuant to the Option
(the "CLOSING") cannot reasonably be consummated by reason of any applicable
judgment, decree, order, law or regulation, the period of time that otherwise
would run pursuant to this sentence shall run instead from the date on which the
restriction on consummation has expired or been terminated; and provided
further, without limiting the foregoing, that if, prior notification to or
approval of any regulatory agency is reasonably required in connection with such
purchase, Grantee or Issuer, as the case may be, shall promptly file the
required notice or application for approval and shall expeditiously process the
same, and the period of time that otherwise would run pursuant to this sentence
shall run instead from the date on which any required notification periods have
expired or been terminated or such approvals have been obtained and any
requisite waiting period or periods shall have passed. Any exercise of the
Option shall be deemed to occur on the Notice Date relating thereto.
Notwithstanding this subsection (d), in no event shall any Closing Date be more
than two years after the related Notice Date, and if the Closing Date shall not
have occurred within two years after the related Notice Date due to the failure
to obtain any such required approval, the exercise of the Option effected on the
Notice Date shall be deemed to have expired.
(e) Purchase Price. At the Closing referred to in subsection (d) above,
Grantee shall pay to Issuer the aggregate purchase price for the shares of
Common Stock purchased pursuant to the exercise of the Option in immediately
available funds by wire transfer to a bank account designated by Issuer,
provided that failure or refusal of Issuer to designate such a bank account
shall not preclude Grantee from exercising the Option.
(f) Maximum Proceeds. If Grantee, or any of its wholly-owned
subsidiaries, receives an aggregate amount in excess of six hundred million
dollars ($600,000,000.00) from:
(i) the Fee Payable By Company pursuant to Section 7.03 of the Merger
Agreement, (ii) proceeds, if any, from the sale to any entity that is not a
wholly-owned subsidiary of Grantee of shares purchased pursuant to the exercise
of the Option in excess of the aggregate Option Price for such shares; (iii) any
dividends received by Grantee declared on the shares purchased pursuant to the
exercise of the Option; and (iv) proceeds, if any, received pursuant to Section
6(b) and 7 hereof, less the aggregate Option Price paid by Grantee, or any of
its wholly-owned subsidiaries, for any shares purchased pursuant to the exercise
of the Option being purchased by Issuer pursuant to Section 6(b) and 7 hereof,
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then Grantee shall notify Issuer within three business days of receipt of such
excess proceeds and all such excess proceeds shall promptly be remitted by
Grantee to Issuer by wire transfer to a bank account designated by Issuer.
(g) Issuance of Common Stock. At the Closing, simultaneously with the
delivery of immediately available funds as provided in subsection (e) of this
Section 2, Issuer shall deliver to Grantee a certificate or certificates
representing the number of shares of Common Stock purchased by the Grantee and,
if the Option is exercised in part only, a new Option evidencing the rights of
Grantee thereof to purchase the balance of the shares purchasable hereunder, and
the Grantee shall deliver to Issuer a copy of this Agreement and a letter
agreeing that Grantee will not offer to sell or otherwise dispose of such shares
in violation of applicable law or the provisions of this Agreement.
(h) Legend. Certificates for Common Stock delivered at a closing
hereunder may be endorsed with a restrictive legend that shall read
substantially as follows:
"The transfer of the shares represented by this certificate are subject
to certain provisions of an agreement between the registered holder hereof and
Issuer and to resale restrictions arising under the Securities Act of 1933, as
amended. A copy of such agreement is on file at the principal office of Issuer
and will be provided to the holder hereof without charge upon receipt by Issuer
of a written request therefor."
It is understood and agreed that: (i) the reference to the resale
restrictions of the Securities Act in the above legend shall be removed by
delivery of substitute certificate(s) without such reference if Grantee shall
have delivered to Issuer a copy of a letter from the staff of the SEC, or an
opinion of counsel, in form and substance reasonably satisfactory to Issuer, to
the effect that such legend is not required for purposes of the Securities Act;
(ii) the reference to the provisions of this Agreement in the above legend shall
be removed by delivery of substitute certificate(s) without such reference if
the shares have been sold or transferred in compliance with the provisions of
this Agreement and under circumstances that do not require the retention of such
reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) are both satisfied. In
addition, such certificates shall bear any other legend as may be required by
law.
