EXHIBIT 10.30
GENERAL SHAREHOLDERS AGREEMENT
Dated September 30, 1994
------------------------
The parties to this agreement are Schein Holdings, Inc., a New York
corporation (the "Company"), Miles Inc., an Indiana corporation (the "New
Shareholder"), each of the family shareholders listed as such on schedule A
(collectively, the "Family Shareholders"), each of the other shareholders listed
as such on schedule A (collectively, with the Family Shareholders, the
"Continuing Shareholders") and Xxxxxx Xxxxxxx, as trustee (the "Trustee") under
the voting trust agreement dated this date and referred to in the Continuing
Shareholders Agreement referred to below (the "Voting Trust Agreement"). The
New Shareholder and the Continuing Shareholders constitute all the Company's
shareholders (except for holders of an aggregate of 2,549 shares of the
Company's common stock) and are collectively referred to as the "Shareholders."
Each Shareholder owns the number and class of shares set forth beside
that Shareholder's name on schedule A. The shares of each class of the
Company's common stock are collectively referred to as the "Shares."
The Company and the Continuing Shareholders also are parties to
another shareholders agreement dated this date (the
"Continuing Shareholders Agreement"), a copy which has been furnished to
the New Shareholder.
The parties agree as follows:
1. Directors.
---------
1.1 Election. From time to time, the New Shareholder shall be
--------
entitled to nominate a number of members of the Company's board of directors
(rounded to the next lower integer, unless the Fraction (as defined below) is
greater than one-half, in which case rounded to the next higher integer) equal
to the product of (a) the total number of members of the board of directors at
the time of the nomination and (b) a fraction (the "Fraction") determined by
dividing (i) the number of Shares owned by the New Shareholder at the time of
the nomination by (ii) the total number of shares of the Company's common stock
then outstanding. If the number of directors the New Shareholder is entitled to
nominate at any time is less than two, the New Shareholder at that time shall be
entitled to nominate one director and to designate a second individual to
receive notices of, and to attend, all board of directors meetings as an
observer (but who shall not otherwise be entitled to participate in those
meetings). The individuals so nominated and designated (and any individual
nominated under section 1.2(b)) shall be required to be reasonably acceptable to
the Company. During the period (the "Voting Trust Period") the Voting Trust
Agreement is in effect, the Trustee and his successors (the "Successor
Trustees") shall
2
be entitled to nominate the remaining members of the Company's board of
directors. During the period (the "Standstill Period") from the date of this
agreement to the earlier of the fifth anniversary of the Initial Public Offering
Date (as defined below) and May 15, 2001, the Trustee shall, and shall cause the
Successor Trustees to, and, during the Standstill Period, the Continuing
Shareholders (to the extent Shares owned by them are not subject to the Voting
Trust Agreement, by reason of the termination of the Voting Trust Agreement or
otherwise) shall, vote all Shares owned by them, if any, and take all other
action incidental to that vote requested of them by the New Shareholder to cause
the individuals nominated by the New Shareholder to be elected. During the
Voting Trust Period, the New Shareholder and the Continuing Shareholders (to the
extent Shares owned by Continuing Shareholders are not subject to the Voting
Trust Agreement for any reason) shall vote all Shares owned by them and take all
other action incidental to that vote requested of it by the Trustee or the
Successor Trustees to cause the individuals nominated by the Trustee or a
Successor Trustee, as the case may be, to be elected. As used in this
agreement, the term "Initial Public Offering Date" means the first date
immediately following the last closing of an underwritten sale of shares of the
Company's common stock to the public registered under the Securities Act of 1933
(the "1933 Act") on which the aggregate market value of outstanding common
stock (computed by use of the closing price of the stock (determined as set
forth in section 4.1)) held by more than 300 persons who are neither
Shareholders,
3
nor Permitted Transferees, nor employees of the Company or its subsidiaries nor
affiliates of the Company exceeds $100,000,000, which shares are listed or
admitted to trading on the New York Stock Exchange or the American Stock
Exchange or quoted on the NASDAQ National Market System.
1.2 Removal; Vacancies.
-------------------
(a) (i) If, during the Standstill Period, the New Shareholder
gives written notice to the Trustee or the Successor Trustees, as the case may
be, and if, during the Standstill Period, the Voting Trust Agreement shall have
terminated and thereafter the New Shareholder gives written notice to the
Continuing Shareholders Designee (as defined below) of its wish to remove a
director previously nominated by the New Shareholder and elected in accordance
with section 1.1, during the Standstill Period the Trustee shall, and shall
cause the Successor Trustees to, and, during the Standstill Period, the
Continuing Shareholders (to the extent Shares owned by them are not subject to
the Voting Trust Agreement, by reason of the termination of the Voting Trust
Agreement or otherwise) shall, vote all Shares owned by them, if any, in favor
of removing that director, and take all other action incidental to that vote
requested of them by the New Shareholder to cause that director to be removed.
As used in this agreement, the term "Continuing Shareholders Designee" means
Xxxxxx X. Xxxxxx, provided that (A) if the New Shareholder is notified by a
Family Shareholder of Xxxxxx X. Xxxxxx'x death, legal incapacity or resignation
4
("Unavailability"), that term shall mean Xxxxxx Xxxxxx or, upon Xxxxxx Xxxxxx'x
Unavailability prior to Xxxxxx X. Xxxxxx'x Unavailability, a successor
designated by Xxxxxx X. Xxxxxx in a writing delivered to the Company and the New
Shareholder prior to his Unavailability ("Marvin's Successor"), and (B) if
Xxxxxx Xxxxxx succeeds Xxxxxx X. Xxxxxx as the "Continuing Shareholders
Designee" then, if the New Shareholder is notified by a Family Shareholder of
Xxxxxx Xxxxxx'x Unavailability, that term shall mean the successor designated by
Xxxxxx Xxxxxx in a writing delivered to the Company and the New Shareholder
prior to her Unavailability or, if Xxxxxx Xxxxxx shall not have so designated a
successor, then such term shall mean Marvin's Successor, or, if no such person
is so designated, it shall mean the Company.
(ii) If, during the Voting Trust Period, the Trustee or a
Successor Trustee, as the case may be, gives written notice to the New
Shareholder and the Continuing Shareholders (who own Shares not subject to the
Voting Trust Agreement for any reason) of his wish to remove a director
previously nominated by the Trustee or Successor Trustee and elected in
accordance with section 1.1, during the Voting Trust Period the New Shareholder
and those Continuing Shareholders shall vote all Shares owned by them in favor
of removing that director, and take all other action incidental to that vote
requested of them by the Trustee or Successor Trustee, as the case may be, to
cause that director to be removed.
5
(b) (i) If for any reason any director previously nominated by
the New Shareholder ceases to hold office, the New Shareholder shall promptly
nominate an individual to fill the vacancy so created for the unexpired term,
and, during the Standstill Period, after written notice from the New Shareholder
to the Trustee, the Trustee shall, and shall cause the Successor Trustees to,
and, during the Standstill Period, the Continuing Shareholders (to the extent
Shares owned by them are not subject to the Voting Trust Agreement, by reason of
the termination of the Voting Trust Agreement or otherwise) shall, vote all
Shares owned by them, if any, and take all other action incidental to that vote
requested of them by the New Shareholder to cause the individual so nominated to
be elected to fill the vacancy.
(ii) If for any reason any director previously nominated by
the Trustee or a Successor Trustee ceases to hold office, the Trustee or a
Successor Trustee, as the case may be, shall promptly nominate an individual to
fill the vacancy so created for the unexpired term, and, during the Voting Trust
Period, after written notice to the New Shareholder and the Continuing
Shareholders (who own Shares not subject to the Voting Trust Agreement for any
reason) from the Trustee or a Successor Trustee, the New Shareholder and those
Continuing Shareholders shall vote all Shares owned by them and take all other
action incidental to that vote requested of them by the Trustee or
6
Successor Trustee, as the case may be, to cause the individual so nominated
to be elected to fill the vacancy.
1.3 Classified Board. At any time the Company's board of directors
----------------
is divided into two or more classes, the members nominated by the New
Shareholder shall, to the extent practicable, be included in the respective
classes in the same manner as are the members nominated by the Trustee and the
Successor Trustees. The classification of the board of directors shall not
cause any reduction in the number of directors the New Shareholder otherwise is
entitled to nominate pursuant to this agreement, and nothing in this agreement
shall be construed to permit any amendment to the Company's certificate of
incorporation or by-laws (or comparable governing documents) ("Governing
Documents") in contravention of section 2.5.
1.4 No Action or Meeting without Notice. No action or meeting of
-----------------------------------
directors or shareholders of the Company shall have any force or effect, unless
the action or meeting is taken or held (a) in the case of meetings of
shareholders or directors, or any other action of shareholders or directors,
upon at least 15 business days' prior written notice to the New Shareholder and
the New Shareholder's nominee(s) and any observer, and (b) in the case of any
actions or meetings of directors or shareholders, where, in the good faith
judgment of the chairman of the board of directors of the Company, the
circumstances require an action or a meeting to be held upon fewer than 15
business days' prior written notice, upon at least 24 hours (in the case of
actions or
7
meetings of directors) and five business days (in the case of actions or
meetings of the shareholders) prior written notice to the New Shareholder and
the New Shareholder's nominee(s) and any observer, unless the New Shareholder or
the New Shareholder's nominee(s), as the case may be, shall otherwise have
expressly agreed to a shorter period of prior written notice or waived such
notice in writing. As long as this section 1.4 remains in effect, (y) the
provisions of this section 1.4 shall be included in the by-laws of the Company
and (z) no provisions of the Company's Governing Documents relating to notice
requirements for meetings of or actions by the Company's shareholders or board
of directors may be amended without the written consent of the New Shareholder.
