<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)
Optical Radiation Corporation
(Name of Issuer)
Common Stock, Par Value $0.50
(Title of Class of Securities)
6838361
(CUSIP Number of Class of Securities)
Martin E. Franklin
Benson Eyecare Corporation
Suite B-302
555 Theodore Fremd Avenue
Rye, New York 10580
(914) 967-9400
(Name, Address and Telephone Number of Person)
Authorized to Receive Notices and Communications
Copies to:
William J. Grant, Jr.
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
(212) 821-8000
June 30, 1994
(Date of Event which Requires
Filing of this Schedule)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following: / /
Check the following box if a fee is being paid with this statement: / /
<PAGE>2
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Partners I, L.P.
13-3744098
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 529,950 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
529,950 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>3
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Services, Inc.
13-3741354
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 529,950 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
529,950 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>4
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Eyecare Corporation
13-3368387
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 529,950 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
529,950 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>5
This Amendment No. 4 to Schedule 13D ("Amendment No. 4") is being filed
on behalf of Benson Partners I, L.P., Benson Services, Inc. and Benson Eyecare
Corporation (collectively, the "Reporting Entities") relating to the common
stock, par value $0.50 per share ("Common Stock"), of Optical Radiation
Corporation, a California corporation (the "Company"); and should be read in
conjunction with the Schedule 13D filed by the Reporting Entities with the
Securities and Exchange Commission (the "Commission") on January 13, 1994, as
amended by Amendment No. 1 to Schedule 13D filed with the Commission on
February 22, 1994 ("Amendment No. 1"), by Amendment No. 2 to Schedule 13D
filed with the Commission on April 18, 1994 ("Amendment No. 2"), and Amendment
No. 3 to Schedule 13D filed with the Commission on May 11, 1994 ("Amendment
No. 3") (as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3 and
Amendment No.4, "Schedule 13D").
Capitalized terms used herein but not defined herein have the meanings
assigned to them in Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended and restated as follows:
The 529,950 shares of Common Stock beneficially owned by the Reporting
Entities (the "Acquired Shares") were acquired in brokered transactions for an
aggregate purchase price of $8,330,935.90. The primary source of funds for
the purchase of the Acquired Shares was investment capital contributed by the
partners of Benson Partners. A portion of the purchase price of the Acquired
Shares was attributable to margin borrowings.
It is currently anticipated that the funds required by Benson Eyecare to
consummate the Merger (as defined in Item 4) would be obtained from the
Company and from bank borrowings.
Item 4. Purpose of Transaction.
Item 4 is hereby amended and restated as follows:
On June 30, 1994, Benson Eyecare, Benson Acquisition Corporation, a
California corporation and a wholly owned subsidiary of Benson Eyecare
("Merger Sub"), and the Company executed an agreement and plan of merger (the
"Merger Agreement"), a copy of which is attached hereto as Exhibit III and
incorporated herein by reference. Pursuant to the terms of the Merger
Agreement, Merger Sub will, subject to certain conditions being satisfied or
waived, be merged with and into the Company (the "Merger") and the Company will
survive the merger (the "Surviving Corporation") and become a wholly-owned
subsidiary of Benson Eyecare.
Benson Eyecare entered into the Merger Agreement for the purpose of
gaining control of the Company in order to provide it with the ability to
utilize the resources of the Company and to optimize the return to Benson
Eyecare's stockholders.
Upon the effectiveness of the Merger, each outstanding share of Common
Stock, with the exception of shares held in the
<PAGE>6
treasury of the Company, shares owned by subsidiaries of the Company and
shares held by stockholders who properly exercise dissenters' rights under the
Corporations Code of the State of California, will be converted into the right
to receive (a) $17.00 in cash, (b) the number of shares of Benson Eyecare's
common stock equal to the Exchange Ratio (as defined below) and (c) a pro rata
share of the OSP Disposition Proceeds (as defined below) (not including the
amount thereof payable to Benson Eyecare pursuant to clause (ii) of the
paragraph following the following two paragraphs) plus, to the extent
the amount of such proceeds is less than $2.00, a fraction of a share of
Benson Eyecare's common stock having a value equal to the amount of such
difference ((a), (b) and (c) collectively, the "Merger Consideration").
The exchange ratio (the "Exchange Ratio") will be calculated as follows:
(a) if the average daily closing price (the "Average Closing Price") on the
American Stock Exchange of Benson Eyecare common stock during the 20
consecutive trading days ending on the fifth trading day prior to the
shareholders' meeting at which the Company's shareholders are to vote on the
Merger exceeds $10.80, the Exchange Ratio is equal to $8.10 divided by the
Average Closing Price; (b) if the Average Closing Price is $10.80 or less, but
greater than $7.20, the Exchange Ratio is equal to .75; (c) if the Average
Closing Price is $7.20 or less, but greater than $6.00, the Exchange Ratio is
equal to one half of the sum of (i) .75 and (ii) the quotient obtained by
dividing $5.40 by the Average Closing Price; (d) if the Average Closing Price
is $6.00 or less and the Company shall not have elected to terminate the
Merger Agreement pursuant to the terms of the Merger Agreement, the Exchange
Ratio is equal to .825; and (e) if the Average Closing Price is $6.00 or less
and the Company shall have elected to terminate the Merger Agreement pursuant
to the terms of the Merger Agreement, but Benson Eyecare shall have thereafter
timely elected to rescind such termination pursuant to the terms of the Merger
Agreement, the Exchange Ratio is equal to $4.95 divided by the Average Closing
Price.
OSP disposition proceeds ("OSP Disposition Proceeds") means the
following: the proceeds received by the Company prior to December 31, 1994
upon the sale of its Ophthalmic Surgical Products Division (the "OSP
Division"), or any portion thereof, pursuant to agreements entered into on or
prior to the effective date of the Merger, minus all costs and expenses of the
Company associated with such dispositions, and plus (or minus) the present
value to the Company of the net tax benefit (or cost) relating to the OSP
Division arising from such disposition and the distribution to shareholders,
provided that there shall be deducted from amounts that would otherwise be
considered OSP Disposition Proceeds an amount equal to 15% of the amount by
which the OSP Disposition Proceeds exceed $19,195,560.
Pursuant to the terms of the Merger Agreement, the Company will offer to
each stock option holder the opportunity to exchange each option for:
(i) cash in an amount equal to the difference between $23.00 and
the per share exercise price of such option; provided, however,
that if the option exercise price is greater than or equal to $23.00
per share, then no amounts are payable under this subparagraph (i);
and
(ii) an amount equal to the difference between the Average
Closing Price and $6.00, plus the greater of
(A) the per share amount of OSP Disposition Proceeds or
(B) $2.00
<PAGE>7
(payable in shares of Benson Eyecare common stock, which the Surviving
Corporation will purchase from Benson Eyecare in exchange for OSP
Disposition Proceeds of like value); provided, however, if the option
exercise price is greater than $23.00 per share, then such amount is to be
reduced by the difference between the option exercise price and $23.00;
provided, further, that if the amount determined pursuant to this
subparagraph (ii) is less than zero, then no amounts are payable under
this subparagraph (ii).
Fractional shares will not be issued, but the pro rata portion of the net
proceeds of the sale of all such shares will be paid in cash to the persons
entitled thereto. As a result of the conversion of the Common Stock, the
Common Stock will be delisted from the Nasdaq National Market and will not be
listed on any national securities exchange or quoted in any inter-dealer
quotation system, and holders of Common Stock will become stockholders of
Benson Eyecare.
Additionally, if the Merger becomes effective, the directors of Merger
Sub immediately prior to the Merger will become the directors of the Surviving
Corporation, and the officers of the Company immediately prior to the Merger
will become the officers of the Surviving Corporation.
The foregoing summary of the terms of the Merger Agreement does not
purport to be complete and is qualified in its entirety by reference to the
full text of the Merger Agreement.
Except as described above, the Reporting Entities have no present plans
or proposals that relate to or would result in any of the actions required to
be described in Item 4 of Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
Item 6 is hereby amended and restated as follows:
The affairs of Benson Partners are governed by an Agreement of Limited
Partnership dated December 7, 1993 (the "Partnership Agreement") among Benson
Services, as general partner (the "General Partner"), and each of the limited
partners that is a party thereto (each a "Limited Partner"). A copy of the
Partnership Agreement is attached as Exhibit II to this Schedule 13D.
The purpose of Benson Partners, as set forth in the Partnership
Agreement, is to acquire up to 9.9% of the Common Stock of the Company. The
General Partner is authorized to conduct and manage the business and affairs
of Benson Partners and is responsible for purchasing, selling, voting and
exercising all rights with respect to the Acquired Shares. The General
Partner will hold all proxies with respect to the Acquired Shares.
No Limited Partner may transfer, sell or assign his or its interest in
Benson Partners without the prior written consent of the General Partner. The
General Partner may not transfer, sell
<PAGE>8
or assign its interest in Benson Partners without the prior written consent of
all Limited Partners.
Profits and losses of Benson Partners will be allocated 80% to the
Limited Partners pro rata based upon their respective capital contributions
and 20% to the General Partner. The General Partner will contribute 1% of the
capital of Benson Partners. The Limited Partners will contribute an amount
not to exceed $5.5 million. Subject to certain limitations, the General
Partner may distribute Acquired Shares to all partners pro rata from time to
time in accordance with the positive balances of their capital accounts.
Upon dissolution and winding up of Benson Partners, the assets of Benson
Partners (including any Acquired Securities) may be distributed to the
partners in cash or in kind in proportion to each partner's capital account.
In the event Benson Eyecare acquires more than 50% of the outstanding Common
Stock, Benson Partners will be dissolved and each Limited Partners may elect
to receive, in lieu of any distribution in cash or in kind, registered shares
of common stock of Benson Eyecare at a price of $8 per share.
The Partnership Agreement contains certain other provisions and
agreements between the partners, including, but not limited to, capital
contributions, distributions, organization and indemnification. The terms of
the Partnership Agreement may be amended with the consent of the General
Partner and 75% of the limited partnership interests.
Except for the Merger Agreement described in response to Item 4 herein
(which response is incorporated herein by reference) and the transactions
contemplated thereby, and as otherwise set forth in this Item 6, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the Reporting Entities or the individuals referred to in paragraph (a)
to Item 2 of Schedule 13D (the "Reporting Individuals") or between the
Reporting Entities, the Reporting Individuals and any other person with
respect to any securities of the Company, including but not limited to any
contracts, arrangements, understandings or relationships concerning the
transfer or voting of any such securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit III -- Merger Agreement, dated as of June 30, 1994, among Benson
Eyecare Corporation, Benson Acquisition Corporation and Optical Radiation
Corporation.
