FSI MERGER CORP.
INVESTORS' SUBSCRIPTION AGREEMENT
This Investors Subscription Agreement (the "Agreement") is entered
into as of the 21st day of January, 1998 by and between FSI MERGER CORP., a
Delaware corporation ("the "Company") and (i) each of the investors listed on
Exhibit A attached hereto (individually, an "Equity Investor" and
collectively, the "Equity Investors") and (ii) those persons listed on Exhibit
B (individually, an "Individual Investor" and with (i) above, "Investors").
WHEREAS, the Company has been established to enable the Investors
to make an investment in Xxxxxx Scientific International Inc. ("Xxxxxx"), a
Delaware corporation, through a recapitalization transaction (the
"Transaction"), pursuant to that certain Second Amended and Restated Agreement
and Plan of Merger, dated as of November 14, 1997, as amended (the "Merger
Agreement"), by and between Xxxxxx and the Company; and
WHEREAS, the Investors wish to purchase from the Company and the
Company wishes to issue and sell to such Investors, shares of the Company's
capital stock, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties to this Agree-ment, intending to be legally bound,
mutually agree as follows:
ARTICLE 1
Purchase and Sale of Shares
---------------------------
1.1 Sale and Issuance of Shares. Subject to the terms and
conditions of this Agreement, each Investor hereby subscribes for and
agrees to purchase at the Closing (as herein defined), and the Company does
hereby agree to sell to each Investor at the Closing, the aggregate number
of shares of the Company's Common Stock, par value $.01 per share ("Voting
Common Stock") and shares of the Company's Non-Voting Common Stock, par
value $.01 per share ("Non-Voting Common Stock" and together with Voting
Common Stock, "Common Stock") set forth opposite each Investor's name on
Exhibits A and B (collectively, the "Shares") at a purchase price of $48.25
per share of Common Stock for the total consideration set forth opposite
each Investor's name on Exhibits A and B. Each Investor hereby
acknowledges that the number of Shares set forth opposite its name on
Exhibits A and B constitutes the full, entire and correct number of Shares
to be purchased by it pursuant to this Agreement for the amount of
consideration set forth next to the name of such Investor on Exhibits A and
B.
1.2 Delivery of Purchase Price. In consideration of and in
exchange for the Shares to be purchased hereunder, each Investor shall
deliver to the Com pany at the Closing (as hereinafter defined), the
aggregate purchase price set forth opposite such Investors' name on
Exhibits A and B (the "Purchase Price"), payable by wire transfer of
immediately available funds.
1.3 Closing. The closing of the purchase and sale of the Shares
(the "Closing") shall occur immediately prior to the closing of the Merger
(as defined below) and shall occur at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, New York, New York, or at such other time and place as
the Company and the Investors may agree (the "Closing Date"). In
consideration of the purchase by each Investor of the Shares and the
payment of the Purchase Price therefor, the Company shall deliver to each
Investor at the Closing a certificate or certificates evidencing the number
of Shares purchased by each Investor , as set forth on Exhibits A and B.
1.4. Merger. Immediately following the Closing hereunder, the
Company will be merged (the "Merger") with and into Xxxxxx with Xxxxxx
surviving the Merger (the "Surviving Corporation"). In the Merger, all the
Shares held by the Investors will be converted into shares of capital stock
in the Surviving Corporation on a one-for-one basis, with the result that,
immediately following the Merger, the Investors shall hold (together with
shares purchased directly pursuant to the Merger Agreement) that number of
shares of capital stock in the Surviving Corporation, and such shares of
capital stock after such conversion shall be referred to as "Shares."
ARTICLE II
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to each Investor that:
1.1 Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
2.2 Capitalization. Immediately prior to the Closing, the
authorized capital of the Company consists of (or will consist of at the
Closing) 6,000,000 shares of Voting Common Stock, par value $.01 per share
and 1,000,000 shares of Non-Voting Common Stock, par value $.01 per share.