(i) Record Grantee; Expenses. Upon the giving by Grantee to Issuer of
the written notice of exercise of the Option provided for under subsection (d)
of this Section 2 and the tender of the applicable purchase price in immediately
available funds, Grantee shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that the
stock transfer books of Issuer shall then be closed or that certificates,
representing such shares of Common Stock shall not then be actually delivered to
Grantee. Issuer shall pay all expenses and any and all United States federal,
state and local taxes and other charges that may be payable in connection with
the preparation, issuance and delivery of stock certificates under this Section
2 in the name of Grantee or its assignee, transferee or designee.
3. RESERVATION OF SHARES. Issuer agrees: (i) that it shall at all times
maintain, free from preemptive rights, sufficient authorized but unissued or
treasury shares of Common Stock (and
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other securities issuable pursuant to Section 5(a)) so that the Option may be
exercised without additional authorization of Common Stock (or such other
securities) after giving effect to all other options, warrants, convertible
securities and other rights to purchase Common Stock (or such other securities);
(ii) that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
Issuer; and (iii) promptly to take all action as may from time to time be
reasonably required (including without limitation complying with all premerger
notification, reporting and waiting periods under the HSR Act) in order to
permit Grantee to exercise the Option and Issuer duly and effectively to issue
shares of Common Stock pursuant hereto.
4. LOST OPTIONS. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and delivered shall constitute
the sole contractual obligation on the part of Issuer, and the Agreement so
lost, stolen, destroyed or mutilated shall be deemed cancelled and of no further
force and effect.
5. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. The shares of Common Stock
purchasable upon the exercise of the Option shall be subject to adjustment from
time to time as provided in this Section 5.
In the event of any change in Common Stock by reason of stock dividends,
splits, mergers, recapitalizations, combinations, subdivisions, conversions,
exchanges of shares or other similar transactions, then (i) the type and number
of shares of Common Stock purchasable upon exercise hereof shall be
appropriately adjusted so that Grantee shall receive upon exercise of the Option
and payment of the aggregate Option Price hereunder the number and class of
shares or other securities or property that Grantee would have received in
respect of Common Stock if the Option had been exercised in full immediately
prior to such event, or the record date therefor, as applicable, and (ii) the
Option Price shall be adjusted by multiplying the Option Price by a fraction,
the numerator of which shall be equal to the aggregate number of shares of
Common Stock purchasable prior to the adjustment and the denominator of which
shall be equal to the aggregate number of shares of Common Stock purchasable
immediately after the adjustment.
6. REGISTRATION RIGHTS.
(a) Following the Closing Date, Issuer shall, at the written request of
Grantee, subject to subsection (b) below, delivered at any time on or prior to
an Option Termination Event, promptly prepare and file a shelf registration
statement under the Securities Act (including a shelf registration under Rule
415 of the Securities Act or similar provision, if available) covering any
shares issued and issuable pursuant to this Option and shall use its reasonable
best efforts to cause such registration statement to become effective and remain
current in order to permit the sale or other disposition of any shares of Common
Stock issued upon total or partial exercise of
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this Option ("OPTION SHARES") in accordance with any plan of disposition
requested by Grantee. Grantee agrees to cause, and to cause any underwriters of
any sale or other disposition to cause, any sale or other disposition pursuant
to such registration to be effected on a widely distributed basis so that upon
consummation thereof no purchaser or transferee will beneficially own more than
4.9% of the then-outstanding voting power of Issuer. Issuer will use its
reasonable best efforts to cause such registration statement first to become
effective and then to remain effective for such period not in excess of 180 days
from the day such registration statement first becomes effective or such shorter
time as may be reasonably necessary to effect such sales or other dispositions.
