EXHIBIT 2.2
[LINKLATERS & ALLIANCE LOGO]
Dated 28 February 2002
Biocompatibles International plc
and
The Cooper Companies, Inc.
and
Aspect Vision Holdings Limited
Arrangement and Administration Agreement
LINKLATERS
One Silk Street
London
EC2Y 8HQ
Telephone: (44-20) 7456-2000
Facsimile: (44-20) 7456-2222
Ref: CVO
Arrangement and Administration Agreement
This Agreement is made on 28 February 2002
between:
(1) Biocompatibles International plc a company incorporated in England and
Wales with registered number 2703724 and whose registered office is at
Chapman House, Farnham Business Park, Weydon Lane, Farnham, Surrey, GU9
8QL ("Biocompatibles");
(2) The Cooper Companies, Inc. a corporation organised under the laws of
the state of Delaware, United States of America having a principal
place of business at 6140 Stoneridge Mall Road, Suite 590, Pleasanton,
CA 94588, United States of America ("Cooper"); and
(3) Aspect Vision Holdings Limited a company incorporated in England and
Wales with registered number 3448379 whose registered office is at Unit
2, South Point, Hamble, Southampton, Hampshire, SO41 4RF ("AVH").
Whereas:
(A) By an International Share Sale Agreement (the "Sale Agreement") dated
15 January 2002 between (1) Biocompatibles, (2) AVH and (3) Cooper,
Biocompatibles has agreed to sell with full title guarantee
(a) Hydron Limited ("Hydron") to AVH; and
(b) Biocompatibles Eyecare Inc ("BE Inc") and Biocompatibles Canada Inc
("BE Canada") to Cooper;
and AVH and Cooper have respectively agreed to purchase the same;
(B) The Sale Agreement provides that part of the aggregate amount payable
by Cooper/AVH on Closing in respect of repayment of Intra-Group Debt
and consideration for the Shares will be paid in cash and part will be
in the form of one or more Promissory Notes under the terms set out in
Schedule 12 of the Sale Agreement;
(C) The Sale Agreement also provides that security shall be given in
respect of each of the Promissory Notes under the terms set out in
Schedule 12 of the Sale Agreement.
(D) Cooper has agreed to pay to Biocompatibles arrangement and
administration fees in relation to the issue of Promissory Notes and
the grant of security;
It is agreed as follows:
1 Interpretation
In this Agreement, unless the context otherwise requires:
1.1 Capitalised Terms
Capitalised terms used without definition in Clause 1.2 shall have the
meanings ascribed to them in the Sale Agreement.
1.2 Definitions
"Intended Payment Date" means 15 May 2002.
-1-
"Promissory Notes" means the Promissory Notes to be issued to
Biocompatibles on Closing by:
(a) AVH as consideration for the Hydron Shares ('L'10,928,000)
(Promissory Note A)
(b) Cooper as consideration for the BE Inc/BE Canada Shares
('L'20,137,000) (Promissory Note B)
(c) Cooper as repayment of the balance of the Intra-Group Debt
remaining outstanding (from BE Inc to Biocompatibles) following
payment of amounts specified in the Sale Agreement (Promissory
Note C);
"Security Documents" means the documents (all dated on or about 28
February 2002) under which collateral is offered to Biocompatibles as
security for the payment obligations of AVH and/or Cooper under the
Promissory Notes, being:
(a) the Share Charge and Assignment between AVH and Biocompatibles;
(b) the Stock Pledge Agreement between Cooper and Biocompatibles;
(c) the Deed of Trust, Security Agreement, Fixture Filing and
Assignment of Rents and Leases made between Biocompatibles,
Independent Trustees Inc and BE Inc; and
(d) the Security Agreement made between Biocompatibles and BE Inc.
1.3 Singular, Plural, Gender
References to one gender include all genders and references to the
singular include the plural and vice versa.
1.4 Legal Terms
References to any English legal terms shall, in respect of any
jurisdiction other than England, be construed as references to the term
or concept which most nearly corresponds to it in that jurisdiction.