Immediately prior to the purchase of shares pursuant to this Agreement, 100
shares of the Company's Common Stock were issued and outstanding, and no
such shares were held in treasury. Immediately prior to the Closing, there
were not any existing options, warrants, calls, subscriptions, or other
rights, or other agreements or commitments, other than in connection with
this Agreement, obligating the Company to issue, transfer or sell any
shares of capital stock of the Company. Immediately after the Closing and
prior to the Merger, there will be 5,471,857 shares of the Company's Voting
Common Stock issued and outstanding and 807,058 shares of the Company's
Non-Voting Common Stock issued and outstanding. The authorized capital of
the Surviving Corporation, as of the Merger, will consist of 50,000,000
shares of Common Stock, par value $.01 per share, 15,000,000 shares of
preferred stock, par value $.01 per share of which 500,000 shares are
designated Series A Junior Participating Preferred Stock, par value $.01
per share. As of the close of business on January 20, 1998, 20,356,764
shares of the Surviving Corporation's Common Stock were issued and
outstanding, and no such shares were held in treasury. The Surviving
Corporation has no shares of Preferred Stock issued and outstanding. As of
January 20, 1998, except for (i) 3,555,774 shares reserved for issuance
pursuant to outstanding options and rights granted under the stock plans
and (ii) 500,000 shares of Junior Preferred Stock reserved for issuance
upon exercise of certain rights, there are not now, and at the Effective
Time there will not be, any existing options, warrants, calls,
subscriptions, or other rights, or other agreements or commitments,
obligating the Surviving Corporation to issue, transfer or sell any shares
of capital stock of the Surviving Corporation or any of its subsidiaries.
2.3 Corporate Activity. The Company was created for the sole
purpose of effecting the Merger and has conducted no activity and has incurred
no liability (other than in connection with the Merger and its financing).
2.4 Authorization. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance
of this Agreement by the Company and for the authorization, issuance and
delivery of the Shares being sold under this Agreement, has been taken. This
Agreement, when executed and delivered by all parties hereto, shall constitute
the valid and legally binding obligation of the Company and shall be
enforceable against the Company in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally and except to the extent enforceability may be limited by general
equitable principles.
2.5 Validity of Shares. The Shares, when issued, sold and
delivered in accor dance with the terms of this Agreement, shall be duly
and validly issued, fully paid and nonassessable.
2.6 Securities Act. The sale of Shares in accordance with the
terms of this Agreement (assuming the accuracy of the representations and
warranties of the Investors contained in Article III hereof) is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"1933 Act").
2.7 Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Voting
Common Stock or its treasury shares, solely for the purpose of issuance upon
the conversion of shares of Non-Voting Common Stock, such number of shares of
such class as are then issuable upon the conversion of all outstanding shares
of Non-Voting Common Stock which may be converted.
2.8 Non-Contravention. The execution and delivery of this
Agreement by the Company does not, and the consummation by the Company of the
transactions contemplated hereby and the performance by the Company of the
obligations which it is obligated to perform hereunder will not, (a) violate
any provision of the articles of association, by-laws, agreement of limited
partnership or other organizational documents of the Company, (b) violate in
any material respect any material law, regulation, rule, order, judgment or
decree to which the Company is subject, (c) violate in any material respect,
result in the termination or the acceleration of, or conflict with in any
material respect or constitute a material default under, any material
mortgage, indenture, lease, franchise, license, permit, agreement or
instrument (each, a "Contract") to which the Company is a party or by which
any of its assets or properties are bound.
2.9 Consents, Approvals and Notices. The execution and delivery
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not require any (a) material consent,
authorization, order or approval of, filing or registration with, or notice
to, any governmental or regulatory authority, which has not been obtained
previously, or (b) material consent, authorization, approval, waiver, order,
license, certificate or permit or act of or from, or notice to, any party to
any Contract to which the Company is a party or by which any of its assets or
properties are bound, which has not been obtained previously.
2.10 Litigation. There is no action, suit or proceeding pending
or, to the knowledge of the Company, threatened, before any court against the
Company which challenges the validity or the propriety of the transactions
contemplated by this Agreement.
ARTICLE III
Representations, Warranties and
Agreements of the Investors
---------------------------
Each Investor represents and warrants, in each instance as to
itself only and not as to any other Investor, to the Company that:
3.1 Organization; Authority. Each Equity Investor is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each Individual Investor has the legal
capacity to enter into this Agreement. Each Investor has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery by each Investor of this
Agreement and the consummation by such Investor of the transactions
contemplated hereby have been duly authorized by all necessary action on
the part of such Investor.
