STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of March 19, 2000 (the "Agreement"),
by and between Xxxxxx Xxxxxx VisionCare, Inc., a Delaware corporation
("Issuer"), and Ocular Sciences, Inc., a Delaware corporation ("Grantee").
WHEREAS, Issuer, Grantee and OSI Acquisition Corp., a Delaware
corporation ("Sub"), which is a direct wholly owned subsidiary of Issuer,
propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement), providing for, among
other things, a merger (the "Merger") of Sub with and into Grantee;
WHEREAS, as a condition and inducement to Grantee's willingness to
enter into the Merger Agreement and the OSI Stock Option Agreement, Grantee has
requested that Issuer agree, and Issuer has agreed, to issue to Grantee the
Option (as defined below); and
WHEREAS, as a condition and inducement to Issuer's willingness to
enter into the Merger Agreement and this Agreement, Issuer has requested that
Grantee agree, and Grantee has agreed, to issue to Issuer an option to purchase
shares of Grantee's common stock under the OSI Stock Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Issuer and Grantee agree as follows:
1. Grant of Options. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 3,506,397 shares (the "Option Shares") of common stock, par value
$0.01 per share, of Issuer (the "Shares") (being 19.9% of the number of Shares
outstanding on March 19, 2000 before such issuance), together with the
associated purchase rights (the "Rights") under the Rights Agreement, dated as
of November 16, 1999, between Issuer and American Stock Transfer & Trust
Company, as Rights Agent (all references to the Option Shares shall be deemed to
include the associated Rights) at a purchase price of $25.00 per Option Share
(such price, as adjusted if applicable, the "Purchase Price"). The number of
Option Shares that may be received upon the exercise of the Option and the
Purchase Price are subject to adjustment as set forth herein.
2. Exercise of Option. (a) Grantee may exercise the Option, in whole
or in part, at any time or from time to time following the occurrence of a
Purchase Event (as defined below); provided that, except as otherwise provided
herein, the Option shall terminate and be of no further force and effect upon
the earliest to occur of (i) the Effective Time, (ii) 6 months after the first
occurrence of a Purchase Event (or if, at the expiration of such 6-months after
the first
occurrence of a Purchase Event, 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, but in no event under this
clause (ii) later than the first anniversary of the Purchase Event), (iii)
termination of the Merger Agreement under circumstances which do not and cannot
result in Grantee's becoming entitled to receive termination fees from Issuer
pursuant to Section 7.2(c) of the Merger Agreement; and (iv) 12 months after the
termination of the Merger Agreement under circumstances which could result in
Grantee's becoming entitled to receive termination fees from Issuer pursuant to
Section 7.2(c)(A) of the Merger Agreement, unless during such 12-month period, a
Purchase Event shall occur. The termination of the Option shall not affect any
rights hereunder which by their terms extend beyond the date of such
termination.
(b) As used herein, a "Purchase Event" means an event the result of
which is that the total fee or fees required to be paid by Issuer to Grantee
pursuant to Section 7.2(b) of the Merger Agreement equals $20 million.
(c) In the event Grantee wishes to exercise the Option, it shall send
to Issuer a written notice (the "Exercise Notice"; the date of which being
herein referred to as the "Notice Date") specifying (i) the total number of
Option Shares it intends to purchase pursuant to such exercise and (ii) a place
and date not earlier than three business days nor later than 10 business days
from such Notice Date for the closing of such purchase (a "Closing"; and the
date of such Closing, a "Closing Date"); provided that such closing shall be
held only if (A) such purchase would not otherwise violate or cause the
violation of applicable law (including the HSR Act), (B) no law, rule or
regulation shall have been adopted or promulgated, and no temporary restraining
order, preliminary or permanent injunction or other order, decree or ruling
issued by a court or other governmental authority of competent jurisdiction
shall be in effect, which prohibits delivery of such Option Shares (and the
parties hereto shall use their reasonable best efforts to have any such order,
injunction, decree or ruling vacated or reversed) and (C) any prior notification
to or approval of any other regulatory authority in the United States or
elsewhere required in connection with such purchase shall have been made or
obtained, other than those which if not made or obtained would not reasonably be
expected to result in a significant detriment to the Grantee and its
Subsidiaries taken as a whole or the Issuer and its Subsidiaries taken as a
whole. If the Closing cannot be consummated by reason of a restriction set forth
in clause (A), (B) or (C) above, notwithstanding the provisions of Section 2(a),
the Closing shall be held within 5 business days following the elimination of
such restriction.