<PAGE>9
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: June 30, 1994
BENSON PARTNERS I, L.P.
By: Benson Services, Inc.
General Partner
By: /s/ Martin E. Franklin
President
BENSON SERVICES, INC.
By: /s/ Martin E. Franklin
President
BENSON EYECARE CORPORATION
By: /s/ Martin E. Franklin
Chairman
<PAGE>1
EXECUTION COPY
BENSON EYECARE CORPORATION,
OPTICAL RADIATION CORPORATION
and
BENSON ACQUISITION CORPORATION
AGREEMENT AND PLAN OF MERGER
Dated as of June 30, 1994
<PAGE>2
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . . . . . . . . . 1
1.1. The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Effective Time . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. Effect of the Merger . . . . . . . . . . . . . . . . . . . . . 2
1.4. Subsequent Actions . . . . . . . . . . . . . . . . . . . . . . 2
1.5. Articles of Incorporation; By-Laws; Directors and Officers . . 2
1.6. Conversion of Securities . . . . . . . . . . . . . . . . . . . 3
1.7. Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . 6
1.8. Surrender of Shares; Stock Transfer Books . . . . . . . . . . 6
1.10. Stock Options . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARENT
AND MERGER SUB . . . . . . . . . . . . . 9
2.1. Corporate Organization . . . . . . . . . . . . . . . . . . . . 9
2.2. Certificate of Incorporation and By-Laws . . . . . . . . . . . 9
2.3. Authority Relative to this Agreement . . . . . . . . . . . . . 10
2.4. No Conflict; Required Filings and Consents . . . . . . . . . . 10
2.5. Financing Arrangements . . . . . . . . . . . . . . . . . . . . 11
2.6. No Prior Activities . . . . . . . . . . . . . . . . . . . . . 11
2.7. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.8. SEC Filings; Financial Statements . . . . . . . . . . . . . . 11
2.9. Joint Proxy Statement-Prospectus . . . . . . . . . . . . . . . 12
2.10. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.11. Conduct of Business . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . 13
3.1. Organization and Qualification; Subsidiaries . . . . . . . . . 13
3.2. Articles of Incorporation and By-Laws . . . . . . . . . . . . 14
3.3. Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4. Authority Relative to this Agreement . . . . . . . . . . . . . 15
3.5. No Conflict; Required Filings and Consents . . . . . . . . . . 15
3.6. SEC Filings; Financial Statements . . . . . . . . . . . . . . 16
3.7. Absence of Certain Changes or Events . . . . . . . . . . . . . 17
3.8. Trademarks and Patents . . . . . . . . . . . . . . . . . . . . 18
3.9. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.10. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 18
3.11. Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . 19
3.12. Joint Proxy Statement-Prospectus . . . . . . . . . . . . . . . 19
3.13. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.14. Products Liability . . . . . . . . . . . . . . . . . . . . . . 19
3.15. Conduct of Business . . . . . . . . . . . . . . . . . . . . . 20
<PAGE>3
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER . . . . . . . 20
4.1. Acquisition Proposals . . . . . . . . . . . . . . . . . . . . 20
4.2. Conduct of Business by the Company Pending the Merger . . . . 20
4.3. No Shopping . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE V
ADDITIONAL AGREEMENTS . . . . . . . . . . . 23
5.1. Joint Proxy Statement-Prospectus . . . . . . . . . . . . . . . 23
5.2. Shareholder Meetings . . . . . . . . . . . . . . . . . . . . . 23
5.3. Compliance with the Securities Act . . . . . . . . . . . . . . 24
5.4. HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.5. Additional Agreements . . . . . . . . . . . . . . . . . . . . 24
5.6. Notification of Certain Matters . . . . . . . . . . . . . . . 24
5.7. Access to Information . . . . . . . . . . . . . . . . . . . . 25
5.8. Public Announcements . . . . . . . . . . . . . . . . . . . . . 25
5.9. Best Efforts; Cooperation . . . . . . . . . . . . . . . . . . 25
5.10. Agreement to Defend and Indemnify . . . . . . . . . . . . . . 26
5.11. Restrictions on the Parent . . . . . . . . . . . . . . . . . . 27
5.12. OSP Disposition. . . . . . . . . . . . . . . . . . . . . . . . 27
5.13. Action by the Officers, Directors, etc. . . . . . . . . . . . 28
5.14. Dissemination of Certain Information . . . . . . . . . . . . . 28
ARTICLE VI
CONDITIONS OF MERGER . . . . . . . . . . . . 28
6.1. Conditions to Obligation of Each Party to Effect the Merger . 28
6.2. Additional Conditions to Obligations of the Company . . . . . 29
6.3. Additional Conditions to Obligations of the Parent and Merger
Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER . . . . . . . . 30
7.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.2. Effect of Termination . . . . . . . . . . . . . . . . . . . . 31
7.3. Termination Fees and Expenses . . . . . . . . . . . . . . . . 31
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . . . . 31
8.1. Non-Survival of Representations, Warranties and Agreements . . 31
8.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.3. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.4. Certain Definitions . . . . . . . . . . . . . . . . . . . . . 32
<PAGE>4
8.5. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.7. Entire Agreement; No Third-Party Beneficiaries . . . . . . . . 33
8.8. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.9. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.10. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 34
8.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 34
<PAGE>5
Index of Defined Terms
Section
1981 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10.(a)
1987 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10.(a)
affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10, 8.4.(a)
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Average OSP Disposition Price . . . . . . . . . . . . . . . . . . . . . . 1.6
Average Closing Price . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
California Law . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Company SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.(a)
Company Shareholders' Meeting . . . . . . . . . . . . . . . . . . . . . . 1.6
control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.(b)
Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7.(a)
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Excess Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.9
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.(b)
Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.8.(a)
Exchange Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.(b)
Indemnified Parties . . . . . . . . . . . . . . . . . . . . . . . . . 5.10.(a)
Joint Proxy Statement-Prospectus . . . . . . . . . . . . . . . . . . . . 2.9
Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.1
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Merger Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
Merger Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
OSP Disposition Date . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
OSP Disposition Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 1.6
OSP Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction
Parent Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
Parent Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
Parent SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . 2.8.(a)
Parent Stockholders' Meeting . . . . . . . . . . . . . . . . . . . . . . 2.9
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.(c)
Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.(b)
Stock Option Plans . . . . . . . . . . . . . . . . . . . . . . . . . 1.10.(a)
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
<PAGE>6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 30, 1994 (the
"Agreement"), among Optical Radiation Corporation, a California corporation
(the "Company"), Benson Eyecare Corporation, a Delaware corporation (the
"Parent"), and Benson Acquisition Corporation, a California corporation and a
wholly owned subsidiary of the Parent ("Merger Sub").
W I T N E S E T H:
WHEREAS, the Boards of Directors of the Company, the Parent and Merger
Sub have each determined that it is advisable and in the best interests of
their respective shareholders for the Parent to acquire the Company; and
WHEREAS, the Boards of Directors of the Company, the Parent and Merger
Sub have each approved the merger (the "Merger") of Merger Sub with the
Company upon the terms and subject to the conditions set forth herein and in
accordance with the Corporations Code of the State of California ("California
Law"); and
WHEREAS, the Board of Directors of the Company has resolved to recommend
the Merger to the holders of Shares and has determined that the consideration
to be paid for each Share in the Merger is fair to the holders of such Shares,
and to recommend that the holders of such Shares adopt this Agreement and the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company, the Parent and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms of this Agreement and subject to conditions set forth in
Article VI hereof and in accordance with California Law, Merger Sub shall be
merged with and into the Company. As a result of the Merger, the separate
corporate existence of Merger Sub shall cease, and the Company shall continue
as the surviving corporation. The Company as the surviving corporation after
the Merger hereinafter sometimes is referred to as the "Surviving
Corporation."
<PAGE>7
SECTION 1.2. Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article VI, the parties
hereto shall cause the Merger to be consummated by filing an Agreement of
Merger, together with an Officers' Certificate of each of the Company, Parent
and Merger Sub, with the Secretary of State of the State of California, in
such forms as required by, and executed in accordance with the relevant
provisions of, California Law (the time of such filing being the "Effective
Time"). Prior to such filing, a closing shall be held at the offices of
Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd Street, New York,
New York 10022, or such other place as the parties shall agree, for the
purpose of confirming the satisfaction or waiver, as the case may be, of the
conditions set forth in Article VI.
SECTION 1.3. Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of California
Law, including, without limitation, Section 1107 of California Law. Without
limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
the Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities, obligations, restrictions, disabilities and duties of the
Company and Merger Sub shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
SECTION 1.4. Subsequent Actions. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in
the Surviving Corporation its right, title or interest in, to or under any of
the rights, properties or assets of either of the Company or Merger Sub
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Agreement, the
officers and directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of either the Company or Merger
Sub, all such deeds, bills of sale, assignments and assurances and to take and
do, in the name and on behalf of each of such corporations or otherwise, all
such other actions and things as may be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to and under such
rights, properties or assets in the Surviving Corporation or otherwise to
carry out this Agreement.
SECTION 1.5. Articles of Incorporation; By-Laws; Directors and Officers.
(a) Unless otherwise determined by the Parent or Merger Sub before the
Effective Time, at the Effective Time the Articles of Incorporation of Merger
Sub, as in effect immediately before the Effective Time, shall be the Articles
of Incorporation of the Surviving Corporation until thereafter amended as
provided
<PAGE>8
by law and such Articles of Incorporation; provided, however, that Article I
of the Articles of Incorporation of the Surviving Corporation shall be amended
to read as follows: "The name of the corporation is Optical Radiation
Corporation."
(b) The By-Laws of Merger Sub, as in effect immediately before the
Effective Time, shall be the By-Laws of the Surviving Corporation until
thereafter amended as provided by law, the Certificate of Incorporation of the
Surviving Corporation and such By-Laws.
(c) The directors of Merger Sub immediately before the Effective Time
shall be the initial directors of the Surviving Corporation, and the officers
of the Company immediately before the Effective Time shall be the initial
officers of the Surviving Corporation, in each case until their successors are
elected or appointed and qualified. If, at the Effective Time, a vacancy
shall exist on the Board of Directors or in any office of the Surviving
Corporation, such vacancy may thereafter be filled in the manner provided by
law.
SECTION 1.6. Conversion of Securities.