1.5 Termination. The provisions of sections 1.1 through 1.4 shall
-----------
terminate and be of no force or effect from and after the first date (the
"Governance Termination Date") upon which the Fraction is less than one-tenth.
2. Certain Major Decisions. In the case of clauses 2.1, 2.5 and 2.6
-----------------------
below, during the Standstill Period, and, in each other case, prior to the
earlier of the Initial Public Offering Date and the Governance Termination Date,
the Company shall not, and shall not permit any of its subsidiaries to, and no
officer, employee or other agent of the Company or any of its subsidiaries shall
have the authority, in the name or on behalf of the Company or any of its
subsidiaries, to, take any of the following actions, directly or indirectly,
without the prior
8
written consent of the New Shareholder (which consent shall be deemed given, if
a majority of the New Shareholder's nominees referred to in section 1.1 consent
in writing (it being understood that consent given in this manner shall not be
deemed the exclusive method of giving consent)):
2.1 own, manage or operate any business not principally engaged in a
segment of the pharmaceutical or health-care industry, or any business ancillary
to the pharmaceutical or health-care industry;
2.2 effect an initial public offering of shares of common stock of
the Company that includes a primary offering by the Company of more than 25% of
the then outstanding common stock of the Company on a fully diluted basis;
2.3 incur any indebtedness to a third party for borrowed money,
which, by its terms, has a maturity of more than one year ("Funded Debt"), or
issue to a third party any shares of preferred stock that, by the terms of the
preferred stock, is required to be redeemed prior to the issuer's liquidation
("Redeemable Preferred Stock"), if, immediately after the incurrence of that
Funded Debt or the issuance of that Redeemable Preferred Stock, the ratio of the
sum of all Funded Debt plus the redemption price of all Redeemable Preferred
Stock of the Company and its consolidated subsidiaries to the Company's
consolidated stockholders' equity (excluding any such Redeemable Preferred
Stock), determined in accordance with generally accepted
9
accounting principles consistently applied ("GAAP"), exceeds (a) 1 to 1 during
the period from the date of this agreement to May 15, 1995, and (b) 1.5 to 1
thereafter;
2.4 provide compensation to the senior executive management of the
Company or any of its subsidiaries in excess of levels customary in the
pharmaceutical industry at the time such compensation decisions are made;
2.5 amend or restate the Company's Governing Documents in any
respect, (a) as a result of which the ability to (i) elect a majority of the
members of the board of directors, (ii) adopt an agreement of merger or
consolidation, (iii) approve a sale of all or substantially all the assets or
(iv) adopt an amendment to any Governing Document would require the vote of more
than a majority of the outstanding Shares, (b) that would adversely affect the
New Shareholder differently from other holders of the Shares or (c) that, by its
terms, would prohibit any foreign national from holding Company shares or
serving as a director;
2.6 engage in any transaction with an affiliate on terms more
favorable to the affiliate than would have been obtainable in arm's-length
dealings, except for (a) transactions between or among the Company and its
subsidiaries, (b) transactions contemplated by this agreement, the Continuing
Shareholders Agreement or the Voting Trust Agreement, (c) transactions expressly
disclosed in any schedule to the stock purchase agreement (the "Stock Purchase
Agreement") among the
10
Company, the New Shareholder and the Sellers referred to in that agreement and
(d) transactions of the kind permitted under section 5.02(g) of the Company's
agreement with Citibank, N.A. dated November 25, 1992, as in effect on the date
of this agreement; and
2.7 declare dividends or make distributions in respect of the
Company's capital stock, or redeem, purchase or otherwise acquire any capital
stock of the Company, except for (a) purchases contemplated by this agreement,
(b) purchases from Continuing Shareholders pursuant to section 2.1 of the
Continuing Shareholders Agreement, as in effect on the date of this agreement,
(c) purchases contemplated or required under the Schein Pharmaceutical, Inc.
1993 Stock Option Plan, in the form in which such Plan exists on the date of
this agreement (it being understood that, if such Plan in the form in which it
exists on the date of this agreement is adopted by the Company or a successor to
the Company, such Plan shall, as so adopted, be deemed to be such Plan in the
form in which it exists on the date of this agreement), (d) purchases
contemplated or required under exchange agreements between the Company and
certain of its shareholders relating to an aggregate of 22,250 shares of
non-voting common stock of Steris Laboratories, Inc. and 9,764 shares of non-
voting common stock of Danbury Pharmacal, Inc. substantially in the form as
attached to schedule 4.6(a) to the Stock Purchase Agreement.
11
2A. Unresolved Disagreements. In addition to any other rights of the
------------------------
New Shareholder under this agreement, from and after May 15, 1997, if the board
of directors of the Company takes any action with respect to which the New
Shareholder's representatives on the board of directors are not in agreement,
and if the New Shareholder shall have made demand for the registration of all
its Shares pursuant to section 10.1, and such registration shall not have been
effected pursuant to section 10, the New Shareholder shall have the right to
require the chief executive officer and the board of directors of the Company to
meet as promptly as practicable (but in any event within 10 business days) with
the New Shareholder to discuss in good faith a procedure either to resolve the
disagreement or to permit and facilitate the rapid divestiture of the New
Shareholder's Shares (it being understood that neither that procedure nor any
outcome of that procedure shall be binding upon the Company or the New
Shareholder, until and unless mutually acceptable definitive agreements are
executed and delivered by the parties).
3. Visitation; Notice. Prior to the Governance Termination Date,
-------------------
the New Shareholder and its representatives may, from time to time, visit and
inspect the properties of the Company and its subsidiaries, examine their books
of account and discuss their affairs, finances and accounts with the Company's
senior management and independent accountants, all at such reasonable times as
the New Shareholder may wish and in a manner that does not interfere with or
disrupt the business in any
12
material respect and subject to appropriate confidentiality agreements.
4. Rights to Purchase Additional Shares.
------------------------------------
4.1 Preemptive Rights. If at any time during the Standstill Period
-----------------
the Company proposes to issue (whether for cash, property or services) any
Equity Securities (as defined below) to any person or entity (including a
Shareholder) (other than pro rata issuances of Equity Securities to all holders
of the Company's common stock), the New Shareholder shall have the right (which
it may exercise in whole or in part) to purchase, upon the same terms (but
subject to the penultimate sentence of this section 4.1), a proportionate
quantity of those Equity Securities (or Equity Securities as similar as
practicable to those Equity Securities) in the proportion that the aggregate
number of Shares then beneficially owned by Xxxxx XX and all direct and indirect
majority-owned subsidiaries of Xxxxx XX (including the New Shareholder and all
direct and indirect majority-owned subsidiaries of the New Shareholder) (all
such subsidiaries of Xxxxx XX being collectively called the "Bayer Controlled
Subsidiaries") bears to the total number of Shares then outstanding. (For
purposes of this agreement, Xxxxx XX and the Bayer Controlled Subsidiaries shall
not be deemed to own beneficially any Shares subject to the Voting Trust
Agreement or held by any of the other Shareholders, and none of the Continuing
Shareholders shall be deemed to own beneficially any Shares held by any of the
other Shareholders and, in each case, otherwise
13
subject to the provisions of this agreement with respect to voting or
disposition.) The Company shall give notice to the New Shareholder setting
forth the identity of the purchaser and the time, which shall not be fewer than
60 days and not more than 90 days, within which, and the terms upon which, the
New Shareholder may purchase the Equity Securities, which terms shall be the
same as the terms upon which the purchaser may purchase the Equity Securities.
Notwithstanding anything to the contrary in this section 4.1, however, in the
case of any issuance of options, rights or securities convertible into, or
exchangeable or exercisable for, Shares, the Company shall not be deemed to have
issued Equity Securities until the issuance of the Shares underlying such
options, rights or securities, and the New Shareholder's right to purchase
Shares under this section 4.1 shall not become effective, unless the number of
Shares the New Shareholder is entitled to purchase at the time under this
section 4.1 is greater than 1% of the then outstanding Shares (but any
entitlement to purchase Shares that is so suspended shall be carried forward and
cumulated, until the cumulative number of Shares so carried forward equals at
least 1% of the then outstanding Shares, at which time the right that had been
suspended shall cease to be suspended for 60 days, at which time the right shall
terminate). Where the right to purchase Equity Securities under this section
4.1 arises from an issuance of Equity Securities (i) to or for the benefit of
employees or directors of the Company or any of its subsidiaries, (ii) in
connection with an acquisition or (iii) pursuant to a warrant or
14
option issued in connection with any debt or Redeemable Preferred Stock
financing of the Company ((i), (ii) and (iii), collectively, the "Non-Assignable
Preemptive Rights"), the New Shareholder's purchase price per share for the
Equity Securities shall be the current per share market price of those Equity
Securities at the time the Equity Securities are issued or, in accordance with
the immediately preceding sentence, deemed to be issued. As used in this
agreement, (a) the term "Equity Securities" means shares of capital stock of the
Company having the right to vote or generally to participate, in a manner
similar to common stock, in the profits and losses of the Company, or any
options, rights or securities convertible into, or exchangeable or exercisable
for, such shares of capital stock; and (b) the "current per share market price"
of any Equity Security on any date shall be deemed to be the average of the
daily closing prices per share of such security for the 20 consecutive trading
days immediately prior to such date; provided, however, that in the event that
--------- -------
the current per share market price of any Equity Security is determined during a
period following the announcement by the Company of (i) a dividend or
distribution on such Equity Securities payable in such Equity Security or
securities convertible into such Equity Security or (ii) any subdivision,
combination or reclassification of such Equity Securities, and prior to the
expiration of 20 trading days after the ex-dividend date for such dividend or
distribution, or after the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per
15
share market price shall be appropriately adjusted to take into account ex-
dividend trading or to reflect the current per share market price of the Equity
Security equivalent. The closing price (the "closing price") for each day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the principal
national securities exchange on which the applicable Equity Securities are
listed or admitted to trading or, if such Equity Securities are not listed or
admitted to trading on any national securities exchange, the last quoted price,
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use,
or, if on any such date such Equity Securities are not quoted by such an
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such Equity Securities selected by
the board of directors of the Company. If such Equity Securities are not
publicly held or not so listed or traded or not the subject of available bid and
asked quotes, "current per share market price" shall mean the fair value per
share as determined in good faith by a majority of the disinterested directors
of the Company. A "trading day" shall mean any day on which the principal
national securities exchange on which the applicable Equity Securities are
listed or admitted to trading is open for the transaction of business or, if the
16
applicable Equity Securities are not listed or admitted to trading on any
national securities exchange, a business day.
