WARRANT PURCHASE AGREEMENT
EXHIBIT 5
This Stock Option and Warrant Cancellation Agreement (this “Agreement”) is entered into as of
this 29th day of March, 2007, by and between ROG Acquisition, Inc., a Delaware corporation (“ROG”),
and Xxxxxxx X. Xxxxxxxx, Xx. (the “Holder”).
WHEREAS, on February 26, 2007, ROG and other persons filed with the Securities and Exchange
Commission a Schedule 13E-3 “Transaction Statement Pursuant to Section 13(e) of the Securities
Exchange Act of 1934 and Rule 13e-3 Thereunder” (the “Schedule”);
WHEREAS, the Schedule references a proposed merger (the “Proposed Merger”) of ROG with and
into Refac Optical Group (“Refac”), with Refac being the surviving corporation of the Proposed
Merger, and upon consummation of the Proposed Merger, the separate corporate existence of ROG shall
terminate;
WHEREAS, pursuant the terms of the Proposed Merger, each share of the common stock, par value
$.001 per share, of Refac (the “Refac Common Stock”) (other than shares owned by ROG, shares held
in treasury and shares with respect to which statutory appraisal rights are exercised) will be
converted into the right to receive $6.00 in cash;
WHEREAS, Holder holds certain options and/or warrants to purchase Refac Common Stock; and
WHEREAS, the parties wish to provide for the cancellation of such options pursuant to the
terms of this Agreement.
NOW THEREFORE, in consideration of the promises and agreements contained herein, and intending
to be legally bound hereby, the parties agree as follows:
1. Holder Representations and Warranties. Holder represents and warrants that he or
she holds in the aggregate options and/or warrants (the “Refac Options/Warrants”) to purchase
161,560 shares of Refac Common Stock and that Exhibit A (in typed form only) attached hereto sets
forth (a) the date on which each Refac Option/Warrant was granted, (b) the plan or agreement
pursuant to which each Refac Option/Warrant was granted, (c) the expiration date of each Refac
Option/Warrant, (d) the price at which each Refac Option/Warrant may be exercised, (e) the number
of shares of Refac Common Stock subject to each Refac Option/Warrant, the number of such shares for
which the Holder’s right to exercise the Refac Option/Warrant is vested and the number of such
shares for which the Holder’s right to exercise the Refac Option/Warrant is unvested, and (f) the
type of grant and the status of the Refac Option/Warrant grant as qualified or non-qualified under
Section 422 of the Internal Revenue Code of 1986, as amended. Except for options that will be
cancelled pursuant to an option cancellaion agreement with ROG, Holder further represents and
warrants that he or she does not hold and is not party to any other options, warrants, calls,
subscriptions, rights (including, without limitation, phantom
and stock appreciation rights), agreements or commitments of any character obligating Refac or
any of its subsidiaries to issue any shares of its capital stock or pay any consideration based on
Refac or any of its subsidiaries’ shares of capital stock (“Other Rights”).
2. Purchase of Refac Warrant. Promptly following the effective time of the Proposed
Merger, Refac, as the surviving corporation in the Proposed Merger, will purchase the Refac Warrant
from Holder and will pay Holder $968,972.25 (the calculation of which is set forth on Exhibit A
attached hereto) (the “Warrant Consideration”), subject to any required withholding required by
applicable federal, state or local income or payroll tax laws. Such payment will be made by check
payable to Holder and mailed to the Holder’s address set forth on the signature page hereto. The
Warrant Consideration shall be calculated as the difference between $6.00 and the per share
exercise price set forth in the Refac Warrant, multiplied by the number of shares of Refac Common
Stock subject to the Refac Warrant. Notwithstanding the above, Holder agrees to indemnify and hold
harmless ROG from and against any losses associated with or arising from any failure by ROG to
withhold any federal, state or local income or payroll taxes applicable to ROG’s payment to Holder
of the Warrant Consideration.
3. Refac Warrant Not Exercised. Holder and ROG agree that the Refac Warrant (and for
the avoidance of doubt, any Other Rights) will not be exercised by Holder at any time. The Holder
and ROG further agree that, effective as of the effective time of the Proposed Merger, the Refac
Warrant (and, for the avoidance of doubt, any Other Rights) will be purchased by ROG upon delivery
of the Warrant Consideration to Holder free and clear of all liens and thereafter, Holder will have
no further rights with respect to the Refac Warrant. Holder shall deliver the original Refac
Warrant to ROG promptly following the effective time of the Proposed Merger.
4. Nonconsummation of the Proposed Merger. In the event that the effective time of
the Proposed Merger does not occur on or before December 31, 2007, the parties agree that this
Agreement shall be null and void and of no further force and effect and all rights and obligations
of the parties will terminate (except for responsibility of any liability of a party then in
breach).
5. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to any applicable conflicts of
law. Each of ROG and Holder irrevocably submits to the jurisdiction of the courts of the State of
New Jersey and the United States District Court for the District of New Jersey for any action, suit
or other dispute arising out of or relating to this Agreement, and hereby irrevocably agrees that
all claims in respect of such action, suit or other dispute shall be heard and determined in such
state or federal court. Each of ROG and Holder hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
6. Entire Agreement; Amendment. This Agreement constitutes the entire agreement and
supercedes all prior agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof. This Agreement may be amended or supplemented only by an
instrument in writing signed on behalf of both parties.
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7. Execution of Agreement. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original. The exchange of copies of this Agreement
and the signature page (whether by facsimile or otherwise) shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for
all purposes. Signatures of the parties transmitted by facsimile or otherwise shall be deemed to
be their original signatures for all purposes.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above and the Holder has executed such document witnessed by a Notary.
| ROG ACQUISITION, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its: Treasurer | ||||
| Holder |
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| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Address: | ||||
United States of America
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) | |||||
State of
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) | |||||
County of
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) |
On
this ___ day of March, 2007, the above named individual personally appeared in front of me
and is known to be the person who is identified above, and who executed the foregoing Stock Option
and Warrant Cancellation Agreement and acknowledged to me that he/she executed the same of his/her
own free will for the purpose therein expressed.
EXHIBIT A
Holder: Xxxxxxx X. Xxxxxxxx, Xx.
| Qualified / | No. of | No. of | Per Share | Aggregate | ||||||||||||||||||||||||||||
| Grant | Plan or | Exercise | Non- | Total No. | Vested | Unvested | Warrant | Warrant | ||||||||||||||||||||||||
| Date | Agreement | Price | Qualified | of Shares | Shares | Shares | Consideration 1 | Consideration | ||||||||||||||||||||||||
5/30/2003 |
2 | $ | 0.0024 | N/A | 161,560 | 161,560 | - 0 - | $ | 6.00 | $ | 968,972.25 | |||||||||||||||||||||
| 1 | The Warrant Consideration shall be calculated pursuant to Section 2 of the Agreement. | |
| 2 | Warrant to Purchase Stock of U.S. Vision, Inc. dated May 30, 2003. |