3.2. Enforceability. This Agreement, when executed and delivered
by all parties hereto, will constitute the valid and legally binding
obligation of each Investor, enforceable against each Investor in
accordance with its terms, except to the extent enforceability may be
limited by bankruptcy laws, insolvency laws, reorganization laws,
moratorium laws or other laws affecting creditors' rights generally and
except to the extent enforceability may be limited by general equitable
principles. Each Individual Investor entered into and is bound by this
Agreement in satisfaction of a commitment made by such Individual Investor
to subscribe for the number of Shares set forth in Exhibit B for such
Individual Investor prior to December 18, 1997.
3.3. Non-Contravention. The execution and delivery of this
Agreement by each Investor does not, and the consummation by such Investor
of the transactions contemplated hereby and the performance by such
Investor of the obligations which it is obligated to perform hereunder will
not, (a) violate any provision of the articles of association, by-laws,
agreement of limited partnership or other organizational documents of such
Investor, (b) violate in any material respect any material law, regulation,
rule, order, judgment or decree to which such Investor is subject, (c)
violate in any material respect, result in the termination or the
acceleration of, or conflict with in any material respect or constitute a
material default under, any material Contract to which such Investor is a
party or by which any of its assets or properties are bound or (d) result
in the creation of any lien or other encumbrance on any of the material
assets or properties of such Investor or the loss of any material license
or other material contractual right with respect thereto.
3.4. Consents, Approvals and Notices. The execution and delivery
of this Agreement by each Investor and the consummation by each Investor of
the transactions contemplated hereby does not require any (a) material
consent, authorization, order or approval of, filing or registration with,
or notice to, any governmental or regulatory authority, which has not been
obtained previously, or (b) material consent, authorization, approval,
waiver, order, license, certificate or permit or act of or from, or notice
to, any party to any Contract to which such Investor is a party or by which
any of its assets or properties are bound, which has not been obtained
previously.
3.5. Litigation. There is no action, suit or proceeding pending
or, to the knowledge of any Investor, threatened, before any court against
such Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
3.6 Investment Representations.
(a) This Agreement is made in reliance upon each
Investor's representations to the Company, which by acceptance
hereof each Investor hereby confirms, that: (i) the Shares
will be acquired by such Investor for investment only, for its
own account and not as a nominee or agent and not with a view
to the sale or distribution of any part thereof in violation of
applicable federal and state securities laws; and (ii) such
Investor has no current intention of selling, granting
participation in or otherwise distributing the Shares in
violation of applicable federal and state securities laws. By
executing this Agreement, each Investor further represents that
it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with
respect to any of the Shares in violation of applicable federal
and state securities laws.
(b) Each Investor understands that the Shares have not
been registered under the 1933 Act on the basis that the sale
provided for in this Agreement and the issuance of securities
hereunder are exempt from registration under the 1933 Act
pursuant to Section 4(2) thereof and regulations issued
thereunder, and that the Company's reliance on such exemption
is predicated on the representations and warranties of each
Investor set forth herein.
(c) Each Investor represents that it has, either alone or
together with the assistance of a "purchaser representative"
(as that term is defined in Regulation D promulgated under the
1933 Act), such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of its investment in the Company. Each Investor further
represents that it is familiar with the business and financial
condition, properties, operations and prospects of the Company
and that it has had access, during the course of the
transactions contemplated hereby and prior to its purchase of
Shares, to the same kind of information that is specified in
Part I of a registration statement under the 1933 Act, and that
it has had the opportunity to ask questions of, and receive
answers from, the Company and the Surviving Corporation
concerning the terms and conditions of the investment and to
obtain additional information (to the extent the Company
possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to such Investor or to
which such Investor has had access. Each Investor has made,
either alone or together with its advisors, such independent
investigation of the Company and the Surviving Corporation as
each Investor deems to be, or its advisors deem to be,
necessary or advisable in connection with this investment.
Each Investor understands that no federal or state agency has
passed upon this investment or upon the Company or the
Surviving Corporation, nor has any such agency made any finding
or determination as to the fairness of this investment.