4.2 Interim Investment Protection Right
-----------------------------------
(a) If at any time or from time to time after the Initial Public
Offering Date and during the Standstill Period any person or entity (other than
any Continuing Shareholder, the Company, any subsidiary of the Company, any
employee benefit or stock ownership plan of the Company or any of its
subsidiaries or any entity holding Shares for or pursuant to the terms of any
such plan or any person who has reported that it is the beneficial owner of
Shares in a statement on Schedule 13G and who continues to meet the requirements
of Rule 13d-l(b)(l) or (2) promulgated by the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934 (the "Exchange Act"))
that, together with all affiliates of that person or entity, becomes the
beneficial owner of 10% or more of the Shares then outstanding (an "Acquiring
Person"), then, notwithstanding anything to the contrary in section 5.1 but
subject to sections 4.6 and 4.7, the New Shareholder shall immediately have the
right (the "Interim Investment Protection Right") to purchase a number of Shares
(the "Interim Investment Spread") that, when added to the number of Shares
that Xxxxx XX and Xxxxx'x Controlled Subsidiaries then beneficially own, exceeds
the number of Shares beneficially owned by the Acquiring Person and its
affiliates by a number of Shares equal to 21% of the Shares then outstanding.
17
(b) If at any time during the first 30 days after the New
Shareholder has the right to exercise the Interim Investment Protection Right
the Public Float (as defined in section 4.2(e)) is less than 133% of the Interim
Investment Spread, the New Shareholder shall have the right, exercisable by
written notice given to the Continuing Shareholders Designee and the Company
within that 30-day period, to purchase from the Family Shareholders, if and to
the extent they or any of them so elect in accordance with this section 4, and
otherwise from the Company, and such electing Family Shareholders and/or the
Company, as the case may be, shall be required to sell, an aggregate number of
Shares up to the number of Shares by which the Public Float is less than 133% of
the Interim Investment Spread at a price per Share equal to the average current
per share market price of the Shares over the 20 trading days immediately
preceding the first day on which the Interim Investment Protection Right becomes
exercisable. Notwithstanding the foregoing, however, if, upon any exercise of
the Interim Investment Protection Right, Xxxxx XX and Bayer's Controlled
Subsidiaries would beneficially own in the aggregate a majority of the then
outstanding Shares, the purchase price payable per Share for such Shares upon
such exercise shall be the acquisition value per Share (as determined in
accordance with section 4.3(b)) rather than the average current per share market
price (as described in the preceding sentence); however, in determining the
acquisition value per Share, the IB Firm (as defined in section 4.3(b)) shall
take into consideration the temporal limitations on
18
the New Shareholder's rights to vote Shares being acquired by virtue of section
4.6 and the other considerations set forth in section 4.3(b).
(c) The closing of any purchase and sale under this section 4.2
shall be held at the Company's offices on at least two business days notice
after the fifth business day after (i) the New Shareholder shall have given the
written notice referred to in section 4.2(b), in the event that the price to be
paid by the New Shareholder is the average current per share market price, or
(ii) the New Shareholder shall have received the Value Notice referred to in
section 4.3(b), mutatis mutandis, in the event that the price to be paid by the
------- --------
New Shareholder is the acquisition value per Share. At the closing, the New
Shareholder shall pay the purchase price for the Shares it is purchasing, by
certified or official bank check or wire transfer of funds, and the Family
Shareholders and/or the Company, as the case may be, shall deliver the Shares,
duly endorsed, if being sold by a Family Shareholder, and free and clear of any
encumbrances and with all required stock transfer tax stamps attached.
Notwithstanding anything to the contrary in this section 4.2, the New
Shareholder's right to purchase Shares under this section 4.2 shall not become
effective, unless the number of Shares the New Shareholder is so entitled to
purchase at the time is greater than 1% of the then outstanding Shares (but any
entitlement to purchase Shares that is so suspended shall be carried forward and
cumulated, until the cumulative number of Shares so carried
19
forward exceeds 1% of the then outstanding Shares, at which time the right that
had been suspended shall cease to be suspended).
(d) If the Family Shareholders elect to sell a number of Shares
pursuant to section 4.2 or 4.3 that, in the aggregate, is equal to or less than
the number the New Shareholder shall have elected to purchase pursuant to
section 4.2 or 4.3 respectively, each such Family Shareholder shall sell the
number of Shares that such Family Shareholder shall have elected to sell and the
Company shall sell to the New Shareholder the balance, if any, of the number of
Shares the New Shareholder shall have elected to purchase. If the Family
Shareholders elect to sell pursuant to section 4.2 or 4.3 a number of Shares
that, in the aggregate, is more than the New Shareholders shall have elected to
purchase pursuant to section 4.2 or 4.3, respectively, each such Family
Shareholder shall sell the number of Shares set forth in a written notice given
to the New Shareholder and the Continuing Shareholders Designee by all the
Family Shareholders who are selling Shares at least one business day before the
closing of the purchase and sale or, in the absence of a notice so given, its
proportionate number of Shares (in the proportion that the number of Shares each
Family Shareholder shall have elected to sell bears to the total number of
Shares all the Family Shareholders shall have elected to sell).
(e) As used in this agreement, the term "Public Float" means the
total number of Shares then issued and outstanding (as shown by the most recent
report or statement filed by the Company
20
with the SEC), less all Restricted Securities (as defined below); provided,
however that the "Public Float" shall be deemed to equal zero, if (i) the
Initial Public Offering Date has not yet occurred at the time or (ii) the Shares
are not listed or admitted to trading on the New York Stock Exchange or the
American Stock Exchange or quoted on the NASDAQ National Market System.
"Restricted Securities" means any Equity Securities that, at the date of
determination, (A) are held by employees or affiliates of the Company and are
subject to contractual restrictions on resale imposed by the Company or any of
its subsidiaries, (B) cannot be sold by the holder except under a registration
statement under the 1933 Act and have not been so registered or (C) remain
subject to the Voting Trust Agreement.
4.3 Final Investment Protection Right.
---------------------------------
(a) Subject to section 4.6, if, on the last trading day during
the Standstill Period, the Public Float is less than 133% of the number of
Shares that, when added to the aggregate number of Shares Xxxxx XX and Xxxxx'x
Controlled Subsidiaries then beneficially own, equals a majority of the Shares
then outstanding (the "Final Investment Spread"), the New Shareholder shall have
the right (the "Final Investment Protection Right"), exercisable by written
notice given to the Company and the Continuing Shareholders Designee within six
months after the expiration of the Standstill Period, to give notice of its
interest in purchasing (subject to section 4.3(c)) from the Family Shareholders,
if and to the extent they or any of
21
them so elect in accordance with this section 4, and otherwise from the Company,
and such electing Family Shareholders or the Company, as the case may be, shall
be required to sell (if the New Shareholder elects to purchase in accordance
with section 4.3(c)), an aggregate number of Shares up to the number of Shares
by which the Public Float is less than 133% of the Final Investment Spread at a
price per Share equal to the acquisition value per Share on the last trading day
of the Standstill Period.
(b) The term "acquisition value per Share" means an amount
determined by an internationally recognized, independent investment banking firm
selected by the Company, the New Shareholder and the Continuing Shareholders
Designee; however, if the Company and the Continuing Shareholders Designee, on
the one hand, and the New Shareholder, on the other hand, are unable to agree on
the selection of that firm within 30 calendar days after the date the notice is
given pursuant to section 4.3(a) (the "Notice Date"), each of the Company and
the Continuing Shareholders Designee, on the one hand, and the New Shareholder,
on the other hand, shall promptly (but in no event later than five business days
after the expiration of that 30 calendar day period) designate an
internationally recognized, independent investment banking firm, which firms
shall promptly (but in no event later than five business days after the
expiration of the previous five business day period) select a third
internationally recognized, independent investment banking firm to determine the
acquisition value per Share (the internationally recognized,
22
independent investment banking firm so selected is referred to as the "IB
Firm"). The IB Firm shall determine the acquisition value per Share by using
generally accepted valuation techniques at the time of the determination, (i)
taking into consideration the value of shares of common stock of comparable
companies, (ii) recognizing, if applicable under the laws of the state of
incorporation of the Company and the Governing Documents at that time, that upon
the exercise of the Final Investment Protection Right control of the Company
will pass to the New Shareholder by reason of its purchase of such Shares, and
(iii) excluding consideration of (x) contractual obligations under this
agreement, the Continuing Shareholders Agreement or the Voting Trust Agreement
that may limit the ability of the Family Shareholders to sell Shares owned by
them or otherwise inhibit the full exercise of their rights as shareholders and
(y) the number of Shares then beneficially owned by Xxxxx XX and Bayer's
Controlled Subsidiaries (except to the extent necessary to calculate the number
of Shares constituting the Final Investment Spread) and the fact that the New
Shareholder is the beneficiary of the Final Investment Protection Rights. The
parties shall use reasonable efforts to have the IB Firm give written notice of
the acquisition value per Share and of its bases for such calculation to the
Company, the New Shareholder and the Continuing Shareholders Designee (the
"Value Notice") within 30 days after the selection of the IB Firm. The
determination of the acquisition value per Share by the IB firm shall be final,
conclusive and binding on the parties. The fees and expenses of
23
the IB Firm shall be paid 50% by the Company and 50% by the New Shareholder.