(a) As used in this Section 1.6, the following terms are used with
the following meanings:
"Average Closing Price" means the average of the per share daily
closing price of the Parent Common Stock, par value $.01 per share (the
"Parent Common Stock"), on the American Stock Exchange during the 20
consecutive trading days ending on the fifth trading day prior to the
shareholders' meeting at which the Company's shareholders are to vote on the
Merger (the "Company Shareholders' Meeting").
"Average OSP Disposition Price" means the greater of (i) the Average
Closing Price and (ii) the average of the per share daily closing price of the
Parent Common Stock on the American Stock Exchange during the 20 consecutive
trading days ending on the fifth trading day prior the OSP Disposition Date
defined in Section 1.6(b)(iii).
"Exchange Ratio" means the following number, expressed as a decimal
fraction and rounded to the nearest ten thousandth:
(i) if the Average Closing Price exceeds $10.80: $8.10 divided by
the Average Closing Price;
(ii) if the Average Closing Price is $10.80 or less, but more than
$7.20: 0.75;
(iii) if the Average Closing Price is $7.20 or less but more than
$6.00: one half of the sum of (x) 0.75 and (y) the
<PAGE>9
quotient obtained by dividing $5.40 by the Average Closing Price;
(iv) if the Average Closing Price is $6.00 or less, and the Company
shall not have elected to terminate this Agreement pursuant to Section
1.6(c): 0.825; and
(v) if the Average Closing Price is $6.00 or less, the Company
shall have elected to terminate this Agreement pursuant to Section
1.6(c), but the Parent shall have thereafter timely elected to rescind
such termination pursuant to such Section: $4.95 divided by the Average
Closing Price.
"OSP Disposition Proceeds" shall mean the proceeds received by the
Company prior to December 31, 1994 upon the sale of the OSP Division (as
defined in Section 5.12 hereof) or any portion thereof (with marketable
securities or other instruments to be valued at their fair market value on the
date of such sale) pursuant to agreements entered into on or prior to the
Effective Time (whether in cash, securities or otherwise) minus all costs,
expenses and fees of the Company associated with such dispositions and plus
(or minus) the present value to the Company of the net tax benefit (or cost)
relating to the OSP Division, arising from such disposition and the
distribution to shareholders, provided that there shall be deducted from
amounts that would otherwise be considered OSP Disposition Proceeds an amount
equal to 15% of the amount by which the OSP Disposition Proceeds exceeds
$19,195,560.
(b) At the Effective Time, by virtue of the Merger and without any
action on the part of Merger Sub, the Company or shareholders, each Share
issued and outstanding immediately prior to the Effective Time (other than any
Shares to be canceled pursuant to Section 1.6(e) and any Dissenting Shares (as
defined below)) shall be canceled and extinguished and be converted into the
right to receive upon surrender of the certificate (except as set forth in
Section 1.6(b)(iii)) representing such Share:
(i) $17.00 in cash;
(ii) the number of shares of Parent Common Stock equal to the
Exchange Ratio; and
(iii) a pro rata share of the OSP Disposition Proceeds
(not including the amount thereof payable to the Parent pursuant to
Section 1.10(a)(ii) as the purchase price for the shares of Parent
Common Stock issuable pursuant thereto) equal to the amount of such
proceeds divided by the total number of such Shares entitled to
receive such proceeds plus, to the extent that the amount of such
pro rata share has a value at the time of its receipt by the Company
of less than $2.00, a fraction of a share of Parent
<PAGE>10
Common Stock having a value, valued at the Average OSP Disposition Price,
equal to the amount of such difference; such Common Stock, if any, to be
issuable on the later of the following dates (the "OSP Disposition Date"):
(x) at the Effective Time, if the Company has completed the
disposition of the entire OSP Division by such date, or if such
disposition has not been entirely completed and the Company is not a
party to any definitive agreement providing for the disposition of all or
a part of the OSP Division between the Effective Time and December 31,
1994; and
(y) the date the OSP Disposition Proceeds have been received.
(collectively, the "Merger Consideration").
(c) If the Average Closing Price is less than $6.00, the Company shall
have the right, by written notice delivered at least three business days prior
to the Company Shareholders' Meeting, to terminate this Agreement (which
termination shall not be effective until after the Parent's right to rescind
such termination has expired), provided that the Parent shall have the right,
by written notice delivered to the Company at least one business day prior to
the Company Shareholders' Meeting, of its election to rescind such
termination. Such notices shall affect the Exchange Ratio as provided in the
definition thereof.
(d) In the event of any stock dividend, stock split, reclassification,
recapitalization, combination or exchange of shares with respect to, or rights
issued in respect of, Parent Common Stock or Company Common Stock after the
date hereof, the Exchange Ratio shall be adjusted so as to fairly and
equitably preserve the aggregate expected value of the Merger Consideration.
(e) Each Share held in the treasury of the Company and each Share owned
by any direct or indirect wholly owned subsidiary of the Company immediately
before the Effective Time shall be canceled and extinguished and no payment or
other consideration shall be made with respect thereto.
(f) Each share of common stock, par value $.01 per share, of Merger Sub
issued and outstanding immediately before the Effective Time shall thereafter
represent one validly issued, fully paid and nonassessable share of common
stock, par value $.01 per share, of the Surviving Corporation.
(g) Following the Effective Time, all Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each certificate previously evidencing any such Shares other than
any Shares to be canceled
<PAGE>11
pursuant to Section 1.6(e) and any Dissenting Shares shall thereafter
represent the right to receive, upon surrender of such certificate in
accordance with the provisions of Section 1.8, (i) certificates evidencing
such number of whole shares of Parent Common Stock into which such Company
Common Stock was converted in accordance with the Exchange Ratio and (ii) the
amount of cash and OSP Distribution Proceeds applicable to such Shares.
SECTION 1.7. Dissenting Shares. (a) Notwithstanding any provision of
this Agreement to the contrary, any Shares held by a holder who has demanded
and perfected his demand for appraisal of his Shares in accordance with
California Law and as of the Effective Time has neither effectively withdrawn
nor lost his right to such appraisal ("Dissenting Shares") shall not be
converted into or represent a right to receive the Merger Consideration
pursuant to Section 1.6(b), but the holder thereof shall be entitled to only
such rights as are granted by California Law.
(b) Notwithstanding the provisions of subsection (a) of this Section, if
any holder of Shares who demands appraisal of his Shares under California Law
shall effectively withdraw or lose (through failure to perfect or otherwise)
his right to appraisal, then as of the Effective Time or the occurrence of
such event, whichever later occurs, such holder's Shares shall automatically
be converted into and represent only the right to receive the Merger
Consideration as provided in Section 1.6(b), without interest thereon, upon
surrender of the certificate or certificates representing such Shares.
(c) The Company shall give the Parent (i) prompt notice of any written
demands for appraisal or payment of the fair value of any Shares, withdrawals
of such demands, and any other instruments served pursuant to California Law
received by the Company and (ii) the opportunity to direct all negotiations
and proceedings with respect to demands for appraisal under California Law.
The Company shall not voluntarily make any payment with respect to any demands
for appraisal and shall not, except with the prior written consent of the
Parent, settle or offer to settle any such demands.
SECTION 1.8. Surrender of Shares; Stock Transfer Books. (a) Before the
Effective Time, the Company shall designate a bank or trust company to act as
agent for the holders of Shares (the "Exchange Agent") to receive the funds
and securities necessary to make the payments contemplated by Section 1.6.
Such funds shall be invested by the Exchange Agent as directed by the
Surviving Corporation, provided that such investments shall be in obligations
of or guaranteed by the United States of America or of any agency thereof and
backed by the full faith and credit of the United States of America, in
commercial paper obligations rated A-1 or P-1 or better by Moody's Investors
Services, Inc. or Standard & Poor's Corporation, respectively, or in deposit
accounts, certificates of deposit or banker's acceptances of,
<PAGE>12
repurchase or reverse repurchase agreements with, or Eurodollar time deposits
purchased from, commercial banks with capital, surplus and undivided profits
aggregating in excess of $200 million (based on the most recent financial
statements of such bank which are then publicly available at the SEC or
otherwise).
(b) Each holder of a certificate or certificates representing any Shares
canceled upon the Merger pursuant to Section 1.6(b) may thereafter surrender
such certificate or certificates to the Exchange Agent, as agent for such
holder, to effect the surrender of such certificate or certificates on such
holder's behalf for a period ending one year after the Effective Time. The
Parent agrees that promptly after the Effective Time it shall cause the
distribution to holders of record of Shares as of the Effective Time
appropriate materials to facilitate such surrender.
(c) If payment of the Merger Consideration in respect of canceled Shares
is to be made to a person other than the person in whose name a surrendered
certificate or instrument is registered, it shall be a condition to such
payment that the certificate or instrument so surrendered shall be properly
endorsed or shall be otherwise in proper form for transfer and that the person
requesting such payment shall have paid any transfer and other taxes required
by reason of such payment in a name other than that of the registered holder
of the certificate or instrument surrendered or shall have established to the
satisfaction of the Surviving Corporation that such tax either has been paid
or is not payable.
(d) At the close of business on the day of the Effective Time, the stock
transfer books of the Company shall be closed and there shall not be any
further registration of transfers of Shares thereafter on the records of the
Company. If, after the Effective Time, certificates for Shares are presented
to the Surviving Corporation, they shall be canceled and exchanged for the
Merger Consideration as provided in Section 1.6(b). No interest shall accrue
or be paid on any cash payable upon the surrender of a certificate or
certificates which immediately before the Effective Time represented
outstanding Shares.
Section 1.9. No Fractional Shares. No certificates or scrip
representing less than one share of Parent Common Stock shall be issued upon
the surrender for exchange of certificates representing Shares pursuant to
Section 1.6(b). In lieu of any such fractional share, each holder of Shares
who would otherwise have been entitled to a fraction of a share of Parent
Common Stock upon surrender of certificates for exchange pursuant to Section
1.6(b) shall be paid upon such surrender cash (without interest) in an amount
equal to such holder's proportionate interest in the net proceeds from the
sale or sales in the open market by the Exchange Agent, on behalf of all such
holders, of the aggregate fractional Parent Common Stock issued pursuant to
<PAGE>13
this Section 1.9. As soon as practicable following the Effective Time the
Exchange Agent shall determine the excess of (i) the number of full shares of
Parent Common Stock delivered to the Exchange Agent by Parent over (ii) the
aggregate number of full shares of Parent Common Stock to be distributed to
holders of Shares (such excess being herein called the "Excess Shares"), and
the Exchange Agent, as agent for the former holders of Shares, shall sell the
Excess Shares at the prevailing prices on the American Stock Exchange. The
sale of the Excess Shares by the Exchange Agent shall be executed on the
American Stock Exchange and shall be executed in round lots to the extent
practicable. The Exchange Agent shall deduct from the proceeds of the sale of
the Excess Shares all commissions, transfer taxes and other reasonable out-of-
pocket transaction costs, including the expenses and compensation of the
Exchange Agent, incurred in connection with such sale of Excess Shares. Until
the net proceeds of such sale have been distributed to the former shareholders
of the Company, the Exchange Agent will hold such proceeds in trust for such
former shareholders. As soon as practicable after the determination of the
amount of cash to be paid to former shareholders of the Company in lieu of any
fractional interests, the Exchange Agent shall make available in accordance
with this Agreement such amounts to such former shareholders.