3. Payment and Delivery of Certificates. On each Closing Date,
Grantee shall pay to Issuer in immediately available funds by wire transfer to a
bank account designated by Issuer an amount equal to the Purchase Price
multiplied by the Option Shares to be purchased on such Closing Date.
(b) At each Closing, simultaneously with the delivery of immediately
available funds as provided in Section 3(a), Issuer shall deliver to Grantee a
certificate or certificates representing the Option Shares to be purchased at
such closing, which Option Shares shall be
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free and clear of all liens, charges or encumbrances ("Liens"), and Grantee
shall deliver to Issuer a letter agreeing that Grantee shall not offer to sell
or otherwise dispose of such Option Shares in violation of applicable law or the
provisions of this Agreement.
(c) Certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF MARCH 19,
2000. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions arising under
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 and its counsel, to the
effect that such legend is not required for purposes of the Securities Act and
(ii) the reference to restrictions pursuant to this Agreement in the above
legend shall be removed by delivery of substitute certificate(s) without such
reference if the Option Shares evidenced by certificate(s) containing such
reference have been sold or transferred in compliance with the provisions of
this Agreement under circumstances that do not require the retention of such
reference.
4. Authorized Stock. Issuer hereby represents and warrants to
Grantee that Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, at all times from the date
hereof until the obligation to deliver Shares upon the exercise of the Option
terminates, will have reserved for issuance, upon exercise of the Option, Shares
necessary for Grantee to exercise the Option, and Issuer will take all necessary
corporate action to authorize and reserve for issuance all additional Shares or
other securities which may be issued pursuant to Section 6 upon exercise of the
Option. The Shares to be issued upon due exercise of the Option, including all
additional Shares or other securities which may be issuable upon exercise of the
Option pursuant to Section 6, upon issuance pursuant hereto, shall be duly and
validly issued, fully paid and nonassessable, and shall be delivered free and
clear of all Liens, including any preemptive rights of any stockholder of
Issuer.
5. Purchase Not for Distribution. Grantee hereby represents and
warrants to Issuer that any Option Shares or other securities acquired by
Grantee upon exercise of the Option will not be taken with a view to the public
distribution thereof and will not be transferred or otherwise disposed of except
in a transaction registered or exempt from registration under the Securities
Act.
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6. Adjustment upon Changes in Capitalization, etc. (a) In the
event of any change in Shares by reason of reclassification, recapitalization,
stock split, split-up, combination, exchange of shares, stock dividend,
dividend, dividend payable in any other securities, or any similar event, the
type and number of Shares or securities subject to the Option, and the Purchase
Price therefor (including for purposes of repurchase thereof pursuant to Section
7), shall be adjusted appropriately, and proper provisions shall be made in the
agreements governing such transaction, so that Grantee shall receive upon
exercise of the Option the number and class of shares or other securities or
property that Grantee would have received in respect of Shares if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable. If any additional Shares are issued after the date of this Agreement
(other than pursuant to an event described in the immediately preceding
sentence), the number of Shares subject to the Option shall be adjusted so that
immediately prior to such issuance, it equals 19.9% of the number of Shares then
issued and outstanding. In no event shall the number of Shares subject to the
Option exceed 19.9% of the number of Shares issued and outstanding at the time
of exercise (without giving effect to any shares subject or issued pursuant to
the Option).
(b) Without limiting the foregoing, whenever the number of Option
Shares purchasable upon exercise of the Option is adjusted as provided in this
Section 6, the Purchase Price per Option Share shall be adjusted by multiplying
the Purchase Price by a fraction, the numerator of which is equal to the number
of Option Shares purchasable prior to the adjustment and the denominator of
which is equal to the number of Option Shares purchasable after the adjustment.
