Exhibit E
STOCK OPTION AGREEMENT
THIS AGREEMENT is dated as of August 26, 1999, between Medtronic, Inc.,
a Minnesota corporation ("Grantee"), and Xomed Surgical Products, Inc., a
Delaware corporation ("Issuer").
RECITALS
A. Grantee, Issuer, and MXS Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Grantee ("Merger Subsidiary"), have entered into an
Agreement and Plan of Merger (the "Merger Agreement") which provides, among
other things, that, upon the terms and subject to the conditions thereof, Merger
Subsidiary will be merged with and into Issuer (the "Merger").
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, par value $.01 per share ("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 2,442,453 shares of Issuer Common Stock (the "Option Shares"), in
the manner set forth below, at an exercise price of $60.00 per share of Issuer
Common Stock, subject to adjustment as provided below (the "Option Price").
Issuer represents that the Option Shares represent at least 19.9% 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
occurrence of a termination specified in Section 7.2(a)(i), Section
7.2(a)(ii) or Section 7.2(a)(v) of the Merger Agreement or (ii)
immediately prior to consummation of an Alternative Control Transaction
after the occurrence of all of the events and circumstances specified
in Section 7.2(a)(iii) or Section 7.2(a)(iv) of the Merger Agreement.
(b) In the event Grantee wishes to exercise the Option at such
time as the Option is exercisable, Grantee shall deliver written notice
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(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 ten business days after the later of (i)
the date such Exercise Notice is given and (ii) the expiration or
termination of any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"). When this Option is exercisable, 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 Alternative Transaction giving
rise to such Cash Cancellation Notice, and (C) if the
Alternative Transaction 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) $30,100,000 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; provided, however, that the Cancellation Amount shall be
reduced (but not below zero) to the extent necessary so that the sum of
the termination fee described in Section 7.2(a) of the Merger Agreement
(the "Termination Fee") paid to Grantee, the Option Share Profit (as
defined below) not remitted to Issuer pursuant to Section 2(c) hereof,
and the Cancellation Amount shall not exceed $30,100,000. 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, the amount described in clause (x)
of the preceding sentence shall equal the excess, if any, over the
Option Price of the Last Sale Price. In no event shall (i) the
Cancellation Amount exceed $30,100,000 or (ii) the sum of the
Termination Fee paid, the Option Share Profit not remitted to Issuer
pursuant to Section 2(c) hereof, and the Cancellation Amount paid
exceed $30,100,000.
(c) In the event that Grantee sells, pledges, or otherwise
disposes of (including, without limitation, by merger or exchange) any
Option Shares within six months after Grantee's acquisition of such
Option Shares (such sale or disposition of Option Shares within six
months after acquisition referred to as a "Sale"), or in the event that
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any Cancellation Amount is paid to Grantee or any Option Share Profit
is received by Grantee (and not required to be remitted to Issuer
pursuant to this Section 2(c)), then any Termination Fee due and
payable by Issuer shall be reduced to the extent necessary so that the
sum of
(w) the Termination Fee;
(x) any Cancellation Amount paid to Grantee;
(y) the amount received (whether in cash, loan
proceeds, securities, or otherwise) by Grantee in such Sale
less the exercise price of such Option Shares sold in the Sale
(the "Option Share Profit") and not remitted to Issuer
pursuant to this Section 2(c); and
(z) Option Share Profit received in connection
with any prior Sales of Option Shares and not remitted to
Issuer pursuant to this Section 2(c),
shall not exceed $30,100,000. Grantee shall remit to Issuer, within
five business days after completion of any Sale, the amount, if any, by
which the Option Share Profit from such Sale, when added to the
Termination Fee previously paid, 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 $30,100,000.
3. Payment of Option Price and Delivery of Certificate. Any Closings
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 delivery of a
certified check, official bank check, or wire transfer of 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.
4. Registration and Listing of Option Shares.
(a) Issuer agrees to use its reasonable best efforts to (i)
effect as promptly as possible upon the request of Grantee or other
holder of Option 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 120 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 1933 Act, and any applicable state securities laws, of all or
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any part of the Option Shares as may be specified in such request;
provided, however, that (i) Holder shall have the right to select the
managing underwriter for any such offering after consultation with
Issuer, which managing underwriter shall be reasonably acceptable to
Issuer, (ii) Holder shall not be entitled to more than two effective
registration statements hereunder, (iii) 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 Grantee
was entitled to include all or a portion of the Option Shares, and (iv)
Holder shall not be entitled to request any such registration unless it
has provided to Issuer a written opinion of counsel to Holder, which
opinion shall be reasonably satisfactory to Issuer and its counsel,
that the distribution of Option Shares specified in Holder's request
requires registration of such Option Shares under the 1933 Act. 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
statements 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
120-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.