The obligations of Issuer hereunder to file a registration statement and to
maintain its effectiveness may be suspended for up to 90 calendar days in the
aggregate during any 360 day period if the Board of Directors of Issuer shall
have determined in good faith that the filing of such registration statement or
the maintenance of its effectiveness would require the premature disclosure of
material nonpublic information that would adversely affect Issuer and interfere
with or adversely affect any pending or proposed offering of securities of
Issuer or any other material transaction involving Issuer. Grantee for a period
of three years following such first request shall have the right to demand a
second such registration if reasonably necessary to effect such sales or
dispositions. The foregoing notwithstanding, if, at the time of any request by
Grantee for registration of Option Shares as provided above, Issuer is in
registration with respect to an underwritten public offering of shares of Common
Stock, and if in the good faith judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering the sale of the Grantee's Option Shares would interfere with the
successful marketing of the shares of Common Stock offered by Issuer, the number
of Option Shares otherwise to be covered in the registration statement
contemplated hereby may be reduced; provided, however, that after any such
required reduction the number of Option Shares to be sold by Grantee shall
constitute at least 25% of the total number of shares to be sold by Issuer in
the aggregate; and provided further, that if such reduction occurs, then the
Issuer shall file a registration statement for the balance as promptly as
practicable and no reduction shall thereafter occur (and such registration shall
not be charged against Grantee). Grantee shall provide all information
reasonably requested by Issuer for inclusion in any registration statement to be
filed hereunder. If requested by any Grantee in connection with such
registration, Issuer shall become a party to any underwriting agreement relating
to the sale of such shares, but only to the extent of obligating itself in
respect of representations, warranties, indemnities and other agreements
customarily included in such underwriting agreements for the Issuer.
(b) Upon request for registration, the Issuer will have the option
exercisable by written notice delivered to Grantee within five business days
after receipt of the written request for registration, to purchase all, but not
some, of the Option Shares for cash at the price (the "PURCHASE PRICE") equal to
the product of (i) the number of Option Shares and (ii) the per share average of
the closing sale prices of the Issuer's Common Stock on the Nasdaq Stock Market
for the ten trading days immediately preceding the date of the written request
for registration. Any such purchase of shares of Option Shares hereto will take
place at a closing to be held at the principal executive offices of the Issuer
or its counsel at any reasonable date and time designated by Grantee within five
business days after the delivery of such notice. The payment for the Option
Shares to be purchased under this subsection (b) shall be made by delivery at
the time of such closing of the Purchase Price in immediately available funds.
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7. REPURCHASE OF OPTION AND OPTION SHARES.
(a) Within ten business days following the occurrence of a Repurchase
Event (as defined below), Issuer shall (i) deliver an offer (a "REPURCHASE
OFFER") to repurchase the Option from Grantee at a price (the "OPTION REPURCHASE
PRICE") equal to the amount by which (A) the Alternative Transaction Price (as
defined below) exceeds (B) the Option Price, multiplied by the number of shares
for which the Option may then be exercised, and (ii) deliver an offer (also, a
"REPURCHASE OFFER") to repurchase the Option Shares from Grantee at a price (the
"OPTION SHARE REPURCHASE PRICE") equal to the Alternative Transaction Price
multiplied by the number of Option Shares then held by such Grantee. The term
"ALTERNATIVE TRANSACTION PRICE" shall mean, as of any date for the determination
thereof, the price per share of Common Stock paid pursuant to the Alternative
Transaction or, in the event of a sale of assets of Issuer, the last per-share
sale price of Common Stock on the fourth trading day following the announcement
of such sale. If the consideration paid or received in the Alternative
Transaction shall be other than in cash, the value of such consideration shall
be based on the average of the closing trading prices for such securities on
their principal trading market during the five business days immediately
preceding the payment or receipt of such consideration, or, if such securities
are not traded on a market or exchange, determined by a nationally recognized
investment banking firm selected by Grantee, which determination shall be
conclusive for all purposes of this Agreement.
(b) Upon the occurrence of a Repurchase Event and whether or not Issuer
shall have made a Repurchase Offer under Section 7(a), (i) at the request (the
date of such request being the "OPTION REPURCHASE REQUEST DATE") of Grantee
delivered prior to an Option Termination Event, Issuer shall repurchase the
Option from Grantee in cash at the Option Repurchase Price, and (ii) at the
request (the date of such request being the "OPTION SHARE REPURCHASE REQUEST
DATE") of Grantee delivered prior to an Option Termination Event, Issuer shall
repurchase such number of the Option Shares from the Grantee as Grantee shall
designate at the Option Share Repurchase Price.
