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EXECUTION VERSION
EXHIBIT 2.2
VOTING AGREEMENT
This Voting Agreement is made and entered into as of July 28,
2004
(this "AGREEMENT"), by and among THE COOPER
COMPANIES, INC., a Delaware
corporation ("PARENT"), TCC ACQUISITION
CORP., a Delaware corporation and a
wholly-owned subsidiary of Parent ("MERGER
SUB"), and JOHN D. FRUTH (the
"STOCKHOLDER"), the stockholder of Ocular
Sciences, Inc., a Delaware corporation
(the "COMPANY"). The Stockholder, Merger
Sub and Parent are collectively
referred to herein as the "PARTIES".
RECITALS
WHEREAS,
concurrently with the execution and delivery of this
Agreement, Parent, Merger Sub and the
Company have entered into an Agreement and
Plan of Merger, dated as of the date hereof
(the "MERGER AGREEMENT"), providing
for, among other things, the merger of the
Company with and into Merger Sub (the
"MERGER"), which Merger Agreement has been
unanimously approved by the Boards of
Directors of the Company and Merger
Sub;
WHEREAS, the Stockholder is either the record or the beneficial
owner of (i) the number of shares
(collectively, the "EXISTING SHARES" and,
together with any shares of common stock,
stated value $0.01 per share, of the
Company ("COMPANY COMMON STOCK") acquired
by the Stockholder after the date
hereof, whether upon the exercise of
options, warrants, conversion of
convertible securities, or otherwise, the
"COMPANY SHARES") of Company Common
Stock and (ii) the options to acquire the
number of shares of Company Common
Stock (the "OPTIONS"), in each case as set
forth in Exhibit A attached hereto;
and
WHEREAS, as a condition to entering into the Merger Agreement,
Merger Sub and Parent have required that
the Stockholder agrees, and in order to
induce Merger Sub and Parent to enter into
the Merger Agreement the Stockholder
has agreed, to enter into this Agreement
relating to, among other things, the
voting of the Company Shares in favor of
the Merger and the transactions
contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants and agreements herein and in the
Merger Agreement and for other good
and valuable consideration, the receipt and
adequacy of which is hereby
acknowledged, the Parties, intending to be
legally bound, hereby agree as
follows:
1.
Certain Definitions. Except as specified herein, capitalized
terms used in this Agreement shall have the
meanings assigned to such terms in
the Merger Agreement.
2. Agreement to Vote; Non-Solicitation.
(a) Voting. The Stockholder hereby agrees to vote (or cause to
be
voted) all of the Company Shares at any
annual, special or other meeting of the
stockholders of the Company (including the
Company Stockholders Meeting), and at
any postponement or adjournment or
adjournments thereof, or pursuant to any
consent or action in writing in lieu of a
meeting or otherwise:
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(i) in favor of
the approval of the Merger and the other
transactions contemplated by the Merger
Agreement and in favor of the approval
and adoption of the Merger Agreement;
(ii) against any
Acquisition Proposal;
(iii) against (A) any change in a majority of persons who
constitute the Board of Directors of the
Company, (B) any amendment to the
Company's Certificate of Incorporation or
Bylaws, or (C) any other action
involving the Company or any Company
Subsidiary which is intended, or could
reasonably be expected, to impede,
interfere with, discourage, impair or
adversely affect (x) the ability of the
Company to consummate the Merger, or (y)
the transactions contemplated by the Merger
Agreement or this Agreement (other
than the Merger and the transactions
contemplated by the Merger Agreement); and
(iv) against any
action or agreement that would result in a
material breach of any covenant,
representation or warranty or any other
obligation of the Company under the Merger
Agreement.
(b) Proxies and Voting Agreements. The Stockholder hereby
revokes
any and all previous proxies granted with
respect to matters set forth in
Section 2(a). In addition, the Stockholder
shall not, directly or indirectly,
except as provided in this Agreement, grant
any proxies or powers of attorney
with respect to matters set forth in
Section 2(a), deposit any of the Company
Shares into a voting trust or enter into a
voting agreement with respect to any
of the Company Shares.
(c) Non-Solicitation. The Stockholder has read Section 6.7 of
the
Merger Agreement and understands the
restrictions contained therein.
(d) Inconsistent Agreements. The Stockholder agrees that it
shall
not enter into any agreement or
understanding or make any commitment with any
Person that would violate any provision or
agreement contained in this
Agreement.
3. Additional Shares. Without limiting the provisions of the
Merger
Agreement, in the event (i) of any stock
dividend, stock split,
recapitalization, reclassification,
combination or exchange of shares of capital
stock of the Company on, of or affecting
the Company Common Stock (and any and
all securities issued or issuable in
respect thereof) or (ii) the Stockholder
becomes the record owner of any additional
shares of capital stock of the
Company or other Company securities
entitling the holder thereof to vote or give
consent with respect to the matters set
forth in Section 2, then the terms of
this Agreement shall apply to the shares of
capital stock or other securities of
the Company held by the Stockholder
immediately following the effectiveness of
the events described in clause (i) or the
Stockholder becoming the record owner
thereof, as described in clause (ii), as
though they were Company Shares
hereunder. The Stockholder hereby agrees to
promptly notify the Merger Sub and
the Parent of the number of any new shares
of capital stock of the Company or
other voting securities of the Company
acquired by the Stockholder, if any,
after the date hereof and prior to the
Termination Time.