2 Arrangement and Administration
In connection with the issue of the Promissory Notes and creation of
the Security Documents, Biocompatibles will (inter alia):
(a) take account of adjustments required under the Sale Agreement with
a view to reducing or increasing (as the case may be) the amount
to be paid under the Promissory Notes;
(b) investigate the collateral offered by Cooper and AVH under the
Security Documents to secure payment under the Promissory Notes;
(c) effect (or monitor) registration of the Security Documents against
the collateral;
(d) monitor the value of the collateral made available under the
Security Documents during the life of the Promissory Notes and
period of the security; and
(e) monitor and/or verify the financial conditions, results of
operations and business prospects of Cooper and AVH with a view to
protecting Biocompatibles' position in respect of payment under
the Promissory Notes.
-2-
3 Arrangement and Administration Fees
3.1 As consideration for Biocompatibles attending to the matters set out in
Clause 2 of this agreement, Cooper agrees to pay to Biocompatibles
arrangement and administration fees in accordance with this Clause 3.
3.2 If all the outstanding amounts payable under the Promissory Notes and
Security Documents are not paid on the Intended Payment Date:
(a) Cooper shall pay to Biocompatibles on the Intended Payment Date,
and on each of the dates falling one month and two months
following the Intended Payment Date, a fee of 'L'367,000;
(b) Cooper shall pay to Biocompatibles on each of the dates falling
three, four and five months respectively following the Intended
Payment Date a fee of 'L'733,000.
3.3 Without prejudice to sums payable under Clause 3.2, the obligation to
pay the arrangement and administration fees shall terminate, and all
collateral made available under the Security Documents shall be
released, as soon as payment of all amounts of principal and interest
under the Promissory Notes is made. Payments made to Biocompatibles in
advance of such termination and release shall not be rebated.
3.4 All fees and any other amounts payable under this Agreement shall be
exclusive of any United Kingdom value added tax ("VAT") which shall be
payable in respect thereof, and if any such amount constitutes the
consideration for a taxable supply for VAT purposes, then in addition
to that amount the payer shall pay any VAT.
4 Method of Payment
4.1 Wherever in this Agreement provision is made for a payment by one party
to another, any such payment shall be effected by crediting for same
day value the account specified in writing by the payee to the payer
(reasonably in advance and in sufficient detail to enable payment by
telegraphic or other electronic means to be effected) on or before the
due date for payment.
4.2 Payment of a sum in accordance with this Clause shall be good discharge
to the payer (and those on whose behalf such payment is made) of its
obligation to make such payment and the payer (and those on whose
behalf such payment is made) shall not be obliged to see to the
application of the payment as between those on whose behalf the payment
is received.
5 Adjustments
5.1 Under Clause 6.11 of the Sale Agreement, the principal amount of the
Promissory Notes A and B shall be adjusted to take account of
variations between Provisional Financial Borrowings and Closing
Financial Borrowings.
5.2 Biocompatibles, Cooper and AVH agree that the principal amounts of
Promissory Notes may also be adjusted to take account of variations
between Provisional Intra-Group and Closing Intra-Group Debt, requiring
adjustment pursuant to Clause 6.10 of the Sale Agreement and Clause 7
of the Deed of Repayment dated 28 February 2002 between (inter alios)
Biocompatibles, Cooper and AVHL.
-3-
6 Confidentiality
The provisions of Clause 12.2 of the Sale Agreement shall apply to this
Agreement.
7 Whole Agreement
7.1 This Agreement contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date hereof to
the exclusion of any terms implied by law which may be excluded by
contract and, subject to the terms of the Sale Agreement, supersedes
any previous written or oral agreement between the parties in relation
to the matters dealt with in this Agreement.
7.2 Cooper and AVH acknowledge that they have not been induced to enter
this Agreement by any representation, warranty or undertaking not
expressly incorporated into it.
7.3 Without prejudice to the provisions of Clause 8.4 of the Sale Agreement
and so far as is permitted by law and except in the case of fraud, each
of the parties agrees and acknowledges that its only right and remedy
in relation to any representation, warranty or undertaking made or
given in connection with this Agreement, shall be for breach of the
terms of this Agreement to the exclusion of all other rights and
remedies (including those in tort or arising under statute).