(c) Grantee may accept Issuer's Repurchase Offer under Section 7(a) or
may exercise its right to require Issuer to repurchase the Option and/or any
Option Shares pursuant to Section 7(b) by a written notice or notices stating
that Grantee elects to accept such offer or to require Issuer to repurchase the
Option and/or the Option Shares in accordance with the provisions of this
Section 7. As promptly as practicable, and in any event within five business
days following receipt of a notice under this Section 7(c) and the surrender to
Issuer of this Agreement and/or Certificates for Option Shares, as applicable,
and the occurrence of a Repurchase Event, Issuer shall deliver or cause to be
delivered to Grantee the Option Repurchase Price and/or to the Grantee the
Option Share Repurchase Price and/or the portion thereof that Issuer is not then
prohibited from so delivering under applicable law.
(d) Issuer hereby undertakes to use its reasonable best efforts to
obtain all required regulatory and legal approvals and to file any required
notices as promptly as practicable in order to accomplish any repurchase
contemplated by this Section 7. Nonetheless, to the extent that Issuer is
prohibited under applicable law, from repurchasing the Option and/or any Option
Shares in full, Issuer shall immediately so notify Grantee and thereafter
deliver or cause to be delivered,
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from time to time, to Grantee the portion of the Option Repurchase Price and the
Option Share Repurchase Price, respectively, that it is no longer prohibited
from delivering, in every case within five business days after the date on which
Issuer is no longer so prohibited; provided, however, that if Issuer at any time
after delivery of a notice of repurchase pursuant to Section 7(c) is prohibited
under applicable law, from delivering to Grantee the Option Repurchase Price or
the Option Share Repurchase Price, respectively, in full, Grantee may revoke its
notice of repurchase of the Option or the Option Shares either in whole or in
part whereupon, in the case of a revocation in part, Issuer shall promptly (i)
deliver to Grantee that portion of the Option Repurchase Price or the Option
Share Repurchase Price that Issuer is not prohibited from delivering after
taking into account any such revocation and (ii) deliver, as appropriate, either
(A) to Grantee, a new Agreement evidencing the right of Grantee to purchase that
number of shares of Common Stock equal to the number of shares of Common Stock
purchasable immediately prior to the delivery of the notice of repurchase less
the number of shares of Common Stock covered by the portion of the Option
repurchased or (B) to the Grantee, a certificate for the number of Option Shares
covered by the revocation. If an Option Termination Event shall have occurred
prior to the date of the notice by Issuer described in the first sentence of
this subsection (d), or shall be scheduled to occur at any time before the
expiration of a period ending on the thirtieth day after such date, Grantee
shall nonetheless have the right to exercise the Option until the expiration of
such 30-day period.
(e) The term "REPURCHASE EVENT" shall mean the occurrence of a
Triggering Event prior to the occurrence of an Option Termination Event followed
by the consummation of an Alternative Transaction within twelve months after
such Triggering Event.
8. SUBSTITUTE OPTION IN THE EVENT OF CORPORATE CHANGE. (a) In the event
that prior to an Option Termination Event, Issuer shall enter into an agreement
(i) to consolidate with or merge into any person, other than Grantee or one of
its subsidiaries, and shall not be the continuing or surviving corporation of
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer shall be the continuing
or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Common Stock shall be changed into or exchanged for
stock or other securities of any other person or cash or any other property or
the then outstanding shares of Common Stock shall after such merger represent
less than 50% of the outstanding shares and share equivalents of the merged
company, or (iii) to sell or otherwise transfer all or substantially all of its
assets to any person, other than Grantee or one of its subsidiaries, then, and
in each such case, the agreement governing such transaction shall make proper
provision so that the Option shall, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option (the "SUBSTITUTE OPTION"), for the publicly
traded common stock of either (x) the Acquiring Corporation (as hereinafter
defined) or (y) any person that controls the Acquiring Corporation; provided
that, if both the Acquiring Corporation and the person that controls the
Acquiring Corporation have common stock that is publicly traded (or neither do)
Grantee may elect to substitute either the common stock of the Acquiring
Corporation or the person that controls the Acquiring Corporation.
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(b) "ACQUIRING CORPORATION" shall mean any of (i) the continuing or
surviving corporation of a consolidation or merger with Issuer (if other than
Issuer), (ii) Issuer in a merger in which Issuer is the continuing or surviving
person, or (iii) the transferee of all or substantially all of Issuer's assets.