(d) Each Investor represents that it will not sell,
transfer or otherwise dispose of the Shares without
registration under the 1933 Act and applicable state securities
laws, or an exemption therefrom. Each Investor understands
that, in the absence of an effective registration statement
covering the Shares or an available exemption from registration
under the 1933 Act and applicable state securities laws, the
Shares must be held indefinitely. In particular, each Investor
acknowledges that it is aware that the Shares may not be sold
pursuant to Rule 144 promulgated under the 1933 Act unless all
of the conditions of such rule are met. Among the current
conditions for use of Rule 144 by certain holders is the
availability to the public of current information about the
Surviving Corporation. Each Investor represents that, in the
absence of an effective registration statement covering the
Shares or an exemption from registration under the 1933 Act, it
will sell, transfer or otherwise dispose of the Shares only in
a manner consistent with its representations set forth herein
and then only in accordance with the Investors' Agreement
referred to in Section 6.1.
(e) Each Investor represents that it (i) is capable of
bearing the economic risk of holding the unregistered Shares
for an indefinite period of time and has adequate means for
providing for its current needs and contingencies, (ii) can
afford to suffer a complete loss of this investment and (iii)
understands all risk factors related to the purchase of the
Shares.
(f) Each Investor understands that the purchase of the
Shares involves a high degree of risk, that there is no
established market for the Shares and that it is not likely
that any public market for the Shares will develop in the near
future.
(g) Each Investor represents that neither it nor anyone
acting on its behalf has paid any commission or other
remuneration to any person in connection with the purchase of
the Shares.
(h) Independent of the additional restrictions on the
transfer of the shares of Common Stock contained in the
Investors' Agreement referred to in Section 6.1, each Investor
agrees that it will not transfer, dispose of or pledge any of
the Shares other than pursuant to an effective registration
statement under the 1933 Act and applicable state securities
laws, unless and until (i) such Investor shall have notified
the Company of the proposed transfer, disposition or pledge and
shall have furnished the Company with a statement of the
circumstances surrounding the proposed transfer, disposition or
pledge and (ii) if reasonably requested by the Company and at
the expense of each Investor or its transferee, such Investor
shall have furnished to the Company an opinion of counsel
reasonably satisfactory (as to counsel, which in the case of
the Equity Investors, may include internal counsel, and as to
substance) to the Company and its counsel that such proposed
transfer, disposition or pledge may be made without
registration of such Shares under the 1933 Act and applicable
state securities laws.
3.7 Legends; Stop Transfer.
(a) Each Investor acknowledges that all certificates
evidencing the Shares shall bear the following legend:
"TRANSFER RESTRICTED
--------------------
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state Securities Laws and may not be offered or sold
except in compliance therewith.
The securities represented by this certificate are subject
to the terms and conditions, including certain restrictions
on transfer, of an Investors' Agreement dated as of January
21, 1998, as amended from time to time, and none of such
securities, or any interest therein, shall be transferred,
pledged, encumbered or otherwise disposed of except as
provided in that Agreement. A copy of the Investors'
Agreement is on file with the Secretary of the Company and
will be mailed to any properly interested person without
charge within five (5) days after receipt of a written
request."
(b) The certificates evidencing the Shares shall also bear
any legend required by any applicable state securities law.
(c) In addition, the Company shall make a notation
regarding the restrictions on transfer of the Shares in its
stock books, and the Shares shall be transferred on the books
of the Company only if transferred or sold pursuant to an
effective registration statement under the 1933 Act and
applicable state securities laws covering such Shares or
pursuant to and in compliance with the provisions of Section
3.6(h) hereof. All common stock of the Company and/or the
Surviving Corporation hereafter issued to any Investor shall
bear the same endorsement, shall be subject to all the terms
and conditions of this Agreement, and for all purposes shall be
deemed shares of "Common Stock" hereunder. A copy of this
Agreement, together with any amendments thereto, shall remain
on file with the Secretary of the Company and shall be
available for inspection to any properly interested person
without charge within five days after the Company's receipt of
a written request therefor.
