Exhibit 2.2
Execution Version
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:
(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 . Each
Party hereby severally and not jointly represents and
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