The closing of any purchase and sale under this section 4.3(b) shall be held at
the Company's offices not later than 30 calendar days after the date the New
Shareholder shall have received the Value Notice. At the closing, the New
Shareholder shall pay the acquisition value per Share for each share pursuant to
which it has given notice under section 4.3(a), and the Family Shareholders
and/or the Company shall deliver the Shares, duly endorsed, if being sold by a
Family Shareholder, and free and clear of any encumbrances and with all
required stock transfer tax stamps attached.
(c) Within 30 calendar days after receipt of the Value Notice, the
New Shareholder will have the right to give notice to the Company and the
Continuing Shareholders Designee of its election to exercise the Final
Investment Protection Right. Within five days after the New Shareholder gives
such notice, each of the Family Shareholders shall have the right to elect, by
written notice given to the New Shareholder and the Company, to sell to the
New Shareholder the number of Shares set forth in that Family Shareholder's
notice, and each such Family Shareholder shall sell the number of Shares that
Family Shareholder shall have so elected to sell and the Company shall sell to
the New Shareholder the balance, if any, of the number of Shares that the New
Shareholder shall have elected to purchase. Notwithstanding anything to the
contrary in this section 4.3(c),
24
this section 4.3(c) is subject to the provisions of section 4.2(d).
(d) If the New Shareholder purchases any Shares from the Company
pursuant to its exercise of the Final Investment Protection Right, the Company
shall as promptly as practicable (subject to any restrictions under applicable
law) make a pro rata distribution to all holders of Shares other than Xxxxx XX
and Xxxxx'x Controlled Subsidiaries of an aggregate amount equal to (i) the
product of the acquisition value per Share multiplied by the number of Shares
purchased from the Company pursuant to section 4.3(c), reduced by (ii) the
product of the number of such Shares and the average current per share market
price of the Shares over the 20 trading days immediately preceding the end of
the Standstill Period.
4.4 First Refusal. If the Company fails to exercise its right to
-------------
purchase Shares under section 2.1 of the Continuing Shareholders Agreement
within 20 days after an Offer Notice (as defined in the Continuing Shareholders
Agreement) is given, the Company's right to purchase those Shares shall be
deemed to be assigned to the New Shareholder. However, notwithstanding anything
to the contrary in the Continuing Shareholders Agreement, in the case of any
purchase by the New Shareholder under section 2.1 of the Continuing Shareholders
Agreement by virtue of this section 4.4 after the Initial Public Offering Date,
the New Shareholder shall have the right to purchase only the number of Shares
that, when added to the number of Shares
25
Xxxxx XX and Bayer's Controlled Subsidiaries then own, equals the New Percentage
(as defined in section 5.1A) of the then outstanding Shares. In the event of a
dispute concerning the purchase price of Shares acquired under section 2.1 of
the Continuing Shareholders Agreement, the dispute shall be resolved between the
New Shareholder and the Continuing Shareholders pursuant to the dispute
resolution mechanisms set forth in section 2.2 of the Continuing Shareholders
Agreement, in all respects as if the New Shareholder were the Company. In the
case of any Shares as to which the Company shall have failed to exercise its
right to purchase under section 2.1 of the Continuing Shareholders Agreement and
the New Shareholder shall have failed to exercise its right to purchase the
Shares under this section 4.4, it is understood and agreed that the Continuing
Shareholder(s) may sell the Shares to the offeror in accordance with the terms
and conditions of the Continuing Shareholders Agreement (subject to the
limitation set forth in section 2.1 of the Continuing Shareholders Agreement to
the effect that, if the sale is not consummated within 75 days following the
expiration of the 40-day period described in section 2.1 of the Continuing
Shareholders Agreement, the Shares specified in the Offer Notice shall again
become subject to section 2.1 of the Continuing Shareholders Agreement).
Notwithstanding anything to the contrary in the Continuing Shareholders
Agreement, if as a result of the New Shareholder's acquisition of any Shares in
accordance with this section 4.4, Xxxxx XX and Xxxxx'x Controlled Subsidiaries
would beneficially own a majority of the Shares then
26
outstanding, the New Shareholder shall purchase those Shares at a price equal to
the greater of (a) the price per Share determined in accordance with section 2.1
of the Continuing Shareholders Agreement and (b) the acquisition value per Share
determined in accordance with section 4.3(b) of this agreement; however, in
determining the acquisition value per Share, the IB Firm shall take into
consideration the temporal limitations on the New Shareholder's rights to vote
Shares being acquired by virtue of section 4.6 and the other considerations set
forth in section 4.3(b).
4.5 Certain Equity Financings. Notwithstanding anything to the
-------------------------
contrary in this agreement, prior to the Initial Public Offering Date, the
Company shall not issue any Equity Securities ((a) except for Equity Securities
issued to or for the benefit of employees or directors of the Company or its
subsidiaries, (b) except in acquisitions, (c) except for Equity Securities
issued in connection with financings that are not primarily comprised of Equity
Securities and (d) except in connection with any underwritten sale of shares of
the Company's common stock to the public registered under the 1933 Act).
4.6 Voting. If, immediately after the New Shareholder acquires any
------
Shares under section 4.2, 4.3, 4.4 or 11.5, or otherwise, during the Standstill
Period, Xxxxx XX and Bayer's Controlled Subsidiaries beneficially own in the
aggregate (a) on or before the Initial Public Offering Date, more than 28.3% of
the then outstanding Shares, or (b) after the Initial Public
27
Offering Date, more than the New Percentage (as defined in section 5.1A) of the
then outstanding Shares, then, at all times thereafter during the Standstill
Period, (y) that excess number of Shares shall be voted or not voted in meetings
of shareholders and otherwise in accordance with the written instructions of the
Trustee and the Successor Trustees (regardless of whether the Voting Trust
Agreement is still in effect) (and, in the absence of such instructions, the
Shares shall be deemed not to be present or voting), and (z) that excess number
of Shares shall not be included in the number of Shares owned by the New
Shareholder in determining the Fraction.
4.7 Termination of Certain Rights. If during the Standstill Period
-----------------------------
the New Shareholder sells to any unaffiliated third party any Shares, then the
New Shareholder's rights under sections 2, 4.1, 4.2, 4.3, 4.4 and 8 shall
terminate and be of no further force or effect (it being understood, however,
that, notwithstanding any termination of rights under this section 4.7, nothing
in this section 4.7 shall be deemed to affect in any way any such rights as a
consequence of any assignment by the New Shareholder or its permitted assignees
of such rights in accordance with section 12.2).
5. Standstill. Except as otherwise contemplated by this agreement,
----------
or unless the New Shareholder is invited to do otherwise by the Company's board
of directors, during the Standstill Period, the New Shareholder shall not, and
shall not permit any of its affiliates (within the meaning of Rule 12b-2
28
under the Exchange Act) (including, without limitation, Xxxxx XX and Xxxxx'x
Controlled Subsidiaries), or anyone acting on behalf of, or in concert with, the
New Shareholder or any of its affiliates, to, directly or indirectly:
5.1 acquire, announce an intention to acquire, offer or propose to
acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by
joining a partnership, a limited partnership, a syndicate or any group (within
the meaning of section 13(d)(3) of the Exchange Act) or otherwise, any (a)
assets, businesses or properties of the Company or any of its subsidiaries,
other than in the ordinary course of business, or (b) Equity Securities;
5.2 participate in the formation or encourage the formation of, or
join or in any way participate with, any partnership, limited partnership,
syndicate, group or other person or entity that owns or seeks to acquire
beneficial ownership of Equity Securities;
5.3 solicit, or participate in any solicitation of, proxies or
become a participant in any election contest (the terms used in this section 5.3
having the respective meanings given them in Regulation 14A under the Exchange
Act) with respect to the Company;
5.4 initiate, propose or otherwise solicit shareholders for the
approval of one or more shareholder
29
proposals with respect to the Company or induce any other person to initiate any
shareholder proposal;
5.5 seek to place designees on the board of directors of the Company,
seek the removal of any member of the board of directors of the Company or seek
to have called any meeting of the shareholders of the Company;
5.6 deposit any Equity Securities in a voting trust or subject any
Equity Securities to a voting agreement or other agreement or arrangement with
respect to voting;
5.7 otherwise act, alone or in concert with others, to seek to
control the management, board of directors, policies or affairs of the Company
or solicit, propose, seek to effect or negotiate with any other person or entity
(including, without limitation, the Company) with respect to any form of
business combination or other extraordinary transaction with the Company or any
of its subsidiaries or any restructuring, recapitalization, similar transaction
or other transaction not in the ordinary course of business with respect to the
Company or any of its subsidiaries, solicit, make or propose or negotiate with
any other person or entity with respect to, or announce an intent to make, any
tender offer or exchange offer for any Equity Securities, or publicly disclose
an intent, purpose, plan or proposal with respect to the Company, any of its
subsidiaries or any securities or assets of the Company or any of its
subsidiaries, that would violate the provisions of this section 5, or
30
assist, participate in, facilitate or solicit any effort or attempt by any
person or entity to do or seek to do any of the foregoing; or
5.8 request the Company (or its directors, officers, employees or
agents) to amend or waive any provision of this section 5 (including, without
limitation, this section 5.8) or otherwise seek any modification to or waiver of
any of the agreements or obligations of the New Shareholder or its affiliates
(including, without limitation, Xxxxx XX and Bayer's Controlled Subsidiaries)
under this section 5.