SECTION 1.10. Stock Options. (a) Prior to the Effective Time, the
Company and the Stock Option Committee of its Board of Directors shall take
all action reasonably necessary or appropriate to offer each holder of options
outstanding under the Incentive Stock Option Plan for Key Employees (the "1981
Plan") and the 1987 Stock Option Plan for Directors, Officers and Executive
and Key Employees (the "1987 Plan" and together with the 1981 Plan, the "Stock
Option Plans") the opportunity, by written notice delivered to the Company at
least two business days prior to the Effective Time, to exchange each of his
or her options for:
(i) an amount equal to the product of (X) the number of Shares
subject to such option and (Y) the difference between the $23.00 and the
per share exercise price of such option, payable at the Effective Time in
cash, provided, however, that if the option exercise price is greater
than or equal to $23.00 per Share, then no amounts shall be payable under
this subclause (i); and
(ii) an amount equal to the product of (X) the number of Shares
subject to such option and (Y) the Average Closing Price, minus $6.00,
plus, the greater of
(I) the amount of OSP Disposition Proceeds per Share eligible
to receive such proceeds and
(II) $2.00,
<PAGE>14
payable on the OSP Disposition Date in shares of Parent Common Stock
valued at the Average OSP Disposition Price, which the Surviving
Corporation shall purchase from the Parent in exchange for OSP
Disposition Proceeds of like value; provided, however, that if the option
exercise price is greater than $23.00 per Share, then the multiplicand
determined in (Y) above shall be reduced by the difference between the
option exercise price and $23.00; provided, further, that if the amount
determined pursuant to the formula set forth above in this subclause (ii)
is less than zero, then no amounts shall be payable under this subclause
(ii).
(b) The Company shall deduct from all amounts payable pursuant to this
Section 1.10 all amounts of Federal, state and local withholding taxes
required by law to be withheld therefrom.
(c) The Stock Option Committee of the Board of Directors shall be
permitted to accelerate the vesting of options outstanding under the Stock
Option Plans, shall permit any unexercised options to expire in accordance
with their terms and shall not take any action that would waive the provisions
of Section 3.3(f) of the option agreements relating to such options (or
analogous provisions in particular option agreements).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARENT
AND MERGER SUB
The Parent and Merger Sub represent and warrant to the Company as
follows:
SECTION 2.1. Corporate Organization. Each of the Parent and Merger Sub
is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has the requisite
corporate power and authority and any necessary governmental authority to own,
operate or lease the properties that it purports to own, operate or lease and
to carry on its business as it is now being conducted, except for such failure
which, when taken together with all other such failures, would not have a
Material Adverse Effect (as defined below) on the Parent and Merger Sub. When
used in connection with the Parent and Merger Sub, the term "Material Adverse
Effect" means any change in or effect on the business of the Parent and its
subsidiaries that is or will be materially adverse to the business, results of
operations or condition (financial or otherwise), liabilities or regulatory
status of the Parent and its subsidiaries taken as a whole.
SECTION 2.2. Certificate of Incorporation and By-Laws. The Parent has
heretofore furnished to the Company complete and
<PAGE>15
correct copies of its Certificate of Incorporation and By-Laws, each as
amended to the date hereof. Such Certificate of Incorporation and By-Laws are
in full force and effect. Neither the Parent nor any of its subsidiaries is
in violation of any of the provisions of its Certificate of Incorporation or
By-Laws or equivalent organizational documents.
SECTION 2.3. Authority Relative to this Agreement. Each of the Parent
and Merger Sub has all necessary corporate power and authority to enter into
this Agreement, subject to obtaining all necessary approvals by the Parent's
stockholders, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Parent and Merger Sub and the consummation by the Parent and
Merger Sub of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Parent and Merger Sub and
by the Parent as the sole shareholder of Merger Sub, subject to obtaining all
necessary approvals by the Parent's stockholders. This Agreement has been
duly executed and delivered by the Parent and Merger Sub and constitutes a
legal, valid and binding obligation of each such corporation, enforceable
against each of them in accordance with its terms.
SECTION 2.4. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by the Parent and Merger Sub do not,
and the performance of this Agreement by the Parent and Merger Sub will not,
(i) conflict with or violate any law, regulation, court order, judgment or
decree applicable to the Parent or Merger Sub or by which any of their
property or assets is bound or affected, (ii) violate or conflict with either
the Certificate of Incorporation or By-Laws of either the Parent or Merger
Sub, or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of the
Parent or Merger Sub pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, instrument, permit, license or franchise to which
the Parent or Merger Sub is a party or by which the Parent or Merger Sub or
any of their property is bound or affected, except in the case of (i) or (iii)
for conflicts, violations, breaches or defaults which, in the aggregate, would
not have a Material Adverse Effect.
(b) Except for applicable requirements, if any, of the Securities Act of
1933, as amended (the "Securities Act"), Securities Exchange Act of 1934 (the
"Exchange Act"), "blue sky" laws of various states, the pre-merger
notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR Act") and filing and recordation of appropriate
merger documents as required by California Law, neither the Parent nor Merger
Sub is required to submit any notice, report or
<PAGE>16
other filing with any governmental authority, domestic or foreign, in
connection with the execution, delivery or performance of this Agreement or
the consummation of the transactions contemplated hereby. Except as
aforesaid, no waiver, consent, approval or authorization of any governmental
or regulatory authority, domestic or foreign, is required to be obtained or
made by either the Parent or Merger Sub in connection with its execution,
delivery or performance of this Agreement.
(c) The Parent has heretofore furnished to the Company copies of its
Schedule 13D (including all amendments thereto) filed by it with the SEC with
respect to the Company.
SECTION 2.5. Financing Arrangements. The Parent and Merger Sub will
have funds available at the Effective Time which, together with the Company's
available cash referred to in Section 6.3(d) hereof, will be sufficient to pay
the cash portion of the Merger Consideration.
SECTION 2.6. No Prior Activities. Except for obligations or liabilities
incurred in connection with its incorporation or organization or the
negotiation and consummation of this Agreement and the transactions
contemplated hereby (including any financing), Merger Sub has not incurred any
obligations or liabilities, and has not engaged in any business or activities
of any type or kind whatsoever or entered into any agreements or arrangements
with any person or entity.
SECTION 2.7. Brokers. No broker, finder or investment banker (other
than Salomon Brothers Inc), is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by and on behalf of the Parent or
Merger Sub.
SECTION 2.8. SEC Filings; Financial Statements. (a) The Parent has
filed all forms, reports and documents required to be filed with the SEC since
October 16, 1992, and has heretofore delivered to the Company in the form
filed with the SEC, its (i) Annual Reports on Form 10-K for the fiscal years
ended December 31, 1993 and December 31, 1992, (ii) Quarterly Report on Form
10-Q for the quarter ended March 31, 1994, (iii) all proxy statements relating
to the Parent's meetings of stockholders (whether annual or special) held
since October 16, 1992 and (iv) all other reports or registration statements
(other than Quarterly Reports on Form 10-Q) filed by the Parent with the SEC
since January 1, 1992 (collectively, the "Parent SEC Reports"). The Parent
SEC Reports (i) were prepared in all material respects in accordance with the
requirements of the Securities Act or the Exchange Act, as the case may be,
and (ii) did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
<PAGE>17
None of the Parent's subsidiaries is required to file any statements or
reports with the SEC pursuant to Sections 13(a) or 15(d) of the Exchange Act.
(b) The consolidated financial statements contained in the Parent SEC
Reports comply in all material respects with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder by the SEC and have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may
be indicated in the notes thereto) and fairly present the consolidated
financial position of the Parent and its subsidiaries as at the respective
dates thereof and the consolidated results of operations and changes in
financial position of the Parent and its subsidiaries for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount.
(c) Except as reflected or reserved against in the consolidated
financial statements contained in the Parent SEC Reports, the Parent and its
subsidiaries have no liabilities of any nature (whether accrued, absolute,
contingent or otherwise) which in the aggregate could have a Material Adverse
Effect, except for liabilities incurred since March 31, 1994 in the ordinary
course of business and consistent with past practice. Since March 31, 1994,
neither the Parent nor any of its subsidiaries has incurred any liabilities
material to the Parent and its subsidiaries taken as a whole, except
(i) liabilities incurred in the ordinary course of business and consistent
with past practice, or (ii) liabilities incurred in connection with the
Merger.
(d) The Parent is eligible to file registration statements with the SEC
on Form S-3 and Form S-4.
SECTION 2.9. Joint Proxy Statement-Prospectus. None of the information
supplied in writing by the Parent or Merger Sub, each of their officers,
directors, representatives, agents or employees (the "Parent Information"),
for inclusion in the joint proxy statement-prospectus (such joint proxy
statement-prospectus, as amended or supplemented, is herein referred to as the
"Joint Proxy Statement-Prospectus") will, on the date the Joint Proxy
Statement-Prospectus is filed with the SEC, first mailed to shareholders of
the Company and Parent, at the time of the meeting of the Parent's
stockholders to consider the issuance of Parent Common Stock in the Merger
(the "Parent Stockholders' Meeting"), at the time of the Company Shareholders'
Meeting or at the Effective Time, contain any statement which, at such time
and in light of the circumstances under which it will be made, will be false
or misleading with respect to any material fact, or will omit to state any
material fact necessary in order to make the statements therein not false or
misleading. Notwithstanding the foregoing, the Parent and Merger Sub do not
make any
<PAGE>18
representation or warranty with respect to any information that has been
supplied by the Company or its accountants, counsel or other authorized
representatives for use in the Joint Proxy Statement-Prospectus.