3.8 Definition of Shares. Notwithstanding anything to the
contrary contained herein, each Investor hereby acknowledges and agrees
that each representation and warranty made in this Article III is made with
respect to Shares purchased pursuant to this Agreement and shares of
capital stock in the Surviving Corporation issued in the Merger for the
Shares purchased hereunder.
3.9 Brokers. No broker, investment banker, financial advisor or
other person or entity is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of any Investor or any of its affiliates.
ARTICLE IV
Conditions to Obligations of the Investors at Closing
-----------------------------------------------------
The obligations of each Investor under Article I of this Agreement
are subject to the fulfillment on or before the Closing Date of each of the
following conditions:
4.1 Representations and Warranties. The representations,
warranties and agreements of the Company contained in Article II hereof
shall be true on and as of the Closing Date with the same force and effect
as if they had been made on the Closing Date.
4.2 Performance by the Company. The Company shall have
performed in all material respects all of its obligations and shall have
materially complied with each and all of its covenants required to be
performed or complied with by it on or before the Closing Date.
4.3 Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing Date.
ARTICLE V
Conditions to Obligations of the Company at Closing
---------------------------------------------------
The obligations of the Company under Article I of this Agreement
are subject to the fulfillment on or before the Closing Date of each of the
following conditions:
5.1 Representations. The representations, warranties and
agreements of the Investors contained in Article III hereof shall be true
on and as of the Closing Date with the same force and effect as if they had
been made on the Closing Date.
5.2 Performance. Each Investor shall have performed in all
material respects all of its obligations and shall have materially complied
with each and all of its covenants required to be performed or complied
with by it on or before the Closing Date, including without limitation the
execution and delivery of the agreements and undertakings provided for in
this Agreement.
5.3 Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing Date.
ARTICLE VI
Mutual Conditions Precedent
---------------------------
The obligations of the Company and of each Investor under Article
I of this Agreement are subject to the fulfillment on or before the Closing
Date of the following conditions:
6.1 Investors' Agreement. The Company and each of the Investors
identified on Exhibits A and B shall have executed and delivered the
Investors' Agreement in substantially the form attached as Exhibit C
hereto.
6.2 Merger Conditions. All conditions precedent to the Closing
of the Merger shall have been performed or waived as of the
Closing Date in accordance with the terms of the Merger
Agreement.
6.3 Simultaneous Purchase. Each Investor listed on Exhibits A
and B hereto shall have simultaneously purchased at the Closing the number
of Shares set forth opposite each Investor's name for the consideration
specified.
ARTICLE VII
Use of Proceeds
---------------
The cash proceeds from the sale of the Shares hereunder will be
used to provide the Company with funds for certain of the payments which are
required to be made by the Company in connection with the Transaction.
ARTICLE VIII
Miscellaneous
-------------
8.1 Termination. (a) This Agreement may be terminated (as to
the party electing so to terminate it) at any time prior to the Closing
Date:
(i) by any party hereto if the Merger shall not have been
consummated by the close of business on January 31, 1998;
(ii) by an Investor if any of the conditions specified in
Article IV or VI of this Agreement have not been met or waived by it pursuant
to the terms of this Agreement by the Closing Date, or at such earlier date
that it becomes apparent that any such condition can no longer be satisfied; or
(iii) by the Company if any of the conditions specified in
Article V or VI of this Agreement have not been met or waived by it pursuant
to the terms of this Agreement by the Closing Date or at such earlier date
that it becomes apparent that any such condition can no longer be satisfied.
(b) If the Merger shall not have been consummated by the
close of business on January 22, 1998, the funds delivered by the Investors
shall be delivered to and held by an escrow agent, on terms which are
reasonably acceptable to Investors holding a majority of the funds contributed.
8.2 No Waiver; Modifications in Writing. No failure or
delay on the part of the Company or the Investors in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to the Company or each
Investor at law or in equity or otherwise. No waiver of or consent to any
departure by the Company from any provision of this Agreement shall be
effective unless signed in writing by the party entitled to the benefit
thereof, provided that notice of any such waiver shall be given to each
party hereto as set forth below. This Agreement, together with the
Exhibits hereto, sets forth the entire understanding of the parties and
supersedes all prior agreements, arrangements and communications, whether
oral or written, with respect to the subject matter hereof. Except as
otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by
or on behalf of the Company and each Investor. Any amendment, supplement
or modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the
Company from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for
which made or given. Except where notice is specifically required by this
Agreement, no notice to or by or demand to or on the Company in any case
shall entitle or obligate the Company to any other or further notice or
demand in similar or other circumstances.