(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 stockholder 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 Holder of its intention to do so and shall use its
reasonable best efforts to include therein all Option Shares requested
by Holder to be so included; provided, however, that, (i) Issuer shall
not be required to include any Option Shares in such registration
unless Holder has provided to Issuer a written opinion of counsel to
Holder, which opinion shall be reasonably satisfactory to Issuer and
its counsel, that the distribution of the Option Shares requested by
Holder to be so included in such registration requires registration
under the 1933 Act and (ii) if the managing underwriter of the offering
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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, Issuer shall,
after fully including therein all securities to be sold by Issuer,
include the shares requested to be included therein by Holder 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), Holder, Issuer, and each
underwriter of the offering shall provide each other with customary
representations, warranties, covenants and indemnities. 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, but excluding underwriting discounts and
commissions to brokers or dealers and the fees and expenses of counsel
to Holder. In connection with each registration under this Section 4,
Issuer shall indemnify and hold each Holder participating in such
offering, its underwriters, 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, its underwriters, and each of their respective
affiliates may become subject, under the 1933 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 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 1933 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 1933 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 the issuance of Option Shares hereunder, Issuer will
use its reasonable best efforts promptly to list such Option Shares
with the Nasdaq Stock Market or on such national or other exchange on
which the shares of Issuer Common Stock are at the time listed.
5. Representations and Warranties of Issuer. Issuer hereby represents
and warrants to Grantee as follows:
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(a) Issuer 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.
(b) The execution and delivery of this Agreement by Issuer and
the consummation by Issuer 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
contemplated hereby. The Board of Directors of Issuer has duly approved
the issuance and sale of the Option Shares, upon the terms and subject
to the conditions contained in this Agreement, and the consummation of
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, 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.
(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 expiration 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 (or such other amount as may be required
pursuant to Section 10 hereof), 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 1933 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:
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(a) Grantee is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Minnesota and has
requisite corporate power and authority to enter into and perform this
Agreement.
(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 1933 Act.
(c) Grantee or its designee is acquiring the Option and it
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.
7. Covenants of Grantee. Grantee agrees not to transfer or otherwise
dispose of the Option Shares, or any interest therein, except in compliance with
the 1933 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. Reasonable Best 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,
reasonable best 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.
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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 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 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. Limitation on Exercise. Notwithstanding any other provision of this
Agreement, the Option may not be exercised for a number of Option Shares as
would, as of the date of the Exercise Notice, result in a Notional Total Profit
(as defined below) of more than $30,100,000 and, if exercise of the Option
otherwise would exceed such amount, Grantee, at its discretion, may increase the
Option Price for that number of Option Shares set forth in the Exercise Notice
so that the Notional Total Profit shall not exceed $30,100,000; provided, that
nothing in this sentence shall restrict any exercise of the Option permitted
hereby on any subsequent date at the Option Price set forth in Section 1.
As used herein, "Notional Total Profit" with respect to any number of
Option Shares as to which Grantee may propose to exercise the Option means the
Total Profit determined as of the date of the Exercise Notice assuming, for
purposes of clause (iii) of the definition of Total Profit, that (x) the Option
were exercised on such date for such number of Option Shares and (y) such Option
Shares, together with all other Option Shares held by Grantee and its affiliates
as of such date, were sold for cash at the closing market price for Issuer
Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
As used herein, "Total Profit" means the aggregate amount (before
taxes) of the following: (i) the Termination Fee paid to Grantee; (ii) any
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Cancellation Amount paid to Grantee; and (iii) all Option Share Profits received
in connection with Sales of Option Shares and not remitted to Issuer pursuant to
Section 2(c).
12. Expiration. The Option shall expire at the earlier of (a) the
Effective Time (as defined in the Merger Agreement), (b) six months after the
termination of the Merger Agreement in accordance with the terms thereof in the
event Section 7.2(a)(i), Section 7.2(a)(ii) or Section 7.2(a)(v) of the Merger
Agreement applies, or six months after the date of consummation of the
Alternative Control Transaction in the event Section 7.2(a)(iii) or Section
7.2(a)(iv) of the Merger Agreement applies, or (c) termination of the Merger
Agreement in accordance with the terms thereof in circumstances under which the
fee specified in Section 7.2 thereof cannot in any circumstances become payable
(such expiration date is referred to as the "Expiration Date").
13. 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 reasonable best 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.
(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 a transferee
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
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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:
Medtronic, Inc.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
with separate copies thereof addressed to
Attention: General Counsel
FAX: (000) 000-0000
and
Attention: Vice President and Chief Development Officer
FAX: (000) 000-0000
If to Issuer:
Xomed Surgical Products, Inc.
0000 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FAX: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, 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 the
laws of the State of Delaware (regardless of the laws that might
otherwise govern under applicable Delaware principles of conflicts of
law).
(k) Entire Agreement. This Agreement, the Confidentiality
Agreement, and 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.
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IN WITNESS WHEREOF, the parties have caused this Stock Option Agreement
to be signed by their respective officers thereunto duly authorized as of the
date first written above.
MEDTRONIC, INC.
By:______________________________________
Xxxxxxx X. Xxxxxxx, Vice President and
Chief Development Officer
XOMED SURGICAL PRODUCTS, INC.
By:______________________________________
Its:__________________________________
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