SECTION 2.10. Litigation. Except as disclosed in the Parent SEC
Reports, there are no lawsuits pending or, to the best knowledge of the
Parent, threatened against the Parent, or any of its subsidiaries, which are
reasonably likely to have a Material Adverse Effect. As of the date hereof,
neither the Parent nor any of its subsidiaries nor any of their property is
subject to any judgment, injunction or decree, having a Material Adverse
Effect.
SECTION 2.11. Conduct of Business. The business of the Parent and each
of its subsidiaries is not being conducted in default or violation of any
term, condition or provision of (i) its respective Certificate of
Incorporation or By-laws or similar organizational documents, or (ii) any
note, bond, mortgage, indenture, contract or agreement to which the Parent or
any of its subsidiaries is now a party or by which the Parent or any of its
subsidiaries or any of their respective properties or assets may be bound, or
(iii) any Federal, state, local or foreign statute, law, ordinance, rule,
regulation, judgment, decree, order, concession, grant, franchise, permit or
license or other governmental authorization or approval applicable to the
Parent or any of its subsidiaries, except, with respect to the foregoing
clauses (ii) and (iii), defaults or violations that would not, individually or
in the aggregate, have a Material Adverse Effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Company Disclosure Schedule previously
delivered by the Company to the Parent, the Company hereby represents and
warrants to the Parent and Merger Sub as follows:
SECTION 3.1. Organization and Qualification; Subsidiaries. Each of the
Company and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and has the requisite corporate power and authority and any material necessary
governmental authority to own, operate or lease its properties that it
purports to own, operate or lease and to carry on its business as it is now
being conducted, and is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned, operated or leased or the nature of its activities makes
such qualification necessary, except for such failure which, when
<PAGE>19
taken together with all other such failures, would not have a Material Adverse
Effect (as defined below) on the Company. The term "Subsidiary" means any
corporation or other legal entity of which the Company or, if the context
requires, the Surviving Corporation (either alone or through or together with
any other Subsidiary) owns, directly or indirectly, more than 50% of the stock
or other equity interests the holders of which are generally entitled to vote
for the election of the board of directors or other governing body of such
corporation or other legal entity. When used in connection with the Company
or any of its Subsidiaries the term "Material Adverse Effect" means any change
in or effect on the business of the Company and its Subsidiaries that is or
will be materially adverse to the business, results of operations or condition
(financial or otherwise), liabilities or regulatory status of the Company and
its Subsidiaries taken as a whole.
SECTION 3.2. Articles of Incorporation and By-Laws. Attached to
Schedule 3.2 are complete and correct copies of the Company's Articles of
Incorporation and the By-Laws, each as amended to the date hereof, of the
Company and the Company has heretofore furnished to Parent the Company's
standard form of its stock option agreement. Such Articles of Incorporation,
By-Laws and the equivalent organizational documents of its Subsidiaries are in
full force and effect. Neither the Company nor any Subsidiary is in violation
of any of the provisions of its Articles of Incorporation or By-Laws or
equivalent organizational documents.
SECTION 3.3. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 20,000,000 shares of Company Common
Stock. As of June 27, 1994, (i) 5,895,458 shares of Company Common Stock were
issued and outstanding, all of which were validly issued, fully paid and
nonassessable, (ii) there were 649,162 shares of Company Common Stock reserved
for issuance pursuant to options granted under the Stock Option Plans and
279,870 shares of Company Common Stock reserved for future issuance under the
Stock Option Plans, and (iii) the Optical Radiation Corporation Consumer
Optical Group Perform, Incentive and Motivate Plan has been validly canceled,
and the Company has received waivers from all participants relating to such
termination and has no liability thereunder. Schedule 3.3 identifies, as of
June 27, 1994, the option holders, the number of shares subject to each option
held, the exercise prices, vesting schedules and expiration dates of the
outstanding options granted under the Option Plans. All outstanding Shares
have been duly authorized and validly issued and are fully paid and
nonassessable and free of preemptive rights. Except as set forth in this
Section 3.3 or on Schedule 3.3, there are not, as of the date hereof, any
outstanding or authorized subscriptions, options, warrants, convertible
securities, calls, rights, commitments or any other agreements of any
character relating to the issued or unissued capital stock or other securities
of the
<PAGE>20
Company to which the Company is party or by which the Company is bound
obligating the Company to issue, deliver, or sell, or cause to be issued,
delivered or sold, additional shares of capital stock of the Company or
obligating the Company to grant, extend or enter into any subscription,
option, warrant, call, right, commitment or other such agreement.
All the outstanding capital stock of each of the Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and is owned by the
Company or a Subsidiary free and clear of any liens, security interests,
pledges, agreements, claims, charges or encumbrances of any nature whatsoever.
There are no existing options, calls or commitments of any character relating
to the issued or unissued capital stock or other securities of any Subsidiary.
Except for the Subsidiaries and except as set forth on Schedule 3.3, the
Company does not directly or indirectly own a greater than 5% equity interest
in any other corporation, partnership, joint venture or other business
association or entity that is material to the assets, obligations and
liabilities of the Company.
SECTION 3.4. Authority Relative to this Agreement. The Company has the
necessary corporate power and authority to enter into this Agreement and,
subject to obtaining any necessary shareholder approval of the Merger, to
carry out its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company, subject to the approval of the Merger by the Company's
shareholders in accordance with California Law. This Agreement has been duly
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against it in accordance with
its terms.
SECTION 3.5. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate any law, regulation, court order, judgment or decree applicable to the
Company or any of the Subsidiaries or by which its or any of their property is
bound or affected, (ii) violate or conflict with the Articles of Incorporation
or By-Laws or equivalent organizational documents of the Company or any
Subsidiary, or (iii) result in any breach of or constitute a default (or an
event which with notice or lapse of time of both would become a default)
under, or give to others any rights of termination or cancellation of, or
result in the creation of a lien or encumbrance on any of the properties or
assets of the Company or any of the Subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, instrument, permit, license
or franchise to which the Company or any of the Subsidiaries is a party or by
which the Company or any
<PAGE>21
of the Subsidiaries or its or any of their property is bound or affected,
except in the case of (i) or (iii) for conflicts, violations, breaches or
defaults which, in the aggregate, would not have a Material Adverse Effect.
(b) Except for applicable requirements, if any, of the Exchange Act, the
pre-merger notification requirements of the HSR Act, and filing and
recordation of appropriate merger or other documents as required by California
Law, "takeover" or "blue sky" laws of various states, and except for any
notice, filings, authorizations, consents or approvals which are required
because of the regulatory status of the Company or any of its Subsidiaries or
facts specifically applicable to them, the Company is not required to submit
any notice, report or other filing with any governmental authority, domestic
or foreign, in connection with the execution, delivery or performance of this
Agreement. Except as aforesaid, no waiver, consent, approval or authorization
of any governmental or regulatory authority, domestic or foreign, is required
to be obtained or made by the Company in connection with its execution,
delivery or performance of this Agreement.
SECTION 3.6. SEC Filings; Financial Statements. (a) The Company has
filed all forms, reports and documents required to be filed with the SEC since
August 1, 1991, and has heretofore delivered to the Parent, in the form filed
with the SEC, its (i) Annual Reports on Form 10-K for the fiscal years ended
July 31, 1993, July 31, 1992 and July 31, 1991, (ii) Quarterly Reports on Form
10-Q for the quarters ended October 31, 1993, January 30, 1994 and April 30,
1994, (iii) all proxy statements relating to the Company's meetings of
shareholders (whether annual or special) held since August 1, 1991, and
(iv) all other reports or registration statements (other than Quarterly
Reports on Form 10-Q) filed by the Company with the SEC since August 1, 1991
(collectively, the "Company SEC Reports"). The Company SEC Reports (i) were
prepared in all material respects in accordance with the requirements of the
Securities Act, or the Exchange Act, as the case may be, and (ii) did not at
the time they were filed contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. None of the Subsidiaries is required to
file any statements or reports with the SEC pursuant to Sections 13(a) or
15(d) of the Exchange Act.
(b) The consolidated financial statements contained in the Company SEC
Reports comply in all material respects with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder by the SEC and have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may
be indicated in the notes thereto) and fairly present the
<PAGE>22
consolidated financial position of the Company and its Subsidiaries as at the
respective dates thereof and the consolidated results of operations and
changes in financial position of the Company and its Subsidiaries for the
periods indicated, except that the unaudited interim financial statements were
or are subject to normal and recurring year-end adjustments which were not or
are not expected to be material in amount.
(c) Except as reflected or reserved against in the consolidated
financial statements contained in the Company SEC Reports, the Company and its
Subsidiaries have no liabilities of any nature (whether accrued, absolute,
contingent or otherwise) which in the aggregate could have a Material Adverse
Effect, except for liabilities incurred since April 30, 1994 in the ordinary
course of business and consistent with past practice. Since April 30, 1994,
neither the Company nor any of the Subsidiaries has incurred any liabilities
material to the Company and the Subsidiaries taken as a whole, except
(i) liabilities incurred in the ordinary course of business and consistent
with past practice, (ii) liabilities incurred in connection with or as a
result of the Merger, (iii) liabilities disclosed on Schedule 3.7 or (iv)
liabilities incurred in accordance with Section 4.2 hereof.
SECTION 3.7. Absence of Certain Changes or Events. Since April 30,
1994, except as contemplated in this Agreement or as previously disclosed in
the Company SEC Reports or as appears on Schedule 3.7, there has not been:
(a) any Material Adverse Effect;
(b) any damage, destruction or loss (whether or not covered by
insurance) with respect to any of the assets of the Company or any of its
Subsidiaries having a Material Adverse Effect;
(c) any redemption or other acquisition of Company Common Stock by
the Company or any of the Subsidiaries or any declaration or payment of
any dividend or other distribution in cash, stock or property with
respect to Company Common Stock, except for purchases heretofore made
pursuant to the terms of the Company's employee benefit plans;
(d) any entry into any material commitment or transaction
(including, without limitation, any borrowing or capital expenditure)
other than in the ordinary course of business or as contemplated by this
Agreement except as permitted by Section 4.2 hereof;
(e) any mortgage, pledge, security interest or imposition of lien
or other encumbrance on any asset of the Company or any of the
Subsidiaries that is material to the
<PAGE>23
business, financial condition or operations of the Company and the
Subsidiaries taken as a whole except as permitted by Section 4.2 hereof; or
(f) any change by the Company in accounting principles or methods
except insofar as may have been required by a change in generally
accepted accounting principles and disclosed in the Company SEC Reports.