(c) Without limiting the parties' relative rights and obligations
under the Merger Agreement, in the event that Issuer enters into an agreement
(i) to consolidate with or merge into any person, other than Grantee or one of
its Subsidiaries, and Issuer will not be the continuing or surviving corporation
in such consolidation or merger, (ii) to permit any Person, other than Grantee
or one of its Subsidiaries, to merge into Issuer and Issuer will be the
continuing or surviving corporation, but in connection with such merger, the
shares of Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other Person or cash or any other property, 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 will make proper provision so that the Option will,
upon the consummation of any such transaction and upon the terms and conditions
set forth herein, be converted into, or exchanged for, an option with identical
terms appropriately adjusted to acquire the number and class of shares or other
securities or property that Grantee would have received in respect of Option
Shares had the Option been exercised immediately prior to such consolidation,
merger, sale or transfer or the record date therefor, as applicable. Issuer
shall take such steps in connection with such consolidation, merger, liquidation
or other such transaction as may be reasonably necessary to assure that the
provisions hereof shall thereafter apply as nearly as possible to any securities
or property thereafter deliverable upon exercise of the Option.
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7. Repurchase of Option. (a) Notwithstanding the provisions of
Section 2(a), at any time commencing upon the first occurrence of a Purchase
Event and ending upon termination of this Option in accordance with Section 2,
Issuer (or any successor entity thereof) shall at the request of Grantee (any
such request, a "Cash Exercise Notice"), repurchase from Grantee the Option or a
portion thereof (if and to the extent not previously exercised or terminated) at
a price which, subject to Section 10 below, is equal to the excess, if any, of
(x) the Applicable Price (as defined below) as of the Section 7 Request Date (as
defined below) for a Share over (y) the Purchase Price (subject to adjustment
pursuant to Section 6), multiplied by all or such portion of the Option Shares
subject to the Option as the Grantee shall specify in the Cash Exercise Notice
(the "Option Repurchase Price").
(b) Notwithstanding the provisions of Section 2(a), at any time
following the occurrence of a Purchase Event, Issuer (or any successor entity
thereof) may, at its election, repurchase the Option (if and to the extent not
previously exercised or terminated) at the Option Repurchase Price; provided
that the aggregate number of Option Shares as to which the Option may be
repurchased shall not exceed 2,337,598. For purposes of this Agreement, an
exercise of the Option shall be deemed to occur on the Closing Date and not on
the Notice Date relating thereto.
(c) In connection with any exercise of rights under this Section 7,
Issuer shall, within 5 business days after the Section 7 Request Date, pay the
Option Repurchase Price in immediately available funds, and Grantee or such
owner, as the case may be, shall surrender to Issuer the Option. Upon receipt by
the Grantee of the Option Repurchase price, the obligations of the Issuer to
deliver Option Shares pursuant to Section 3 of this Agreement shall be
terminated with respect to the number of Option Shares specified in the Cash
Exercise Notice or the number of Option Shares as to which the Option is
repurchased under Section 7(b).
(d) For purposes of this Agreement, the following terms have the
following meanings:
(i) "Applicable Price", as of any date, means the highest
of (A) the highest price per Share paid or proposed to be
paid by any third party for Shares or the consideration per
Share received or to be received by holders of Shares, in
each case pursuant to any Acquisition Proposal for or with
Issuer made on or prior to such date or (B) the highest bid
price per Share as quoted on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or,
if the Shares are not quoted on Nasdaq, on the principal
trading market on which such Shares are traded as reported
by a recognized source during the 10 trading days preceding
such date. If the consideration to be offered, paid or
received pursuant to the foregoing clause (A) shall be other
than in cash, the value of such consideration shall be
determined in good faith by an independent nationally
recognized investment banking firm selected by Grantee and
reasonably acceptable to Issuer.
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(ii) "Section 7 Request Date" means the date on which Issuer
or Grantee, as the case may be, exercises its rights under
this Section.