Notwithstanding any of the foregoing sections 5.1 through 5.8 and
during the Standstill Period:
5.1A The New Shareholder shall have the right (a) at any time to own
beneficially any securities the Company distributes to it as part of a pro rata
dividend to all holders of common stock, (b) at any time to acquire or solicit
an offer to acquire any Equity Securities in accordance with section 4 and (c)
at any time, to acquire a number of Shares that, when added to the number of
Shares Xxxxx XX and Xxxxx'x Controlled Subsidiaries then beneficially own,
equals the New Percentage of the then outstanding Shares. As used in this
agreement, the term "New Percentage" means 30% after the earlier of the Initial
Public Offering Date and May 15, 1997 (such earlier date, the "Deemed Initial
Public Offering Date") and before the second anniversary of the Deemed Initial
Public Offering Date, 33-1/3%
31
thereafter and before the third anniversary of the Deemed Initial Public
Offering Date, 36-2/3% thereafter and before the fourth anniversary of the
Deemed Initial Public Offering Date and 40% thereafter.
5.2A The New Shareholder shall have the right (a) to discuss any
business matters (including, without limitation, subjects that may be within the
matters listed in sections 5.1 through 5.7) privately with the chief executive
officer of the Company (and the Company agrees that its chief executive officer
will make himself reasonably available for such discussions), (b) to discuss any
business matters with the Company's senior executive officers, if, in the good
faith judgment of the New Shareholder, the business matters relate primarily to
the performance or administration of the heads of agreement dated this date
among Xxxxx XX, the New Shareholder and Schein Pharmaceutical, Inc. and do not
involve a sale of all or substantially all the business and assets of the
Company or a substantial business unit or any shares of the Company (or a
transaction having a similar effect), (c) to discuss any business matters with
members of the Company's board of directors or (d) to discuss with the
Continuing Shareholders matters unrelated to the Company, or related to the
Company but not otherwise prohibited by this section 5; provided, however, that,
notwithstanding anything to the contrary in this section 5.2A, no proposal shall
be made by the New Shareholder that would require any member of the board of
directors of the Company to consider
32
amending, modifying or waiving, or taking or permitting any action inconsistent
with, any provision of this section 5 or to consider taking or permitting any
action that would have a similar effect. The New Shareholder also may discuss
its investment in the Company with its own shareholders and with the investment
community, provided that such discussions are not for the purpose of
circumventing any of sections 5.1 through 5.8.
5.3A Notwithstanding the provisions of sections 5.1 through 5.8, the
representative or representatives of the New Shareholder on the board of
directors of the Company shall have the right to take such action as they deem
necessary, proper or advisable to fulfill their fiduciary duties (including any
duty of loyalty) to the Company and its shareholders.
5.4A As a holder of Shares, the New Shareholder may exercise rights
issued to it in the future under any shareholder rights or similar plan (i.e.,
---
a so-called "poison pill" plan) and may acquire the securities issuable upon
exercise of those rights.
5.5A The provisions of sections 5.1 and 5.2 shall be suspended in the
event that any third party (other than Xxxxx XX and Xxxxx'x Controlled
Subsidiaries and their affiliates) publicly commences an unsolicited tender
offer or exchange offer for a number of Shares of the Company's common stock
that, when added to the number of Shares that third party then beneficially
owns, is a majority of the Company's then outstanding Shares (and
33
provided that (a) the New Shareholder reasonably believes that the third party
has the financial capacity and legal authority to consummate the tender offer or
exchange offer and the New Shareholder so represents in writing to the Company,
(b) Xxxxx XX and Bayer's Controlled Subsidiaries shall have had no prior direct
or indirect communication with that third party concerning the tender offer or
exchange offer, and the New Shareholder so represents in writing to the Company,
and (c) the suspension referred to above shall terminate when, if and as long as
that third party is enjoined from proceeding with the tender offer or exchange
offer.
6. Restrictions on Transfer Generally.
----------------------------------
6.1 Transfers to be Made Only as Permitted or Required by This
----------------------------------------------------------
Agreement. The Shareholders may not, directly or indirectly, sell, assign,
---------
transfer, pledge or otherwise encumber or dispose of (collectively,
"transfer") any Shares, except as specifically permitted or required by this
agreement or the Continuing Shareholders Agreement. Any other purported transfer
shall be void and of no effect.
6.2 Termination of Restrictions. The provisions of section 6.1 shall
---------------------------
terminate on the earlier of the second anniversary of the Initial Public
Offering Date and May 15, 1999.
6.3 Legend. As long as any provision of this agreement remains in
------
effect, each certificate representing Shares shall bear a legend substantially
as follows:
34
"The shares represented by this certificate are subject to a
shareholders agreement dated , 1994 that
----------------
restricts the transfer of the shares, a copy of which is on
file at the office of the Company."
7. Come-Along. If, at any time before the earlier of the Initial
----------
Public Offering Date and May 15, 2001, any or all of the Continuing Shareholders
and their Permitted Transferees (as defined in section 1.2(d) of the Continuing
Shareholders Agreement) and employees and former employees of the Company and
its subsidiaries (the "Selling Group") sell or agree to sell to a non-affiliated
third party that number of shares of Equity Securities that, when added to the
shares then beneficially owned by Xxxxx XX and Xxxxx'x Controlled Subsidiaries
and of other selling shareholders selling in that transaction, would be
sufficient under applicable state corporation law to enable the beneficial owner
to effect a short-form parent-subsidiary merger of the Company with the
purchaser following the sale, whether in a single transaction or a series of
related transactions, the Continuing Shareholders shall cause the third party to
purchase all the Shares beneficially owned by Xxxxx XX and Bayer's Controlled
Subsidiaries, and the New Shareholder and its Permitted Transferees shall sell
those Shares to the third party on the same terms as the members of the Selling
Group sell or agree to sell Shares. The New Shareholder and its Permitted
Transferees shall use reasonable efforts to cooperate with the Selling Group in
connection with any such sale. Nothing in this
35
section 7 shall be deemed to diminish the rights of the New Shareholder under
sections 4.4 and 8, subject to section 4.7.
8. New Shareholder's Right of First Offer. Subject to section 4.7,
--------------------------------------
if at any time prior to the end of the Standstill Period (or, if earlier, the
date of termination of the New Shareholder's rights under sections 4.1, 4.2 and
4.3) the right of first refusal under section 4.4 is no longer applicable by
virtue of any termination of the Continuing Shareholders Agreement and one or
more Continuing Shareholders (collectively, the "Continuing Shareholder
Offeror") who are permitted under the Continuing Shareholders Agreement and the
Voting Trust Agreement, and are otherwise able (subject only to this section 8),
and in good faith wish, to sell or cause the sale of any of the Shares to a non-
affiliated third party (other than sales under Rule 144 under the 1933 Act,
sales in a Wide Distribution (as defined in the Continuing Shareholders
Agreement) and transfers under sections 1.2(a)(iii)(G) or (H) of the Continuing
Shareholders Agreement), the Continuing Shareholder Offeror shall promptly
deliver a written notice (a "Continuing Shareholder Offer Notice") to the New
Shareholder containing an offer to sell to the New Shareholder all (but not
fewer than all) the Shares the Continuing Shareholder Offeror wishes to sell
(the "Continuing Shareholder Offered Shares") on the same terms as the
Continuing Shareholder Offeror wishes to sell the Continuing Shareholder Offered
Shares. At any time within 45 days after the Continuing Shareholder Offer
Notice is given, the New Shareholder may notify
36
the Continuing Shareholder Offeror that the New Shareholder shall purchase all
(but not fewer than all) the Continuing Shareholder Offered Shares, on the terms
specified in the Continuing Shareholder Offer Notice (a "New Shareholder
Acceptance Notice"). If the Continuing Shareholder Offeror receives the New
Shareholder Acceptance Notice within that 45-day period, the Continuing
Shareholder Offeror and the New Shareholder shall consummate the transaction
within 90 days following the Continuing Shareholder Offeror's receipt of the New
Shareholder Acceptance Notice. If the Continuing Shareholder Offeror does not
receive a New Shareholder Acceptance Notice within that 45-day period, the
Continuing Shareholder Offeror shall have the right to sell all (but not fewer
than all) the Continuing Shareholder Offered Shares to any person or entity at a
price equal to or greater than the price set forth in the Continuing Shareholder
Offer Notice, and on such other terms as are not materially less favorable to
the seller(s) than those set forth in the Continuing Shareholder Offer Notice.
If a sale is not consummated within 90 days following the expiration of the 45-
day period referred to above, the Continuing Shareholder Offered Shares shall
again be subject to this section 8.
