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