Exhibit 2.5
AMENDMENT NO.1 TO RIGHTS AGREEMENT
THIS AMENDMENT TO THE RIGHTS AGREEMENT (this "Amendment") is made as
of March 19, 2000, between Xxxxxx Xxxxxx VisionCare, Inc., a Delaware
corporation (the "Company") and American Stock Transfer & Trust Company, as
rights agent (the "Rights Agent") and amends that certain Rights Agreement,
dated as of November 16, 1999 (the "Rights Agreement"), by and between the
Company and the Rights Agent. Except as otherwise indicated herein, capitalized
terms used and not otherwise defined herein have the meanings ascribed to such
terms in the Rights Agreement.
WHEREAS, the Company, Ocular Sciences, Inc. ("OSI") and OSI
Acquisition Corp., Delaware corporation ("Sub"), which is a direct wholly owned
subsidiary of the Company, propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), providing for,
among other things, a merger (the "Merger") of Sub with and into OSI;
WHEREAS, as a condition and inducement to OSI's willingness to enter
into the Merger Agreement and the WC Stock Option Agreement (as defined in the
Merger Agreement), OSI has requested that the Company agree, and the Company has
agreed, to issue to OSI an option to purchase shares of the Company's common
stock (the "OSI Option"); and
WHEREAS, the Board of Directors of the Company has approved an
amendment to the Rights Agreement to exempt the OSI Option from terms and
provisions of the Rights Agreement by adding Ocular Sciences, Inc. to the
definition of "Exempt Person" under the Rights Agreement.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
1. Amendment. Section 1(q) of the Rights Agreement (the definition
of the term "Exempt Person") is hereby amended by (a) deleting the word "and"
prior to clause (iv) thereof, (b) substituting the word "and" for the period at
the end of the paragraph and (c) adding the following clause to the end thereof:
"(v) Ocular Sciences, Inc."
2. APPLICABLE LAW. ALL OF THE ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH LAWS OF THE STATE OF
DELAWARE.
3. Ratification, Etc. Except as expressly modified or waived
hereby, each term and provision of the Rights Agreement and the other agreements
executed in connection therewith is hereby ratified and confirmed and shall
continue in full force and effect. From and after the effective date, all
references to the Rights Agreement shall be deemed to be references to the
Rights Agreement as amended by this Amendment.
4. Counterparts; Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Amendment shall become effective upon the execution of a
counterpart hereof by each of the parties hereto, and written or telephonic
notification of such execution and authorization of delivery thereof has been
received by each party hereto.
* * * * *
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
XXXXXX XXXXXX VISIONCARE, INC.
By: /s/ Xxxxx X. Xxxx
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Its: President and Chief Executive Officer
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AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: Xxxxxxx X. Xxxxxx
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Its: Vice President
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