9. Company's and Continuing Shareholders' Rights of First Offer.
------------------------------------------------------------
If, at any time prior to the earlier of the second anniversary of the Initial
Public Offering Date and May 15, 2001, the New Shareholder is able (subject only
to this section 9), and in good faith wishes, to sell any of its shares to a
non-
37
affiliated third party, the New Shareholder shall promptly deliver a written
notice (a "New Shareholder Offer Notice") to the Company and the Continuing
Shareholders Designee containing an offer to sell to the Company or the
Continuing Shareholders all (but not fewer than all) the Shares the New
Shareholder wishes to sell (the "New Shareholder Offered Shares") on the same
terms as the New Shareholder Offeror wishes to sell the New Shareholder Offered
Shares. At any time within 45 days after the New Shareholder Offer Notice is
given, the Company may notify the New Shareholder (a "Company Acceptance
Notice") that the Company, or the Continuing Shareholders, or any of them, may,
in a single notice, notify the New Shareholder (a "Continuing Shareholders
Acceptance Notice") that such Continuing Shareholders shall purchase all (but
not fewer than all) the New Shareholder Offered Shares on the terms specified in
the New Shareholder Offer Notice. If the New Shareholder receives a Company
Acceptance Notice within that 45-day period, the New Shareholder and the Company
shall consummate the transaction within 90 days after the New Shareholder Offer
Notice is given. If the New Shareholder does not receive a Company Acceptance
Notice but does receive a Continuing Shareholders Acceptance Notice within that
45-day period, the New Shareholder and such Continuing Shareholders shall
consummate the transaction within 90 days after the New Shareholder Offer Notice
is given. If the New Shareholder does not receive a Company Acceptance Notice
or a Continuing Shareholders Acceptance Notice within that 45-day period, the
New Shareholder Offeror shall have the right to sell all (but not
38
fewer than all) the New Shareholder Offered Shares to any person or entity at a
price equal to or greater than the price set forth in the New Shareholder Offer
Notice, and on such other terms as are not in any material respect less
favorable to the seller(s) than those set forth in the New Shareholder Offer
Notice. If a sale is not consummated within 90 days following the expiration of
the 45-day period referred to above, the New Shareholder Offered Shares shall
again be subject to this section 9.
10. Registration Rights.
-------------------
10.1 Demand Registration. After the earlier of the first anniversary
-------------------
of the Initial Public Offering Date and May 15, 1997, upon receipt of the
written request of one or more Registration Rights Holders (as defined in
section 12.2) (the "Initiating Holders") that the Company effect the
registration under the 1933 Act of all or part of such Initiating Holders'
Shares having a current per share market price of not less than $50,000,000 (a
"Demand Request"), the Company shall promptly give written notice of such
Registration Request to all other Registration Rights Holders, if any, and
thereafter shall use all reasonable efforts to file a registration statement on
a form to be selected by the Company and to effect the registration under the
1933 Act of the Shares designated in the Demand Request (a "Demand
Registration") and all other Shares the Company has been requested to register
by any other Registration Rights Holders entitled to request registration
pursuant to section 10.2 (the "Other Holders") by written request given to the
Company within
39
15 calendar days after the giving of such written notice by the Company. The
Company shall be obligated to effect three Demand Registrations; however,
notwithstanding anything to the contrary in this agreement, if, for any reason
(other than the fault of any Registration Rights Holder), the registration fails
to become effective and provide for the distribution of all the Shares specified
in the Demand Request, or the effectiveness is not maintained for at least 60
days in accordance with section 10.4(e) or the Company fails to perform all its
obligations under this section 10.1 with respect to that registration, that
Demand Registration shall not reduce the number of Demand Registrations the
Company was required to effect under this section 10.1 prior to that Demand
Registration. The Company's obligations under this section 10.1 shall terminate
on the earlier of the tenth anniversary of this agreement and the first date on
which the Fraction is less than one-tenth, and the Company shall not be
obligated to effect more than one Demand Registration in any period of 365 days.
10.2 Piggyback Registration. If at any time the Company determines
----------------------
or is requested or receives a demand (pursuant to an agreement binding on the
Company) from any person or entity to register under the 1933 Act for sale to
the public any of the Company's securities, on a form that also would permit the
registration under the 1933 Act for sale to the public of any of the Shares held
by any Registration Rights Holder, the Company shall, each such time, promptly
give each Registration Rights
40
Holder written notice of its intent to effect a registration and, subject to
sections 10.5 and 10.7, shall include in the registration all Shares held by any
Registration Rights Holder with respect to which the Company has received a
written request (a "Piggyback Request") specifying the number of Shares to be
included within 15 days after the Company has given notice to the Registration
Rights Holders pursuant to this section 10.2.
10.3 Obligation of the New Shareholder. Any Demand Request or
---------------------------------
Piggyback Request (a "Request") from a Registration Rights Holder shall express
the New Shareholder's and its Permitted Transferees' present intent to offer for
sale to the public the number of Shares to be included in the registration
statement and contain an undertaking to provide all such information and
materials and to take all such action as may be required to permit the Company
to comply with all applicable requirements of the SEC and to obtain acceleration
of the effective date of the registration statement.
10.4 Obligations of the Company. With respect to any registration
--------------------------
statement referred to in sections 10.1 or 10.2, the Company shall:
(a) use all reasonable efforts to have the registration
statement declared effective as promptly as practicable, and shall promptly
notify each Registration Rights Holder, and such other persons as the
Registration Rights Holder designates, if any, and confirm such advice in
writing, (i) when
41
the registration statement becomes effective, (ii) when any post-effective
amendment to the registration statement becomes effective and (iii) of any
request by the SEC for any amendment or supplement to the registration statement
or any prospectus relating to the registration statement or for additional
information;
(b) make available for inspection by any underwriters
participating in any planned disposition of Shares and any attorney, accountant
or other agent retained by each Registration Rights Holder or the underwriters,
all financial and other records reasonably necessary to permit them to
demonstrate that they have conducted a reasonable investigation of matters
described in the registration statement and cause the appropriate Company
officers to supply all such information reasonably requested by each
Registration Rights Holder, the underwriters or their agents;
(c) use all reasonable efforts to qualify, not later than the
effective date of the registration statement, the Shares under such "blue sky"
or other state securities laws as the New Shareholder may reasonably request (it
being understood, however, that the obligation under this section 10.4(c) shall
not be construed to obligate the Company to qualify as a foreign corporation or
as a dealer in securities or to execute or file any general consent to service
of process under the law of any such jurisdiction where it is not otherwise so
subject);
42
(d) furnish to each Registration Rights Holder such number of
copies of the registration statement, each amendment to the registration
statement, the prospectus included in each such registration statement and each
amendment to each registration statement, each amendment or supplement to any
prospectus and such other documents as each Registration Rights Holder may
reasonably request to facilitate the disposition of the Shares;
(e) for a period of at least 60 days from the effective date of
the registration statement, use reasonable efforts to keep the registration
statement in effect and current and from time to time to amend or supplement the
registration statement or the prospectus to the extent necessary to permit the
completion within that period, in compliance with the 1933 Act, of the sale or
distribution of the Shares. If at any time the SEC institutes or threatens to
institute any proceedings for the purpose of issuing a stop order suspending the
effectiveness of any such registration statement, the Company shall promptly
notify each Registration Rights Holder and use all reasonable efforts to prevent
the issuance of any such stop order or to obtain its withdrawal as soon as
possible. The Company shall promptly advise each Registration Rights Holder of
any order or communication of any public board or body addressed to the Company
suspending or threatening to suspend the qualification of any of the Shares for
sale in any jurisdiction; and
43
(f) insofar as the methods of distribution proposed to be used
are not reflected in the last prospectus filed by the Company as part of the
registration statement or pursuant to Rule 424 under the 1933 Act, each
Registration Rights Holder shall promptly provide the Company with a description
of the method or methods of distribution of the Shares from time to time
contemplated by each Registration Rights Holder and the Company shall file any
and all amendments and supplements necessary to include that description in the
registration statement.
10.5 Conditions to the Obligations of the Company. The Company may
--------------------------------------------
postpone, for up to 90 days, the filing of any registration statement otherwise
required to be prepared and filed by it under this agreement, if, at the time it
receives a Request, the Company would be required to prepare any financial
statements other than those it customarily prepares or the Company determines in
its reasonable judgment that the registration and offering would interfere with
any material financing, acquisition, corporate reorganization or other material
corporate transaction or development involving the Company that is pending or
imminent at the time and promptly gives each Registration Rights Holder written
notice of that determination (it being understood, however, that, in any such
event, the Company shall use all reasonable efforts to minimize the length of
the postponement). If the Company shall so postpone the filing of a
registration statement, each
44
Registration Rights Holder shall have the right to withdraw the Request by
giving written notice to the Company within 30 days after the receipt of the
notice of postponement and, in the event of the withdrawal, the Request that was
withdrawn shall not be deemed to have been made.
10.6 Expenses of Registration. All expenses (other than fees and
------------------------
disbursements of counsel for each Registration Rights Holder and the Continuing
Shareholders and underwriting or brokerage commissions attributable to the
Shares to be sold) incurred in connection with all registrations under this
agreement and the "blue sky" qualifications referred to in section 10.4(c),
including, without limitation, all registration and qualification fees,
printers' and accounting fees and fees and disbursements of counsel for the
Company, shall be borne by the Company.
10.7 Underwriting Requirements. In connection with any offering
-------------------------
pursuant to a Piggyback Request, the Company shall not be required to register
any Shares held by any Registration Rights Holder, unless such Registration
Rights Holder accepts the terms of the underwriting and then only in such
quantity as will not, in the written opinion of the underwriters, exceed the
maximum number of Shares that can be marketed without materially and adversely
affecting the offering. If, as a consequence of the provisions of the preceding
sentence, the number of Registration Rights Holders' Shares is reduced, such
reduction shall be made pro rata among the Registration Rights Holders
45
requesting such registration on the basis of the percentage of the Shares of
such Registration Rights Holders requested so to be registered, and the
percentage of the reduction shall not be more than the percentage of reduction
applicable to any other selling shareholder in the offering.
10.8 Other Registration Rights. Except for the registration rights in
-------------------------
this agreement and in the Continuing Shareholders Agreement, the Company is not
a party or subject to any agreement entitling any person or entity to
registration rights. The Company shall not enter into any other agreement
entitling any person or entity to registration rights that would materially and
adversely affect the rights of any Registration Rights Holder under this
agreement (it being understood that any registration rights other than those in
the Continuing Shareholders Agreement that would have the effect of reducing the
number of Shares that would otherwise be included in a registration statement
shall be deemed materially and adversely to affect the rights of the New
Shareholder and its Permitted Transferees under this agreement).