Since April 30, 1994, the Company and its Subsidiaries have conducted
their business only in the ordinary course and in a manner consistent with
past practice and have not made any material change in the conduct of the
business or operations of the Company and its Subsidiaries taken as a whole.
Without limiting the generality of the foregoing, the Company has not, since
such date, except for the contracts referred to in the Company SEC Reports or
as disclosed on Schedule 3.7, made any changes in executive compensation
levels or in the manner in which other employees of the Company or the
Subsidiaries are compensated or agreed to pay any pension, retirement
allowance or other employee benefit not required or permitted by any plan or
arrangement existing on such date to any director, officer or employee,
whether past or present, or committed itself to any collective bargaining
agreement or to any additional pension, profit-sharing, bonus, incentive,
deferred compensation, stock purchase, stock option, stock appreciation right,
group insurance, severance pay, retirement or other employee benefit plan or
arrangement, or to any employment or consulting agreement or to amend any of
such plans or any of such agreements in existence on such date, in each case,
other than increases in the ordinary course of business and consistent with
past practice.
SECTION 3.8. Trademarks and Patents. Except as disclosed on Schedule
3.8, no material infringement of any patent, patent right, trademark,
trademark right, trade name or trade name right owned by or licensed by or to
the Company or any of the Subsidiaries is known to the Company or any
Subsidiary which is reasonably likely to have a Material Adverse Effect.
SECTION 3.9. Litigation. Except as disclosed in the Company SEC Reports
or on Schedule 3.9, there are no lawsuits pending or, to the best knowledge of
the Company, threatened against the Company or any of its Subsidiaries, which
are reasonably likely to have a Material Adverse Effect. As of the date
hereof, neither the Company nor any of its Subsidiaries nor any of their
property is subject to any judgment, injunction or decree, having a Material
Adverse Effect except as disclosed on Schedule 3.9 or in the Company SEC
Reports.
SECTION 3.10. Employee Benefit Plans. None of the Company, any
Subsidiary, or any "affiliate" (as defined in Section 407(d)(7) of ERISA):
(i) has any defined benefit plans, (ii) provides, has provided or agreed to
provide any post-
<PAGE>24
retirement benefits which are required to be reported on the Company's
financial statements under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 106 and (iii) has received a notice of
deficiency from the United States Department of Labor.
SECTION 3.11. Labor Matters. Neither the Company nor any of the
Subsidiaries is a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by the Company or its
Subsidiaries.
SECTION 3.12. Joint Proxy Statement-Prospectus. None of the information
supplied in writing by the Company, each of its officers, directors,
representatives, agents or employees, for inclusion in the Joint Proxy
Statement-Prospectus will on the date the Joint Proxy Statement-Prospectus is
filed with the SEC, first mailed to shareholders in connection with the
Company Shareholders' Meeting, at the time of the Company Shareholders'
Meeting or the Parent Stockholders' Meeting or at the Effective Time, contain
any statement, which at such time and in light of the circumstances under
which it will be made, will be false or misleading with respect to a material
fact, or will omit to state any material fact necessary in order to make the
statements therein not false or misleading. Notwithstanding the foregoing,
the Company does not make any representation or warranty with respect to any
information that has been supplied by the Parent, Merger Sub, or their
accountants, counsel or other authorized representatives for use in the Joint
Proxy Statement-Prospectus.
SECTION 3.13. Brokers. No broker, finder or investment banker (other
than Donaldson Lufkin & Jenrette) is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by and on behalf of the Company.
The fees and expenses to be incurred by the Company are estimated to be no
greater than $2,500,000, absent extraordinary unanticipated circumstances and
assuming counsel for Parent or Merger Sub will draft the Joint Proxy Statement
- - Prospectus and that the Parent will bear printing and mailing costs of same.
The Company will use its reasonable best efforts to minimize such costs and
obtain back-up for all bills submitted for professional services.
SECTION 3.14. Products Liability. Except as disclosed on Schedule 3.14,
to the best knowledge of the Company, there is no notice or claim involving
any product manufactured, produced, distributed or sold by or on behalf of the
Company or its Subsidiaries resulting from an alleged defect in design,
manufacture, materials or workmanship, or any alleged failure to warn, or from
any breach of implied warranties or representations, which would have a
Material Adverse Effect on the Company and its Subsidiaries taken as a whole.
<PAGE>25
SECTION 3.15. Conduct of Business. The business of the Company and each
of the Subsidiaries is not being conducted in default or violation of any
term, condition or provision of (i) its respective Articles of Incorporation
or By-laws or similar organizational documents, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease or other instrument or
agreement of any kind to which the Company or any of the Subsidiaries is now a
party or by which the Company or any of the Subsidiaries or any of their
respective properties or assets may be bound, or (iii) to the best knowledge
of the Company, any Federal, state, local or foreign statute, law, ordinance,
rule, regulation, judgment, decree, order, concession, grant, franchise,
permit or license or other governmental authorization or approval applicable
to the Company or any of the Subsidiaries, except, with respect to the
foregoing clauses (ii) and (iii), defaults or violations that would not,
individually or in the aggregate, have a Material Adverse Effect.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 4.1. Acquisition Proposals. The Company will notify the Parent
immediately if any inquiries or proposals are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated
or continued with the Company, in each case in connection with any
acquisition, business combination or purchase of all or any significant
portion of the assets of, or any equity interest in, the Company or any
Subsidiary.
SECTION 4.2. Conduct of Business by the Company Pending the Merger. The
Company covenants and agrees that, between the date of this Agreement and the
Effective Time, unless the Parent shall otherwise consent in writing, the
businesses of the Company and its Subsidiaries shall be conducted only in, and
the Company and its Subsidiaries shall not take any action except in, the
ordinary course of business and in a manner consistent with past practice; the
Company will use its reasonable best efforts to preserve substantially intact
the business organization of the Company and its Subsidiaries other than with
respect to the disposition of the OSP Division, to keep available the services
of the present officers, employees and consultants of the Company and its
Subsidiaries and to preserve the present relationships of the Company and its
Subsidiaries with customers, suppliers and other persons with which the
Company or any of its Subsidiaries has significant business relations; and the
Company shall discontinue the business of the OSP Division at such time as the
negative cash flow used in the business of the OSP Division from the date
hereof through September 30, 1994 exceeds $1.25 million or, from September 30
through December 31, 1994, exceeds $250,000 per month. By way of
amplification and not limitation, except as
<PAGE>26
contemplated by this Agreement, neither the Company nor any of its
Subsidiaries shall, between the date of this Agreement and the Effective Time,
directly or indirectly, do any of the following without the prior written
consent of the Parent:
(a) (i) issue, sell, pledge, dispose of, encumber, authorize, or
propose the issuance, sale, pledge, disposition, encumbrance or
authorization of any shares of capital stock of any class, or any
options, warrants, convertible securities or other rights of any kind to
acquire any shares of capital stock, or any other ownership interest, of
the Company or any of its Subsidiaries, other than pursuant to options
granted prior to June 27, 1994; (ii) amend or propose to amend the
Articles of Incorporation or By-Laws or equivalent organizational
documents of the Company or any of its Subsidiaries; (iii) split, combine
or reclassify any outstanding Shares, or declare, set aside or pay any
dividend or distribution payable in cash, stock, property or otherwise
with respect to the Shares; (iv) redeem, purchase or otherwise acquire or
offer to redeem, purchase or otherwise acquire any shares of its capital
stock, except in the performance of its obligations under existing
employee plans; or (v) authorize or propose or enter into any contract,
agreement, commitment or arrangement with respect to any of the matters
set forth in this Section 4.2(a);
(b) (i) acquire (by merger, consolidation, or acquisition of stock
or assets) any corporation, partnership or other business organization or
division thereof; (ii) except in the ordinary course of business and in a
manner consistent with past practices, sell, pledge, dispose of, or
encumber or authorize or propose the sale, pledge, disposition or
encumbrance of any material assets of the Company or any of its
Subsidiaries other than the disposition of the OSP Division; (iii) incur
any indebtedness for borrowed money, or enter into any contract or
agreement, except in the ordinary course of business other than
indebtedness (which may be secured) incurred for working capital on a
short term basis in an amount greater than $5,000,000; (iv) make or
commit on or before September 30, 1994, to capital expenditures which
exceed by $400,000 the amount of planned capital expenditures set forth
on a schedule previously disclosed to the Parent or make or commit to
make aggregate capital expenditures in excess of $200,000 per month
without first notifying the Parent, and no capital expenditures shall be
used for the business of the OSP Division, or (v) enter into or amend any
contract, agreement, commitment or arrangement with respect to any of the
matters set forth in this Section 4.2(b);
(c) take any action other than in the ordinary course of business
and in a manner consistent with past practice or
<PAGE>27
pursuant to disclosed contracts (none of which actions shall be unreasonable
or unusual) with respect to the grant of any severance or termination pay
(otherwise than pursuant to policies of the Company or any of its Subsidiaries
in effect on the date hereof) or with respect to any increase of benefits
payable under its severance or termination pay policies in effect on the date
hereof;
(d) make any payments (except in the ordinary course of business
and in amounts and in a manner consistent with past practice or pursuant
to disclosed contracts) to any employee of, or independent contractor or
consultant to, the Company or any Subsidiary, enter into any new employee
plan, any new employment or consulting agreement, grant or establish any
new awards under such plan or agreement, or adopt or otherwise amend any
of the foregoing otherwise than in the ordinary course consistent with
past practice;
(e) take any action except in the ordinary course of business and
in a manner consistent with past practice (none of which actions shall be
unreasonable or unusual) with respect to accounting policies or
procedures (including without limitation its procedures with respect to
the payment of accounts payable); or
(f) before the Effective Time, take any action to cause the shares
of Company Common Stock to cease to be listed on the Nasdaq Stock Market.
SECTION 4.3. No Shopping. Except with respect to the disposition of the
OSP Division, the Company and its Subsidiaries will not, directly or
indirectly, through any officer, director, employee, representative, agent,
financial adviser or otherwise, solicit, initiate or encourage inquiries or
submission of proposals or offers from any person relating to any sale of all
or a portion of the assets, business, properties of (other than immaterial or
insubstantial assets or inventory in the ordinary course of business), or any
equity interest in, the Company or any of its Subsidiaries or any business
combination with the Company or any of its Subsidiaries, whether by merger,
purchase of assets, tender offer or otherwise or participate in any
negotiation regarding, or furnishing to any other person any information
(except information which has been previously publicly disseminated by the
Company in the ordinary course of business) with respect to, or otherwise
cooperate in any way with, or assist in, facilitate or encourage, any effort
or attempt by any other person to do or seek to do any of the foregoing.