7.4 Reasonableness
Each of the parties confirms that it has received independent legal
advice relating to all the matters provided for in this Agreement
including the terms of Clause 7.1 (Whole Agreement) and agrees that the
provisions of this Agreement are fair and reasonable.
8 No Assignment
8.1 Except as otherwise expressly provided in this Agreement, no party may
without the prior written consent of the other parties assign, grant
any security interest over, hold on trust or otherwise transfer the
benefit of the whole or any part of this Agreement.
8.2 Except as otherwise expressly provided in this Agreement, the party
may, without the consent of the other parties, assign to a subsidiary
the benefit of the whole or any part of this Agreement provided however
that such assignment shall not be absolute but shall be expressed to
have effect only for so long as the assignee remains a subsidiary of
the party concerned.
9 Third Party Rights
A person, other than a Group Company (whilst such Group Company remains
in Cooper's Group), who is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties) Act 1999 or otherwise to
enforce any term of, or enjoy any benefit under, this Agreement.
10 Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties.
-4-
11 Time of the Essence
Time shall be of the essence of this Agreement both as regards any
dates, times and periods mentioned and as regards any dates, times and
periods which may be substituted for them in accordance with this
Agreement or by Agreement in writing between the parties.
12 Costs
12.1 Biocompatibles shall bear all costs incurred by it in connection with
the preparation, negotiation and entry into of this Agreement.
12.2 Cooper and AVH shall bear all costs incurred by them in connection with
the preparation, negotiation and entry into of this Agreement.
13 Notices
The provisions of Clause 15.12 of the Sale Agreement shall apply.
14 Invalidity
If any provision in this Agreement shall be held to be illegal, invalid
or unenforceable, in whole or in part, under any enactment or rule of
law, such provision or part shall to that extent be deemed not to form
part of this Agreement but the legality, validity or enforceability of
the remainder of this Agreement shall not be affected.
15 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any party may enter into this Agreement by executing any such
counterpart.
16 Governing Law and Submission to Jurisdiction
16.1 This Agreement and the documents to be entered into pursuant to it,
save as expressly referred to therein, shall be governed by and
construed in accordance with English law.
16.2 Each of the parties irrevocably agrees that the courts of England are
to have exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Agreement and that accordingly any
proceedings arising out of or in connection with this Agreement shall
be brought in such courts. Each of the parties irrevocably submits to
the jurisdiction of such courts and waives any objection to proceedings
in any such court on the ground of venue or on the ground that
proceedings have been brought in an inconvenient forum.
17 Appointment of Process Agent
17.1 Cooper hereby irrevocably appoints the Company Secretary of AVH as its
agent to accept service of process in England and Wales in any legal
action or proceedings arising out of this Agreement, service upon whom
shall be deemed completed whether or not forwarded to or received by
Cooper. Notwithstanding that service shall be deemed completed whether
or not received by Cooper, Biocompatibles agrees to send a copy of
documents served on AVH to Cooper.
-5-
17.2 If such Process Agent ceases to be able to act as such or to have an
address in England, Cooper irrevocably agrees to appoint a new Process
Agent in England acceptable to Biocompatibles and to deliver to
Biocompatibles within 14 days a copy of a written acceptance of
appointment by the Process Agent.
17.3 Nothing in this Agreement shall affect the right to service of process
in any other manner permitted by law or the right to bring proceedings
in any other jurisdiction for the purposes of the enforcement or
execution of any judgement or other settlement in any other courts.
In witness whereof this Agreement has been duly executed.
SIGNED by CHRISPIN SIMON
on behalf of Biocompatibles International plc: CHRISPIN SIMON
SIGNED by CAROL R. KAUFMAN CAROL R. KAUFMAN
on behalf of The Cooper Companies, Inc.:
SIGNED by GREGORY A. FRYLING GREGORY A. FRYLING
on behalf of Aspect Vision Holdings Limited
-6-