10.9 Indemnification. In the event any Shares are included in a
---------------
registration statement under this section 10 that relates to an underwritten
offering, to the extent permitted by law, the parties to the underwriting
agreement shall indemnify and hold harmless the other parties, and each person,
if any, who is a director, officer, agent, partner or shareholder of, or who
controls, such other parties, against losses, claims, damages or
46
liabilities customarily indemnified against in underwritten secondary offerings.
Such indemnification shall include contribution in the manner and to the extent
customarily provided.
11. Certain Other Provisions
------------------------
11.1 Financial Statements. Prior to the earlier of the Initial
--------------------
Public Offering Date and the Governance Termination Date, the Company shall
furnish the New Shareholder (a) not later than 60 days after the end of each of
the first three fiscal quarters of each fiscal year, an unaudited consolidated
balance sheet of the Company and its subsidiaries as of the end of that fiscal
quarter, together with the related unaudited consolidated statements of income,
retained earnings and cash flows for that fiscal quarter and the year to date,
prepared in accordance with GAAP and setting forth in comparative form the
information for the corresponding periods of the previous fiscal year, (b) not
later than 120 days after the end of each fiscal year, an audited consolidated
balance sheet of the Company and its subsidiaries as of the end of that fiscal
year, together with the related audited consolidated statements of income,
retained earnings and cash flow for that fiscal year, prepared in accordance
with GAAP and setting forth in comparative form the information for the
preceding fiscal year, together with the related audit report of the Company's
independent accountants and (c) reports provided to its prime lender that are
not otherwise provided to members of its board of directors.
47
11.2 Reincorporation. The Company shall exercise reasonable efforts
---------------
to reincorporate the Company, prior to the Initial Public Offering Date, in any
jurisdiction in which the ownership of a majority of the outstanding common
stock of the Company would give the beneficial owner of the stock the ability to
effect control of the Company (including, without limitation, those actions
specified in section 2.5) (it being understood that the Company need not
reincorporate in the event that action would, in the good faith judgment of the
Company's board of directors, cause material adverse tax consequences to the
Company or its shareholders).
11.3 Public Float. The Company shall use reasonable efforts to
------------
effect the Initial Public Offering Date as promptly as practicable so that the
number of Shares comprising the Public Float is at all times during the
Standstill Period that the New Shareholder is permitted to purchase additional
Shares not less than 133% of the number of Shares the New Shareholder is then so
permitted to purchase.
11.4 Reservation of Shares. Subject to section 4.6, (a) the Company
---------------------
shall at all times maintain sufficient authorized but unissued or treasury
Shares so that all rights of the New Shareholder to purchase new Shares from the
Company pursuant to this agreement may be exercised without additional
authorization of Shares, after giving effect to the exercise of all other
options, warrants, convertible securities and other rights to purchase Shares,
and (b) the Company shall not, by amendment to
48
its Governing Documents or through reorganization, consolidation, merger,
dissolution or sale of assets, or by any other voluntary act, avoid or seek to
avoid the observance or performance of any of the covenants or agreements to be
performed under this agreement by the Company.
11.5 Certain Acquisitions.
--------------------
(a) Each Family Shareholder agrees that he, she or it shall not, and
shall not permit his, her or its Family Group (as defined in the Continuing
Shareholders Agreement) members to, acquire any Shares, if, as a consequence of
the acquisition, the Family Shareholder and the Family Shareholder's Family
Group members own at that time more than 35.85%, in the case of Xxxxxx X. Xxxxxx
and his Family Group members, 27.55%, in the case of Xxxxxx Xxxxxx and her
Family Group members, and 12.97%, in the case of Xxxxxx Xxxxxx and her Family
Group members, of the outstanding Shares at the time (each, a "Maximum
Percentage").
(b) If a Family Shareholder's (together with his, her or its Family
Group's) holdings of Shares exceeds the applicable Maximum Percentage by reason
of such Family Shareholder's (or his, her or its Family Group's) acquisition of
Shares, the Family Shareholder shall promptly so notify the Company and the New
Shareholder in writing (the "Section 11 Notice"). The Section 11 Notice shall
specify (i) the extent by which the Maximum Percentage has been exceeded, and
(ii) the weighted average per Share acquisition price of the Shares most
recently purchased in
49
excess of the Maximum Percentage (the "Acquisition Price"). Subject to section
11(c), the Company shall, upon five days notice given by the Company (which the
Company shall in good faith endeavor to give as soon as practicable upon first
learning that the applicable Maximum Percentage has been exceeded) at any time
during the period beginning on the date the relevant Family Shareholder's
(together with his, her or its Family Group) holdings of Shares first exceeds
the applicable Maximum Percentage and ending 90 days following the Company's
receipt of the Section 11 Notice, purchase from that Family Shareholder the
number of Shares in excess of the applicable Maximum Percentage at a price per
Share equal to 50% of (x) the Acquisition Price, or if the applicable Family
Shareholder has not given a Section 11 Notice, (y) the current per share market
price (determined in accordance with section 4.1) on the date the Company first
learns that the applicable Maximum Percentage has been exceeded. The closing of
any such purchase by the Company shall be held at the Company's offices. At the
closing, the Company shall pay the purchase price calculated in accordance with
this section 11(b) by certified check or in immediately available funds, and the
Family Shareholder shall deliver the Shares so to be purchased, duly endorsed,
and free and clear of any encumbrances and with all required stock transfer tax
stamps attached.
(c) If the Company, in its reasonable judgment, does not have the
financial resources to consummate the purchase of the Shares in accordance with
this section 11, it shall promptly
50
so notify the New Shareholder. The New Shareholder may, at its sole election,
make available to the Company the funds to purchase such Shares, on terms and
conditions reasonably acceptable to the Company and the New Shareholder and
consistent with terms and conditions available from unaffiliated commercial
lenders. If the New Shareholder does not elect to make such funds available to
the Company, then the Company shall so promptly notify the relevant Family
Shareholder, and the Company shall have no obligation to purchase the Shares.
If the New Shareholder so elects to make the funds available, but the Company is
not able for any reason under applicable state corporate law to consummate the
purchase, the Company shall so promptly notify the New Shareholder, and the New
Shareholder may, at its sole election upon five days' notice given to the
Company and the relevant Family Shareholder at any time within 30 days after the
New Shareholder first learns that the Company is unable to consummate the
purchase, purchase the Shares upon the terms and conditions of section 11(b),
subject to the provisions of section 4.6.
(d) The parties acknowledge that the remedy at law for breach of
clause (a) of this section 11.5 would be inadequate and that, in addition to any
other remedy the New Shareholder or the Company may have for a breach of clause
(a) of this section 11.5, the New Shareholder or the Company shall be entitled
to an injunction restraining any such breach or threatened breach, without
posting any bond or security.
51
12. Miscellaneous.
-------------
12.1 Definitions. As used in this agreement:
-----------
(a) Notwithstanding anything to the contrary in this agreement,
the term "Company" means Schein Holdings, Inc., a New York corporation. In the
event that, directly or indirectly (a) the Company shall consolidate with, or
merge with or into, any other person or entity and the Company shall not be the
continuing or surviving corporation of such consolidation or merger; (b) any
person or entity shall consolidate with the Company, or merge with or into the
Company and the Company shall be the continuing or surviving corporation of such
merger or consolidation and, in connection with such merger or consolidation,
all or part of the Shares shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property; or (c) the Company
shall sell or otherwise transfer (or one or more of its subsidiaries shall sell
or otherwise transfer), in one or more transactions, assets or earning power
(including, without limitation, securities creating any obligation on the part
of the Company and/or any of its subsidiaries) representing in the aggregate
more than 50% of the assets or earning power of the Company and its subsidiaries
(taken as a whole) to any person or persons, then, and in each such case, the
term "Company" shall thereafter be deemed to refer to the person that is the
continuing, surviving, resulting or acquiring person or the person that is the
party receiving the greatest portion of the assets or earning power (including,
52
without limitation, securities creating any obligation on the part of the
Company and/or any of its subsidiaries) transferred pursuant to such transaction
or transactions.
(b) The term "beneficial ownership" has the meaning given it
under Rule 13d-3 under the Exchange Act.
12.2 Assignment. Neither the New Shareholder nor any of its
----------
affiliates may assign any of its rights under this agreement, except (i) to a
successor to all or substantially all the business and assets of the New
Shareholder, or Xxxxx XX or to any of the direct and indirect majority-owned
subsidiaries of Xxxxx XX (including all direct and indirect majority-owned
subsidiaries of the New Shareholder), who agree to be bound by all the
obligations of the New Shareholder under this agreement as if it were the New
Shareholder, (ii) the New Shareholder may assign its rights under sections 4.1
(except for any Non-Assignable Preemptive Rights), 4.4 and 8 to a single
purchaser who, immediately after the purchase and for 60 days thereafter,
beneficially owns at least 10% of the Shares then owned by the New Shareholder
and who agrees to be bound by the obligations in section 5 (and who shall not be
entitled to the rights in section 5.1A(b) and (c)) and (iii) the New Shareholder
may assign its rights under section 10 to any person referred to in clause (i)
above and to up to three non-affiliated purchasers (the "Assignees") designated
by the New Shareholder, who, immediately after the respective purchase and for
60 days thereafter, beneficially own in the aggregate at least 20% of the Shares
then
53
owned by the New Shareholder and who agree to be bound by the obligations in
section 5.1 (and who shall not be entitled to the rights in section 5.1A) (any
such person and, after an initial public offering by the Company of its shares
of common stock, any Continuing Shareholder, a "Registration Rights Holder");
provided that, for purposes of calculating whether an Assignee owns a number of
Shares equal to the New Percentage, the number of Shares of all the Assignees
shall be aggregated.