8.3 Notices. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be
delivered in the manner specified herein. All notices shall be deemed to
have been duly given upon confirmation by telecopy if delivered by telecopy
or by hand, or one day after sending by overnight delivery service, or five
days after sending by certified mail, postage prepaid, return receipt
requested to the respective addresses of the parties set forth below:
(a) for notices and communications to the Company:
Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. XxXxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(b) for notices and communications to (i) each Equity
Investor, to its address as set forth under each
Equity Investor's name in Exhibit A, and (ii) each
Individual Investor, to his attention in care of
Xxxxxx X. Xxx Company.
By notice complying with the foregoing provisions of this Section 8.3, each
party shall have the right to change the notice address for future notices and
communications to such party.
8.4 Costs, Expenses and Taxes. The Company shall pay the
Company's and each Investor's costs and expenses incurred in connection
with this Agreement and the Investors' Agreement, any amendment or
supplement to or modification of any of the foregoing, and any and all
other documents furnished pursuant hereto or thereto or in connection
herewith or therewith. The Company shall pay any and all stamp, transfer
and other similar taxes payable or determined to be payable in connection
with the execution and delivery of this Agreement or the original issuance
of the Shares but excluding all federal, state and local income or similar
taxes and shall save and hold each Investor harmless from and against any
and all liabilities with respect to or resulting from any delay in paying,
or omission to pay, such taxes. The Company shall bear all expenses of
shipping certificates evidencing the Shares (including, without limitation,
insurance expenses) from the location of the Closing to such other places
within the United States of America as the Investor shall specify.
8.5 Execution of Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which, taken together, shall constitute but
one and the same Agreement.
8.6 Binding Effect; Assignment. The rights and obligations of
any or all of the Investors under this Agreement may not be assigned to any
other person. Except as expressly provided in this Agreement, this
Agreement shall not be construed so as to confer any right or benefit upon
any person other than the parties to this Agreement, and their respective
successors and assigns. This Agreement shall be binding upon the Company
and each of the Investors, and their respective successors and assigns.
8.7 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware (regardless of the laws that might otherwise
govern under applicable Delaware principles of conflicts of law) as to all
matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
8.8 Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.9 Exhibits and Headings. The Exhibits to this Agreement shall
be deemed to be a part of this Agreement. The Article and Section headings
used or contained in this Agreement are for convenience of reference only
and shall not affect the construction of this Agreement.
8.10 Injunctive Relief. Each of the parties to this Agreement
hereby acknowledges that in the event of a breach by any of them of any
material provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. Each of the parties therefore agrees that, in the
event of a breach of any material provision of this Agreement, the
aggrieved party may elect to institute and prosecute proceedings to enforce
specific performance or to enjoin the continuing breach of such provision,
as well as to obtain damages for breach of this Agreement. By seeking or
obtaining any such relief, the aggrieved party will not be precluded from
seeking or obtaining any other relief to which it may be entitled.
8.11 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or the Investors'
Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
8.12 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained herein or made in
writing by or on behalf of the Company or each Investor, as the case may
be, in connection with the transactions contemplated by this Agreement
shall survive the execution and delivery of this Agreement and the sale and
purchase of the Shares of payment therefor.
* * * * * *
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
FSI MERGER CORP.
By: /s/ Xxxxxxx X. XxXxxx
----------------------------
Name: Xxxxxxx X. XxXxxx
Title:
INVESTORS SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument as of the date first above written.
THL Equity Shareholders:
XXXXXX X. XXX EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxx X. XxXxxx
Title:
XXXXXX X. XXX FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxx X. XxXxxx
Title:
THL FSI EQUITY INVESTORS, L.P.