(c) The Substitute Option shall have the same terms as the Option,
provided, that if the terms of the Substitute Option cannot, for legal reasons,
be the same as the Option, such terms shall be as similar as possible and in no
event less advantageous to Grantee. The issuer of the Substitute Option shall
also enter into an agreement with Grantee in substantially the same form as this
Agreement, which agreement shall be applicable to the Substitute Option.
(d) Issuer shall not enter into any transaction described in subsection
(a) of this Section 8 unless the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Issuer hereunder.
9. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby 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 so contemplated. This Agreement has been duly and validly executed
and delivered by Issuer. This Agreement is the valid and legally binding
obligation of Issuer, enforceable against Issuer in accordance with its terms.
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise of the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of all claims, liens,
encumbrances and security interests, and not subject to any preemptive rights.
(c) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation pursuant to any provisions of the Certificate of
Incorporation or Bylaws of Issuer or the incorporation documents of any of its
subsidiaries (as that term is defined in the Merger Agreement), subject to
obtaining any approvals or consents contemplated hereby, result in any violation
of any loan or credit agreement, note, mortgage, indenture, lease, plan, or
other agreement, obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Issuer or its subsidiaries or their respective properties or assets which
violation would have, individually or in the aggregate, a Material Adverse
Effect on the Issuer.
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(d) The Board of Directors of Issuer has taken all necessary
action to approve this Agreement and the consummation of the transactions
contemplated hereby and the provisions of Section 243 of the Delaware General
Corporation Law will not apply to this Agreement or the purchase of shares of
Issuer Common Stock pursuant to this Agreement.
10. APPLICATION FOR REGULATORY APPROVAL. Each of Grantee and Issuer will
use its reasonable best efforts to make all filings with, and to obtain consents
of, all third parties and governmental authorities necessary to the consummation
of the transactions contemplated by this Agreement, including without limitation
making application to list the shares of Common Stock issuable hereunder on the
Nasdaq Stock Market upon official notice of issuance.
11. SPECIFIC PERFORMANCE. The parties hereto acknowledge that damages
would be an inadequate remedy for a breach of this Agreement by either party
hereto and that the obligations of the parties hereto shall be enforceable by
either party hereto through injunctive or other equitable relief.
12. SEPARABILITY OF PROVISIONS. If any term, provision, covenant, or
restriction, contained in this Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, and covenants and
restrictions contained in this Agreement shall remain in full force and effect,
and shall in no way be affected, impaired or invalidated.
13. NOTICES. All notices, claims, demands and other communications
hereunder shall be deemed to have been duly given or made when delivered in
person, by registered or certified mail (postage prepaid, return receipt
requested), by overnight courier, or by facsimile at the respective addresses of
the parties set forth in the Merger Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original, but all of which
shall constitute one and the same agreement.
16. EXPENSES. Except as otherwise expressly provided herein or in the
Merger Agreement, each of the parties hereto shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial
consultants, investment bankers, accountants and counsel.
17. ENTIRE AGREEMENT. Except as otherwise expressly provided herein or
in the Merger Agreement and the Confidentiality Agreement, this Agreement
contains the entire agreement between the parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, expressed or
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implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein. Any provision of this Agreement may be waived only in writing
at any time by the party that is entitled to the benefits of such provision.
This Agreement may not be modified, amended, altered, or supplemented except
upon the execution and delivery of a written agreement executed by the parties
hereto.
18. ASSIGNMENT. Neither of the parties may sell, transfer, assign or
otherwise dispose of any of its rights or obligations under this Agreement or
the Option created hereunder to any other person, without the express written
consent of the other party, except that the rights and obligations hereunder
will inure to the benefit of and be binding upon any successor of a party
hereto; provided, however, that Grantee shall be entitled to transfer its rights
or obligations under this Agreement to a wholly-owned subsidiary of Grantee,
provided such subsidiary remains a wholly-owned subsidiary.
19. FURTHER ASSURANCES. In the event of any exercise of the Option by
Grantee, Issuer and Grantee shall execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in order
to consummate the transactions provided for by such exercise. Nothing contained
in this Agreement shall be deemed to authorize Issuer or Grantee to breach any
provision of the Merger Agreement.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers hereunto duly authorized, all as of the date
first written above.
ISSUER
By: /s/ XXXXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
GRANTEE
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Business Development,
General Counsel
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