12.3 Governing Law. This agreement shall be governed by and
-------------
construed in accordance with the law of the state of New York applicable to
agreements made and to be performed wholly in New York.
12.4 Notices. All notices and other communications under this
-------
agreement shall be in writing and may be given by any of the following methods:
(a) personal delivery; (b) facsimile transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) overnight delivery
service. Notices shall be sent to the appropriate party at its address or
facsimile number given below (or at such other address or facsimile number for
such party as shall be specified by notice given under this section 12.4):
if to the Company, to it at:
Schein Holdings, Inc.
c/o Schein Pharmaceutical, Inc.
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
54
with a copy to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: 000-000-0000
if to the New Shareholder or its Permitted
Transferees, to it at:
Miles Inc.
00xx Xxxxx
Xxx Xxxxxx Xxxx Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Senior Vice President and General Counsel
Fax: 000-000-0000
with copies to:
Xxxxx XX
X-0000
Xxxxxxxxxx, Xxxxxxxxx
Germany
Attention: General Counsel
Fax: 000-00-000-0000000
Xxxxxx X. D'Arco, Esq.
Vice President and Associate General Counsel
Miles Inc.
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxxxxxx 00000
Fax: 000-000-0000
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
One Mellon Bank Center, 31st Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: 000-000-0000
if to a Continuing Shareholder or a Continuing
Shareholder Designee, to him, her or it at the
address set forth beside his, her or its name on
schedule A, with a copy to counsel at the address
set forth beside his, her or its name.
55
All such notices and communications shall be deemed received upon (a) actual
receipt by the addressee, (b) actual delivery to the appropriate address or (c)
in the case of a facsimile transmission, upon transmission by the sender and
issuance by the transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted without error. In
the case of notices sent by facsimile transmission, the sender shall
contemporaneously mail a copy of the notice to the addressee at the address
provided for above. However, such mailing shall in no way alter the time at
which the facsimile notice is deemed received. A copy of each notice given
hereunder shall also be given to the Continuing Shareholder Designee.
12.5 Counterparts. This agreement may be executed in counterparts,
------------
each of which shall be considered an original, but all of which together shall
constitute the same instrument.
12.6 Equitable Relief. The parties acknowledge that the remedy at
----------------
law for breach of this agreement would be inadequate and that, in addition to
any other remedy a party may have for a breach of this agreement, that party
shall be entitled to an injunction restraining any such breach or threatened
breach, or a decree of specific performance, without posting any bond or
security. The remedy provided in this section 12.6 is in addition to, and not
in lieu of, any other rights or remedies a party may have.
56
12.7 Separability. If any provision of this agreement is invalid or
------------
unenforceable, the balance of this agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
12.8 Entire Agreement. This agreement contains a complete statement
----------------
of all the arrangements among the parties with respect to its subject matter,
supersedes all existing agreements among them with respect to that subject
matter, may not be changed or terminated orally and any amendment or
modification must be in writing and signed by the Company, the Continuing
Shareholders then owning a majority of the Shares owned by all Continuing
Shareholders, and the New Shareholder, provided that no such amendment or
modification may adversely affect the rights or obligations of any Continuing
Shareholder without that Continuing Shareholder's prior written consent.
SCHEIN HOLDINGS, INC.
By: /s/
--------------------------------
Authorized Officer
MILES INC.
By: /s/
--------------------------------
Authorized Officer
57
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx, as Trustee under the
Voting Trust Agreement
THE CONTINUING SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
Trust established by Xxxxxx X. Xxxxxx
under trust agreement dated September 9,
1994
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, Trustee
By:/s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx, Trustee
Trust established by Xxxxxx X. Xxxxxx
under trust agreement dated December, 31,
1993
By:/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, Trustee
By:/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, Trustee
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
58
Trust established by Trustee under Article
Fourth of the Will of Xxxxx X. Xxxxxx for
the benefit of Xxxxxx Xxxxxx and her issue
under trust agreement dated September 29,
1994
By:/s/ Xxxxxx Xxxxxxx as attorney in fact
---------------------------------------
Xxxxxx Xxxxxxx, Trustee
/s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx
Trust established by Xxxxxx Xxxxxx under
trust agreement dated September 28, 1994
By:/s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, Trustee
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
Trust established by Xxxxxx Xxxxxxx under
trust agreement dated December 31, 1993
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, Trustee
/s/ Xxxxxxx Xxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxx
59
Trust established by Xxxxxxx Xxxxxxx under
trust agreement dated December, 31, 1993
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, Trustee
60
SCHEDULE A
----------
SHAREHOLDERS
------------
# OF SHARES
# OF SHARES ISSUABLE UPON THE
FAMILY SHAREHOLDERS: OWNED* EXERCISE OF OPTIONS
------------------- ----- -------------------
XXXXXX X. XXXXXX 100 CLASS B -0-
COBBLE COURT COMMON SHARES
XXXX XXXX, XXX XXXX 00000
COUNSEL:
XXXXXX X. XXXXXX, ESQ.
PEIREZ, XXXXXXXX & XXXXXX
000 XXXXX XXXX XXXX
XXXXX XXXX, XXX XXXX 00000
TRUST ESTABLISHED BY XXXXXX X. XXXXXX UNDER TRUST 25,277.5 CLASS B
AGREEMENT DATED SEPTEMBER 9, 1994 COMMON SHARES -0-
X/X XXXXXX X. XXXXXX
XXXXXX XXXXX
XXXX XXXX, XXX XXXX 00000
COUNSEL:
XXXXXX X. XXXXXX, ESQ.
PEIREZ, XXXXXXXX & XXXXXX
000 XXXXX XXXX XXXX
XXXXX XXXX, XXX XXXX 00000
TRUST ESTABLISHED BY XXXXXX X. XXXXXX UNDER TRUST 64,642.5 CLASS B -0-
AGREEMENT DATED DECEMBER 31, 1993 COMMON SHARES
X/X XXXXXX XXXXXX
XXXXXX XXXXX
XXXX XXXX, XXX XXXX 00000
COUNSEL:
XXXXXX X. XXXXXX, ESQ.
PEIREZ, XXXXXXXX & XXXXXX
000 XXXXX XXXX XXXX
XXXXX XXXX, XXX XXXX 00000
XXXXXX XXXXXX 63,202 CLASS A -0-
000 XXXXXXXXX XXXXXX XXXXXX SHARES
XXX. 000
XXX XXXX, XXX XXXX 00000
COUNSEL:
XXXXX X. XXXXXX, ESQ.
XXXXXXX XXXX & XXXXXXXXX
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
TRUST ESTABLISHED BY TRUSTEE UNDER ARTICLE FOURTH 4,840 CLASS A -0-
OF THE WILL OF XXXXX X. XXXXXX FOR THE BENEFIT OF COMMON SHARES
XXXXXX XXXXXX AND HER ISSUE UNDER TRUST AGREEMENT
DATED SEPTEMBER 29, 1994
C/O XXXXXX XXXXXXX
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
COUNSEL:
XXXXX X. XXXXXX, ESQ.
XXXXXXX XXXX & XXXXXXXXX
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
XXXXXX XXXXXX 25,535 CLASS A -0-
RR#3, BOX 140 COMMON SHARES
XXXXX XXXXX, XXX XXXX 00000
COUNSEL:
XXXXX XXXXX, ESQ.
SCHNADER, HARRISON, XXXXX & XXXXX
000 X. XXXXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXXXX 00000
TRUST ESTABLISHED BY XXXXXX XXXXXX UNDER TRUST 993 CLASS A -0-
AGREEMENT DATED SEPTEMBER 28, 1994 COMMON SHARES
C/O XXXXX XXXXX, ESQ.
SCHNADER, HARRISON, XXXXX & XXXXX
000 X. XXXXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXXXX 00000
OTHER SHAREHOLDERS:
------------------
XXXXXX XXXXXXX 3,461 CLASS A 4,795 CLASS A
0 XXXXXX XXXXX XXXXXX SHARES COMMON SHARES
XXXXXXX XXXX, XXX XXXXXX 00000
TRUST ESTABLISHED BY XXXXXX XXXXXXX UNDER TRUST 2,437 CLASS A -0-
AGREEMENT DATED DECEMBER 31, 1993 COMMON SHARES
C/O XXXXX XXXXXXX
0 XXXXXX XXXXX
XXXXXXX XXXX, XXX XXXXXX 00000
XXXXXXX XXXXXXX 1,204 CLASS A -0-
104A MIDDLEVILLE ROAD COMMON SHARES
XXXXXXXXX, XXX XXXX 00000
TRUST ESTABLISHED BY XXXXXXX XXXXXXX UNDER TRUST 1,959 CLASS A -0-
AGREEMENT DATED DECEMBER 31, 1993 COMMON SHARES
X/X XXXXXX XXXXXXX
0X0X XXXXXXXXXXX XXXX
XXXXXXXXX, XXX XXXX 00000
CONTINUING SHAREHOLDERS DESIGNEE:
--------------------------------
XXXXXX X. XXXXXX
XXXXXX XXXXX
XXXX XXXX, XXX XXXX 00000
WITH COPIES TO:
XXXXXX X. XXXXXX, ESQ., XXXXX X. XXXXXX, ESQ. AND
XXXXX XXXXX, ESQ., AT THEIR RESPECTIVE ADDRESSES
SET FORTH ABOVE
________________________
* IMMEDIATELY AFTER THE CLOSING UNDER THE STOCK PURCHASE AGREEMENT.