Notwithstanding the foregoing, the parties hereby agree that the Board of
Directors of the Company may review and act upon an unsolicited proposal by
any other person relating to any of the transactions referred to in the
preceding sentence, and may participate in any negotiations regarding, or
furnish to any other person any information with respect to, and otherwise
<PAGE>28
cooperate in any way with, and assist in, facilitate or encourage, any effort
or attempt by any other person to do or seek any of the foregoing if the Board
of Directors determines, based as to legal matters on the advice of legal
counsel, that failing to review and act would constitute a breach of fiduciary
duty, and such review and conduct will not violate this Agreement. The
Company shall use its reasonable best efforts to cause all confidential
materials previously furnished to any third parties to be promptly returned to
the Company and shall cease any negotiations conducted in connection therewith
or otherwise conducted with any such parties. The Company shall immediately
notify the Parent if any such proposal or offer, or any inquiry or contact
with any person with respect thereto, is made.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Joint Proxy Statement-Prospectus. As promptly as
practicable after the execution of this Agreement, the Company and Parent
shall prepare and file with the SEC preliminary proxy materials which shall
constitute the preliminary joint proxy statement relating to the shareholder
approvals required to consummate the Merger and a registration statement
containing the preliminary prospectus with respect to the Parent Common Stock
to be issued in connection with the Merger (the "Registration Statement"). As
promptly as practicable, after comments are received from the Commission with
respect to the preliminary proxy materials and after the furnishing by the
Company and Parent of all information required to be contained therein, the
Company and the Parent shall file with the SEC the definitive Joint Proxy
Statement-Prospectus and Parent and the Company shall use all reasonable
efforts to cause the Registration Statement to become effective as soon
thereafter as practicable, and shall use all reasonable efforts to cause such
Registration Statement to be declared effective by the SEC.
SECTION 5.2. Shareholder Meetings. Promptly following the effectiveness
of the Registration Statement, each of the Company and Parent shall promptly
take all action necessary in accordance with applicable law and their
respective Articles of Incorporation and By-Laws to convene the Company
Shareholders' Meeting and the Parent Stockholders' Meeting. The shareholder
votes or consents required for approval of the Merger will be no greater than
that set forth in California Law. Each of Parent and the Company shall use
its reasonable best efforts to solicit from their respective shareholders
proxies in favor of, and shall take all other action necessary or advisable to
secure any vote or consent of shareholders required in connection with, the
issuance of the shares of Parent Common Stock in the Merger and to effect the
Merger. The Parent agrees that it shall vote, or
<PAGE>29
cause to be voted, in favor of the Merger all Shares directly or indirectly
beneficially owned by it.
SECTION 5.3. Compliance with the Securities Act. Prior to the Effective
Time, the Company shall cause to be delivered to the Parent a letter from the
Company, identifying all persons who were, in its opinion, at the time of the
Company Shareholders' Meeting, "affiliates" of the Company as that term is
used in paragraphs (c) and (d) of Rule 145 under the Securities Act.
SECTION 5.4. HSR Act. The Company and the Parent shall use their best
efforts to file as soon as practicable notifications under the HSR Act in
connection with the Merger and the transactions contemplated hereby, and to
respond as promptly as practicable to any inquires received from the Federal
Trade Commission and the Antitrust Division of the Department of Justice for
additional information or documentation and to respond as promptly as
practicable to all inquiries and requests received from any State Attorney
General or other governmental authority in connection with antitrust matters.
SECTION 5.5. Additional Agreements. The Company, the Parent and Merger
Sub will each comply in all material respects with all applicable laws and
with all applicable rules and regulations of any governmental authority in
connection with its execution, delivery and performance of this Agreement and
the transactions contemplated hereby and the Parent shall use its reasonable
best efforts to have the shares of Parent Common Stock issued in the Merger
listed on the American Stock Exchange. Each of the parties hereto agrees to
use all reasonable efforts to obtain in a timely manner all necessary waivers,
consents and approvals and to effect all necessary registrations and filings,
and to use all reasonable efforts to take, or cause to be taken, all other
actions and to do, or cause to be done, all other things necessary, proper or
advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement.
SECTION 5.6. Notification of Certain Matters. Each of the Company and
the Parent shall give prompt notice to the other of (i) the occurrence, or
non-occurrence of any event whose occurrence, or non-occurrence would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at any time from the date
hereof to the Effective Time and (ii) any material failure of the Company, the
Parent or Merger Sub, as the case may be, or any officer, director, employee
or agent thereof, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 5.6 shall not limit
or otherwise affect the remedies available hereunder to the party receiving
such notice.
<PAGE>30
SECTION 5.7. Access to Information. (a) From the date hereof to the
Effective Time, (i) the Company shall, and shall cause its subsidiaries,
officers, directors, employees, auditors and agents to, afford the officers,
employees and agents of the other complete access at all reasonable times and
on reasonable notice to its officers, employees, agents, accountants,
properties, offices and other facilities and to all books and records, and
shall furnish the other with all financial, operating and other data and
information as such party, through its officers, employees, agents or
accountants, may reasonably request and (ii) the Parent shall cooperate with
the Company as the Company shall reasonably request in connection with the
Company's due diligence review of the Parent.
(b) The Parent and the Company agree that each shall, and shall cause
their respective affiliates and each of their respective officers, directors,
employees, financial advisors and agents, to hold in strict confidence all
data and information obtained by them from the other or the other's
subsidiaries (unless such information is or becomes publicly available without
the fault of any representative or public disclosure of such information is
required by law in the opinion of counsel to such party) and shall ensure that
the representatives do not disclose such information to others without the
prior written consent of the other party.
(c) In the event of the termination of this Agreement, the Company
shall, and shall cause its affiliates to, return promptly every document
furnished to them by the Parent or any subsidiary, division, associate or
affiliate of the Parent in connection with the transactions contemplated
hereby and any copies thereof which may have been made, and shall cause the
representatives to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made, other than
documents filed with the SEC or otherwise publicly available.
SECTION 5.8. Public Announcements. The Parent and the Company shall
consult with each other before issuing any press release or otherwise making
any public statements with respect to the Merger and shall not issue any such
press release or make any such public statement before such consultation,
except as may be required by law.
SECTION 5.9. Best Efforts; Cooperation. Upon the terms and subject to
the conditions hereof, each of the parties hereto agrees to use its 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 to consummate the transactions
contemplated by this Agreement and shall use its best efforts to obtain all
necessary waivers, consents and approvals, and to effect all necessary filings
under the Securities Act, the Exchange Act and the HSR Act. The parties shall
cooperate in responding to
<PAGE>31
inquiries from, and making presentations to, regulatory authorities.
SECTION 5.10. Agreement to Defend and Indemnify. (a) If any action,
suit, proceeding or investigation relating hereto or to the transactions
contemplated hereby is commenced, whether before or after the Effective Time,
the parties hereto agree to cooperate and use their best efforts to defend
against and respond thereto. It is understood and agreed that, subject to the
limitations on indemnification contained in California Law, the Company shall,
to the fullest extent permitted under applicable law and regardless of whether
the Merger becomes effective, indemnify and hold harmless, and after the
Effective Time, the Surviving Corporation and the Parent shall, to the fullest
extent permitted under applicable law, indemnify and hold harmless, each
director, officer, employee, fiduciary and agent of the Company or any
Subsidiary and their respective subsidiaries and affiliates including, without
limitation, officers and directors serving as such on the date hereof
(collectively, the "Indemnified Parties") against any costs or expenses
(including attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim,
action, suit, proceeding or investigation arising out of or pertaining to any
of the transactions contemplated hereby, including without limitation
liabilities arising under the Securities Act or the Exchange Act in connection
with the Merger, and in the event of any such claim, action, suit, proceeding
or investigation (whether arising before or after the Effective Time), (i) the
Company, the Surviving Corporation or the Parent shall advance the reasonable
fees and expenses of counsel selected by the Indemnified Parties, which
counsel shall be reasonably satisfactory to the Company, the Surviving
Corporation or the Parent, promptly as statements therefor are received;
provided, however, that neither the Company, the Surviving Corporation nor the
Parent shall have any obligation under this clause (i) unless they shall have
received an undertaking from the Indemnified Party to promptly return any
amounts paid by the Company, the Surviving Corporation or the Parent in the
event that it shall ultimately have been determined that the Indemnified Party
is not entitled to be indemnified under applicable law or any indemnification
agreement with the Company to which he is a party, and (ii) the Company, the
Surviving Corporation and the Parent will cooperate in the defense of any such
matter; provided, however, that neither the Company, the Surviving Corporation
nor the Parent shall be liable for any settlement effected without its written
consent (which consent shall not be unreasonably withheld); and further,
provided, that neither the Company, the Surviving Corporation nor the Parent
shall be obliged pursuant to this Section to pay the fees and disbursements of
more than one counsel for all Indemnified Parties in any single action except
to the extent that, in the written opinion of counsel for the Indemnified
Parties, two or more of such Indemnified Parties have conflicting
<PAGE>32
interests in the outcome of such action. The Parent agrees to cause the
Surviving Corporation to maintain in effect for not less than three years the
Company's current directors' and officers' liability insurance which has been
paid in full as of the date hereof. The Parent shall cause the Surviving
Corporation to continue in effect the indemnification provisions currently
provided by the Certificate of Incorporation, By-Laws or any written
indemnification agreement of the Company for a period of not less than six
years following the Effective Time. This Section shall survive the
consummation of the Merger. This covenant shall survive any termination of
this Agreement pursuant to Section 7.1 hereof. Notwithstanding Section 8.7
hereof, this Section is intended to be for the benefit of and to grant third
party rights to Indemnified Parties whether or not parties to this Agreement,
and each of the Indemnified Parties shall be entitled to enforce the covenants
contained herein.
(b) If the Parent, the Surviving Corporation or any of either of its
successors or assigns (i) consolidates with or merges into any other person
and shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in each such case, proper
provision shall be made so that the successors and assigns of the Parent or
Surviving Corporation assume the obligations set forth in this Section 5.10.
SECTION 5.11. Restrictions on the Parent. During the term of this
Agreement, the Parent shall not, and shall cause its affiliates not to,
purchase or otherwise acquire beneficial ownership of any Shares or to sell or
otherwise dispose of any Shares, in each case, other than pursuant to the
Merger.