8. Registration Rights. Issuer shall, if requested by Grantee or any
Subsidiary of the Grantee which is the owner of Option Shares (collectively with
Grantee, the "Owners") at any time and from time to time within two years of the
first exercise of the Option, as expeditiously as possible prepare and file up
to two registration statements under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all shares
of securities that have been acquired by or are issuable to such Owners upon
exercise of the Option in accordance with the intended method of sale or other
disposition stated by such Owners, including a "shelf" registration statement
under Rule 415 under the Securities Act or any successor provision, and Issuer
shall use all reasonable efforts to qualify such shares or other securities
under any applicable state securities laws. Issuer shall use all reasonable
efforts to cause each such registration statement to become effective, to obtain
all consents or waivers of other parties which are required therefor and to keep
such registration statement effective for such period at least 90 days from the
day such registration statement first becomes effective as may be reasonably
necessary to effect such sale or other disposition. The obligations of Issuer
hereunder to file a registration statement and to maintain its effectiveness may
be suspended for a period of time not exceeding 90 days in the aggregate 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 disclosure of nonpublic information that would materially and adversely
affect Issuer (but in no event shall Issuer exercise such postponement right
more than once in any 12-month period). Any registration statement prepared and
filed under this Section 8, and any sale covered thereby, shall be at Issuer's
expense except for underwriting discounts or commissions, brokers' fees and the
reasonable fees and disbursements of Owners' counsel related thereto. The Owners
shall provide all information reasonably requested by Issuer for inclusion in
any registration statement to be filed hereunder. If during the time period
referred to in the first sentence of this Section 8 Issuer effects a
registration under the Securities Act of Shares for its own account or for any
other stockholders of Issuer (other than on Form S-4 or Form S-8, or any
successor form), it shall allow the Owners the right to participate in such
registration, and such participation shall not affect the obligation of Issuer
to effect two registration statements for the Owners under this Section 8;
provided that, if the managing underwriters of such offering advise Issuer in
writing that in their opinion the number of Shares requested to be included in
such registration exceeds the number which can be sold in such offering without
adversely affecting the offering price, Issuer and the Owners shall each reduce
on a pro rata basis the Shares to be included therein on their respective
behalf. In connection with any registration pursuant to this Section 8, Issuer
and the Owners shall provide each other and any underwriter of the offering with
customary representations, warranties, covenants, indemnification and
contribution in connection with such registration.
9. Additional Covenants of Issuer. (a) If Shares or any other
securities to be acquired upon exercise of the Option are then quoted on Nasdaq
or listed on any securities exchange or market, Issuer, upon the request of any
Owner, will promptly file an application to list the Shares or other securities
to be acquired upon exercise of the Options on Nasdaq or any
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securities exchange or market or which such Shares are traded and will use its
reasonable best efforts to obtain approval of such listing as soon as
practicable.
(b) Issuer will use its reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to permit the exercise
of the Option in accordance with the terms and conditions hereof, as soon as
practicable after the date hereof, including making any appropriate filing
pursuant to the HSR Act and any other applicable law, supplying as promptly as
practicable any additional information and documentary material that may be
requested pursuant to the HSR Act and any other applicable law, and taking all
other actions necessary to cause the expiration or termination of the applicable
waiting periods under the HSR Act as soon as practicable.
(c) Issuer agrees not to avoid or seek to avoid (whether by charter
amendment or through reorganization, consolidation, merger, issuance of rights,
dissolution or sale of assets, or by any other voluntary act) the observance or
performance of any of the covenants, agreements or conditions to be observed or
performed hereunder by it.
(d) Issuer shall take all such steps as may be required to cause any
acquisitions or dispositions by Grantee (or any affiliate who may become subject
to the reporting requirements of Section 16(a) of the Exchange Act) of any
Shares acquired in connection with this Agreement (through conversion or
exercise of the Option or otherwise) to be exempt under Rule 16b-3 promulgated
under the Exchange Act.
10. Limitation of Grantee Profit. (a) Notwithstanding any other
provision in this Agreement, in no event shall Grantee's Total Profit (as
defined below) exceed $25.0 million (the "Maximum Profit") and, if it otherwise
would exceed such amount, Grantee, at its sole discretion, shall either (i)
reduce the number of Shares subject to the Option, (ii) deliver to Issuer for
cancellation Shares (or other securities into which such Option Shares are
converted or exchanged) previously purchased by Grantee, (iii) pay cash to
Issuer, or (iv) any combination of the foregoing, so that Grantee's actually
realized Total Profit shall not exceed the Maximum Profit after taking into
account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the Option
may not be exercised for a number of Option Shares as would, as of any Notice
Date, result in a Notional Total Profit (as defined below) of more than the
Maximum Amount and, if exercise of the Option otherwise would result in the
Notional Total Profit exceeding such amount, Grantee, at its discretion, may (in
addition to any of the actions specified in Section 10(a) above) (i) reduce the
number of Shares subject to the Option or (ii) increase the Purchase Price for
that number of Option Shares set forth in the Exercise Notice so that the
Notional Total Profit shall not exceed the Maximum Profit; provided that nothing
in this sentence shall restrict any exercise of the Option permitted hereby on
any subsequent date at the Purchase Price set forth in Section 1 hereof.