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4.
Dividends. The Stockholder shall retain record and beneficial
ownership of all Company Shares and be
entitled to receive all cash dividends
paid by the Company with respect to the
Company Shares during the term of this
Agreement and until the Company Shares are
cancelled in the Merger.
5. Restrictions on Transfer.
(a) From the date of this Agreement until the Effective Time,
the
Stockholder agrees not to (1) offer,
pledge, sell, contract to sell, sell any
option or contract to purchase, purchase
any option or contract to sell, grant
any option, right or warrant to purchase,
lend, or otherwise transfer or dispose
of, directly or indirectly, any Company
Shares, or (2) enter into any swap or
other arrangement that transfers to
another, in whole or in part, any of the
economic consequences of ownership of the
Company, whether any such transaction
described in clauses (1) or (2) above is to
be settled by delivery of Company
Common Stock or such other securities, in
cash or otherwise; provided, however,
that from the date of this Agreement until
the Effective Time, the Stockholder
may transfer any number of Company Shares
to members of his immediate family for
tax and estate planning purposes or to a
charitable foundation so long as the
Stockholder retains all voting power with
respect to such transferred Company
Shares.
(b) Except as otherwise permitted by this Section 5(b), the
Stockholder hereby agrees not to (1) offer,
pledge, sell, contract to sell, sell
any option or contract to purchase,
purchase any option or contract to sell,
grant any option, right or warrant to
purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any
shares of Parent Common Stock received
in exchange for Company Shares through the
Merger (including any shares of
capital stock of the Parent subsequently
received in the event of a stock
dividend, stock split, recapitalization,
reclassification, combination or
exchange of shares of capital stock of the
Parent on, of or affecting the Parent
Common Stock) (the "PARENT SHARES"), or (2)
enter into any swap or other
arrangement that transfers to another, in
whole or in part, any of the economic
consequences of ownership of the Parent
Shares, whether any such transaction
described in clauses (1) or (2) above is to
be settled by delivery of Parent
Common Stock or such other securities, in
cash or otherwise (the "TRANSFER
RESTRICTION"). Notwithstanding the Transfer
Restriction, the Stockholder and his
permitted transferees under subsection (ii)
below may (i) collectively transfer
up to 250,000 Parent Shares each fiscal
quarter after the Effective Time (to the
extent not used in a particular quarter,
this allowance will be carried forward)
pursuant to a 10b5-1 Trading Plan or
otherwise, and (ii) transfer any number of
Parent Shares to members of the
Stockholder's immediate family for tax and
estate planning purposes or to a charitable
foundation, provided that such
transferee(s) executes an agreement to be
bound by this Section 5(b). The
Transfer Restriction will terminate in all
respects upon the first to occur of
(1) the date that the Stockholder ceases to
be a member of the Parent Board, (2)
the date that the Stockholder has
transferred all of his Parent Shares pursuant
to subsections (i) or (ii) of this Section
5(b), or (3) the date that is three
years from the Effective Date.
(c) The Stockholder agrees not to take any action that would
make
any representation or warranty of the
Stockholder contained herein untrue or
incorrect or have the effect of preventing
or disabling the Stockholder from
performing his obligations under this
Agreement.
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(d) The Stockholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the
Merger or the other transactions
contemplated by the Merger Agreement that
the Stockholder may have.
(e) The Stockholder agrees with, and covenants to, Parent and
Merger
Sub that the Stockholder shall not request
that the Company register the
transfer (book-entry or otherwise) of any
certificate or uncertificated interest
representing any of the Parent Shares,
unless such transfer is made in
compliance with this Agreement.
6. Representations and Warranties.
(a) Organization and Due Authority. Each Party hereby severally
and
not jointly represents and warrants to the
other Parties that (i) if such Party
is not an individual, such Party is duly
organized, validly existing, and in
good standing under the laws of the
jurisdiction of its organization, (ii) if
such Party is an individual, such Party has
the capacity to execute and deliver
this Agreement, and to consummate the
transactions contemplated hereby, and
(iii) such Party has all requisite power
and authority to execute and deliver
this Agreement, to perform its obligations
hereunder and to consummate the
transactions contemplated hereby.
(b) Binding Agreement. Each Party hereby severally and not
jointly
represents and warrants to the other
Parties that (i) the execution, delivery
and performance by such Party of this
Agreement and the consummation of the
transactions contemplated hereby have been
duly authorized by all necessary
action on the part of such Party and (ii)
this Agreement has been duly executed
and delivered by such Party and is a legal,
valid and binding obligation of such
Party, enforceable against it in accordance
with its terms, except as such
enforceability may be limited by
bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or
affecting the enforcement of
creditors' rights in general and by general
principles of equity.
(c) Noncontravention