SECTION 5.12. OSP Disposition. The Company will keep the Parent
closely informed as to its efforts to effect the sale by the Company of its
Ophthalmic Surgical Products Division (the "OSP Division"), consisting of its
business, assets and liabilities relating to the manufacturing and marketing
of intraocular lenses, and the business, assets and liabilities relating to
the OSP Division's Corneal Topography Systems and Corneal Contouring, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Company. The
Company may make such sales on terms it deems reasonable and appropriate,
provided that no such terms shall be less favorable to the Company than the
OSP Minimum Sale Terms set forth on Schedule 5.12, without the prior, written
consent of the Parent. Pending the disposition of the OSP Division, or any
portion thereof, the Company shall conduct the business of the OSP Division
only in the ordinary course and shall not take any action that would, in any
material respect, transfer cash or other assets of the Company to the OSP
Division except for cash required to enable it to meet its obligations
incurred in the ordinary course of its business.
<PAGE>33
SECTION 5.13. Action by the Officers, Directors, etc. (a) The Company
shall use its reasonable best efforts to cause its directors and officers to
vote any Shares held in favor of the Merger.
(b) The Parent shall use its reasonable best efforts to cause its
directors, officers, subsidiaries and Benson Partners I, L.P. to vote all
Shares beneficially held by any of them in favor of the Merger and to vote all
shares of Parent Common Stock beneficially held by any of them in favor of the
proposals to the stockholders of the Parent contemplated by the Agreement.
SECTION 5.14. Dissemination of Certain Information. The Parent will
promptly disclose through filings with the SEC under the Exchange Act the
occurrence of any Material Adverse Effect upon the Parent or any of its
subsidiaries occurring between April 30, 1994 and the Effective Time, and will
promptly furnish to the Company a copy of such filing.
ARTICLE VI
CONDITIONS OF MERGER
SECTION 6.1. Conditions to Obligation of Each Party to Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the following conditions:
(a) Shareholder Approvals. (i) The Merger and this Agreement shall
have been approved and adopted by the requisite vote of the shareholders
of the Company and (ii) the issuance of the shares of Parent Common Stock
in the Merger shall have been approved and adopted by the requisite vote
of the Parent's stockholders;
(b) Amex Listing. The Parent Common Stock to be issued in the
Merger shall have been authorized for listing on the American Stock
Exchange upon official notice of issuance;
(c) HSR Waiting Period. The waiting period applicable to the
consummation of the Merger under the HSR Act shall have expired or been
terminated;
(d) Effectiveness of Registration Statement. The Registration
Statement shall have become effective in accordance with the provisions
of the Securities Act. No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the SEC and remain in
effect; and
<PAGE>34
(e) No Prohibition. No preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission
nor any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority shall be in effect, which prevents
the consummation of the Merger or makes such consummation illegal.
SECTION 6.2. Additional Conditions to Obligations of the Company. The
obligation of the Company to effect the Merger is also subject to the
fulfillment of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Parent and Merger Sub contained in this Agreement shall
be true and correct in all material respects on the date hereof and shall
also be true and correct in all material respects on and as of the
Effective Time, except for changes contemplated by this Agreement, with
the same force and effect as if made on and as of the Effective Time; and
(b) Agreements, Conditions and Covenants. The Parent and Merger
Sub shall have performed or complied in all material respects with all
agreements, conditions and covenants required by this Agreement to be
performed or complied with by them on or before the Effective Time
SECTION 6.3. Additional Conditions to Obligations of the Parent and
Merger Sub. The obligations of the Parent and Merger Sub to effect the Merger
are also subject to the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company contained in this Agreement shall be true and
correct in all material respects on the date hereof and shall also be
true and correct in all material respects on and as of the Effective
Time, except for changes contemplated by this Agreement, with the same
force and effect as if made on and as of the Effective Time;
(b) Agreements, Conditions and Covenants. The Company shall have
performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed or
complied with by it on or before the Effective Time;
(c) Demand for Appraisal Rights. Holders of not more than 5% of
the Company's Shares shall have made a demand for payment pursuant to
appraisal rights under California Law by the conclusion of the Company
Shareholders' Meeting; and
<PAGE>35
(d) Cash Position of the Company. The Company shall have at least
$30 million in cash that is free and clear of all liens or other
encumbrances.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. Termination. This Agreement may be terminated at any time
before the Effective Time:
(a) By mutual consent of the Boards of Directors of the Parent and
the Company; or
(b) By either the Parent or the Company if the Merger shall not
have been consummated by December 31, 1994, provided, however, that the
right to terminate this Agreement under this Section 7.1(b) will not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the
Merger to occur on or before such date; or
(c) By either the Parent or the Company if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any
other action (which order, decree or ruling the parties hereto shall use
their best efforts to lift), in each case permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have
become final and nonappealable; or
(d) By the Parent if the Board of Directors of the Company
(i) withdraws, modifies or changes its recommendation of this Agreement
or the Merger in a manner adverse to the Parent and Merger Sub,
(ii) recommends to the holders of Shares any proposal with respect to a
tender offer, merger, consolidation, share exchange or similar
transaction involving the Company or any of its Subsidiaries, other than
the transactions contemplated by this Agreement, or (iii) resolves to do
any of the foregoing; or
(e) By the Company if prior to the Effective Time, a corporation,
partnership, person or other entity or group shall have made a bona fide
offer that the Board of Directors of the Company determines in its good
faith judgment and in the exercise of its fiduciary duties, based on the
advice of legal counsel, is more favorable to the Company's shareholders
than the Merger, provided that any such termination by the Company shall
not be effective until payment of the fees required by Section 7.3(a) and
Section 7.3(b); or
<PAGE>36
(f) By either the Parent or the Company if the other party shall
have breached this Agreement hereunder in any material respect and such
breach continues for a period of ten days after the receipt of notice of
the breach from the non-breaching party.
SECTION 7.2. Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1 hereof, this Agreement shall forthwith
become void and there shall be no liability on the part of the Parent, Merger
Sub or the Company, except (i) as set forth in Sections 7.3 and 8.1 hereof,
and (ii) nothing herein shall relieve any party from liability for any breach
hereof.
SECTION 7.3. Termination Fees and Expenses. (a) After this Agreement is
terminated by the Company pursuant to Section 7.1(e) hereof or by the Parent
pursuant to Section 7.1(f) hereof, the Company shall pay to the Parent by
certified check or wire transfer to an account designated by the Parent,
within one business day after receipt of a request therefor, an amount equal
to the lesser of (i) $2,000,000 and (ii) all actual out-of-pocket costs and
expenses of the Parent and Merger Sub incurred in connection with this
Agreement and the transactions contemplated hereby, including, without
limitation, legal, professional and service fees and expenses which amount
shall be payable in same day funds.
(b) Within one business day after this Agreement has been terminated by
the Company pursuant to Section 7.1(e) hereof or by the Parent pursuant to
Section 7.1(f) hereof, the Company shall pay to the Parent $4,000,000 by
certified check or wire transfer to an account designated by the Parent which
amount shall be payable in same day funds.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. Non-Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements in this Agreement shall
terminate at the Effective Time or the termination of this Agreement pursuant
to Section 7.1, as the case may be, except that the agreements set forth in
Article I and Section 5.10 shall survive the Effective Time indefinitely and
those set forth in Sections 5.7(b), 5.7(c), 7.3 and 8.3 shall survive
termination indefinitely.
SECTION 8.2. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the
<PAGE>37
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, except that notices of changes of address
shall be effective upon receipt):
(a) if to the Parent or Merger Sub
Benson Eyecare Corporation
555 Theodore Fremd Avenue
Suite B-302
Rye, New York 10580
Attention: Martin E. Franklin
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: William J. Grant, Jr., Esq.
(b) if to the Company:
Optical Radiation Corporation
1300 Optical Drive
Azusa, California 91702
Attention: Gary Patten
with a copy to:
Latham & Watkins
701 B Street
San Diego, California 92101
Attention: Donald P. Newell, Esq.
SECTION 8.3. Expenses. Except as provided in Section 7.3 hereof, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses.
SECTION 8.4. Certain Definitions. For purposes of this Agreement, the
term:
(a) "affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned person;
(b) "control" (including the terms "controlled by" and "under
common control with") means the possession, direct or
<PAGE>38
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise; and
(c) "person" means an individual, corporation, partnership,
association, trust or any unincorporated organization.
SECTION 8.5. 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.
SECTION 8.6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
maximum extent possible.
SECTION 8.7. Entire Agreement; No Third-Party Beneficiaries. This
Agreement will constitute a binding agreement only when executed and delivered
by the parties hereto and at such time will constitute the entire agreement
and will supersede any and all other prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof and, except as otherwise expressly provided herein, is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 8.8. Waiver. At any time before the Effective Time, any party
hereto may (a) extend the time for the performance of any of the obligations
or other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only as against such party and
only if set forth in an instrument in writing signed by such party.
SECTION 8.9. Amendment. Subject to applicable law, this Agreement may
be amended by the parties hereto by action taken by the Parent and Merger Sub,
and by action taken by or on behalf of the Company's Board of Directors at any
time before the Effective Time; provided, however, that, after approval of the
Merger by
<PAGE>39
the shareholders of the Company, no amendment may be made which would
materially adversely impact the interests of the Company's shareholders or
reduce the amount or change the type of consideration into which each Share
will be converted upon consummation of the Merger. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
SECTION 8.10. Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that the Parent and Merger Sub may
assign all or any of their rights hereunder to any affiliate of the Parent
provided that no such assignment shall relieve the assigning party of its
obligations hereunder.
SECTION 8.11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, except that
California Law shall apply with respect to the Merger, in each case without
regard to the principles of conflicts of law thereof.
SECTION 8.12. Counterparts; Telecopier. This Agreement may be executed
in one or more counterparts and by facsimile, and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed
to be an original but all of which shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
<PAGE>40
IN WITNESS WHEREOF, the Parent, Merger Sub and the Company have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
OPTICAL RADIATION CORPORATION
Attest:/s/ Gary Patten By:/s/ Richard D. Wood
Secretary President and Chief Executive
Officer
BENSON EYECARE CORPORATION
Attest:/s/ Peter H. Trembath By:/s/ Martin E. Franklin
Chairman and Chief Executive
Officer
BENSON ACQUISITION CORPORATION
Attest:/s/ Peter H. Trembath By:/s/ Martin E. Franklin
Chairman and Chief Executive
Officer