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(c) For purposes of this Agreement, "Total Profit" shall mean: (i)
the aggregate amount (before taxes) of (A) any excess of (x) the net cash
amounts or fair market value of any property received by Grantee pursuant to a
sale of Option Shares (or securities into which such shares are converted or
exchanged) over (y) the Grantee's aggregate purchase price for such Option
Shares (or other securities), plus (B) any amounts received by Grantee on the
repurchase of the Option by Issuer pursuant to Section , plus (C) any
termination fee paid by Issuer and received by Grantee pursuant to Section
7.2(b) of the Merger Agreement, minus (ii) the amounts of any cash previously
paid by Grantee to Issuer pursuant to this Section 10 plus the value of the
Option Shares (or other securities) previously delivered by Grantee to Issuer
for cancellation pursuant to this Section 10.
(d) For purposes of this Agreement, "National Total Profit" with
respect to any number of Option Shares as to which Grantee may propose to
exercise the Option shall mean the Total Profit determined as of the Notice Date
assuming that the Stock Option was exercised on such date for such number of
Option Shares and assuming that such Option Shares, together with all other
Option Shares previously acquired upon exercise of the Option and held by
Grantee as of such date, were sold for cash at the closing price per Share on
Nasdaq as of the close of business on the preceding trading day (less customary
brokerage commissions).
(e) Notwithstanding any other provision of this Agreement, nothing in
this Agreement shall affect the ability of Grantee to receive, nor relieve
Issuer's obligation to pay, any termination fee provided for in Section 7.2(b)
of the Merger Agreement provided that if and to the extent the Total Profit
received by the Grantee would exceed the Maximum Profit following the receipt of
such payment, Grantee shall be obligated to promptly comply with the terms of
Section 10(a).
(f) For purposes of Section 10(a) and clause (ii) of Section 10(c),
the value of any Option Shares delivered by Grantee to Issuer shall be the
Applicable Price of such Option Shares.
11. Loss, Theft, Etc. of Agreement. This Agreement (and the Option
granted hereby) is exchangeable, without expense, at the option of Grantee, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of Shares
purchasable hereunder. The terms "Agreement" and "Option" as used herein include
any other Agreements and related Options for which this Agreement (and the
Option granted hereby) may be exchanged. 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
an additional contractual obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
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12. Miscellaneous.
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(a) Expenses. Except as otherwise provided in Section 9 hereof or in
the Merger Agreement, each of the parties hereto shall bear and pay all 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.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived 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.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
Except as otherwise set forth in the Merger Agreement, this Agreement, together
with the Merger Agreement and the WC Stock Option Agreement (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or a
federal or state regulatory agency to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. If for any reason such court or regulatory agency determines
that the Option does not permit Grantee to acquire, or does not require Issuer
to repurchase, the full number of Shares as provided in Sections 2 and 7, as
adjusted pursuant to Section 6, it is the express intention of Issuer to allow
Grantee to acquire or to require Issuer to repurchase such lesser number of
Shares as may be permissible without any amendment or modification hereof.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO
CHOICE OF LAW PRINCIPLES).
(e) Descriptive Headings. The descriptive headings contained herein
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given as set forth in Section 8.2 of the Merger
Agreement.
(g) Counterparts. This Agreement and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
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(h) Assignment. Grantee may not, without the prior written consent of
Issuer (which shall not be unreasonably withheld), assign this Agreement or the
Option to any other person. This Agreement shall not be assignable by Issuer
except by operation of law. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
(i) Representations and Warranties. The representations and
warranties contained in Sections 3.1(a)(i) and 3.2(a)(i) of the Merger
Agreement, and, to the extent they relate to this Agreement, in Sections 3.1(b),
(c), (f) and (g) and Section 3.2(c) of the Merger Agreement, are incorporated
herein by reference.
(j) 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.
(k) Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity. Both parties further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such equitable
relief and that this provision is without prejudice to any other rights that the
parties hereto may have for any failure to perform this Agreement.
(l) Captions. The Article, Section and paragraph captions herein are
for convenience only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
(m) Confidentiality Agreement. Issuer hereby waives the restrictions
on Grantee's acquisition of Shares contained in the Confidentiality Agreement to
the extent necessary to permit Grantee to exercise the Option and purchase the
Option Shares as herein provided.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of March 19, 2000.
XXXXXX XXXXXX VISIONCARE, INC.
By:
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Name:
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Title:
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OCULAR SCIENCES, INC.
By:
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Name:
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Title:
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