By: THL Equity Advisors III Limited
Partner
ship, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxx X. XxXxxx
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.
as General Partner
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxx X. XxXxxx
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJMB FUNDING II, INC.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Inc.,
as general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title:
The address for each of the DLJ Entities
listed above is:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Partner
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Entities:
ML IBK POSITIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
KECALP INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and
Treasurer
XXXXXXX XXXXX KECALP L.P. 1997
By: KECALP Inc., as general partner
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and
Treasurer
The address for each of the Xxxxxxx Xxxxx
Entities
listed above is:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Individual Shareholders:
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: The 1995 Harkins Gift Trust
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Money Purchase Pension Plan
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
By: /s/ X. Xxxxxx Xxxx
---------------------------------
Name: X. Xxxxxx Xxxx
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
By: /s/ Xxxxxxxx Family Limited
Partnership
---------------------------------
Name: Xxxxxxxx Family Limited
Partnership
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxx X. XxXxxx
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxx,Xx.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
By: /s/ THL-CCI Limited Partnership
---------------------------------
Name: THL-CCI Limited Partnership
By: Xxxxx X. Master
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: First Trust Co. FBO
Xxxxxxxx X. Xxxxx
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Schedule I
Certain Named Individual Investors
----------------------------------
Xxxxx X. Xxxxxxx
The 1995 Harkins Gift Trust
Xxxxxx X. Xxxxxxxx Money Purchase Pension Plan (Xxxxx)
Xxxxx X. Xxxxxx
X. Xxxxxx Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxxxx Family Limited Partnership
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
First Trust Co. FBO Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx
EXHIBIT A -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
Number of Shares Purchased By Each Equity Investor
--------------------------------------------------
Stockholder Number of Shares Number of Shares
----------- of Voting of Non-Voting
Common Stock Common Stock
---------------- ----------------
Xxxxxx X. Xxx Equity Fund III, L.P. 2,409,525 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxx Foreign Fund III, L.P. 149,094 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL FSI Equity Investors, L.P. 1,210,587 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL-CCI Limited Partnership 148,392 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
DLJ Merchant Banking Partners II, L.P. 762,579 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Merchant Banking Partners II-A, L.P. 30,369 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Offshore Partners II, C.V. 37,500 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Diversified Partners, L.P. 44,584 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Diversified Partners - A, L.P. 16,557 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Millennium Partners, L.P. 12,330 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Millennium Partners - A, L.P. 2,405 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJMB Funding II, Inc. 135,393 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
UK Investment Plan 1997 Partners 20,176 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ EAB Partners, L.P. 3,424 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ ESC II, L.P. 143,803 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ First ESC, L.P. 1,467 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Equity Associates, L.P. 0 807,058
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx KECALP L.P. 1997 194,674 0
c/o KECALP Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
KECALP Inc. 37,081 0
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
ML IBK Positions, Inc. 10,363 0
Xxxxxx X. Xxxxxxx
c/o ML IBK Positions, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
========= =======
TOTAL 5,370,303 807,058
EXHIBIT B -- INVESTORS STOCK SUBSCRIPTION AGREEMENT
Stockholder Number
----------- of Shares
of Voting
Common Stock
------------
Xxxxx X. Xxxxxxx 17,996
The 1995 Harkins Gift Trust 2,000
Xxxxxx X. Xxxxxxxx Money Purchase Pension Plan (Xxxxx) 6,249
Xxxxx X. Xxxxxx 11,997
X. Xxxxxx Xxxx 11,997
Xxxxx X. Xxxxxxxx 5,999
Xxxxxxxx Family Limited Partnership 3,999
Xxxxxxx X. XxXxxx 9,998
Xxxxxx X. Xxxxxxx 9,998
Xxxxxx X. Xxxxx, Xx. 9,998
Xxxx X. Xxxxx 2,999
Xxxxxx X. Xxxxxxxxx 2,499
Xxxx X. Xxxxxx 1,500
Xxxxxxxx X. Xxxxxx 750
Xxxx X. Xxxxxxxx 750
Xxxxx X. Xxxxxx 415
Xxxxxx X. Xxxxxxx 415
First Trust Co. FBO Xxxxxxxx X. Xxxxx 000
Xxxxxxx X. Xxxxxx 415
Xxxxx Xxxxxx 415
Xxxxxxx X. Xxxxxxx 750
=======
TOTAL 101,554
-------
EXHIBIT C
[INVESTORS' AGREEMENT]
